THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


GIFT  OF 

JOHN  PHILLIPS 
DOROTHY  G.  PHILLIPS 


HINDS'  PRECEDENTS 


OF  THE 


HOUSE  OF  REPRESENTATIVES 

OF  THE 

UNITED  STATES 

INCLUDING  REFERENCES  TO  PROVISIONS 

OF  THE  CONSTITUTION,  THE  LAWS,  AND  DECISIONS 

OF  THE  UNITED  STATES  SENATE 


i^  By 
ASHER  C.  HINDS,  LL.  D. 

Clerk  at  the  Speakei's  Table 


VOLUME  I 


PUBUSHED  BY  AUTHORITY  OF  THE  ACT  OF  CONGRESS 
APPROVED  MARCH  4.  1907 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1907 


H5 


INTRODUCTION. 

The  value  of  precedents  in  guiding  the  action  of  a  legislative  body  has  been 
demonstrated  by  the  experience  of  the  House  of  Representatives  for  too  many 
years  to  justify  any  arguments  in  their  favor  now.  "We  have  no  other  means  of 
building  up  parliamentary  law,  either  in  the  Mother  Country  or  here,"  said  a  great 
lawyer,  who  was  also  an  experienced  legislator,'  "except  by  instances  as  they  arise 
and  treatment  of  them  and  disposition  of  the  law  and  of  the  good  reasons  that 
should  govern  these  considerations."  And  a  great  legislator,  who  had  served  a 
lifetime  in  the  House  of  Representatives  and  the  Senate '  concluded  that  "the  great 
body  of  the  rules  of  all  parliamentary  bodies  are  unwritten  law;  they  spring  up 
by  precedent  and  custom;  these  precedents  and  customs  are  this  day  the  chief 
law  of  both  Houses  of  Congress." 

In  the  House  of  Representatives,  as  in  other  legislative  bodies,  the  memories 
of  the  older  Members,  as  they  might  be  corroborated  by  the  journals,  have  been 
the  favorite  and  most  readily  accessible  repository  of  the  precedents;  but  as  the 
generations  of  statesmen  come  and  go  much  is  lost,  and  many  useful  precedents 
cease  to  be  available  except  as  fi'om  time  to  time  the  voluminous  pages  of  the 
journals  may  be  searched  hastily  under  the  stress  of  some  pressing  question. 

It  is  manifestly  desirable,  on  a  floor  where  high  interests  and  great  passions 
strive  daily,  that  the  rules  of  action  should  be  known  definitely,  not  only  by  the 
older  members,  but  by  all.  Not  only  will  the  Speaker  be  enabled  to  make  his 
decisions  with  more  confidence  and  less  fear  that  he  may  be  swayed  by  the  interests 
of  the  moment,  but  the  Members,  understanding  the  rules  of  his  action,  will  sustain 
with  commendation  what  they  might  have  criticised  with  asperity.  Thus,  good 
order  and  dignity  will  be  preserved  to  the  bodj'. 

ilr.  Jefferson,  quoting  with  approval  the  famous  English  Speaker  Onslow,  has 
dwelt  on  the  necessity  of  an  adherence  to  the  rules  of  procedure  in  order  that  the 
minority,  as  the  weaker  party,  may  be  protected  from  the  abuses  "which  the 
wantonness  of  power  is  but  too  apt  often  to  suggest  to  large  and  successful 
majorities."  The  protection  of  the  minority  in  its  proper  functions  of  examining, 
amending,  and  sometimes  persuading  the  House  to  reject  the  propositions  of  the 
majority  is  an  essential  requirement  of  any  sound  system  of  procedure.  Edmund 
Burke,  when  commiserated  on  his  toilsome  and  apparently  fruitless  years  as  an 
opposition  statesman  in  the  House  of  Commons,  explained  that  he  found  his  reward 
in  the  fact  that  the  minority  which  he  led  had  caused  many  wise  modifications  of 
ministerial   measures,   and   had   also   caused  others   to   be   abandoned  in  view  of 

'  William  M.  Evarts,  in  the  United  States  Senate.     First  session  Forty-ninth  Congress,  Record, 
p.  7353. 

^John  Sherman,  in  the  Senate.     First  session  Forty-fourth  Congress,  Reford,  p.  433. 

Ill 


IV  INTRODUCTION. 

the  honest  and  int.elligent  criticism  which  they  would  meet.  Wlien  Mr.  Jefferson 
wrote  no  one  had  seriously  conceived  that  a  minority  might  go  further  than  this 
lofty  and  useful  duty.  But  as  the  House  of  Representatives  grew  in  size  the  rules 
and  practice  put  into  the  hands  of  the  minority  the  power  of  obstruction.  This 
power  grew  to  such  proportions  during  the  portentous  legislative  struggles  preced- 
ing and  following  the  civil  war  that  at  last  it  amounted  to  the  absolute  power 
to  stop  legislation  entirely.  Not  only  was  the  power  justified  because  it  was  estab- 
lished, but  it  attained  a  certain  degree  of  respectabilitj"  as  it  enwrapped  itself  in 
the  theory  that  on  great  questions  the  wisdom  of  the  few  should  be  permitted 
to  thwart  the  rashness  of  the  many.  The  abundant  checks  and  balances  devised  bj 
the  framers  of  the  Constitution  to  save  the  Government  from  popular  passions 
were  considered  by  a  large  school  of  statesmen  inadequate  without  the  added 
check  of  obstruction.  Mr.  Speaker  Reed,  in  1890,  destroyed  this  system  by  the 
enunciation  of  the  principle  that  the  processes  of  a  legislative  body  might  not  be 
used  to  destroy  its  powers;  and  since  that  day  the  minority  has  been  remitted  to 
its  historic  fimctions.  The  rulings  then  made  constitute  the  only  important  reversal 
in  the  lines  of  precedent  which  as  a  whole  have  built  up  for  the  minority  a  safe- 
guard for  its  legitimate  duties,  and  for  the  majority  a  flexible  and  effective  instru- 
mentality for  its  necessary  achievements. 

In  another  respect  the  value  of  precedent  to  the  House  of  Representatives 
should  not  be  overlooked.  The  framers  of  the  Constitution  experienced  little 
uncertamty  as  to  the  functions  and  powers  of  the  House.  In  the  Colonial 
Assemblies  there  was  existing  a  political  institution,  indigenous  to  America,  and 
proven  by  the  long  conflict  arising  from  the  attempts  of  the  English  Kings  to 
establish  arbitrary-  power.  The  people  of  America  had  fought  the  first  battle 
of  liberty  in  the  Colonial  Assemblies.  Nowhere  else,  among  the  great  nations  of 
the  earth,  did  the  people  possess  such  a  perfect  means  of  expressing  their  will. 
It  was  natinal,  therefore,  that  the  framers  of  the  Constitution  should  at  once 
have  conceived  of  a  National  House  of  Representatives,  framed  on  the  model  of 
the  Colonial  Houses,  and  should  have  guaranteed  to  it  the  powers  and  privileges 
necessary  for  its  preservation  as  the  organ  of  the  will  of  the  whole  people.  It  is 
a  duty  and  a  national  necessity  that  those  jiowers  and  privileges  be  preserved  in 
their  pristine  vigor;  and  there  is  no  sm-er  way  to  this  end  than  perfect  information 
on  the  part  of  every  Member  of  the  House  as  to  what  they  are.  One  of  the  chief 
ends  proposed  by  this  work  has  been  the  collection  and  classification  of  the  prec- 
edents relating  to  this  subject  in  such  a  way  that  they  may  always  be  clearly 
before  the  membership  of  the  House.  If  the  prerogatives  of  the  House  are  well 
unilerstood,  other  branches  of  the  Government  are  less  likely  to  encroach  on  them; 
and  if  there  be  encroachment,  it  is  more  likely  to  be  met  with  promptness, 
intelligence,  and  firmness. 

It  has  been  the  habit  of  a  certain  school  of  statesmen  to  picture  a  fancied  decay  of 
the  importance  of  the  House  as  a  branch  of  the  Government.  A  critical  examination 
of  the  present  and  past  condition  of  its  powers  and  privileges  affords  no  foundation 
for  this  theory,  which  derives  dignity  only  from  the  fact  that  it  has  been  advanced 
from  time  to  time  for  nearly  a  century.  Perhaps  it  is  to  be  explained  by  a  confusion 
of  ideas,  resulting  from  the  undoubted  fact  that  with  the  great  increase  of  mem- 


INTRODUCTION.  V 

bership  the  individual  Representative  has  lost  much  of  fi-eedom  and  opportunity. 
This  is  a  condition  of  all  large  bodies,  well  understood  as  long  ago  as  when  Thack- 
eray, in  writing  the  pages  of  Pendennis,  caused  his  chief  character  to  be  informed 
that  as  a  young  member  of  Parliament  his  only  duty  would  be  to  do  as  he  might 
be  directed  by  the  leaders.  From  the  ruling  by  which  Mr.  Speaker  Clay  repressed 
the  superabounding  individuality  of  John  Randolph  to  the  latest  rulings  by  Mr. 
Speaker  Cannon,  the  pages  of  these  volumes  show  a  constant  subordination  of  the 
individual  to  the  necessities  of  the  whole  House  as  the  voice  of  the  national  will. 

A  hall  of  business,  not  always  orderly  and  usually  noisy,  appeals  to  the  imagina- 
tion less  favorably  than  a  quiet  and  dignified  school  of  debate.  But  if  beneath  the 
apparent  confusion  there  can  exist  a  sj'stem  of  procedure,  just  to  all  the  members 
and  at  the  same  time  conducive  to  an  efficient  performance  of  the  duties  of  the 
body,  the  great  objects  of  the  House  will  be  attained,  and  its  place  in  the  confidence 
and  respect  of  the  people  will  be  unassailable.  If  the  precedents  which  are  gath- 
ered in  these  volimaes  can  contribute  to  the  perfection  and  maintenance  of  such  a 
S3-stem,  and  cause  it  to  be  understood  and  appreciated  within  the  House  and  without, 
the  labor  of  their  preparation  will  not  have  been  in  vain. 

It  can  not,  of  course,  be  claimed  that  the  system  of  the  House's  procedure  is 
perfect,  or  that  changes  will  not  result  in  the  future  as  in  the  past  from  the  multi- 
plied experiences  of  successive  Congresses.  And  it  is  of  the  highest  importance 
that  those  changes  proceed  on  a  basis  of  sound  principles,  having  in  view  the  main- 
tenance of  efhciency  as  a  legislative  body,  integrity  in  methods  of  determination, 
freedom  and  fairness  in  deliberation,  and  as  great  privileges  to  the  individual  as 
are  consistent  with  the  rights  of  all.  This  happy  development  will  be  promoted 
if  from  these  precedents  it  shall  be  possible  to  understand  readily  and  accurately 
the  fundamental  theories  of  the  House's  law. 

Abundant  references  have  been  made  to  precedents  of  the  United  States  Senate 
where  they  are  of  such  a  nature  as  to  throw  light  on  principles  related  to  the  pro- 
cediu-e  of  the  House,  but  no  attempt  has  been  made  to  make  a  complete  collection 
of  them.  Some  of  those  that  are  given  are  of  the  highest  value,  representing  con- 
clusions formed  after  careful  examination. 

In  references  to  dates  and  volumes  of  debates  and  journals  many  thousands 
of  footnotes  are  given.  It  is  not  reasonable  to  hope  that  no  errors  have  crept  in, 
but  the  system  of  double  reference  to  dates  and  paging  is  such  that  the  text  of  the 
work  may  be  corroborated  without  difficulty  from  the  pages  of  the  journals  and 
debates. 

AsHER  C.  Hinds. 

Portland,  Me.,  Septembers,  1907. 


CONTENTS. 


VOLUME  I. 


Chapter  I. 
THE  MEETING  OF  CONGRESS. 

1.  Provisions  of  Constitution  and  statutes.     Sections  1  and  2. 

2.  Assembling  of  the  First  Congress  as  fixiag,  beginning  of  terms.     Section  3. 

3.  Time  of  assembling  as  governed  by  proclamation,  law,  and  Constitution.     Sections  4-13. 

Chapter  II. 
THE  CLERK'S  ROLL  OF  THE  MEMBERS-ELECT. 

1.  The  statutes  governing  the  making  of  the  roU.     Sections  14,  15. 

2.  Early  usage  as  to  examination  of  credentials.     Sections  16-18. 

3.  Corrections  of  the  Clerk's  roll  by  the  House.     Sections  19-25. 

4.  EnroULag  names  of  Members  deceased,  resigned,  or  disqualified.     Sections  26-29. 

5.  Enrolling  on  the  strength  of  irregular  credentials.     Sections  30-39. 

6.  Enrolling  on  the  strength  of  conflicting  or  imperfect  credentials.     Sections  40-60. 

7.  Enrollment  of  Delegates.     Sections  61,  62. 

8.  Withdrawal  of  credentials.     Section  63. 

Chapter    III. 
THE  PRESIDING  OFFICER  AT  ORGANIZATION. 

1 .  Clerk  calls  House  to  order  and  presides.     Sections  64,  65. 

2.  Election  of  a  Chairman  in  place  of  Qerk.     Sections  66,  67. 

3.  Early  practice  of  Clerks  to  decide  questions  of  order.     Sections  68-72. 

4.  Later  practice  as  to  authority  of  Clerk.     Sections  73-80. 

Chapter    IV. 
PROCEDURE  AND  POWERS  OF  THE  MEMBERS-ELECT  IN  ORGANIZATION. 

1.  Forms  of  proceeding  at  organization.     Section  81. 

2.  Status  of  House  before  organization.     Section  82. 

3.  Call  of  the  roll  of  Members-elect.     Sections  83-86. 

4.  Sessions,  adjournment,  etc.,  during  organization.     Sections  87-92. 

5.  Adoption  of  rules.     Sections  93-102. 

6.  Participation  of  contesting  delegations  in  organization.     Section  103. 

7.  Fixing  the  hour  of  daily  meeting.     Sections  104-117. 

8.  Illustration  of  a  body  called  to  order  at  organization  by  an  old  Member.     Section  118. 

9.  The  drawing  of  seats.     Sections  119-121. 

10.  As  to  action  by  one  House  before  the  other  is  organized.     Sections  122-126. 


VIII  CONTENTS. 

Chapter  V. 
THE  OATH. 

1.  Provisions  of  the  Constitution  and  statutes.     Sections  127.  128. 

2.  Form  of  organization  of  First  Congress.     Section  129. 

3.  Administration  to  the  Speaker.     Sections  130-133. 

4.  Limited  discretion  of  the  Speaker  in  administering.     Sections  134-139. 

5.  Challenging  the  right  of  a  Member  to  be  sworn.     Sections  140-150. 

6.  Disposal  of  cases  of  challenge.     Sections  151-159. 

7.  Delays  in  taking  the  oath.     Sections  160-161. 

8.  Administration  before  arrival  of  credentials.     Sections  162-168. 

9.  Administration  to  Members  away  from  the  House.     Sections  169,  170. 

10.  Relations  to  the  quorum,  reading  of  the  journal,  etc.     Sections  171-181. 

11.  Status  of  the  Member-elect  before  taking.     Sections  183-185. 

Chapter  VI. 
THE  OFFICERS  OF  THE  HOUSE  AND  THEIR  ELECTION. 

1.  Provisions  of  Constitution  and  rule.     Sections  186,  187. 

2.  General  procedure  of  election.     Sections  188-203. 

3.  The  election  of  Speaker.     Sections  204-230. 

4.  Resignation  or  death  of  Speaker.     Sections  231-234. 

5.  The  Clerk  and  his  election.     Sections  235-245. 

6.  Absence  of  the  Clerk.     Sections  246-248. 

7.  Authority  and  duties  of  the  Clerk.     Sections  249-253. 

8.  The  Clerk  custodian  of  the  seal  of  the  House.     Sections  254-256. 

9.  The  duties  of  the  Sergeant-at-Arms.     Sections  257-259. 

10.  The  Doorkeeper  and  his  duties.     Sections  260-263. 

11.  Resignations  and  deaths  of  officers.     Sections  264-268. 

12.  The  Postmaster  and  his  duties.     Sections  269-271. 

13.  The  Chaplain  and  his  duties.     Sections  272-282. 

14.  Defense  of  officers  in  actions.     Section  283. 

Chapter  VII. 
REMOVAL  OF  OFFICERS  OF  THE  HOUSE. 

1.  A  proposition  to  remove  an  officer  a  question  of  privilege.     Sections  284-285. 

2.  Instances  of  removal,  arraignment,  and  investigation.     Sections  286-296. 

Chapter  VIII. 
THE  ELECTORS  AND  APPORTIONMENT. 

1.  Constitution  and  laws  relating  to  electors.     Sections  297-300. 

2.  Constitution  and  laws  relating  to  apportionment.     Sections  301-304. 

3.  Bills  relating  to  census  and  apportionment,  privileged.     Sections  305-308. 

4.  Failure  of  States  to  apportion.     Sections  309,  310. 

5.  Filling  of  vacancies  in  rearranged  districts.     Sections  311,  312. 

6.  Right  of  the  State  to  change  districts.     Section  313. 

7.  Claims  of  States  to  representation  in  excess  of  apportionment.     Sections  314-319. 


CONTENTS.  IX 

Chapter  IX. 
ELECTORATES  INCAPACITATED  GENERALLY. 

1.  Effect  of  informalities  in  the  election.     Sections  320-323. 

2.  Intimidation  and  its  effects.     Sections  324-341. 

3.  Principles  involved  in  Senate  decisions  as  to  competency  of  legislatures.     Sections  342-360. 

Chapter  X. 
ELECTORATES  DISTRACTED  BY  CIVIL  WAR. 

1.  Joint  rule  excluding  persons  elected  in  insurrectionarj-  States.     Section  361. 

2.  Informal  elections  in  districts  under  military  duress.     Sections  362-381. 

3.  Principles  deduced  from  Senate  decisions  as  to  States  under  military  duress.     Sections  382-385. 

Chapter  XI. 
ELECTORATES  IN  RECONSTRUCTION. 

1.  Members  elect  from  insurrectionary-  States  not  admitted  on  prima  facie  title.     Sections  386-388. 

2.  Case  of  the  Georgia  Members  in  1869.     Section  388. 

3.  Principles  deduced  from  Senate  decisions.     Sections  389-395. 

Chapter  XII. 
ELECTORATES  IN  NEW  STATES  AND  TERRITORIES. 

1.  Admission  of  Members  after  passage  of  act  admitting  State.     Sections  390-399. 

2.  Delegates  from  portions  of  the  Northwest  Territory.     Sections  400-401. 

3.  Delegates  admitted  after  portion  of  Territory  becomes  a  State.     Sections  402^04. 

4.  Territory  must  be  organized  to  justify  admission  of  Delegates.     Sections  405-412. 

Chapter  XIII. 
THE  QUALIFICATIONS  OF  THE  MEMBER. 

1.  Provision  of  the  Constitution.     Section  414. 

2.  State  may  not  prescribe.     Sections  415-417. 

3.  Age.     Section  418. 

4.  Citizenship  in  the  United  States.     Sections  419-427. 

5.  Principles  deduced  from  Senate  decisions  as  to  citizenship.     Sections  428^30. 

6.  Citizenship  of  Delegates.     Section  431. 

7.  Inhabitancy.     Sections  432^36. 

8.  Principles  deduced  from  Senate  decisions  as  to  inhabitancy.     Sections  437-440. 

Chapter  XIV. 
THE  0.\TH  AS  RELATED  TO  QUALIFICATIONS. 

1.  The  question  of  sanity.     Section  441. 

2.  Questions  of  loyalty  arising  before  the  adoption  of  the  Fourteenth  Amendment.     Sections  442-453. 

3.  Provisions  of  the  Fourteenth  Amendment.     Sections  455-463. 


X  CONTENTS. 

Chapter  XV. 
POLYGAMY  AND  OTHER  CRIMES  AS  DISQUALIFICATIONS. 

1.  Cases  of  Whittemore,  Connor,  and  Acklen.     Sections  464-466. 

2.  The  polygamy  cases  of  1868,  1873,  and  1882.     Sections  467^73. 

3.  The  case  of  Brigham  H.  Roberts.     Sections  474-480. 

4.  The  Senate  case  of  Reed  Smoot.     Sections  481-483. 

5.  Incidental  opinion  of  a  House  committee.     Section  484. 

Chapter  XVI. 
INCOMPATIBLE  OFFICES. 

1.  Provision  of  the  Constitution.     Section  485. 

2.  Cases  of  Van  Ness,  Hammond,  Baker,  and  Yell.     Sections  486^89. 

3.  Cases  of  Vandever,  Lane,  Schenck,  and  Blair,     Sections  490-492. 

4.  General  examination  as  to  military  officers,  paid  and  unpaid  services,  etc.     Sections  493-496. 

5.  Ca-ses  of  Mumford,  Earle,  Herrick,  and  Wheeler.     Sections  497-500. 

6.  Questions  as  to  vacancies,  contestants,  etc.     Sections  501-506. 

Chapter  XVII. 
TIME,  PLACES,  AND  MANNER  OF  ELECTION. 

1.  Provisions  of  Constitution  and  statutes.     Sections  507-516. 

2.  Power  of  State  executive  to  call  elections  to  fill  vacancies.     Sections  517,  518. 

3.  Time  fixed  by  schedules  of  new  State  constitutions.     Sections  519,  520. 

4.  Disputes  as  to  legal  day  of  election.     Sections  521-525. 

5.  Failure  of  Territorial  legislature  to  prescribe  manner,  etc.     Sections  526,  527. 

Chapter  XVIII. 
CREDENTIALS  AND  PRIMA  FACIE  TITLE. 

1.  In  due  form  from  recognized  constituency.     Sections  528-537. 

2.  Questions  as  to  validity  of.     Sections  538-543. 

3.  In  relation  to  questions  as  to  the  fact  of  election.     Sections  544-552. 

4.  Refusal  of  State  executives  to  issue.     Sections  553-564. 

5.  In  relation  to  questions  as  to  vacancy.     Sections  565-570. 

6.  As  related  to  contested  elections.     Sections  571-588. 

Chapter  XIX. 
IRREGULAR  CREDENTIALS. 

1.  House  exercises  discretion  in  case  of  informality.     Sections  589-610. 

2.  Impeached  by  evidence  in  their  own  terms.     Sections  699-611. 

Chapter  XX. 
CONFLICTING  CREDENTIALS. 

1.  Decisions  of  the  House  as  to  prima  facie  title.     Sections  612-627. 

2.  Principles  deduced  from  Senate  decisions.     Sections  628-633. 


CONTENTS.  XI 

Chapter  XXI. 
THE  HOUSE  THE  JUDGE  OF  CONTESTED  ELECTIONS. 

1.  Pro\dsion  of  the  Constitution.     Section  634. 

2.  Functions  of  Elections  Committee.     Sections  635,  636. 

3.  House  not  bound  by  returns  of  State  authorities.     Sections  637,  638. 

4.  Relations  of  House  to  acts  of  canvassing  officers.     Sections  639-645. 

5.  House  ascertains  intent  of  voter  when  ballot  is  ambiguous.     Sections  646-650. 

6.  Discretion  of  House  in  investigating  elections.     Sections  651-653. 

7.  Practice  in  making  decisions.     Sections  653-656. 

8.  Privileges  of  contestant  and  returned  Member  in  debate.     Sections  657-672. 

9.  General  practice.     Sections  673-677. 

Chapter  XXII. 
PLEADINGS  IN  CONTESTED  ELECTIONS. 

1.  Provision  of  statute  as  to  notice  and  answer.     Section  678. 

2.  Attitude  of  House  as  to  informalities  in.     Sections  679-687. 

3.  Foundation  required  for  Senate  investigations  as  to  bribery,  etc.     Sections  688-690. 

Chapter  XXIII. 
TESTIMONY  IN  CONTESTED  ELECTIONS. 

1.  Provisions  of  the  statutes.     Sections  697-706. 

2.  Rules  of  Elections  Committee.     Section  707. 

3.  Early  method  of  taking  evidence.     Sections  708,  709. 

4.  Special  authorizations  to  take  evidence.     Sections  710-718. 

5.  Questions  as  to  evidence  improperly  taken.     Sections  719,  721. 

6.  Extension  of  time  for  taking.     Sections  722-728. 

7.  E\'idence  taken  ex  parte.     Sections  729,  730. 

8.  Production  of  ballots.     Sections  731-733. 

Chapter  XXIV. 
ABATEMENT  OF  ELECTION  CONTESTS. 

1.  House  decides  as  to.     Sections  734-738. 

2.  Various  conditions  of.     Sections  739-755. 

Chapter  XXV. 
GENERAL  ELECTION  CASES,  1789  TO  1840. 

1.  Cases  in  the  First,  Third,  and  Fourth  Congresses.     Sections  756-764. 

2.  Cases  in  the  Eighth,  Eleventh,  Thirteenth,  and  Fourteenth  Congresses.     Sections  765-773. 

3.  Cases  from  the  Sixteenth  to  the  Nineteenth  Congresses.     Sections  774-777. 

4.  Cases  in  the  Twenty-first.  Twenty-second,  and  Twenty-fourth  Congresses.     Sections  778-786. 

5.  The  Senate  cases  of  Smith,  Winthrop,  Phelps,  and  Cass.     Sections  787-790. 

Chapter  XXVI. 
GENERAL  ELECTION  CASES,  1840  TO  1850. 

1.  The  "Broad  Seal"  case  in  the  Twenty-sixth  Congress.     Sections  791-802. 

2.  Cases  from  the  Twenty-sixth  to  the  Thirty-first  Congresses.     Sections  803-820. 


XII  CONTENTS. 

Chapter  XXVII. 
GENERAL  ELECTION  CASES,  1850  TO  1860. 

1.  House  cases  from  the  Thirty-second  to  the  Thirty-sixth  Congresses.     Sections  821-843. 

2.  The  Senate  case  of  James  Harlan.     Section  844. 

VOLUME   II. 

Chapter  28.  General  election  cases,  1860  to  1870. 

Chapter  29.  General  election  cases,  1870  to  1875. 

Chapter  30.  General  election  cases,  1875  to  1880. 

Chapter  81.  General  election  cases,  1880  and  1881. 

Chapter  32.  General  election  cases,  in  1882. 

Chapter  33.  General  election  cases,  in  1883. 

Chapter  34.  General  election  cases,  1884  and  1885. 

Chapter  35.  General  election  cases,  1886  to  1888. 

Chapter  36.  General  election  cases,  1889  to  1891. 

Chapter  37.  General  election  cases,  1892  to  1894. 

Chapter  38.  General  election  cases,  1895  to  1897. 

Chapter  39.  General  election  cases,  1898  to  1901. 

Chapter  40.  General  election  cases,  1902  to  1906. 

Chapter  41.  The  Members. 

Chapter  42.  Punishment  and  expulsion  of  Members. 

Chapter  43.  Delegates. 

Chapter  44.  The  Speaker. 

Chapter  45.  The  Speaker  pro  tempore. 

Chapter  46.  The  Speaker's  power  of  recognition. 

Chapter  47.  Prerogatives  of  the  House  as  to  revenue  legislation. 

Chapter  48.  Prerogatives  of  the  House  as  to  treaties. 

Chapter  49.  Prerogatives  of  the  House  as  to  foreign  relations. 

Chapter  50.  Prerogatives  of  the  House  as  related  to  the  Executive. 

Chapter  51.  Power  to  punish  for  contempt. 

Chapter  52.  Punishment  of  Members  for  contempt. 

VOLUME  III. 

Chapter  53.  Punishment  of  witnesses  for  contempt. 

Chapter  54.  The  power  of  investigation. 

Chapter  55.  The  conduct  of  investigations. 

Chapter  56.  Investigations  of  conduct  of  Members. 

Chapter  57.  Inquiries  of  the  Executive. 

Chapter  58.  Procedure  of  the  electoral  count. 

Chapter  59.  The  electoral  counts,  1789  to  1873. 

Chapter  60.  The  electoral  counts,  1877  to  1905. 

Chapter  61.  Objections  at  the  electoral  count. 

Chapter  62.  Election  and  inauguration  of  President. 

Chapter  63.  Nature  of  impeachment. 

Chapter  64.  Function  of  the  House  in  impeachment. 

Chapter  65.  Function  of  the  Senate  in  impeachment. 

Chapter  66.  Procedure  of  the  Senate  in  impeachment. 

Chapter  67.  Conduct  of  impeachment  trials. 

Chapter  68.  Presentation  of  testimony  in  an  impeachment  trial. 

Chapter  69.  Rules  of  evidence  in  an  impeachment  trial. 

Chapter  70.  The  impeachment  and  trial  of  William  Blount. 

Chapter  71.  The  impeachment  and  trial  of  John  Pickering. 


CONTENTS.  XIII 

Chapter  72.  The  impeachment  and  trial  of  Samuel  Chase. 

Chapter  73.  The  Lmpeachment  and  trial  of  James  H.  Peck. 

Chapter  74.  The  impeachment  and  trial  of  West  H.  Humphreys. 

Chapter  75.  The  first  attempts  to  impeach  the  President . 

Chapter  76.  The  impeachment  and  trial  of  the  President. 

Chapter  77.  The  impeachment  and  trial  of  William  W.  Belknap. 

Chapter  78.  The  impeachment  and  trial  of  Charles  Swayne. 

Chapter  79.  Impeachment  proceedings  not  resulting  in  trial. 

Chapter  80.  Questions  of  privilege  and  their  precedence. 

Chapter  81.  Privilege  of  the  House. 

Chapter  82.  Privilege  of  the  Member. 

VOLUME  IV. 

Chapter    83.  The  Journal  and  its  approval. 

Chapter    84.  The  making  of  the  Journal. 

Chapter    85.  The  quorum. 

Chapter    86.  The  call  of  the  House. 

Chapter    87.  The  order  of  business. 

Chapter    88.  Special  orders. 

Chapter    89.  Private  and  District  of  Columbia  business. 

Chapter    90.  Petitions  and  memorials. 

Chapter    91.  Bills,  resolutions,  and  orders. 

Chapter    92.  Approval  of  bills  by  the  President. 

Chapter    93.  Bills  returned  without  the  President's  approval. 

Chapter    94.  General  appropriation  bills. 

Chapter    95.  Authorization  of  appropriations  on  general  appropriation  bills. 

t'hapter    96.  Appropriations  in  continuation  of  a  public  work. 

Chapter    97.  Legislation  in  general  appropriation  bills. 

Chapter    98.  Limitations  in  general  appropriation  bills. 

Chapter    99.  History  and  jurisdiction  of  the  standing  committees. 

Chapter  100.  History  and  jurisdiction  of  the  standing  committees.     (Continued.) 

Chapter  101.  Historj"  and  jurisdiction  of  the  standing  committees.     (Continued.) 

Chapter  102.  General  principles  of  jurisdiction  of  committees. 

Chapter  103.  Select  and  joint  committees. 

Chapter  104.  Appointment  of  committees. 

Chapter  105.  Organization  and  procedure  of  committees. 

Chapter  106.  Reports  of  committees. 

Chapter  107.  The  Committee  of  the  Whole. 

Chapter  108.  Subjects  requiring  consideration  in  Committee  of  the  Whole. 

Chapter  109.  Reports  from  the  Committee  of  the  WTiole. 

Chapter  110.  Consideration  "In  the  House  as  in  Committee  of  the  Whole." 

VOLUME  V. 

Chapter  111.  The  question  of  consideration. 

Chapter  112.  Conduct  of  debate  in  the  House. 

Chapter  113.  References  in  debate  to  committees,  the  President,  nr  the  other  House. 

Chapter  114.  Disorder  in  debate. 

Chapter  115.  Debate  in  Committee  of  the  Whole. 

Chapter  116.  Reading  of  papers. 

Chapter  117.  Motions  in  general. 

Chapter  118.  The  motion  to  adjourn. 

Chapter  119.  The  motion  to  lay  on  the  table. 

Chapter  120.  The  previous  question. 

Chapter  121.  The  ordinary  motion  to  refer. 


XIV 


CONTENTS. 


Chapter  122.  The  motion  to  refer  as  related  to  the  previous  question 

Chapter  123.  The  motion  to  reconsider. 

Chapter  124.  Dilatory  motions. 

Chapter  125.  Amendments. 

Chapter  126.  The  House  rule  that  amendments  must  be  germane. 

Chapter  127.  General  principles  as  to  voting. 

Chapter  128.  Voting  by  tellers  and  by  ballot. 

Chapter  129.  The  vote  by  yeas  and  nays. 

Chapter  130.  Division  of  the  question  for  voting. 

Chapter  131.  Amendments  between  the  Houses. 

Chapter  132.  General  principles  of  conferences. 

Chapter  133.  Appointment  of  managers  of  a  conference. 

Chapter  134.  Instruction  of  managers  of  a  conference. 

Chapter  135.  Managers  to  consider  only  matters  in  disagreement. 

Chapter  136.  Privilege  and  form  of  conference  reports. 

Chapter  137.  Consideration  of  conference  reports. 

Chapter  138.  Messages  and  communications. 

Chapter  139.  Recess. 

Chapter  140.  Sessions  and  adjournments. 

Chapter  141.  The  rules. 

Chapter  142.  Suspension  of  the  rules. 

Chapter  143.  Questions  of  order  and  appeals. 

Chapter  144.  The  Congressional  Record. 

Chapter  145.  Amendments  to  the  Constitution. 

Chapter  140.  Ceremonies. 

Chapter  147.  Service  of  the  House. 

Chapter  148.  Miscellaneous. 


VOLUME  VI. 

INDEX-DIGEST. 

[AtoG.] 

VOLUME  vn. 

INDEX-DIGEST. 

[H  toP.] 

VOLUME  VIIL 

INDEX-DIGEST. 

[QtoZ.] 


Chapter  I* 
THE  MEETING  OF  CONGRESS. 


1.  Provisions  of  Constitution  and  Statutes.     Sections  1  and  2. 

2.  Assembling  of  the  First  Congress  as  fixing  beginning  of  terms.     Section  3.' 

3.  Time  of  assembling  as  governed  by  proclamation,  law,  and  Constitution.     SectionB 

4-13. 


1.  The  Constitution  provides  for  the  annual  meeting  of  Congress. — 
Section  4,  Article  I  of  the  Constitution,  provides : 

The  Congress  shall  assemble  at  least  once  in  every  year,  and  such  meeting  shall  be  on  the  first 
Monday  in  December,  unless  they  shall  by  law  appoint  a  different  day. 

Also,  in  section  3  of  Article  II,  the  further  provision  is  made  that  the  Presi- 
dent of  the  United  States  "may,  on  extraordinary  occasions,  convene  both  Houses, 
or  either  of  them."^ 

2.  In  certain  exigencies  the  President  may  convene  Congress  at  a 
place  other  than  the  seat  of  government. 

The  District  of  Columbia  is  the  seat  of  government. 
Section  .34  of  the  Revised  Statutes,  reenacting  the  law  of  April  3,  1794  (1  Stat. 
L.,  p.  353),  provides: 

■Whenever  Congress  is  about  to  convene  and  from  the  prevalence  of  contagious  sickness  or  the  exist- 
ence of  other  circumstances,  it  would,  in  the  opinion  of  the  President,  be  hazardous  to  the  lives  or  health 
of  the  Members  to  meet  at  the  seat  of  government,  the  President  is  authorized,  by  proclamation,  to 
convene  Congress  at  such  other  place  as  he  may  judge  proper.* 

*  See  Volume  VI,  Chapter  CXLIX. 

'  The  term  of  the  Member  must  be  coincident  with  the  term  of  the  Congress  (see  sec.  388  of  this 
volume);  but  in  the  earlier  practice  this  was  not  necessarily  so  as  to  a  Delegate  from  a  Territory  (see 
sec.  403  of  this  volume). 

^  Congress  has  frequently  met  on  a  day  other  than  the  first  Monday  in  December,  being  convened 
sometimes  by  a  law  and  sometimes  by  the  President.  (See  Journals  of  the  House  for  the  First,  Second, 
Fifth,  Eighth,  Tenth,  Eleventh,  Twelfth,  Thirteenth,  Twenty-fifth,  Twenty-seventh,  Thirty-fourth, 
Thirty-seventh,  Fortieth,  Forty-first,  Forty-second,  Forty-fifth,  Forty-sixth,  Fifty-third,  and  Fifty- 
fifth  Congresses.)  Sometimes  Congress,  having  been  convened  before  the  first  Monday  in  December, 
has  continued  its  session  to  and  beyond  that  day,  and  having  adjourned  sine  die  has  not,  if  it  was  a 
first  session,  convened  again  until  the  first  Monday  of  the  next  December.  (See  Journals  of  the  House 
for  the  Second,  Eighth,  Tenth,  Eleventh,  and  Twelfth  Congresses.)  A  Congress  expires  on  March  3 
of  the  odd  year,  and  its  successor  may  be  convened  on  the  next  day,  March  4  (see  Journal  of  House  for 
Fortieth  Congress),  although  by  the  Constitution  it  would  natiually  not  meet  until  the  first  Monday  of 
the  succeeding  December. 

'The  act  of  July  16,  1790  (1  Stat.  L.,  p.  130)  had  provided  that  the  seat  of  government  should  be 
transferred  to  the  District  of  Columbia  by  the  first  Monday  of  December,  1800. 
5994— VOL  1—07 1 


2  PRECEDENTS   OF   THE   HOUSE   OF   EEPEESENTATIVES.  §  3 

3.  By  resolution  of  the  Continental  Congress  the  First  Congress  under 
the  Constitution  met  on  March  4,  1789. 

The  term  of  a  Congress  begins  on  the  fourth  of  March  of  the  odd-num- 
hered  years,  and  extends  through  two  years. 

A  Member  elected  to  fill  a  vacancy  serves  no  longer  time  than  the  re- 
mainder of  the  term  of  the  Member  whose  place  he  takes. 

The  House  sometimes  appoints  a  committee  to  act  with  a  similar  com- 
mittee from  the  Senate  in  relation  to  some  question  of  moment. 

On  April  30,  1790,'  the  House  agreed  to  the  following: 
Resolved,  That  a  committee  of  this  House  be  appointed,  to  join  with  a  committee  to  be  appointed 
by  the  Senate,  to  consider  and  report  their  opinion  on  the  question  when,  according  to  the  Constitu- 
tion, the  terms  for  which  the  President,  Vice-President,  Senators,  and  Representatives  have  been 
respectively  chosen,  shall  be  deemed  to  have  commenced. 

Messrs.  Egbert  Benson,  of  New  York;  George  Clymer,  of  Pennsylvania;  Ben- 
jamin Huntingdon,  of  Connecticut;  Andrew  Moore,  of  Virginia,  and  Daniel  Carroll, 
of  Marj'land,  were  appointed  a  committee. 

To  these  the  Senate  joined  ^  Messrs.  Oliver  Ellsworth,  of  Connecticut;  Rufus 
King,  of  New  York,  and  Robert  Morris,  of  Pennsylvania. 

On  May  18^  the  House  agreed  to  report  as  follows: 
That  the  terms  for  which  the  President,  Vice-President,  Senate,  and  House  of  Representatives  of 
the  United  States  were  respectively  chosen,  did,  according  to  the  Constitution,  commence  on  the  fourth 
of  March,  1789.  And  so  the  Senators  of  the  first  class,  and  the  Representatives,  will  not,  according  to 
the  Constitution,  be  entitled,  by  virtue  of  the  same  election  by  which  they  hold  seats  in  the  present 
Congress,  to  seats  in  the  next  Congress,  which  will  be  assembled  after  the  third  of  March,  1791.  And 
fiirther,  that  whenever  a  vacancy  shall  happen  in  the  Senate  or  House  of  Representatives,  and  on  elec- 
tion to  fill  such  vacancy,  the  person  elected  will  not,  according  to  the  Constitution,  be  entitled,  by 
virtue  of  such  election,  to  hold  a  seat  beyond  the  time  for  which  the  Senator  or  Representative  in  whose 
Btead  such  person  shall  have  been  elected,  would,  if  the  vacancy  had  not  happened,  have  been  entitled 
to  hold  a  seat. 

The  committee  recommended  the  passage  of  a  law  regulating  the  choice  of 
electors,  etc. 

This  report  had  been  previously  agreed  to  in  the  Senate.* 

The  first  session  of  the  First  Congress  assembled,  as  shown  by  the  Journal  of 
the  House — 

on  Wednesday,  the  fourth  of  March,  1789,  pursuant  to  a  resolution  of  the  late  Congress,  made  in  con- 
formity to  the  resolutions  of  the  Federal  Convention  of  the  17th  of  September,  1787. 

The  late  Congress,  which  was  the  Continental  Congress,  it  being  ascertained 
that  the  required  number  of  States  had  ratified  the  Constitution,  had  on  September 
13,  1788—' 

Resolved,  That  the  first  Wednesday  in  Januarj'  next  be  the  day  for  appointing  electors  in  the  sev- 
eral States,  which,  before  the  said  day,  shall  have  ratified  the  said  Constitution;  that  the  first  Wednes- 
day in  February  next  be  the  day  for  the  electors  to  assemble  in  their  respective  States  and  vote  for  a 
President,  and  that  the  first  Wednesday  in  March  next  be  the  time  and  the  present  seat  of  Congress  the 
place  for  commencing  proceedings  under  the  said  Constitution. 

'Second  session  First  Congress.    Journal,  p.  207  (Gales  &  Seaton,  ed.);  Annals,  p.  1603. 

-Annals,  p.  1006. 

'Journal,  p.  218  (Gales  &  Seaton,  ed.);  Annals,  p.  1638. 

■"Journal,  p.  216  (Gales  &  Seaton,  ed.);  Annals,  p.  1010. 

'Journal  of  Continental  Congress,  edition  of  1823,  Vol.  IV,  p.  866 


§  4  THE    MEETING    OF    CONGRESS.  3 

4.  It  being  desirable  that  the  hour  of  the  first  meeting'  of  a  Congress 
should  be  later  than  12  m.,  the  purpose  was  effected  by  a  joint  resolu- 
tion.— In  1869  a  law  provided  that  the  next  Congress  should,  as  had  the  current 
Congress,  meet  on  the  4th  day  of  March.  As  the  4th  day  of  ilarch,  1869,  would 
be  the  day  of  the  inauguration,  Congress  passed  a  joint  resolution  providing  that 
the  time  for  the  regular  meeting  of  the  House  of  Representatives  should  be  postponed 
from  12  o'clock  meridian  on  March  4,  1869,  to  the  hour  of  3  o'clock  in  the  afternoon 
of  the  same  day. ' 

5.  The  First  Congress  by  law  appointed  for  its  second  meeting  a  day 
later  than  the  day  fixed  by  the  Constitution. 

The  First  Congress  having  met  once  in  each  of  its  two  years  of  exist- 
ence, a  doubt  existed  as  to  whether  or  not  it  would  legally  meet  again  on 
the  day  appointed  by  the  Constitution. 

Instance  wherein  Congress  in  adjourning  fixed  by  resolution  the 
time  of  meeting  of  the  next  session  on  the  constitutional  day. 

Instances  of  laws  fixing  the  time  of  annual  meeting  of  Congress. 

The  First  Congress  met  on  March  4,  1789,''  in  accordance  with  the  terms  of  a 
resolution  of  the  Continental  Congress.^  This  session  continued  until  September  29, 
1789.  Before  adjourning  the  following  law  was  enacted,  being  approved  Sep- 
tember 29,  1789: 

That  after  the  adjournment  of  the  present  session,  the  next  meeting  of  Congress  shall  be  on  the 
first  Monday  in  January  next.'' 

Thus  it  will  be  observed  that  the  law  fixed  a  date  later  than  the  first  Monday 
in  December  specified  by  the  Constitution.  The  second  session  extended  from 
January  4,  1790,  until  August  12,  1790.^  The  third  session  began  on  the  consti- 
tutional day,  the  first  Monday  of  December,  1790,  but  apparently  some  doubt 
existed  as  to  whether  the  Constitution  would  require  a  meeting  on  that  day,  for, 
on  August  10,°  near  the  close  of  the  second  session,  the  House  Jotu-nal  has  this  entry: 
A  message  from  the  Senate  by  Mr.  Otis,  their  Secretary: 

Mr.  Speaker:  The  Senate  have  come  to  a  resolution  that  the  resolution  of  the  6th  instant,  authorizing 
the  Speaker  of  the  House  of  Representatives  and  President  of  the  Senate  to  close  the  present  session 
by  adjoiiming  their  respective  Houses  on  this  day  be  repealed,  and  that  instead  thereof  they  be 
authorized  to  adjourn  their  respective  Houses  on  the  12th  instant,  to  meet  again  on  the  first  Monday 
in  December  next;  to  -which  they  desire  the  concurrence  of  this  House. 

And  then  he  withdrew. 

The  House  proceeded  to  consider  the  said  resolution,  and,  the  same  being  read, 
was  agreed  to. 

The  jotmial  of  December  6,  1790,'  the  first  day  of  the  third  session,  has  these 
introductory  words  in  reference  to  the  date :  "  On  which  day,  being  the  day  appointed 
by  adjotuTunent  of  the  two  Houses  for  the  meeting  of  the  present  session." 

'  Third  session,  Fortieth  Congress,  Journal,  pp.  404,  405,  486;  Globe,  pp.  1425,  1582. 

^  First  session.  First  Congress,  Journal,  p.  3  (Gales  &  Sea  ton  cd.). 

2  Journal  of  Continental  Congress,  edition  of  1823,  Vol.  IV,  p.  866. 

*  1  Stat.  L.,  p.  96. 

'  Journal,  pp.  134,  298. 

6  Journal,  pp.  296,  297. 

'  Journal,  p.  330. 


4  PRECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES.  §  6 

6.  Early  Congresses,  having  by  law  met  on  a  day  earlier  than  the 
constitutional  day,  remained  in  continuous  session  to  a  time  beyond  that 

day. 

In  1797  the  Congress  assembled  on  the  day  constitutionally  provided 
by  law,  although  it  had  already  held  a  session  that  year. 

The  early  laws  fixing  the  time  for  the  meeting  of  Congress  specified 
the  day  but  not  the  hour. 

At  the  last  session  of  the  Fu-st  Congress  the  foUowmg  law  was  enacted,  being 
approved  March  2,  1791 :' 

That  after  the  third  day  of  March  next,  the  first  annual  meeting  of  Congress  shall  be  on  the  iourth 
Monday  of  October  next. 

Accordingly  the  first  session  of  the  Second  Congress  met  October  24,  1791,= 
and  it  continued  in  session  imtil  May  8,  1792.  No  attention  was  paid  to  Monday, 
December  5,  1791  (the  day  appointed  for  the  assembling  of  Congress  ordinarily), 
the  sessions  of  the  House  proceedmg  iminterruptedly  over  that  period. 

At  this  first  session  of  the  Second  Congress  this  law  ^  was  enacted,  being 
approved  May  5,  1792: 

That  after  the  adjournment  of  the  present  session,  the  next  annual  meeting  of  Congress  shall  be  on 
the  first  Monday  in  November  next. 

Accordingly  the  second  session  met  on  November  5,  1792,"  and  continued  in 
session  through  Monday,  December  3, 1792,  the  day  prescribed  by  the  Constitution. 

7.  The  first  session  of  the  Third  Congress  met  on  the  constitutional  daj', 
December  2,  1793,^  but  it  was  provided  by  law  that  the  second  session  should  meet 
on  the  first  Monday  in  November.'  So  accordingly  it  met  on  November  3,  1794,' 
and  continued  in  session  without  interruption  thi-ough  Monday,  December  1,  the 
constitutional  day. 

Both  sessions  of  the  Fourth  Congress  met  on  the  days  appointed  by  the  Con- 
stitution.* 

The  act  of  March  3,  1797,°  provided  that  the  next  meeting  of  Congress  should 
be  on  "the  [first?]  Monday  of  November  in  the  present  year;"  but  the  President 
convened  the  Fifth  Congress  in  extraordinary  session  on  May  15,  1797.'"  This 
session  lasted  imtil  July  10.  Then,  on  Monday,  November  13,  1797,"  the  "day 
appointed  by  law,''  as  the  Journal  says,  the  regular  session  began.  This  continued 
through  Monday,  December  4,  the  constitutional  day,  without  interruption. 

The  third  session  of  the  Fifth  Congress  met  on  the  day  appointed  by  the 
Constitution. 

'  1  Stat.  L.,  p.  198. 

-  First  session  Second  Congress,  Journal,  p.  433  (Gales  &  Seaton  ed.). 

3  1  Stat.  L.,  p.  267. 

*  Second  session  Second  Congress,  Journal,  p.  609. 
'  First  session  Third  Congress,  Journal,  p.  3. 

« 1  Stat.  L.,  p.  370. 

'  Second  session  Third  Congress,  Journal,  p.  223. 

*  Journal,  pp.  364,  606. 
»1  Stat.  L.,  p.  507. 

'°  First  session  Fifth  Congress,  Journal,  p.  3. 

"  The  statute  says  first  Monday,  but  the  House  met  November  13,  which  wo!!  the  second  Monday. 


§  8  THE    MEETING    OF    CONGRESS.  5 

8.  The  first  session  of  the  Sixth  Congress  met  on  the  day  appointed  by  law ; 
but  the  act  of  May  13,  1800/  convened  the  second  session  on  the  third  Monday  of 
November,  1800.  It  met  on  that  day  and  continued  in  session  through  Monday, 
December  1,  1800,^  the  day  appointed  by  the  Constitution. 

The  second  sessions  of  both  the  Tenth  and  Eleventh  Congresses  were  convened 
by  law;  but  in  neither  of  these  laws  nor  in  any  of  the  previous  laws  convening 
Congress  was  the  hour  of  meeting  specified  in  the  law. 

9.  On  May  22,  1809,^  the  day  appointed  by  law  *  for  the  meeting  of  the  session, 
the  first  session  of  the  Eleventh  Congress  convened,  and  remained  in  session  until 
June  28,  1809.     At  this  session  the  follo\ving  law^  was  passed: 

That  after  the  adjournment  of  the  present  session,  the  next  meeting  of  Congress  shall  be  on  the  fourth 
Monday  of  November  next. 

On  November  27,  1809,°  in  accordance  with  the  law,  the  Congress  met  in  its 
second  session,  and  continued  in  session  until  May  1,  1810.  Wlien  the  first  Monday 
in  December,  1809,  arrived  (the  day  prescribed  b}'  the  Constitution  for  the  meeting 
of  Congress  ordinarily)  the  House  continued  its  session  without  any  recognition  of 
the  day.' 

The  second  sessions  of  both  the  Fifteenth  and  Sixteenth  Congresses  were  con- 
vened by  law  on  a  day  earUer  than  the  constitutional  day,  and  remained  in  sessions 
through  that  day.     Neither  of  these  laws  specified  the  hour  of  meeting. 

10.  Early  Congresses,  convened  either  by  proclamation  or  law  on  a  day 
earlier  than  the  constitutional  day,  remained  in  continuous  session  to  a 
time  beyond  that  day. 

In  the  later  but  not  the  earlier  practice  the  fact  that  Congress  has  met 
once  within  the  year  does  not  make  uncertain  the  constitutional  mandate 
to  meet  on  the  first  Monday  of  December. 

Instances  wherein  Congress  has  been  convened  by  proclamation  or  by 
law. 

Instance  wherein  a  law  convening  Congress  specified  the  hour  as 
well  as  the  day. 

At  the  second  session  of  the  Seventh  Congress,  by  the  act  approved  March  3, 
1803,*  it  was  provided: 

That  after  the  adjournment  of  the  present  session,  the  next  meeting  of  Congress  shall  be  on  the  first 
Monday  of  November  next. 

But  by  proclamation  of  the  President  the  Eighth  Congress  was  convened  on 
October  17,   1803,°  and  remained  in  session  until  March  27,   1804.     The  session 

'  2  Stat.  L.,  p.  85. 

'  Second  session  Sixth  Congress,  Journal,  p.  733. 

'  First  session  Eleventh  Congress,  Journal,  pp.  3,  102  (Gales  &  Seaton  ed.). 

^  2  Stat.  L.,  p.  514.  This  law,  passed  by  the  Tenth  Congress,  provided:  "That  after  the  adjourn- 
ment of  the  present  session,  the  next  meeting  of  Congress  shall  be  on  the  fourth  Monday  of  May  next." 

5  2  Stat.  L.,  p.  549. 

"  Second  session  Eleventh  Congress,  Journal,  pp.  10.5,  428. 

'See  also  journals  of  the  First,  Second,  Third,  Fifth,  Sixth,  Eighth,  and  Tenth  Congresses,  when 
sessions  were  convened  before  the  arrival  of  the  constitutional  day. 

«2Stat.  L.,p.  242. 

'First  session  Eighth  Congress,  Journal,  p.  401. 


6  PRECEDENTS    OF   THE    HOUSE    OF   EEPKESENTATIVES.  §    11 

continued  without  break  through  Monday,  November  7,'  the  day  appointed  by  law, 
and  through  Monday,  December  5,^  the  day  appointed  by  the  Constitution. 

The  second  session  of  the  Eiglith  Congress  met  November  5,  1804,^  in  accordance 
with  a  law  approved  March  26,  1804,^  and  continued  in  session  through  and  beyond 
Mondaj^,  Deceml^er  3,  1804,  the  day  appointed  by  the  Constitution. 

No  law  changed  the  constitutional  date  for  the  first  meeting  of  the  Tenth 
Congress,  but  it  was  convened  by  proclamation  of  the  President  on  October  26, 
1807,"  and  remained  in  session  until  April  2,  1808,  without  any  break  for  the  consti- 
tutional day  of  meeting,  Monday,  December  7.° 

A  law  approved  April  22,  1808,'  provided  that  the  second  session  of  the  Tenth 
Congress  should  meet  November  7,  1808,  and  it  did  so  meet  and  contmued  in 
session  tlirough  Monday,  December  5,^  the  day  appointed  by  the  Constitution. 

The  first  session  of  the  Twelfth  Congress  was  convened  by  proclamation  of  the 
President  on  November  4,  1811,'  and  continued  in  session  until  July  6,  1812, 
no  change  in  the  ordinary  proceedings  occurring  on  Monday,  December  2,  1811,'" 
the  day  appointed  by  the  Constitution  for  the  assembling  of  Congress  ordinarily. 

By  act  approved  July  6,  1812,"  the  time  for  the  meeting  of  the  next  session 
was  fixed  on  "as  the  first  Monday  of  November  next,"  and  on  that  day  the  House 
assembled  and  continued  in  session  through  Monday,  December  7,  1812,  the  day 
appointed  by  the  Constitution." 

The  first  and  second  sessions  of  the  Tliirteenth  Congress  were  called  by  law, 
the  second  session  adjourning  on  April  18,  1814.  At  this  second  session  a  law 
was  passed  and  approved  April  18,  1814,'-  fixing  "the  last  Monday  ia  October 
next"  for  the  next  meeting  of  Congress.  But  the  President,  by  proclamation, 
convened  the  session  before  that  day,  on  September  19,  1814,'^  and  it  continued 
in  session  through  Monday,  October  21,  the  day  appointed  by  law,  and  Monday, 
December  5,  the  day  appointed  by  the  Constitution.'* 

11.  The  first  session  of  the  Thirteenth  Congress  met,  in  accordance  with  law,'^ 
on  May  24,  1813,  and  ended  August  2,  1813.  At  this  session  the  following  law 
was  passed,  being  approved  on  July  27,  1813: '° 

'  Journal,  p.  438. 

^Journal,  p.  467;  Annals,  p.  641.     Nathaniel  Macon,  of  North  Carolina,  was  Speaker. 

3  Second  session  Eighth  Congress,  Journal,  pp.  3,  29. 

*2  Stat.  L.,  p.  283. 

'First  session  Tenth  Congress,  Journal,  p.  4. 

^Journal,  p.  66:  Annals,  p.  1058.     Joseph  B.  Varnuni,  of  Massachusetts,  was  Speaker. 

'2  Stat.  L.,  p.  490. 

8  Second  session  Tenth  Congress,  Journal,  p.  374. 

^  First  session  Twelfth  Congress,  Journal,  pp.  3,  49.     Henry  Clay,  of  Kentucky,  was  Speaker. 
'°  First  session  Twelfth  Congress,  Annals,  p.  395. 

"2  Stat.  L.,  pp.  781,  782;  second  session  Twelfth  Congress,  Journal,  pp.  537,  575. 
'2  3  Stat.  L.,  p.  128. 

'^  Third  session  Thirteenth  Congress,  Annals,  p.  750. 

'*  Journal,  third  session,  pp.  447,  509,  562.     Langdon  Cheves,  of  South  Carolina,  Speaker. 
'5  2  Stat.  L.,  p.  804. 
'«3  Stat.  L.,  p.  48. 


§   12  THE    MEETING    OP    CONGRESS.  7 

That  after  the  adjournment  of  the  present  session,  the  next  meeting  of  Congress  shall  be  on  the 
first  Monday  of  December  next. 

When  the  second  session  assembled  on  Monday,  December  6,  1813,  the  Journal 
records  that  it  was  "  the  day  appointed  by  law,"  rather  than  the  day  appointed  by 
the  Constitution.' 

In  the  Twenty-fifth,  Twenty-seventh,  Thirty-fourth,  Thirty-seventh,  Forty- 
sixth,  Fifty-tliird,  and  Fifty-fifth  Congresses  special  sessions  were  called  by  the 
President;  but  in  no  case  was  it  thought  necessary  by  law  to  fix  the  next  meeting 
after  the  special  session,  but  the  prov-ision  of  the  Constitution  was  left  to  operate.^ 

The  Fortieth,  Forty-first,  and  Forty-second  Congresses  were  convened  in 
accordance  with  the  terms  of  the  following  law,  approved  January  22,  1867:' 

That  in  addition  to  the  present  regular  times  of  meeting  of  Congress,  there  shall  be  a  meeting  of  the 
Fortieth  Congress  of  the  United  States,  and  of  each  succeeding  Congress  thereafter,  at  twelve  o'clock 
meridian,*  on  the  fourth  day  of  March,  the  day  on  which  the  term  begins  for  which  the  Congress  is 
elected,  except  that  when  the  fourth  day  of  March  occurs  on  Sunday,  then  the  meeting  shall  take  place 
at  the  same  hour  on  the  next  succeeding  day.* 

At  no  one  of  the  special  sessions  called  by  this  law  was  it  thought  necessary 
to  provide  by  law  for  the  next  session  to  begin  on  the  constitutional  day  (the  first 
Monday  of  December),  but  the  Congress  convened  that  day  in  obedience  to  the 
Constitution. 

12.  One  Congress  having  by  law  provided  a  time  for  the  meeting  of 
the  next  Congress,  that  Congress  nevertheless  met  at  an  earlier  day  on 
call  of  the  President. 

Early  sessions  of  Congress  convened  by  law. 

An  early  instance  wherein  the  proclamation  of  the  President  conven- 
ing Congress  was  not  printed  in  the  Journal. 

On  March  3,  1797,^  the  President  approved  the  following  law: 

That  after  the  end  of  the  present  session,  the  next  meeting  of  Congress  shall  be  on  the  first  Monday 
of  November,  in  the  present  year. 

But  on  the  2.5th  of  March,  1797,  the  President  (John  Adams)  by  proclamation 
convened  Congress  to  meet  on  May  15,  1797,  to  consider  "divers  weighty  matters."  ^ 

Some  qjiestion  arose  in  the  House  as  to  the  effect  this  extra  session  would  have 
on  the  session  provided  for  by  law,  and  a  conference  with  the  Senate  on  the  subject 
was  proposed  by  the  House,  but  declined  by  the  Senate.^ 

'  Second  session  Thirteenth  Congress,  Journal,  p.  159. 

=  See  Statutes  at  Large,  vols.  5,  11,  12,  21,  28,  and  30. 

'14  Stat.  L.,  p.  378. 

*  This  is  the  first  time  that  the  hour  of  meeting  is  specified  in  a  law  providing  for  a  meeting  of 
Congress. 

'  Repealed  by  law  of  the  Forty -second  Congress. 

^  Second  session  Fourth  Congress,  1  Stat.  L.,  p.  587.  The  following  sessions  were,  as  to  date  of  begin- 
ning, fixed  by  law:  Those  beginning  on  first  Mondays  of  January,  1790,  of  October,  1791,  of  November, 
1792,  of  November,  1794,  of  November,  1797.     See  1  Stat.  L.,  pp.  96,  198,  267,  370,  507. 

'First  session  Fifth  Congress;  Annals,  p.  50.  This  proclamation  does  not  appear  in  the  House 
Journal. 

'First  session  Fifth  Congress,  Journal,  pp.  50,  52  (Gales  &  Seaton  ed.);  Annals,  pp.  28,  377. 


8  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    13 

On  the  first  Monday  of  November  the  regular  seession  met  as  provided  by  law.' 
13.   The  statutes  provide  that  in  case  of  the  removal,  death,  resigna- 
tion, or  inability  of  both  President  and  Vice-President  during  a  recess  of 


'  On  January  29,  1904  (second  session  Fifty-eighth  Congress,  Record,  pp.  1401,  1402),  the  urgent  defi- 
ciency appropriation  bill  was  under  consideration  in  Committee  of  the  Whole  House  on  the  state  of  the 
Union,  and  the  committee  were  considering  the  question  of  the  mileage  of  Members  and  the  constitu- 
tional question  involved  therein. 

In  the  course  of  the  debate  Mr.  Allan  L.  McDermott,  of  New  Jersey,  raised  an  incidental  question: 

"My  understanding  of  the  Constitution  is  that  there  are  two  kinds  of  sessions  of  Congress.  One  what 
might  be  called  the  President's  session,  the  other  the  constitutional  session.  The  constitutional  session 
has  this  provision  in  the  Constitution,  that  neither  House  shall  adjourn  for  more  than  three  days  without 
the  consent  of  the  other.  Now,  the  session  of  Congress  which  1  may  designate  as  the  Presidential  session 
is  imder  the  control  of  the  Executive.  I  call  the  gentleman's  attention  to  page  23,  section  3,  of  the 
book  that  he  has  in  his  hand. 

"  On  extraordinary  occasion  on  which  the  President  may  convene  both  Houses  in  case  of  disagreement 
between  them  in  respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall  think 
proper.  Now,  if  there  has  not  been  in  its  relation  to  the  Executive  any  change  in  the  session — in  other 
words,  if  it  is  not  another  sitting  as  contemplated  by  the  Constitution — then  the  President  can  adjourn 
Congress  to-day  to  such  time  as  he  think  fit,  if  there  be  a  disagreement. 

ii  *  *  *  rpijg  President  has  no  power  to  intervene  unless  the  session  is  an  extraordinary  one. 
In  other  words,  the  President's  session  is  to  be  held  until  they  agree  to  adjourn,  or  until  he  tells  them 
to  adjourn.  The  question  can  not  arise  at  a  regular  session.  The  President  of  the  United  States  can  not 
adjourn  Congress  as  it  is  now  constituted.  We  can  remain  in  session  for  two  years,  from  one  session  to 
another,  and  he  can  not  adjourn  it.  Therefore  the  session  which  is  called  by  the  President  of  the  United 
States  has  a  constitutional  distinction  from  that  session  which  is  called  by  the  Constitution  itself.'' 
(Mr.  McDermott  later  elaborated  his  discussion  of  this  question.     See  Appendix  of  Record,  p.  72.) 

On  January  30  (Record,  pp.  1411,  1412),  the  debate  continuing,  Mr.  Charles  E.  Littlefield,  of  Maine, 
Baid: 

"I  wish  to  say  just  a  word  with  reference  to  the  suggestion  very  pertinently  and  forcefully  made 
last  evening  by  the  distinguished  gentleman  from  New  Jersey  [Mr.  McDermott],  and  that  is  with  refer- 
ence to  the  question  as  to  whether  the  clause  providing  that  the  President  may  adjourn  Congress  from 
time  to  time  is  limited  in  its  operations  to  a  special  or  extraordinary  or  Presidential  session,  so  called. 
If  so  limited,  beyond  any  question  it  would  create  a  constitutional  distinction  between  the  two  sessions, 
which  undoubtedly  would  settle  the  question  pending. 

"Since  the  adjournment  last  evening  1  have  taken  occasion  to  examine  Madison's  Journal  of  the 
Constitutional  Convention,  and  the  Federalist,  upon  that  precise  point,  for  the  purpose  of  ascertaining 
what  light,  if  any,  might  be  derived  from  that  source,  and  I  should  be  glad  to  give  the  committee  the 
benefit  of  the  investigation. 

"I  find  in  the  report  of  the  committee  on  detail,  made  on  August  6,  1787,  that  the  clause  in  question 
appears  in  Article  X,  section  2,  which  reads  as  follows: 

"'Sec.  2.  He  shall  from  time  to  time  give  information  to  the  Legislature  of  the  state  of  the  Union. 
He  may  recommend  to  their  consideration  such  measures  as  he  shall  judge  necessary  and  expedient. 
He  may  convene  them  on  extraordinary  occasions.  In  cases  of  disagreement  between  the  two  Houses 
with  regard  to  the  time  of  adjournment  he  may  adjourn  them  to  such  time  as  he  thinks  proper.  He 
shall  take  care  that  the  laws  of  the  United  States  be  duly  and  faithfully  executed.  He  shall  commission 
all  the  officers  of  the  United  States,  and  shall  appoint  officers  in  all  cases  not  otherwise  provided  for  by 
this  Constitution.  He  shall  receive  ambassadors,  and  may  correspond  with  the  supreme  executive  of 
the  several  States.  He  shall  have  power  to  grant  reprieves  and  pardons,  but  his  pardons  shall  not  be 
pleadable  in  bar  of  an  impeachment.  He  shall  be  Commander  in  Chief  of  the  Army  and  Navy  of  the 
United  States  and  of  the  militia  of  the  several  States. 

"'He  shall,  at  stated  times,  receive  for  his  services  a  compensation,  which  shall  neither  be  increased 
nor  diminished  during  his  continuance  in  office.  Before  he  shall  enter  on  the  duties  of  his  Department 
he  shall  take  the  following  oath  or  affirmation:  "I, ,  solemnly  swear  (or  affirm)  that  I  will  faith- 
fully execute  the  office  of  President  of  the  United  States  of  America."     He  shall  be  removed  from  his 


§   13  THE    MKETING    OF    CONGRESS.  9 

Congress,  the  Secretary  who  acts  as  President  shall  convene  Congress  in 
extraordinary  session. 

office  on  impeachment  by  the  House  of  Representatives,  and  conviction  in  the  Supreme  Court  of  treason, 
bribery,  or  corruption.  In  case  of  his  removal,  as  aforesaid,  death,  resignation,  or  disability  to  discharge 
the  powers  and  duties  of  his  office,  the  President  of  the  Senate  shall  exercise  those  powers  and  duties 
until  another  President  of  the  United  States  be  chosen,  or  until  the  disability  of  the  President  be  removed 
(Journal  of  Constitutional  Convention  (Madison).     Scott,  Forseman  &  Co.,  editors,  vol.  11,  p.  457.)' 

"  This  is  the  first  time  the  clause  appears  in  the  proceedings  of  the  convention.  It  appears  in  a 
section  defining  the  powers  and  duties  of  the  President  with  the  clause  authorizing  the  convening  of 
Congress  in  an  extraordinary  session,  where  they  would  naturally  be  expected  to  appear.  It  will  be 
observed  that  the  two  propositions  are  found  in  separate  and  distinct  sentences.     One  sentence  reads: 

"'He  may  convene  them  on  extraordinar\'  occasions.' 

"And  the  other — 

"'In  case  of  disagreement  between  the  two  Houses  with  r^;ard  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  thinks  proper.' 

"In  this  section  the  argument  of  juxtaposition  as  a  reason  why  the  clause  in  question  is  a  limitation 
upon  the  so-called  'Presidential  session'  clearly  fails. 

"  In  the  report  on  the  committee  on  style,  which  had  no  power  to  change  any  substantive  provision 
of  the  Constitution  and  only  had  the  power  to  perfect  the  language  and  arrangement,  made  on  September 
12,  1787,  these  two  independent  sentences  are  grouped  together,  making  two  clauses  of  one  sentence  in 
Article  II,  section  3  (ibid.,  709),  reading  as  follows: 

"  'He  may.  on  extraordinary  occasions,  convene  both  Houses,  or  either  of  them,  and  in  case  of  disa- 
greement between  them  with  respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as 
he  shall  think  proper,  etc' — 

' '  transposing  the  first  sentence  and  slightly  varying  the  second.  Article  X,  section  2,  down  to  and  includ- 
ing the  clause  'He  shall  commission  all  officers  of  the  United  States,'  in  the  report  of  the  committee  on 
detail,  appears  in  the  report  of  the  committee  on  style,  in  Article  II,  as  section  3.  The  substance  of  the 
remainder  of  section  2,  considerably  transposed  and  with  considerable  change  of  verbiage,  is  found  in 
sections  1  and  2  of  Article  II,  in  the  report  of  the  committee  on  style. 

"Under  these  conditions  the  argument  of  juxtaposition  seems  entitled  to  but  little  weight.  There 
is  nothing  said,  so  far  as  I  can  find  in  the  debates  in  the  convention,  upon  the  construction  of  this  clause — 
simply  the  report  of  the  committee  on  detail,  and  later  on  the  report  of  the  committee  on  style. 

"In  the  Federalist,  in  No.  68,  written  by  Mr.  Alexander  Hamilton,  who  was  also  a  member  of  the 
committee  on  style,  reporting  the  Constitution  in  the  language  in  which  it  now  stands,  this  clause  is 
referred  to  and  construed.  This  is  the  great  paper  in  which  Mr.  Hamilton  is  defining  the  powers  and 
the  limitations  upon  the  power  of  the  President  of  the  United  States,  and  with  reference  to  this  specific 
point  he  says: 

" '  Fourthly.  The  President  can  only  adjourn  the  National  Legislature  in  the  single  case  of  disagree- 
ment about  the  time  of  the  adjournment,' 

"  I  ask  the  Chair  to  note  this.  If  this  clause  is  limited  to  a  special  session,  it  is  a  very  important  and 
significant  limitation.  Mr.  Hamilton  is  undertaking  to  define  in  this  paper  the  limitations  upon  the 
Presidential  power,  and  he  fails  to  cite  this  important  and  significant  limitation.  Therefore  it  is  a  fail 
inference  that  in  his  judgment — he  having  made  the  report  or  taken  a  part  in  the  report  of  the  committee 
on  style,  and  responsible  for  the  language  as  it  now  stands — it  was  not  limited  in  its  operation  to  a  special 
session,  but  applied  generally.  His  first  illustration  of  an  analogous  power  is  that  'the  British  monarch 
may  prorogue  or  even  dissolve  Parliament.'  This  illustration,  of  course,  can  not  be  confined  to  special 
sessions,  but  applies  to  all  sessions.     Further,  by  way  of  illustration,  he  says: 

"'The  governor  of  New  York  may  also  prorogue  the  legislature  of  this  State  for  a  limited  time;  a 
power  which,  in  certain  situations,  may  be  employed  to  very  important  purposes, — 

"Applicable,  apparently,  to  every  session. 

"Of  course  it  is  not  conclusive,  but  it  is  significant,  and  if  the  Chair  please,  I  point  to  the  fact  that 
whUe  Hamilton  elaborates  the  proposition,  he  in  no  sense  intimates  that  it  is  confined  in  its  application 
to  a  special  session  of  Congress.  If  it  is  true  that  this  clause  is  confined  to  special  sessions,  it  is  a  most 
important  limitation,  and  .should  have  been  emphasized  rather  than  omitted  by  Hamilton.  To  hold  that 
Hamilton  omitted  it  is  to  impeach  either  his  intelligence  or  candor,  neither  of  which  can  be  done 
successfully." 


10  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   13 

The  act  of  January  19,  1886/  provides  that  "in  case  of  removal,  death,  resig- 
nation, or  inability  of  both  the  President  and  Vice-President  of  the  United  States," 
then  the  Secretary  of  State,  or  if  there  be  none,  or  in  case  of  his  removal,  death, 
resignation,  or  inability,  then  the  Secretary  of  the  Treasury,  and  so  on  to  the  Sec- 
retary of  War,  the  Attornej^-General,  the  Postmaster-General,  the  Secretaries  of  the 
Navy  and  Interior,  shall  act  as  President  if  they  be  eligible  and  not  under  impeach- 
ment; and  it  is  further  provided — 

That  whenever  the  powers  and  duties  of  the  office  of  President  of  the  United  States  shall  devolve 
upon  any  of  the  persons  named  herein,  if  Congress  be  not  then  in  session,  or  if  it  would  not  meet  in 
accordance  with  law  within  twenty  days  thereafter,  it  shall  be  the  duty  of  the  person  upon  whom  said 
powers  and  duties  shall  devolve  to  issue  a  proclamation  convening  Congress  in  extraordinary  session, 
giving  twenty  days'  notice  of  the  time  of  meeting. 

'  24  Stat.  L.,  p.  1. 


CHAPTER  IL* 

THE  CLERK'S  ROLL  OF  THE   lAIEMBERS-ELECT. 


1.  The  statutes  governing  the  making  of  the  roll.     Sections  14,  15. 

2.  Early  usage  as  to  examination  of  credentials.     Sections  16-18. 

3.  Corrections  of  the  Clerk's  roll  by  the  House.     Sections  19-25. 

4.  Enrolling  names  of  Members  deceased,  resigned,  or  disqualified.     Sections  26-29.' 

5.  Enrolling  on  the  strength  of  irregular  credentials.     Sections  30-39.- 

6.  Enrolling  on  the  strength  of  conflicting  or  imperfect  credentials.     Sections  40-60. 

7.  Enrollment  of  Delegates.     Sections  61,  62. 

8.  Withdrawal  of  credentials.     Section  G3. 


14.  The  law  of  1863  makes  it  the  duty  of  the  Clerk  of  the  preceding 
House  to  make  a  roll  of  the  Representatives-elect  whose  credentials  show 
them  regularly  elected. — Section  31  of  the  Revised  Statutes,  reenacting  legisla- 
tion of  March  3,  1863/  and  February  21,  1867,  provides: 

Before  the  first  meeting  of  each  Congress  the  Clerk  of  the  next  preceding  House  of  Representatives 
shall  make  a  roll  of  the  Representatives-elect,  and  place  thereon  the  names  of  those  persons,  and  of  such 
persons  only,  whose  credentials  ■*  show  that  they  were  regularly  elected  in  accordance  with  the  laws  of 
their  States,  respectively,  or  the  laws  of  the  United  States. 

15.  The  duty  of  making  up  the  roll  of  Members-elect,  in  event  the 
Clerk  can  not  act,  devolves  on  the  Sergeant-at-Arms,  atid  next  on  the  Door- 
keeper.— Section  32  of  the  Revised  Statutes,  reenacting  the  law  of  February  21, 
1867  (14  Stat.  L.,  p.  397)  provides: 

In  the  case  of  a  vacancy  in  the  office  of  Clerk  of  the  House  of  Representatives,  or  of  the  absence  of 
inability  of  the  Clerk  to  discharge  the  duties  imposed  on  him  by  law  or  custom  relative  to  the  prepara- 
tion of  the  roll  of  Representatives  or  the  organization  of  the  House,  those  duties  shall  devolve  on  the 
Sergeant-at-Arms  of  the  next  preceding  House  of  Representatives. 

*  See  Volume  VI,  Chapter  CL. 

'  Clerk  declines  to  enroll  when  bearer  of  credentials  is  not  of  required  age.     (Sec.  418  of  this  volume.) 

^See  sections  328,  366,  and  376  of  this  volume  for  other  cases  of  informal  credentials,  and  sections 
317, 388,  522,  and  523  of  this  volume  for  cases  wherein  the  Clerk  declined  to  enroll  because  of  election 
in  excess  of  apportionment  or  doubts  as  to  legal  time  of  election. 

3  The  act  of  1863  (12  Stat.  L. ,  p.  804)  was  in  substantially  the  present  form.  The  act  of  1867  (14  Stat. 
L.,  p.  397)  made  temporary  provisions  relating  to  the  States  lately  in  secession. 

•*  In  1877  a  bill  was  introduced  to  prescribe  the  form  of  credentials  and  directing  the  manner  in 
which  the  roll  should  be  made  up.  But  it  was  not  reported  from  the  committee  to  which  it  was  referred. 
(First  session  Forty-fifth  Congress,  Record,  p.  253;  Journal,  p.  165.) 

11 


12  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   16 

Sec.  33.  In  case  of  vacancies  in  the  offices  of  both  the  Clerk  and  the  Sergeant-at-Arms,  or  the  absence 
or  inability  of  both  to  act,  the  duties  of  the  Clerk  relative  to  the  preparation  of  the  roll  of  the  House  or 
Representatives  or  the  organization  of  the  House  shall  be  performed  by  the  Doorkeeper  of  the  next 
preceding  House  of  Representatives. 

16.  In  the  early  years  of  the  House  the  credentials  were  examined  by 
the  Committee  on  Elections;  but  this  practice  fell  into  disuse. — On  April 
18,  1789/  a  report  was  submitted  from  the  Committee  on  Elections  that  the  com- 
mittee had,  according;  to  order,  examined  the  certificates  and  other  credentials  of 
the  Members  returned  to  serve  in  this  House,  and  had  agreed  to  a  report  thereupon; 
which  was  twice  read  and  agreed  to  by  the  House. 

The  report  stated: 

It  appears  to  your  committee  that  the  credentials  of  the  following  Members  are  sufficient  to  entitle 
them  to  take  their  seats  in  this  House.     [The  names  follow.] 

On  October  28,  1791,-  at  the  opening  of  the  Second  Congress,  the  procedure  was 
the  same. 

17.  On  February  19,  1838,^  Mr.  John  Quincy  Adams,  of  Massachusetts,  pro- 
posed the  following  resolution: 

Resolved,  That  at  the  commencement  of  the  first  session  of  every  Congress  of  the  United  States,  every 
person  claiming  a  seat  in  the  House  of  Representatives  shall,  before  taking  his  seat,  furnish  the  Clerk 
of  the  House  the  credentials  authenticating  his  election  as  a  Member  of  the  House;  and,  in  calling  over 
the  roll  of  Members  appearing  to  take  their  seats,  the  Clerk  of  the  preceding  House  shall  not  include  in 
the  call  any  person  who  appears  without  producing  his  credential. 

Debate  arising  over  this  resolution,  its  consideration  was  deferred,  and  it  was 
not  acted  on. 

18.  On  January  28,  1839,  Mr.  John  Quincy  Adams,  of  Massachusetts,  pre- 
sented a  resolution  that  every  Member  of  the  House  ought,  before  taking  Ills  seat, 
to  produce  at  the  Clerk's  table  or  deposit  in  the  Clerk's  office,  the  credentials  by 
virtue  of  wliich  he  claims  his  seat.  Mr.  Adams,  in  presenting  his  resolution, 
exjjlained  that  he  had  offered  it  in  consequence  of  the  disuse  of  a  practice  wliich 
formerly  existed,  and  wliich  he  believed  to  be  the  practice  of  every  other  delibera- 
tive body.  This  practice  had  been  adopted  at  the  beginning  of  the  Government, 
and  had  been  continued  until  the  last  eight  or  ten  years.  Since  then  every  gentle- 
man had  come  and  taken  his  seat  without  presenting  any  evidence  of  his  right  to 
do  so.     Mr.  Adams's  resolution  was  not  acted  on.* 

About  this  period  the  journals  show  a  discontinuance  of  the  old  practice  of  the 
Committee  on  Elections  reporting  on  the  Members  who  have  presented  proper 
credentials. 

19.  The  House  reserves  to  itself  the  right  to  correct  the  Clerk's  roll  of 
Members-elect  by  striking  off  or  adding  to. 

On  July  4,  1861, '^  at  the  time  of  the  organization  of  the  House,  and  while  the 

'  First  session  First  Congress,  Journal,  p.  16.     (Gales  &  Seaton,  ed.) 

-  First  session  Second  Congress,  Journal,  pp.  443,  453,  455.     (Gales  &  Seaton,  ed.) 

'  Second  session  Twenty-liith  Congress,  Journal,  p.  482:  Globe,  p.  190. 

^  Third  session  Twenty-fifth  Congress,  Journal,  p.  395;  Globe,  p.  143. 

'First  session  Thirty-seventh  Congress,  Journal,  p.  13,  14;  Globe,  pp.  7-9. 


§  20  THE    clerk's    roll    OF   THE    MEMBERS-ELECT.  13 

oath  was  being  administered  to  Members-elect,  Mr.  Thaddeus  Stevens,  of  Penn- 
sylvania, offered  the  following: 

Hesolved,  That  the  Clerk  of  the  House  be  diiected  to  insert  the  name  of  John  M.  Butler  upon  the 
roll  of  Members,  as  the  Representative  from  the  First  Congressional  district  of  Pennsylvania,  and  that 
William  E.  Lehman  shall  be  entitled  to  contest  the  seat  of  the  said  John  M.  Butler  by  giving  him  the 
required  notice  at  any  time  within  three  months. 

Mr.  Lehman  had  been  placed  on  the  roll  by  the  Clerk  and  had  voted  for 
Speaker.  The  Clerk  explained  to  the  House  that  he  had  placed  his  name  on  the 
roll  because  the  governor  of  Pennsylvania  had  included  him  with  the  other  Mem- 
bers from  Permsylvania  in  the  proclamation  which  the  law  of  the  State  required 
him  to  make  of  the  persons  returned  as  elected.  This  proclamation  had  been 
presented  b\-  Mr.  Lehman  as  his  credentials,  and  the  Clerk  had  considered  it  his 
duty  to  be  governed  by  this  proclamation,  rather  than  bj'  returns  of  election  judges 
which  showed  the  election  of  Mr.  Butler. 

^Ir.  Stevens  contended  that  the  proclamation  of  the  governor  was  of  no  binding 
force,  since  the  law  of  the  State  required  the  governor  to  proclaim  the  result  of 
the  returns,  and  transmit  the  returns  to  the  House.  The  proclamation  was  not  in 
accordance  with  the  returns  filed,  and  no  returns  showing  the  election  of  Mr.  Lehman 
had  been  sent  to  the  House,  nor  had  the  proclamation.  Returns  showing  Mr.  Butler 
elected  were  presented. 

On  the  other  hand,  it  was  urged  the  returns  had  been  fraudulently  made  up, 
and  that  the  governor  in  his  proclamation  had  taken  cognizance  of  tliis. 

After  debate  the  resolution  was  laid  on  the  table,  yeas  91,  naj'^s  48,  and  the  oath 
was  administered  to  Mr.  Lehman. 

20.  On  July  4,  18(51,'  during  the  organization  of  the  House,  and  after  the 
oath  had  been  administered  to  the  Members,  the  name  of  Samuel  G.  Daily,  as 
Delegate  from  the  Territory  of  Nebraska,  was  called. 

On  motion  the  question  of  administering  the  oath  to  Mr.  Daity  was  postponed 
until  after  the  completion  of  the  organization  of  the  House. 

On  July  5  Mr.  William  A.  Richardson,  of  Illinois,  moved  that  the  name  of  Mr. 
Daily  be  stricken  from  the  roll,  and  that  the  name  of  J.  Sterling  Morton  be  inserted 
in  heu  thereof,  and  that  said  Morton  be  sworn  in  as  such  delegate. 

It  appeared  from  the  debate  that  on  November  2, 1860,  the  governor  of  Nebraska 
issued  a  certificate  to  Mr.  Morton,  the  votes  haA^ing  been  canvassed  according  to 
law  by  the  governor,  chief  justice,  and  district  attorney.  Later,  on  April  29,1860, 
the  governor  issued  another  certificate  to  Mr.  Daily,  wherein  it  was  declared  that 
the  first  certificate  was  revoked,  because  of  the  discovery  of  fraud  wliich  had  credited 
to  Mr.  Morton  more  votes  in  one  county  than  he,  in  fact,  received,  and  the  results 
of  which  being  eliminated  showed  Mr.  Daily  to  have  been  elected.  It  was  urged 
by  ilr.  Richardson  that  the  governor  issued  the  second  certificate  without  action 
of  the  board  of  canvassers  provided  by  law,  and  therefore  had  usurped  the  authority 
of  the  House  of  Representatives  in  passing  on  the  election  and  returns.  On  the 
other  hand,  it  was  urged  that  Mr.  Daily  had  received  the  highest  number  of  votes 
and  had  the  certificate  of  the  governor. 

'  First  session  Thirty-seventh  Congress,  Journal,  pp.  35,  36;  Globe,  pp.  13-16. 


14  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   21 

The  House,  by  a  vote  of  yeas  57,  nays  75,  disagreed  to  the  motion  of  Mr.  Rich- 
ardson. 

The  House  then  voted  that  the  oath  be  administered  to  Mr.  Daily. 

21.  On  December  7,  1863,^  the  Clerk  of  the  preceding  House  called  the 
assembled  Members-elect  to  order,  and  called  the  roll  of  Members  by  States,  as 
made  out  by  him  under  the  act  of  March  3,  1863,  wliich  provided  that  he  should 
place  on  the  roll  the  names  of  "all  persons,  and  of  such  persons  only,  whose  cre- 
dentials show  that  they  were  regularly  elected  in  accordance  with  the  laws  of  their 
States,  respectively,  or  the  laws  of  the  United  States." 

After  the  roll  had  been  called,  the  Clerk  aimounced  that  other  gentlemen  had 
filed  credentials  which,  in  his  opinion,  did  not  meet  the  requirements  of  the  law  of 
1863.  The  Clerk  then  read  the  credentials  of  five  Members  from  Maryland,  and  the 
same  having  been  read,  Mr.  Henry  L.  Dawes,  of  Massachusetts,  oifered  the  following: 

Resolved,  That  the  names  of  John  A.  J.  Creswell,  Edwin  H.  Webster,  Henry  Winter  Davis,  Francis 
Thomas,  and  Benjamin  G.  Harris  be  placed  on  the  roll  of  the  House  of  Representatives  from  Maryland. 

A  motion  that  this  resolution  be  laid  on  the  table  having  been  decided  in  the 
negative,  yeas  74,  nays  94,  the  resolution  was  then  agreed  to. 

Sunilarly  the  credentials  of  certain  Missouri  Members  whose  names  had  not  been 
put  on  the  roll  by  the  Clerk  were  read,  and  a  resolution  that  their  names  be  put  on 
the  roll  was  offered. 

Mr.  William  S.  Holman,  of  Indiana,  made  the  point  of  order  that  it  was  not 
in  order  thus  to  instruct  the  Clerk,  but  the  Clerk  overruled  the  point. 

Then  credentials  were  read  of  the  Members  from  Oregon,  Kansas,  and  West  Vir- 
ginia, and  resolutions  were  offered  and  agreed  to  directing  that  their  names,  respec- 
tively, be  placed  on  the  roll. 

The  credentials  of  certain  Members-elect  from  Virginia  not  being  satisfactory  to 
the  House,  a  resolution  directing  their  names  to  be  placed  on  the  roll  was  laid  on 
the  table,  yeas  100,  nays  73. 

22.  A  motion  to  proceed  to  the  election  of  Speaker  has  been  held  to 
be  of  higher  privilege  than  a  motion  to  correct  the  Clerk's  roll. 

In  one  or  two  cases  it  has  been  held  that  the  Clerk  may  not  enter- 
tain a  motion  to  correct  the  roll  which  he  makes  up  under  the  law. 

Instance  wherein,  during  the  organization,  the  Clerk  of  the  preced- 
ing House  declined  to  entertain  an  appeal  from  his  decision. 

On  October  15,  1877,'  after  the  Clerk  had  called  the  roll  of  Members,  Mr.  Fer- 
nando Wood,  of  New  York,  as  soon  as  the  Clerk  had  aimounced  that  a  quorum  was 
present,  moved  to  proceed  to  the  election  of  a  Speaker  viva  voce,  and  demanded 
the  previous  question  thereon. 

Mr.  Eugene  Hale,  of  Maine,  as  a  question  of  privilege,  submitted  the  following 
preamble  and  resolution: 

Whereas  James  B.  Belford  presents  the  only  certificate  of  election  as  a  Representative  in  the  Forty- 
fifth  Congress  given  by  the  duly  constituted  authorities  of  the  State  of  Colorado;  and 

Whereas  the  Clerk  of  the  House  of  Representatives  of  the  Forty-fourth  Congress  has  set  aside  said 

'First  session  Thirty-eighth  Congress,  Journal,  pp.  6-8;  Globe,  pp.  4-6. 
-First  session  Forty-fifth  Congress,  Journal,  p.  10;  Record,  p.  53. 


§  23  THE  clerk's  boll  of  the  membees-elect.  15 

legal  certificate  presented  by  said  James  B.  Belford,  thereby  without  law  assuming  rights  and 
authority  which  only  belong  to  the  House:  Therefore, 

Resolved,  That  the  name  of  Thomas  M.  Patterson  be  stricken  from  the  roll  of  this  House  as  Represen- 
tative in  the  Forty-fifth  Congress  from  the  State  of  Colorado,  and  that  the  name  of  James  B.  Belford 
be  placed  upon  said  roll  as  a  Representative  in  said  Congress. 

Mr.  Samuel  S.  Cox,  of  New  York,  made  the  point  of  order  that  the  resolution 
was  not  in  order,  the  Clerk  having  absolute  control  over  the  roll  of  the  House. 

The  Clerk '  sustaiaed  the  point  of  order,  and  stated  the  question  to  be  on 
seconding  the  demand  for  the  previous  question. 

Mr.  Hale  appealed  from  the  decision  of  the  Clerk. 

The  Clerk  declined  to  entertain  the  appeal,  on  the  ground  that  it  was  not  com- 
petent for  the  Representatives-elect  to  instruct  the  Clerk  in  the  performance  of 
a  duty  imposed  upon  him  bj-  law,  and  for  the  further  reason  that  a  higher  ques- 
tion of  privilege  was  pending  on  which  the  previous  question  had  been  demanded.^ 

Mr.  Wood's  motion  was  then  agreed  to. 

23.  On  March  4.  1869,=  at  the  time  of  the  organization  of  the  House,  after  the 
roll  of  Members-elect  had  been  called  and  the  Clerk  had  announced  that  a  quorum 
was  present,  IMr.  George  W.  Woodward,  of  Pennsylvania,  offered  this  resolution: 

Resolved,  That  the  roll  of  Members  of  the  Forty-first  Congress  be  amended  by  the  addition  of  the 
name  of  Henry  D.  Foster,  as  the  Representative  of  the  Twenty-first  Congressional  district  of  Pennsyl- 
vania, and  that  said  Foster  be  called  and  admitted  as  the  sitting  Member  prima  facie  entitled  to  represent 
said  district. 

Mr.  Eliliu  B.  Washburne,  of  Illinois,  claiming  the  floor  on  a  question  of  privi- 
lege, moved  that  the  House  do  now  proceed  to  the  election  of  a  Speaker. 

The  Clerk  *  said  that  the  gentleman  from  Illinois  had  risen  to  a  question  of 
privilege  which  had  precedence  of  the  resolution  of  the  gentleman  from  Pennsyl- 
vania, and  therefore  the  question  before  the  House  was  on  the  motion  to  proceed 
to  the  election  of  a  Speaker. 

24.  On  December  -2.  1873.  at  the  time  of  the  organization  of  the  House,  after 
the  roll  of  Members-elect  had  been  called  and  the  presence  of  a  quorum  had  been 
announced,  Mr.  Samuel  S.  Cox,  of  New  York,  announced  his  wish  to  make  the 
motion  that  the  name  of  John  E.  Neff  be  placed  on  the  roll  as  Representative-elect 
from  the  Ninth  Congressional  district  of  Indiana. 

The  Clerk  said: 

The  Clerk  thinks  it  would  not  be  in  order.  He  has  always  declined  to  receive  such  a  motion  at 
this  stage    *    «    *.     The  Clerk  must  decline  to  entertain  the  motion. 

25.  The  Clerk's  roll  may  be  corrected  during  organization  by  reference 

to  the  credentials.— On  December  5,  1881,  at  the  time  of  the  organization  of 
the  House,  while  the  roll  of  Members-elect  was  being  called,  an  error  appeared  in 
the  Clerk's  roll,  whereby,  instead  of  the  name  of  Mr.  William  W.  Grout,  Member- 

■  George  M.  Adams,  of  Kentucky,  Clerk. 

2  For  similar  cases,  see  Congressional  Globe,  first  session  Forty-first  Congress,  p.  3;  Record,  first  session 
Forty-third  Congress,  p.  5.  Motions  to  amend  the  roll  were  formerly  quite  conmion,  first  session 
Thirty-eighth  Congress,  Journal,  p.  7. 

'First  session  Forty-first  Congress,  Globe,  p.  3. 

■*  Edward  McPherson,  of  Pennsylvania,  Clerk. 


16  PEECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §  26 

elect  of  Vermont,  the  name  of  the  governor  of  that  State  was  called,  an  error  havmg 
been  made  in  making  up  the  roll  from  the  credentials,  whereby  the  name  of  the 
signer  of  the  credentials  was  substituted  for  that  of  the  bearer.  This  error,  being 
corrected  by  reference  to  the  credential,  Mr.  Grout's  name  was  called,  and  the 
organization  of   the  House  proceeded.' 

26.  The  Clerk  takes  notice  of  the  deaths  or  resignations  of  Members- 
elect  and  informs  the  House  thereof  at  the  time  of  organization. — At  the 
beginning  of  each  Congress,  at  the  time  of  the  organization,  the  Clerk  submits  to  the 
House  a  table  of  the  changes  in  membership  since  the  election — that  is,  he  presents 
the  names  of  those  who  were  placed  on  his  roll,  but  have  been  stricken  off  because 
of  death  or  resignation.  This  seems  to  show  that  the  Clerk  may  take  cognizance  of 
death  and  resignation  in  making  up  his  roll.^ 

27.  On  December  3,  1883,*  at  the  time  of  the  organization  of  the  House, 
the  Clerk,^  when  he  had  called  the  roll  as  far  as  the  Seventh  district  of  Virginia, 
announced  that  John  Paul,  who  had  been  elected  to  represent  that  district,  had 
resigned  his  ofBce,  the  resignation  to  take  eflfect  September  5,  1883.  Therefore  the 
name  of  Mr.  Paul  was  not  called. 

28.  On  December  3,  ISSS,''  at  the  time  of  the  organization  of  the  House, 
after  the  Clerk  *  had  completed  the  calling  of  the  roll  by  States  as  far  as  North  Caro- 
lina, he  announced  that  he  had  information  that  Mr.  Walter  R.  Pool,  who  was  elected 
at  the  November  election  in  1882  to  represent  the  First  district  of  North  Carolina, 
died  on  August  25,  1883.  No  certificate  of  the  election  of  a  successor  had  been  filed 
with  the  Clerk.     Therefore  the  name  of  Mr.  Pool  was  not  called. 

29.  An  instance  wherein  the  Clerk  omitted  from  the  roll  the  name  of 
a  disqualified  Member-elect. — On  March  4,  1871,"  at  the  organization  of  the 
House,  after  the  roll  of  Members-elect  had  been  called,  the  Clerk  said : 

Mr.  Sion  H.  Rogers,  one  of  the  Representatives  from  North  Carolina,  requested  the  Clerk  this  morning 
that  when  his  name  was  reached  on  the  call  it  should  be  omitted. 

Mr.  Rogers's  name  had  been  omitted,  not  being  called  with  the  other  North 
Carolina  Members-elect.     No  explanation  was  given  at  this  time  for  this  action. 

Mr.  Rogers's  name  remained  off  the  roll  until  May  23,  1872,'  when  he  was  sworn 
in.  It  then  appeared  that  he  had  deferred  qualification  until  the  passage  of  the  law 
removing  political  disabiUties. 

30.  Where  it  is  not  specifically  stated  that  the  bearer  is  elected  in 
accordance  with  the  law  of  the  State  and  the  United  States,  the  creden- 
tials may  be  honored  by  the  House,  if  not  by  the  Clerk. — On  December  7, 
1869,*  Mr.  Halbert  E.  Pame,  of  Wisconsm,  from  the  Committee  of  Elections,  made 

'  First  session  Forty-seventh  Congress,  Record,  p.  7. 

2  See  instance  at  the  first  of  any  recent  Congress,  first  session  Fifty-second  Congress,  Journal,  p.  6. 

^  First  session  Forty-eighth  Congress,  Record,  p.  4. 

'  Edward  McPherson,  of  Pennsylvania,  Clerk. 

'  First  session  Forty-eighth  Congress,  Record,  pp.  3,  4. 

'  First  session  Forty-second  Congress,  Record,  p.  6. 

'  Second  session  Forty-second  Congress,  Journal,  p.  936;  Globe,  p.  3783. 

*  Second  session  Forty-first  Congress,  Globe,  p.  22. 


§  31  THE    clerk's    roll    OF   THE   MEMBERS-ELEOT.  17 

an  oral  report  on  the  credentials  of  the  Members  from  the  State  of  Alabama.  He 
said  that  the  credentials  were  not  in  form  sufficient  to  justify  the  Clerk  of  the  House 
in  putting  their  names  on  the  roll  had  they  appeared  at  the  begiiming  of  the  Congress, 
because  the  credentials  did  not  say  that  they  were  elected  in  pursuance  of  either 
the  laws  of  Alabama  or  of  the  United  States.  Yet  the  credentials  were  in  form 
sufficient  to  satisfy  the  Committee,  and  he  thought  the  House  also.  Accordingly 
he  moved  that  the  gentlemen  be  sworn.  The  motion  was  agreed  to  and  the  oath 
was  administered. 

31.  In  1871  a  certificate  from  Arkansas,  which  bore  on  its  face  evi- 
dence that  it  was  not  issued  within  the  time  required  by  law,  and  con- 
cerning the  proper  execution  of  which  there  was  doubt,  was  rejected. — 
On  March  4,  1871/  at  the  time  of  the  organization  of  the  House,  after  the  calling  of 
the  roll  of  Members-elect,  the  Clerk  ^  said: 

The  certificate  from  the  Third  district  of  Arkansas  bears  upon  its  face  evidence  that  it  was  not  issued 
within  the  time  required  by  law,  nor  within  two  months  thereafter;  besides,  there  is  serious  doubt 
whether  the  officer  who  executed  it  had  at  that  time  the  right  to  do  so.  The  circumstances  surrounding 
the  issue  of  this  certificate  are  so  suspicious  that  the  Clerk  feels  compelled  to  reject  it. 

32.  In  1871  the  Clerk  accepted  the  credentials  from  Mississippi, 
which,  though  irregular  in  form,  met  all  the  substantial  requirements 
of  the  military  reconstruction  acts. — On  March  4,  1871,^  at  the  time  of  the 
organization  of  the  House,  the  Clerk,-  after  he  had  called  the  roll  of  Members-elect, 
said: 

A  question  has  been  raised  before  the  Clerk  upon  the  credentials  from  Mississippi.  While  being 
peculiar  in  form,  owing  to  the  fact  that  the  reorganization  of  the  State  was  effected  under  the  military- 
reconstruction  acts,  they  appear  to  him  to  meet  all  the  substantial  requirements  of  the  law,  and  are 
therefore  accepted  by  him. 

33.  In  1871  the  Clerk  enrolled  the  Tennessee  delegation,  although 
the  credentials  were  at  marked  variance  with  the  usual  form  and  there 
appeared  a  question  as  to  the  time  of  holding  the  election. — On  March  4, 
1871,*  at  the  time  of  the  organization  of  the  House,  the  Clerk,'  after  he  had  called 
the  roll  of  Members-elect,  said: 

Regarding  the  certificates  from  Tennessee,  the  Clerk  desires  to  state  that  they  differ  essentially 
from  the  credentials  issued  to  the  Representatives  from  that  State  elected  to  the  Forty-first  Congress; 
that,  strictly  judged,  they  are  both  vague  and  evasive  and  that  the  changes  made  are  so  marked  and 
special  as  to  create  a  belief  that  they  were  purposely  made  to  produce  uncertainty.  The  Clerk  has  been 
in  doubt  as  to  his  dutv  concerning  them,  but  has  finally  concluded  to  give  them  this  time  the  benefit 
of  the  doubt  and  accept  them.  The  point  which  has  been  argued,  that  the  election  was  not  held  on  the 
day  fixed  by  the  laws  of  Tennessee,  involves  a  construction  of  the  constitution  and  of  several  of  the 
laws  of  that  State;  and  the  Clerk  has,  under  the  circumstances,  concluded  not  to  rule  upon  it. 

The  Tennessee  Members  had  been  called  on  the  roll. 

'  First  session  Forty-second  Congress,  Globe,  p.  6. 
-  Edward  McPherson,  of  Pennsylvania,  Clerk. 
^  First  session  Forty-second  Congress,  Globe,  p.  .5. 
^  First  session  Forty-second  Congress,  Globe,  pp.  5,  U. 

5994— VOL  1—07 2 


18  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   34 

34.  A  credential  from  Indiana  not  meeting  the  requirements  of  the 
law  in  1873,  neither  claimant  to  the  seat  was  enrolled. — On  December  2, 
1S73,'  at  the  organization  of  the  House,  after  the  calling  of  the  roll  of  Members-elect, 
the  Clerk '  said : 

In  Indiana  the  paper  issued  by  the  governor  respecting  the  Ninth  district  can  not  be  accepted  as  a 
credential  within  the  meaning  of  the  law,  and  neither  of  the  claimants  is  enrolled. 

35.  Conflicting  credentials,  signed  by  different  persons  as  governor, 
being  presented  from  Louisiana  in  1873,  the  Clerk  declined  to  enroll  the 
bearers  of  either  credentials. — On  December  1,  1873,'  at  the  time  of  the  organi- 
zation of  the  House,  after  the  roll  of  Members-elect  had  been  called,  the  Clerk  ^ 
said: 

In  Louisiana  there  are  two  unchallenged  certificates  from  the  Third  and  Fifth  districts  only.  In 
the  remaining  three  districts  and  the  Representatives  at  large  two  conflicting  sets  of  papers  have  been 
presented,  each  certifying  the  election  of  a  different  person  and  each  purporting  to  have  been  issued 
by  a  proper  State  officer.  There  is  no  substantial  difference  in  form.  The  one  set  of  papers  purports 
to  have  been  executed  on  the  4th  of  December,  1872,  and  to  have  been  signed  by  Governor  Warmouth, 
though  not  transmitted  by  him  to  the  Clerk's  office.  They  were  received,  one  of  them  early  in  March 
last,  another  later  in  that  month,  and  two  of  them  in  the  latter  part  of  AprU,  1873.  The  other  set  of 
papers  purports  to  have  been  executed  on  the  30th  of  December,  1872,  and  to  have  been  signed  by  Act. 
ing  Governor  Pinchback,  and  transmitted  by  him  to  the  Clerk's  office  by  mail,  and  received  early  in 
January  last.     The  Clerk  accordingly  enrolls  the  two  unchallenged  Members. 

36.  The  credentials  from  West  Virginia  in  1873  showed  a  doubt  as  to 
the  true  day  of  election,  so  the  Clerk  enrolled  only  one  Member-elect,  who 
was  indisputably  elected  on  each  day. — On  Decemljer  1,  1873,'  at  the  time  of 
the  organization  of  the  House,  after  the  roll  of  Members-elect  had  been  called,  the 
Clerk '  said : 

In  West  Virginia  there  is  a  peculiar  complication.  There  were  two  elections  in  1872  at  which 
Representatives  in  the  Forty-third  Congress  were  voted  for — one  of  them  in  August,  at  the  time  of  the 
adoption  of  the  new  State  constitution,  and  the  other  on  the  fourth  Thursday  of  October.  In  the  First 
and  Second  districts  different  persons  were  chosen  at  these  elections;  in  the  Third  district  the  same 
person  was  chosen  at  both.  The  proclamation  and  certificates  of  the  governor  reciting  these  various 
facts  have  been  filed  in  the  Clerk's  office.  The  certificates  of  election  are  issued  in  the  alternative, 
setting  forth  the  due  election  of  these  respective  parties,  provided  the  time  at  which  they  were  chosen 
was  the  time  prescribed  by  law  for  holding  the  election.  The  Clerk  considers  these  certificates  inad- 
missible for  enrolling  either  of  the  claimants  in  the  First  and  Second  districts.  Assuming  that  the 
one  or  the  other  of  those  days  was  the  legal  day  of  election,  Mr.  Hereford,  who  was  chosen  at  both,  would 
appear  to  be  entitled  to  be  enrolled,  notwithstanding  the  technical  defect  in  each  of  his  certificates 
separately  considered.     He  has  accordingly  been  enrolled. 

A  fresh  series  of  certificates,  dated  November  22,  1873,  and  issued  under  an  act  of  the  legislature  of 
that  State  dated  November  15,  1873,  by  a  new  canvassing  board  specially  created  for  that  purpose  and 
intended  to  supersede  the  papers  issued  by  the  governor  under  the  then  existing  law,  and  which  cer 
tify  in  form  the  due  election  of  the  persons  who  received  a  majority  of  the  votes  at  the  October  election 
of  1872,  have  been  presented,  but  appear  to  the  Clerk  to  be  of  doubtful  validity,  and  have  not  been 
accepted  by  him  as  credentials  within  the  meaning  of  the  law. 

'■  First  session  Forty-third  Congress,  Record,  p.  5. 
2  Edward  McPherson,  of  Pennsylvania,  Clerk. 


§  37  THE  clerk's  roll  of  the  members-elect.  19 

37.  The  Arkansas  election  case  of  Gunter  v.  Wilshire  in  the  Forty- 
third  Congress. 

The  Clerk  declined  to  enroll  a  person  bearing  as  credentials  a  mere 
abstract  of  returns,  although  certified  by  the  governor  under  seal  of  the 
State. 

The  House  very  reluctantly  gave  prima  facie  effect  to  a  certified 
abstract  of  returns  not  in  the  form  of  credentials  as  required  by  law 
and  issued  after  the  time  prescribed  by  law. 

An  instance  wherein  the  claimant  seated  on  prima  facie  showing  was 
unseated  after  examination  of  final  right. 

On  December  1,  1873,*  at  the  organization  of  the  House,  the  Clerk  announced 
that  but  two  vaUd  certificates  had  been  presented  from  the  State  of  Arkansas. 
The  certLficates  of  the  Members-elect  from  the  First  and  Third  districts  were  in 
question,  and  their  names  were  not  on  the  roll.     On  December  2  '  the  House — 

Resolved,  That  the  credentials  and  papers  in  the  possession  of  the  Clerk  of  the  House  in  the  cases 
of  the  contested  elections  from  the  First  and  Third  districts  of  Arkansas  be  referred  to  the  Committee 
on  Elections,  with  instructions  to  report  on  the  earliest  day  practicable  who  of  the  contesting  parties 
are  entitled  to  be  sworn  in  as  sitting  Members  of  the  House. 

On  February  9,  1874,^  Mr.  C.  R.  Thomas,  of  Xorth  Carolina,  from  the  Com- 
mittee on  Elections,  submitted  the  report  on  the  prima  facie  right.  The  report 
first  describes  the  papers  presented  as  evidence — 

1.  An  "abstract  and  certificate  of  the  secretarj-  of  state"  showing  12,522  votes  cast  for  W.  W.  Wil- 
shire, 11,961  cast  for  Thos.  M.  Gunter,  407  for  Thos.  M.  Gunther,  and  1,127  scattering.  This  abstract 
is  accompanied  by  a  certificate  of  the  secretary  of  state  of  Arkansas,  dated  January  13,  1873,  that  "the 
above  abstract  is  a  true  copy  of  the  original  now  in  my  office,  and  exhibits  a  true  statement  of  the  votes 
cast  for  Congressman,  etc.,  *  *  *  according  to  the  returns  in  my  office;  and  I  also  certify  that  the 
same  was  cast  up  and  arranged  by  me  in  the  presence  of  Acting  Governor  O.  A.  Hadley  within  the 
time  and  in  the  manner  prescribed  by  statute."  Also,  on  November  20,  1873,  the  secretary  of  state 
certified  to  the  returns  of  an  additional  county  received  after  the  first  certificate  was  made.  The 
belated  returns  increased  the  plurality  for  Mr.  Wilshire. 

2.  A  proclamation,  dated  Februarj'  18,  1873,  signed  by  Elisha  Baxter,  governor,  and  duly  counter- 
signed by  the  secretary  of  state,  under  seal,  proclaiming  the  result. 

3.  A  certificate  of  election  issued  by  Governor  Baxter,  gi\"ing  the  same  abstract  of  votes  as  given 
in  the  proclamation,  with  footnotes,  and  in  form  as  follows: 

'  First  session  Forty-third  Congress,  Record,  p.  5. 

*  Journal,  p.  18;  Record,  p.  19. 

'Report  House  of  Representatives,  Xo.  92;  Smith,  p.  131;  Rowell's  Digest,  p.  286. 


20 


PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES. 


§37 


Abstract  of  the  returns  of  the  election  held  in  the  Third  Congressional  district  of  the  State  of  Arkansas  on  the 
5th  day  of  November,  A.  D.  1872,  for  Representative  in  Congress. 


Counties  composing  tlie  Third  Congressional  district. 


Benton 

Boone  ^ 

Carroll 

Crawford 

Clark 

Franklin 

Johnson 

Little  River.. 

Madison 

Marion , 

Montgomery  ' 

Newton ' 

Pulaski*  

Perry 

Pope 

Pike 

Polk 

Sehastian 

Sevier. 

Washington  < 

Yell 

Saber'....... 


Total. 


255 
188 
272 
932 

1,317 
129 
119 
506 
434 
140 
177 
278 

3,160 
168 
521 
226 
120 

1,017 
264 
702 
536 
784 


SO 
=1  . 

ass 

in  n 


746 
330 
590 
806 
269 
76 
276 
.167 
684 


12,644 


1,621 
81 
310 
125 
342 
578 
425 
1,218 
1,011 
276 


So 


11,499 


12 


407 

184 


591 


'  Boone  County  has  not  been  made  a  part  of  the  Third  Congressional  district  by  any  act  of  the  legislature. 

2  The  votes  given  to  "Gunther"  from  Montgomery  and  Newton  counties  were  probably  intended  for  Thomas  M.  Gunter. 

»  The  scattering  vote  in  Pulaski  County  given  to  "Wilshire,"  "Guntee,"  "S.  M.  Gunter,"  "T.  M.  Guntee,"  "Thos.  M. 
Guntee,"  ' '  T.  Ros  Gunter,"  and  ' '  Thos.  M.  Crenter"  is  a  literal  copy  of  the  clerk's  returns. 

*  A  certiflcateofthoclerk  is  appended  to  the  returns  from  Washington  County,  questioningthe  validity  of  the  election  in 
Richland  Township.    If  this  objection  is  allowed  the  vote  will  stand:  For  Wilshire,  686,  and  Gunter,  1,125. 

'  Saber  County  has  not  been  made  a  part  of  the  Third  Congressional  district  by  any  act  of  the  legislature 

Scattered  votes  polled  for  Guntee,  S.  M.  Gunter,  T  M.  Guntee,  Thos.  M.  Guntee,  T.  Ros  Gunter,  and  Thomas  M.  Crenter 
i  n  Pulaski  County,  1,456. 

There  are  no  returns  from  the  clerk  of  Scott  County. 

"State  op  Arkansas,  Executive  Office: 

"  Whereas  the  acting  governor  failed  to  issue  a  certificate  of  election  to  the  person  who  received  the  high- 
est number  of  votes  for  Representative  in  Congress  from  the  Third  Congressional  district  of  Arkansas  at 
the  election  held  in  said  district  on  the  5th  day  of  November,  A.  D.  1872;  and  whereas  on  the  14th  day 
of  February,  A.  D.  1873,  the  secretary  of  state,  in  my  presence,  did  cast  up  the  votes  polled  for  said  Repre- 
sentative at  said  election  from  the  returns  on  file  in  his  office:  Now,  therefore,  I,  Elisha  Baxter,  governor 
of  the  State  of  Arkansas,  do  certify  that  the  foregoing  statement,  with  the  explanatory  notes,  is  a  full, 
true,  and  correct  exhibit  of  the  votes  polled  for  Representative  from  the  Third  Congressional  district  of 
Arkansas  at  the  election  held  in  said  district  on  the  5th  day  of  November,  A.  D.  1872,  as  appears  from  the 
returns  of  said  election  on  file  and  certificates  of  clerks  deposited  in  the  office  of  secretary  of  state. 

"  In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  State  to  be  affixed, 
at  Little  Rock,  on  this  18th  day  of  February,  A.  D.  1873. 

[l.  8.]  "ELISHA  BAXTER,  Governor. 

"  By  the  governor; 

"J.  M.  JohnsojV,  Secretary  of  State." 


§  37  THE  clerk's  roll  of  the  members-elect.  21 

The  law  of  Arkansas  provided: 

"  Sec.  50.  It  shall  be  the  duty  of  the  secretarj-  of  state,  in  the  presence  of  the  governor,  within  thirty 
daj-s  after  the  time  herein  allowed  to  make  returns  of  elections  to  the  clerks  of  the  county  courts,  or 
sooner,  if  all  the  returns  shall  have  been  received,  to  cast  up  and  arrange  the  votes  from  the  several  coun- 
ties, or  such  of  them  as  have  made  returns,  for  such  persons  voted  for  as  Members  of  Congress;  and  the 
governor  shall  immediately  thereafter  issue  his  proclamation,  declaring  the  person  having  the  highest  num- 
ber of  votes  to  be  duly  elected  to  represent  the  State  in  the  House  of  Representatives  of  the  Congress  of  the 
United  States,  and  shall  grant  a  certificate  thereof ,  under  the  seal  of  the  State,  to  the -person  so  elected." 

The  law  of  Congress  provided : 

"That  before  the  first  meetingof  the  next  Congress,  and  of  every  subsequent  Congress,  theClerkof  the 
next  preceding  House  of  Representatives  shall  make  a  roll  of  the  Representatives  elect  and  place  thereon 
the  names  of  persons  claiming  seats  as  Representatives  elect  from  States  which  were  represented  in  the 
next  preceding  Congress,  and  of  such  persons  only,  and  whose  credentials  show  that  they  were  regularlv 
elected  in  accordance  with  the  laws  of  their  States,  respectively,  or  the  laws  of  the  United  States." 

The  most  usual  kind  of  credential  is  a  certificate  of  the  governor  of  a  State,  and  such  kind  is  required 
by  the  law  of  Arkansas.  No  particular  form  of  one  has  heretofore  been  considered  necessary  by  the 
House;  and  while  such  certificate,  when  it  showed  that  the  person  named  therein  was  regularly  elected, 
etc.,  has  always  been  admitted  and  held  to  be  competent  and  satisfactory  evidence  of  prima  facie  right 
to  a  seat,  the  House  has  frequently  decided  that  the  want  of  it  from  any  reason  would  not  impair  or 
prejudice  such  prima  facie  right  of  a  Member  elect,  but  only  remit  him  to  other  evidence  to  establish  it. 

Do  the  credentials  and  papers  referred  to  the  committee  liy  the  House  resolution,  any  one  or  all  of 
them,  show  that  either  Mr.  Wilshire  or  Mr.  Gunter  was  regularly  elected  in  accordance  with  the  laws  of 
Arkansas,  or  do  they  establish  the  prima  facie  right  of  either  to  a  seat? 

In  the  opinion  of  the  committee  they  furnish  satisfactory  e\idence  to  establish  the  prima  facie 
right  of  W.  W.  Wilshire  to  his  seat.  In  their  opinion  the  certificate  of  Governor  Baxter  is  in  itself  suffi- 
cient in  form  and  substance  and  legal  intendment  to  establish  such  right  of  Mr.  Wilshire.  It  indicates, 
or  shows,  that  W.  W.  Wilshire  received  12,644  votes,  being  a  majority  of  1,145  votes  for  Mr.  Wilshire 
by  the  "abstract  of  the  returns  of  the  election  held  in  the  Third  Congressional  district  of  the  State  of 
Arkansas  on  the  5th  day  of  November,  1872,  for  Representative  in  Congress;"  and  assuming  that,  as 
matter  of  law,  the  votes  of  the  counties  of  Boone  and  Sarber  should  not  have  been  counted  or  "arranged 
and  cast  up,"  because  these  counties  had  "not  been  made  parts  of  the  Third  Congressional  district  by 
any  act  of  the  legislature,"  then  the  said  certificate  shows  that  Mr.  Wilshire  received  a  majority  of  1,195 
votes.  And  the  certificate  of  Governor  Baxter  is  to  the  effect  that  W.  W.  Wilshire  was  "duly  elected," 
and  is  in  accordance  with  the  laws  of  Arkansas  before  cited  and  mentioned. 

The  failure,  from  whatever  cause  it  arose,  of  the  acting  governor,  O.  A.  Hadley,  in  whose  presence 
the  secretary  of  state  did  cast  up  and  arrange  the  votes  from  the  several  counties,  etc.,  to  issue  the  proc- 
lamation and  grant  the  certificate — a  duty  which  the  laws  of  the  State  devolved  upon  him,  and  the  act 
of  Congress  of  May  31,  1870,  as  well  (and  said  act  made  it  a  criminal  offense  in  that  he  neglected  or  refused 
to  do  so) — could  not  prejudice  the  right  of  the  people  of  the  Third  Congressional  district,  or  of  the  person 
who  had  been  chosen  by  them  as  Representative  to  the  Forty-third  Congress  in  pursuance  of  their  obli- 
gation under  the  national  Constitution.  Such  a  failure,  in  any  instance,  ought  not  to  be  allowed  by 
the  Hoiise  to  hinder,  impede,  or  delay  the  right  of  representation  of  the  people  of  a  district,  or  the  right  of 
the  person  chosen  V)y  them  to  a  seat  pending  a  contest  upon  the  merits,  when  ' '  that  amount  of  proof  which 
ordinarily  satisfies  an  unprejudiced  mind,  beyond  reasonable  doubt,"  is  produced  in  a  case  before  it. 

The  report  goes  on  to  say  that  section  50  of  the  Arkansas  laws  above  quoted 
is  directory  and  that  Governor  Baxter  was  required  to  issue  the  certificate  upon 
the  omission  of  his  predecessor  to  do  so. 

The  majority  did  not  conceive  that  the  omission  of  the  words  "duly  elected" 
or  "other  words  declaratory  of  the  fact  or  result  would  be  nonessential,  if  not 
surplusage."     The  report  continues: 

A  strict  adherence  to  any  prescribed  or  particular  form  of  credential,  or  to  legal  rules  of  evidence 
on  a  prima  facie  case  of  election,  would  tend  to  prejudice  the  rights  of  the  party  claiming  to  have  been 
elected,  and  of  the  people  as  well,  and  to  prevent  the  organization  of  the  House. 


22  PKECEDEHTS   OF   THE   HOUSE    OE   KEPEESENTATIVES.  §  37 

The  case  of  Giddings  v.  Clark  was  referred  to. 

The  majority  of  the  committee,  therefore,  reported  a  resolution  giving  Mr. 
Wilshire  the  prima  facie  right  to  the  seat,  without  prejudice  to  the  right  of  Mr. 
Gunter  to  contest. 

Mr.  Lucius  Q.  C.  Lamar,  of  Mississippi,  submitted  minority  views,  which  say, 
after  citing  the  law: 

The  question  then  arises,  Does  W.  W.  Wilshire  present  to  the  committee,  and,  through  the  committee, 
to  this  House,  a  certificate  in  due  fonn  from  the  governor  of  the  State,  declaring  W.  W.  Wilshire  "to 
be  duly  elected  to  represent  the  State  in  the  House  of  Representatives  of  the  Congress  of  the  United 
States?" 

Thei-e  can  be  but  one  answer  to  this  inquiry.     He  does  not  and  can  not  present  such  a  certificate. 

There  is  a  certificate  filed  by  him,  issued  by  the  governor  of  the  State  of  Arkansas,  which  does  not 
declare  or  show  him  to  be  duly  elected,  but  simply  gives  a  statement  of  the  votes  cast,  from  which  state- 
ment it  can  not  be  ascertained  who  was  elected;  and  a  certificate  is  on  file,  in  every  respect  identical 
in  substance  and  letter,  which  was  issued  at  the  same  time  to  his  competitor,  Thomas  M.  Gunter. 

It  can  not,  therefore,  be  said  that  the  governor  has  issued  a  certificate  of  election  to  Mr.  Wilshire. 

After  commenting  on  the  action  of  the  Clerk  in  not  putting  any  name  on  the 
roll,  the  minority  say: 

Now,  if  the  construction  which  a  majority  of  the  committee  have  put  upon  this  resolution  of  the 
House  is  the  true  one,  and  it  necessarily  confines  the  investigation  of  the  committee  to  the  instrument 
by  which  the  prima  facie  right  is  established,  it  follows  that  they  should  not  have  extended  their 
inquiries  beyond  the  face  of  this  certificate,  nor  thrown  before  this  House  any  information  derived  from 
evidence  and  proofs  of  a  secondary  character.  Upon  their  construction  C}f  the  resolution  the  proper 
course,  in  the  opinion  of  the  undersigned,  would  have  been  to  have  reported  a  resolution  to  the  House 
that  no  prima  facie  right  to  a  seat  on  this  floor  existed  in  this  case. 

Let  us  now  examine  this  certificate  and  see  if,  from  the  facts  therein  stated,  the  committee  had 
before  them  data  sufficient  to  determine  who,  in  the  absence  of  any  proof  to  the  contrarj',  was  the  per- 
son duly  elected.     We  have  seen  that  no  person  was  therein  declared  to  have  been  duly  elected. 

The  certificate  shows  that  12,644  votes  were  cast  for  W.  AV.  Wilshire;  that  11,499  votes  were  cast  for 
Thomas  M.  Gunter,  eo  nomine,  and  that  1,456  votes  were  returned  in  unspecified  proportions  for  Thomas 
M.  Gunter  and  Thomas  M.  Crenter,  those  for  Thomas  M.  Gunter  being  returned  under  different  desig- 
nations, each,  however,  clearly  indicating  Thomas  M.  Gunter  as  the  person  voted  for.  Now,  can  it  be 
said  that  there  is  here  any  evidence  that  W.  W.  Wilshire  received  a  larger  number  of  votes  than  Thomas 
M.  Gunter?  It  is  clear  that  if  Thomas  M.  Crenter  received  only  30  or  40  of  these  1,456  votes,  Thomas  M. 
Gunter  is  the  person  duly  elected.  It  is  also  equally  clear  that  if  Thomas  M.  Crenter  received  a  larger 
proportion  of  the  1,456  votes  than  Thomas  M.  Gunter,  then  W.  W.  Wilshire  is  elected.  But  it  is  impos- 
sible to  determine  from  anything  on  the  face  of  this  certificate  what  was  the  actual  vote  cast  for  Thomas 
M.  Crenter,  and  therefore  equally  impossible  to  determine  which  candidate  received  the  most  votes, 
W.  W.  Wilshire  or  Thomas  M.  Gunter.  This  is  fatal  to  the  certificate  as  the  credentials  of  Mr.  Wil- 
shire. To  ascertain  who  was  elected,  it  becomes  necessary  to  refer  to  other  proofs,  which  opens  an 
inquiry  into  the  merits  of  the  case,  and  involves  an  abandonment  of  the  prima  facie  consideration. 
The  only  alternative,  therefore,  as  it  seemed  to  the  undersigned,  was  to  enter  at  once  upon  the  ques- 
tion of  the  fact  of  the  election,  and  if  the  committee  deemed  it  had  not  power  to  do  so  under  the  resolu- 
tion of  the  House,  to  ask  of  the  House  an  enlargement  of  its  powers. 

W'hile  the  undersigned  believe  that  if  the  governor's  certificate  shows  no  prima  facie  title  to  the  seat 
on  account  of  the  doubt  as  to  the  identity  of  Thomas  il.  Crenter,  it  is  the  duty  of  the  committee  to 
inquire  at  once  into  the  merits  of  the  case,  and  to  consider  all  the  proofs  bearing  upon  the  merits,  includ- 
ing the  depositions  as  well  as  the  documentary  proofs;  they  are  at  the  same  time  clearly  of  the  opinion 
that  the  documentary  proofs,  outside  of  the  certificates,  show  a  large  majority  in  favor. of  Mr.  Gunter. 


§  38  THE  clerk's  roll  of  the  members-elect.  23 

The  minority  thereupon  proceed  to  argue  that  the  tabulation  of  the  secretary  of 
state  was  under  suspicion,  and  to  show  its  defective  nature  proposed  to  introduce 
the  returns  of  Pulaski  County,  saying: 

If  it  is  said  that  this  return  from  Pulaski  County  and  these  proofs  just  cited  can  not  be  considered 
in  a  prima  facie  case,  we  reply  that  we  have  referred  to  them,  not  for  the  purpose  of  showing  any  prima 
facie  case  for  Mr.  Gunter,  but  simply  to  show  that,  so  far  from  remedying  the  defects  of  Mr.  Wilshire's 
claim,  based  on  the  certificate  either  of  the  governor  or  the  secretary,  they  show  Mr.  Gunter  to  have 
been  elected. 

We  have  shown  that  neither  the  governor's  certificate  nor  the  secretary's  casting  up,  standing  by 
itself,  establishes  any  prima  facie  right  to  the  contested  seat  in  W.  W.  Wilshire.  If  it  is  said  that  the 
two  supplement  each  other,  each  supplying  the  deficiency  of  the  other,  in  answer  we  reply  that  dis- 
crepancies and  direct  contradictions  in  these  documents  are  so  glaring  and  numerous  as  to  neutralize  the 
effect  and  destroy  the  validity  of  both  as  instruments  of  evidence. 

In  accordance  with  this  line  of  argument  the  minority  proposed  a  resolution 
that  the  case  be  recommitted  with  instructions  that  the  committee  report  on  the 
merits  of  the  case. 

The  report  was  debated  at  length  on  February  17.'  In  this  debate  it  was  pointed 
out  that  the  acting  governor  had  in  another  Arkansas  district  certified  that  "  O.  P. 
Snyder  was  duly  elected  a  Member  of  Congress,"  but  that  in  this  case  the  governor 
did  not  certif}-  that  either  of  the  gentlemen  was  elected.  It  was  also  urged  by 
Mr.  George  W.  McCrary,  of  Iowa,  that  the  footnotes  made  it  a  moral  certainty 
that  all  the  scattering  votes  were  intended  for  Mr.  Gunter. 

In  reply  it  was  denied  that  the  table  made  it  certain  that  the  scattering  votes 
were  intended  for  Mr.  Gunter.  The  governor  had  not  expressly  declared  in  his 
certificate  who  was  elected,  but  by  incorporating  the  table  he  made  it  a  part  of 
the  certificate,  and  thus  showed  who  was  elected.  The  tact  that  the  words  "duly 
elected"  did  not  appear  in  the  certificate  was  not  fatal.  There  was  no  form  of 
certificate  prescribed  by  the  House,  and  the  State  of  Arkansas  had  not  fixed  the 
form.     The  footings  of  the  table  showed  who  was  prima  facie  entitled  to  the  seat. 

The  question  being  taken  on  the  motion  to  substitute  the  minority  proposition 
for  the  majority,  there  appeared,  yeas  116,  nays  117.^ 

The  question  then  recurring  on  the  passage  of  the  resolution  recommended  by 
the  majority  of  the  committee,  there  appeared,  yeas  118,  nays  96.  So  the  resolu- 
tion was  passed. 

A  motion  to  reconsider  was  made  and  disposed  of  on  the  next  day. 

Thereupon  Mr.  Wilshire  appeared  and  took  the  oath. 

38.   The  Arkansas  election  case  of  Gunter  v.  Wilshire — Continued, 

A  notice  of  contest  served  within  thirty  days  of  the  issuance  of 
the  governor's  proclamation  was  held  suflBcient,  although  the  proclama- 
tion was  not  issued  within  the  time  prescribed  by  law. 

Original  returns  of  the  precincts  being  lost,  the  House  by  testimony 
proved  that  certain  votes  returned  as  '*  scattering  "  because  of  misnomer 
were  actually  cast  for  contestant. 


'  Record,  pp.  1563-1578. 

^Journal,  pp.  458,  460;  Record,  pp.  1577,  1601,  1602. 


24  PRECEDENTS    OF    THE    HOUSE    OF    REPEESENTATIVES.  §   39 

An  instance  wherein  the  House  seated  a  contestant  belonging  to  the 
minority  party. 

On  June  3  '  Mr.  J.  W.  Robinson,  of  Ohio,  presented  the  report  on  the  question 
of  final  right  to  tiie  seat. 

At  the  outset  a  preliminary  question  arose,  which  was  disposed  of  as  follows: 

The  contestee  claims  that  the  contest  should  be  dismissed  because  the  notice  of  contest  was  not  served 
on  him  within  thirty  days  from  the  day  fixed  by  law  for  canvassing  the  returns  and  determining  the 
result  of  the  election. 

The  returns  were  first  canvassed  by  the  secretary  of  state,  in  the  presence  of  Governor  Hadley,  on 
the  14th  of  December,  1872,  but  no  proclamation  of  the  result  was  made,  nor  any  certificate  of  election 
issued  to  anyone,  both  of  which  the  statute  of  the  State  required  the  governor  to  do  immediately. 
(See  sec.  50.)  Afterward  Elisha  Baxter,  being  inaugurated  governor,  having,  on  the  18th  day  of  Febru- 
ary, 1873,  caused  the  votes  to  be  again  canvassed  by  the  secretary  of  state  in  his  presence,  made  proclama- 
tion of  the  result,  and  issued  his  certificate. 

This  proclamation  and  certificate  constitute  the  only  announcement  of  the  determination  of  the 
result  of  the  election  in  that  district,  and  the  committee  are  of  the  opinion  that,  in  view  of  all  the  circum- 
stances, the  service  of  notice  of  contest  on  the  13th  of  March  is  sufficient,  and  overruled  the  motion  to 
dismiss  the  contest. 

As  to  the  merits  of  the  case,  the  committee  were  unanimous  in  their  conclusions: 

By  gome  strange  mishap  the  original  returns  of  the  precincts  where  these  scattering  votes  were  cast 
have  been  lost  or  destroyed. 

The  testimony  submitted  satisfies  the  committee  that  the  contestee  and  the  contestant  were  the  only 
candidates  for  Congress  in  that  district;  that  1,433  of  the  "scattering"  votes  referred  to  in  the  governor's 
certificate  as  being  given  for  "Guntee,"  "T.  M.  Guntee,"  "  Thomas  M.  Guntee,"  and  "T.  RossGunter,'' 
were,  in  fact,  given  for  Thomas  M.  Gunter,  and  should  be  counted  for  him;  and  that  1  vote,  referred  to  as 
given  for  "S.  M.  Guntee,"  and  the  32  given  for  "Thomas  M.  Crenter,"  about  which  no  evidence  was 
offered,  are  not  proven  to  have  been  cast  for  Thomas  M.  Gunter.  The  testimony  on  this  point  is  volu- 
minous, but  entirely  satisfactory,  and  the  1,433  votes  are  added  by  the  committee  to  the  credit  of  contest- 
ant Thomas  M.  Gunter.  So,  also,  the  407  votes  in  Montgomery  County,  and  the  184  votes  in  Newton 
County,  returned  for  "Gunther,"  were  cast  for  Thomas  M.  Gunter;  also,  the  12  votes  in  Pulaski  County, 
returned  for  "Wilshire,"  were  cast  for  the  contestee,  and  should  be  credited  to  them,  respectively. 

Correcting  the  canvass  of  the  returns,  as  above  indicated,  the  committee  find  the  whole  vote  returned, 
and  to  be  counted  for  contestant,  Thomas  M.  Gunter,  to  be  13,513,  and  for  the  contestee  12,656,  giving 
the  contestant  a  majority  of  857  votes. 

In  the  foregoing  schedule  no  votes  are  canvassed  from  Scott  County,  and  but  194  from  Johnson 
County.  In  both  of  these  counties  returns  were  made  which,  if  counted,  would  increase  the  majority 
of  the  contestant  1,003. 

In  accordance  with  their  conclusions,  the  committee  reported  resolutions  declar- 
ing Mr.  Wilshire  not  entitled  to  the  seat,  and  declaring  Mr.  Gunter,  the  contestant, 
elected. 

On  June  16,'  the  House  without  debate  or  division  agreed  to  the  resolutions, 
and  Mr.  Gunter  was  sworn  in.^ 

39.  In  1875  a  paper  of  unusual  form  was  submitted  to  the  House  at 
the  time  of  organization  by  the  Clerk,  who  had  declined  to  make  an  en- 

'  Report  No.  631;  Smith,  p.  233. 
=  Journal,  pp.  1192,  1193;  Record,  p.  5046. 

^  It  is  worthy  of  notice  that  contestant  belonged  to  the  party  in  a  minority  in  the  House,  and  the 
unseated  Member  belonged  to  the  majority  party. 


§  40  THE    clerk's    roll    OF   THE    MEMBERS-ELECT.  25 

rollment  on  the  strength  thereof. — On  December  0,  1875/  at  the  organization 
of  the  House,  after  the  calling  of  the  roll  of  Members-elect,  the  Clerk  ^  said: 

For  the  Thirty-third  district  of  New  York  the  vacancy  on  the  roll  caused  by  the  death  of  the  gentle- 
man originally  returned  has  not  been  filled.  The  action  of  the  State  board  of  canvassers  upon  the 
returns  of  the  late  election  has  been  received  at  the  Clerk's  office,  but,  being  of  unusual  form,  is  submitted 
for  action  of  the  House. 

40.  In  1875  the  Clerk  enrolled  the  names  of  those  bearing  creden- 
tials signed  by  the  recognized  de  facto  governor  of  Louisiana,  although 
there  were  other  conflicting  credentials. — On  December  G,  1875,*  at  the  time 
of  the  organization  of  the  House,  after  calhng  the  roll  of  Members-elect,  the  Clerk  ' 
said: 

Respecting  Louisiana,  the  Clerk  begs  to  say  that  he  has  received  two  sets  of  certificates  as  to  the  first 
five  districts — one  signed  by  William  Pitt  Kellogg,  as  governor  of  Louisiana;  the  other  signed  by  John 
McEnery,  as  governor  of  Louisiana.  The  Kellogg  certificates  were  all  received  by  the  Clerk  prior  to 
the  adjournment  of  the  Forty-third  Congress.  One  of  the  McEnery  certificates  was  also  received  dur- 
ing that  session;  the  others  at  different  dates  during  the  last  summer  and  fall.  The  two  sets  of  certifi- 
cates agree  in  declaring  the  same  persons  elected  in  the  First,  Second,  Third,  and  Fourth  districts. 
In  the  Fifth  the  Kellogg  certificate  declares  Mr.  Frank  Morey  elected;  the  McEnery  certificate  declares 
Mr.  William  B.  Spencer  elected.  As  to  the  Sixth  district,  no  McEnery  certificate  has  been  presented. 
The  Kellogg  certificate  declares  Mr.  Charles  E.  Nash  elected.  The  Clerk  has  enrolled  all  the  gentle- 
men bearing  the  Kellogg  certificates  as  coming  from  the  de  facto  governor  recognized  by  the  last  House. 

41.  Of  three  sets  of  credentials  presented  from  Louisiana  in  1877  the 
Clerk  honored  those  which  conformed  to  the  requirements  of  State  law. — 
On  October  15,  1877,^  at  the  organization  of  the  House,  after  the  roll  of  Members- 
elect  had  been  called,  the  Clerk  *  said: 

In  reference  to  the  State  of  Louisiana,  the  Clerk,  if  there  be  no  objection,  will  take  occasion  here 
to  remark  that  there  wore  received  from  the  State  of  Louisiana  three  different  sets  of  credentials,  one 
set  signed  by  John  McEnery,  as  governor  of  Louisiana,  bearing  date  December  20,  1876,  and  declaring 
certain  persons  elected  from  the  First,  Fourth,  and  Sixth  districts,  but  silent  as  to  the  persons  elected 
from  the  other  districts  of  said  State.  Inasmuch,  however,  as  said  McEnery  was  never  de  facto  governor 
of  Louisiana,  and  never,  in  point  of  fact,  exercised  or  performed  the  functions  of  that  office,  it  is  not 
deemed  necessary  to  make  here  any  statement  concerning  the  regularity  or  irregularity  of  the  creden- 
tials coming  from  that  source. 

Another  set  of  credentials  is  signed  by  William  Pitt  Kellogg,  as  governor  of  Louisiana,  with  the 
seal  of  the  State  attached,  all  of  which  not  only  bear  different  dates,  but  also  reached  the  hands  of  the 
Clerk  at  different  times  and  through  different  channels,  and  simply  declare  the  persons  elected  from 
each  of  the  districts  of  said  State,  respectively,  except  the  Second  district,  as  to  which  no  certificate 
seems  to  have  been  issued  by  said  Kellogg  in  favor  of  anyone.  The  law  of  Louisiana  prescribing  the 
character  of  the  credentials  by  which  the  elections  of  its  Representatives  in  Congress  shall  be  authen- 
ticated and  known  provides  as  follows: 

"That  as  soon  as  possible  after  the  expiration  of  the  time  of  making  the  returns  of  the  election  of 
Representative  in  Congress,  a  certificate  of  the  returns  of  the  election  f(jr  such  Representatives  shall 
be  entered  upon  record  by  the  secretary  of  state,  signed  by  the  governor,  and  a  copy  thereof,  subscribed 
by  said  officers,  shall  be  delivered  to  the  persons  so  elected  and  another  copy  transmitted  to  the  House 
of  Representatives  of  the  United  States,  directed  to  the  Clerk  thereof. " 

'  First  session  Forty-fourth  Congress,  Record,  p.  167. 
'^  Edward  McPhorson,  of  Pennsylvania,  Clerk. 
'First  session  Forty-fifth  Congress,  Record,  pp.  51,  52. 
*  George  M.  Adams,  of  Kentucky,  Clerk. 


26  PRECEDENTS   OP   THE   HOUSE    OF   EEPEESENTATIVES.  §  42 

These  credentials  signed  by  Governor  Kellogg  are  in  no  sense  a  compliance  with  the  requirement 
of  the  laws  of  Louisiana.  They  do  not  even  purport  to  be  entered  on  the  record  by  the  secretary  of 
state  and  there  signed  by  the  governor,  but  are,  on  the  contrary,  a  simple  declaration  by  him  that  cer- 
tain persons  are  elected,  without  even  stating  the  sources  of  his  information,  and  no  more  constitute 
credentials  within  the  meaning  of  the  laws  of  Louisiana  than  a  simple  statement  from  the  treasurer  or 
other  State  official  would  bo.  They  are  not  such  papers  as  the  law  of  Louisiana  has  prescribed  as  the 
credentials  by  which  the  election  of  its  Representatives  in  Congress  shall  be  authenticated  and  known, 
and  could  not  therefore  be  recognized  by  the  Clerk  as  such,  whose  duty  it  is,  under  the  law,  to  place 
on  the  roll  the  names  of  those,  and  only  those,  whose  credentials  show  that  they  are  elected  in  accord- 
ance with  the  laws  of  their  respective  States,  or  the  laws  of  the  United  States. 

The  other  set  of  credentials  is  signed  by  Francis  P.  Nichols,  as  governor  of  Louisiana,  and  Oscar 
Arroyo,  as  assistant  secretary  of  state,  with  the  seal  of  the  State  attached.  All  of  them  bear  date  Febru- 
ary 27,  1877,  and  all  of  them  reached  the  hands  of  the  Clerk  at  the  same  time,  and  through  the  channels 
prescribed  by  law.  They  declare  the  persons  elected  in  each  of  the  districts  of  Louisiana,  respectively, 
and  conflict  with  the  certificate  signed  Ijy  Governor  Kellogg  in  reference  to  two  districts  only.  These 
credentials  comply,  it  is  thought,  with  the  laws  of  Louisiana  in  every  respect,  and  the  Clerk  has  accord- 
ingly placed  on  the  roll  the  names  of  the  persons  contained  in  these  credentials. 

42.  In  1877  the  Clerk  disregarded  credentials  issued  by  the  governor 
of  Colorado  in  due  form,  holding  that  they  showed  the  election  to  have 
been  held  on  a  day  unauthorized  by  law. — On  October  15,  1S77,'  at  the  time 
of  the  organization  of  the  House,  during  the  call  of  the  roll  of  Members-elect  the 
Clerk  ^  said : 

The  Clerk  will  make  a  statement  with  reference  to  the  reasons  by  which  he  was  controlled  in  not 
placing  on  the  roll  the  names  of  anyone  from  the  State  of  Colorado.  There  has  been  received  by  the 
Clerk  a  credential,  signed  by  Governor  J.  L.  Routt  as  governor  of  that  State,  with  the  seal  of  the  State 
attached,  declaring  the  election  of  James  B.  Belford  on  the  3d  day  of  October,  1870.  The  law  of  Con- 
gress, in  terms,  declares  that  the  Clerk  shall  place  upon  the  roll  the  names  of  those  Representatives,  and 
of  those  only,  whose  credentials  show  that  they  are  elected  in  accordance  with  the  laws  of  their  States, 
respectively,  or  the  laws  of  the  United  States.  The  Clerk  does  not  think  that  there  is  any  law  in  existence, 
either  in  the  State  of  Colorado,  or  any  law  of  the  United  States,  which  authorizes  the  election  of  a  Repre- 
sentative of  the  Forty-fifth  Congress  on  the  3d  day  of  October,  1876.  That  being  the  case,  and  the 
certificate  which  Mr.  Belford  brings  showing  on  its  very  face  that  he  was  elected  at  a  time  unauthorized 
by  either  the  laws  of  the  United  States  or  of  his  State,  the  Clerk  could  see  no  way  in  which  he  could 
possibly  place  the  name  of  Mr.  Belford  on  the  roll. 

The  Clerk  read  the  certificate,  as  follows : 

"  Certificate  of  election. 

"State  of  Colorado,  State  Department,  ss: 

"I,  John  L.  Routt,  governor  of  the  State  of  Colorado,  hereby  certify  that  at  an  election  held  on 
the  3d  day  of  October,  A.  D.  1876,  James  B.  Belford  received  13,249  votes,  being  a  majority  of  all  the 
votes  cast  for  Representative  in  the  Forty-fifth  Congress  of  the  United  States. 

"He  is  therefore  hereby  declared  duly  elected  Representative  in  said  Congress. 

"In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  great  seal  of  the  State  to 
be  affixed  at  the  city  of  Denver  this  6th  day  of  November,  A.  D.  1876. 

[seal.]  "John  L.  Routt,  Governor. 

"By  the  governor: 

"William  M.  Clark,  Secretary  Colorado.^' 

'  First  session  Forty-fifth  Congress,  Record,  p.  52. 
^George  M.  Adams,  of  Kentucky,  Clerk. 


§  43  THE  clerk's  roll  of  the  members-eleot.  27 

There  was  also  received  liy  the  Clerk  a  protest,  signed  Viy  John  M.  Patterson,  claiming  to  be  Repre- 
sentative-elect from  the  State  of  Colorado,  and  accompanying  that  protest  a  certified  copy  of  an  abstract 
of  the  votes  cast  in  each  county  on  the  Tuesday  after  the  first  Monday  in  November  for  Representative 
to  the  Forty-fifth  Congress  from  the  State  of  Colorado.  This  certified  copy  of  the  abstract  of  the  votes 
cast  at  said  election  shows,  however,  that  those  votes  were  never  canvassed  by  any  board  of  canvassers 
and  that  no  certificate  was  ever  issued  to  anyone  declaring  the  result  of  said  election. 

^^^lile  the  Clerk  is  of  the  opinion  that  the  laws  of  the  United  States  and  of  the  State  of  Colorado 
required  an  election  to  be  held  in  November,  at  which  time  Mr.  Patterson  claims  to  have  been  elected, 
still,  inasmuch  as  Mr.  Patterson  does  not  present  credentials  regular  in  form,  such  as  the  Clerk  feels 
would  justify  him  in  placing  his  name  upon  the  roll,  he  will  submit  the  credentials  of  Mr.  Belford 
and  Mr.  Patterson,  such  as  they  are,  to  the  consideration  of  the  House  after  it  shall  have  organized. 

43.  Of  two  conflicting  credentials  from  Florida  in  1877  the  Clerk  hon- 
ored the  one  issued  in  accordance  with  a  decision  of  the  supreme  court  of 
the  State. 

A  second  credential  being  issued  by  a  governor  because  of  a  decision 
of  the  State  court,  but  not  showing  the  result  called  for  by  the  rule  of  that 
court,  the  Clerk  honored  the  first  credential. — On  October  15,  1877,^  at  the 
time  of  the  organization  of  the  House,  while  the  roll  of  Members-elect  was  being 
called,  the  Clerk  -  said : 

From  the  State  of  Florida  certificates  were  received,  signed  by  Marcellus  L.  Steams  as  governor  of 
Florida,  with  the  seal  of  the  State  attached,  certifying  that  William  J.  Purman  was  elected  in  the  First 
and  that  Horatio  Bisbee  was  elected  in  the  Second  district  of  said  State.  These  certificates  bear  date, 
respectively,  December  9  and  December  14,  1876,  and  seem  to  be  regular  in  form. 

But  in  reference  to  the  First  district  two  certificates  were  subsequently  received,  signed  by  George 
F.  Drew,  governor  of  Florida,  with  the  seal  of  the  State  attached  and  bearing  date,  respectively,  January 
12  and  February  26,  1877.  These  certificates  recite  the  fact  that  the  canvass  of  the  vote  upon  which  the 
certificate  in  favor  of  Mr.  Purman  was  based  had  been  declared  by  the  supreme  court  of  the  State  of 
Florida  illegal  and  that  another  canvass  had  been  made,  in  obedience  to  the  order  of  the  supreme  court 
of  Florida,  which  canvass  resulted  in  the  election  of  Robert  H.  M.  Davidson  as  Representative  from  said 
district. 

Under  such  circumstances  the  Clerk  felt  bound  to  place  on  the  roll  from  the  First  district  of  Florida 
the  name  of  Robert  H.  M.  Davidson,  whose  credentials  show  that  he  was  elected  in  accordance  with  the 
laws  of  the  State  of  Florida  as  interpreted  by  the  supreme  court  of  that  State. 

In  reference  to  the  Second  district  of  Florida,  a  certificate  was  also  subsequently  received,  signed  by 
George  F.  Drew,  governor  of  Florida,  with  the  seal  of  the  State  attached,  which  certificate  does  not,  how- 
ever, like  the  subsequent  certificate  signed  by  George  F.  Drew  in  reference  to  the  First  district,  show 
that  the  second  canvass,  made  in  pursuance  of  the  order  of  the  supreme  court,  resulted  in  the  election  of 
any  other  person  than  Mr.  Bisbee,  to  whom  Governor  Stearns  had  previously  issued  a  certificate;  but, 
on  the  contrary,  it  simply  declares  that  by  counting  the  votes  in  a  certain  precinct  in  Clay  County, 
which  the  board  of  State  canvassers  rejected,  and  which  the  supreme  court  in  their  opinion  say  could 
not  be  legally  counted,  then  in  that  event  J.  J.  Finley  would  be  elected.  Under  such  circumstances 
the  Clerk  could  not  see  how  the  subsequent  certificate  declaring  the  election  of  Mr.  Finley  by  doing 
what  the  supreme  court  declared  could  not  be  legally  done  could  in  any  way  invalidate  the  certificate 
which  had  previously  been  issued  by  Governor  Stearns  to  Mr.  Bisbee;  and  hence,  whatever  may  be  the 
merits  of  this  case  in  a  contest  before  the  House,  it  seems  clear  to  the  Clerk  that  the  prima  facie  right, 
with  which  alone  the  Clerk  can  deal,  is  with  Mr.  Bisbee,  whose  name  was  therefore  placed  on  the  roll. 

44.  The  Mississippi  election  case  of  Chalmers  v.  Manning  in  the 
Forty-eighth  Congress. 

'  First  session  Forty-fifth  Congress,  Record,  p.  52. 
'  George  M.  Adams,  of  Kentucky,  Clerk. 


28  PRECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES.  §  44 

No  credentials  being  received,  tlie  Clerk  declined  to  enroll  either 
claimant,  although,  one  of  them  filed  documents  tending  to  show  his  elec- 
tion. 

The  House  declined  to  order  that  the  oath  be  taken  by  a  person  who 
had  credentials  perfect  in  form,  but  who  had  not  presented  them  to  the 
Clerk  and  did  not  desire  to  assert  prima  facie  right. 

In  ordering  an  investigation  as  to  prima  facie  right,  the  House 
referred,  with  the  credentials,  documents  showing  the  state  of  the  returns. 

On  December  3,  1883,'  at  the  time  of  the  organization  of  the  House,  the  Clerk,' 
after  he  had  called  the  names  of  the  Members-elect,  made  a  statement  respecting 
the  Second  district  of  Mississippi.  He  stated  that  James  R.  Chalmers,  who  claimed 
to  have  been  elected  there,  had  filed  with  him  four  exhibits  in  support  of  his  claim 
to  be  enrolled  as  a  Member-elect.  These  exhibits,  which  the  Clerk  gave  at  length, 
tended  to  show  that  the  secretary  of  state  of  Mississippi,  in  making  on  the  18th  of 
November,  1882,  the  canvass  of  the  vote  of  the  district,  had  credited  to  J.  R.  Cham- 
bless  enough  votes  to  make,  with  those  credited  to  J.  R.  Chalmers,  enough  to  elect 
the  latter  over  his  leading  competitor,  Mr.  Van  H.  Manning.  After  the  canvass 
had  been  made  papers  had  been  filed  with  the  secretary  of  state  showing  that  the 
votes  credited  to  J.  R.  Chambless  were  really  cast  for  Mr.  Chalmers,  the  error  in  the 
name  being  the  error  of  a  clerk  of  the  commissioners  in  one  county.  The  affidavit 
of  this  clerk  was  one  of  the  papers  filed  by  Mr.  Chalmers  as  part  of  his  exhibits. 

The  Clerk  further  stated  that  he  had  received  no  certificate  from  the  governor 
based  on  the  canvass  of  the  secretary  of  state.  Therefore,  as  the  exhibits  were  not, 
in  his  opinion,  sufficient  ground  for  the  enrollment  of  Mr.  Chalmers,  he  had  enrolled 
no  one. 

Later,  after  the  organization  of  the  House,  Mr.  George  L.  Converse,  of  Ohio, 
stated  that  Mr.  Manning  had  not  desired  to  present  his  credentials  until  there  had 
been  action  by  the  House.  But  believing  that  the  vacancy  should  be  filled  Mr. 
Converse  would  present  them,  and  offered  the  following  resolution: 

Wliereas  Van  H.  Manning  holds  the  certificate  of  the  governor  of  the  State  of  Mississippi  in  due 
form,  giving  him  the  prima  facie  right  to  a  seat  on  this  floor  as  a  Representative  of  the  Second  district  of 
Mississippi  in  the  Forty-eighth  Congress:  Therefore, 

Resolved,  That  the  said  Van  H.  Manning  immediately  qualify  as  a  Member  of  this  House  as  a  Repre- 
sentative of  said  district  without  prejudice  to  the  final  right  to  the  seat. 

Mr.  John  A.  Kasson,  of  Iowa,  questioned  whether  the  House  had  the  right  to 
order  a  man  to  be  sworn  in  who  did  not  claim  a  seat,  but  Mr.  Converse  denied  that 
Mr.  Manning  did  not  claim  a  seat. 

The  previous  question  was  then  ordered  on  the  resolution,  by  a  vote  of  yeas 
163,  nays  128. 

Pending  a  motion  to  recommit  with  instructions,  the  House  adjourned. 

On  the  next  day  the  request  was  made  on  behalf  of  Mr.  Manning  that  the 
question  of  his  prima  facie  right  to  a  seat  be  referred.  Therefore  the  proceedings 
of  the  previous  day  were  rescinded,  and  the  House  agreed  to  this  resolution : 

'  First  session  Forty-eighth  Congress,  Journal,  pp.  14,  17;  Record,  pp.  3,  fi,  25. 
''  Edward  McPherson,  of  Pennsylvania,  Clerk. 


§  45  THE  clerk's  roll  of  the  members-elect.  29 

Resolved,  That  the  certificate  and  all  other  papers  in  the  contested  election  case  of  Chalmers  ri. 
Manning,  from  the  Second  Congressional  district  of  the  State  of  Mississippi,  be  referred  to  the  Committee 
on  Elections,  when  appointed,  with  instructions  to  report  immediately  whether  upon  the  prima  facie 
case  as  presented  by  said  papers  said  Manning  or  Chalmers  is  entitled  to  be  sworn  in  as  a  Member,  pending 
the  contest  on  the  merits,  and  not  to  affect  the  final  right  to  said  seat. 

45.    The  Mississippi  election  case  of  Chalmers  v.  Manning,  continued. 

In  determining  prima  facie  right  the  House  went  behind  a  cer- 
tificate in  due  form,  the  bearer  of  which  waived  his  prima  facie  right, 
and  consulted  the  returns. 

The  House  declined  to  give  prima  facie  title  to  a  contestant  on  the 
strength  of  the  returns,  although  the  bearer  of  the  credentials  w^aived 
his  prima  facie  right. 

An  instance  wherein  the  House  seated  neither  of  two  claimants  on 
prima  facie  showing,  deferring  the  administration  of  the  oath  until  the 
ascertainment  of  final  right. 

A  contention  that  the  admissions  of  a  claimant  might  not  waive  a 
prima  facie  title  in  which  the  people  of  the  district  were  interested. 

An  afB.davit  intended  to  explain  a  clerical  error  in  returns  was  given 
little  weight  by  the  Elections  Committee  because  of  its  ex  parte  character. 

On  February  8,  1884,'  Mr.  Henry  G.  Turner,  of  Georgia,  presented  the  report 
of  the  majorit}'  of  the  Conunittee  on  Elections  in  the  question  arising  as  to  the 
prima  facie  right  to  the  seat  preliminary  to  decision  as  to  the  final  right  in  the 
Mississippi  case  of  Chalmers  v.  Manning.  The  report  of  the  majority  thus  states 
the  preliminary  facts: 

In  the  Second  Congressional  district  of  Mississippi,  composed  of  the  counties  of  Benton,  De  Soto, 
Lafayette,  Marshall,  Panola,  Tallahatchie,  Tippah,  Tate,  and  Union,  an  election  for  Representative  in 
the  Forty-eighth  Congress  was  held  on  the  7th  day  of  November,  1882,  at  which  election  Van  H.  Man- 
ning and  James  R.  Chalmers  were  opposing  candidates.  When  the  Forty-eighth  Congress  assembled, 
(in  the  3d  day  of  December  last,  before  the  organization  of  the  House,  the  Clerk  informed  the  House  that — 

"The  Clerk  has  not  enrolled  the  name  of  anyone  as  a  Representative  for  the  Second  district  of 
Mississippi,  for  the  reason  that  no  paper  which  can  be  considered  a  certificate  of  election  in  the  sense 
of  the  law  has  been  presented  to  him." 

After  the  organization  of  the  House,  on  the  same  day,  Mr.  Conveise,  of  Ohio,  submitted  the  follow- 
ing resob'tion: 

"Whereas  Van  H.  Manning  holds  the  certificate  of  the  governor  of  the  State  of  Mississippi  in  due 
form,  giving  him  the  prima  facie  right  to  a  seat  on  this  floor  as  a  Representative  of  the  Second  district 
of  Mississippi  in  the  Forty-eighth  Congress:  Therefore, 

Resolved,  That  the  said  Van  H.  Manning  immediately  qualify  as  a  Member  of  this  House  as  a  Repre- 
sentative of  said  district  without  prejudice  to  the  final  right  to  the  seat." 

Pending  the  consideration  of  this  resolution  the  House  adjourned,  and  on  the  next  day  Mr.  Converse 
stated  that  at  the  request  of  Mr.  Manning  he  submitted  the  following  resolution,  which  was  adopted: 

"Resolved,  That  the  certificate  and  all  other  papers  in  the  contested  election  case  of  J.  R.  Chalmers 
V.  Van  H.  Manning,  from  the  Second  Congressional  district  of  the  State  of  Mississippi,  be  referred  to  the 
Committee  on  Elections  when  appointed,  with  instructions  to  report  immediately  whether  upon  the 
prima  facie  case  as  presented  by  said  papers  said  Manning  or  Chalmers  is  entitled  to  be  sworn  in  as  a 
Member  pending  the  contest  on  the  merits,  and  not  to  affect  the  final  right  to  said  seat." 

At  the  outset  a  question  arose  as  to  the  effect  of  this  action  of  the  House. 
The  majority  say: 

'  First  session  Forty-eighth  Congress,  House  Report  No.  283;  Mobley,  p.  7. 


30  PRECEDENTS    OF    THE    HOUSE    OF    EEPKESENTATIVES.  §   45 

This  action  of  the  House  was  either  a  refusal  of  the  seat  to  Mr.  Manning  by  the  House,  on  the  usual 
evidence  of  the  governor's  certificate,  or  it  was  a  renunciation  by  him  of  his  right  to  demand  such  seat 
upon  the  governor's  certificate  alone;  perhaps  it  was  both. 

The  minority  Anews,  submitted  by  Mr.  John  C.  Cook,  of  Iowa,  took  issue  with 
this  construction  of  the  resohition: 

We  conclude,  therefore,  in  the  light  of  all  the  surrounding  facts,  and  upon  a  fair  reading  of  the 
resolution,  that  the  House,  in  adopting  it,  did  not  deny  Mr.  Manning's  scat  upon  regular  credentials, 
but  required  us  to  ascertain  and  report  whether  he  or  Mr.  Chalmers  held  such  credentials.  Any  other 
conclusion  would  place  this  House  in  the  singular  attitude  of  denying  to  Mr.  Manning,  without  reason, 
a  well-defined  and  established  legal  light.  If  the  chairman  is  right  in  his  construction  of  the  resolution, 
certainly  it  would  be  better  if  the  House  would  repeal  it  than  that  it  should  permit  its  error  to  ripen 
into  wrong.  We  submit,  however,  that  neither  by  his  own  action  nor  by  the  action  of  this  House  has 
Mr.  Manning  been  placed  beyond  the  pale  of  law,  reason,  and  precedent,  but  that  he  is  clearly  entitled 
to  a  seat  on  this  floor  pending  a  contest  on  the  merits,  the  same  as  any  other  Member  duly  returned. 

The  majority  assume  that  by  the  terms  of  the  resolution  they  are  expected 
to  examine  and  give  weight  to  other  papers  besides  the  certificate  of  the  governor. 
Their  report  says : 

Among  the  papers  referred  to  us  we  find  a  commission  issued  by  the  governor  of  Mississippi  to  Mr. 
Manning  based  on  the  certificate  of  the  secretary  of  state,  who  by  law  is  charged  with  the  duty  of  can- 
vassing the  returns  of  elections  and  certifying  the  result  to  the  governor.  This  commission  bears  the 
great  seal  of  the  State,  and  is  otherwise  unexceptionable  in  form;  and  could  we  have  confined  our 
inquiry  as  to  the  prima  facie  right  to  the  disputed  seat  to  this  paper  alone  we  would  unhesitatingly  have 
affirmed  Mr.  Manning's  right  to  occupy  the  seat  pending  the  contest.  Except  in  extraordinary  cases 
and  in  rare  instances  we  find  that  the  commission  or  certificate  concludes  all  inquiry  as  to  which  of  the 
claimants  of  a  seat  shall  occupy  it  until  the  contest  on  the  merits  is  determined.  And  every  considera- 
tion of  prudence  and  safety  admonishes  us  to  adhere  to  this  practice. 

The  minority  views  hold — 

In  determining  their  report  upon  the  question,  our  associates  are  pleased  to  speak  of  the  facts  in  this 
case  which  relate  to  the  merits.  In  doing  so  they  say,  "Mr.  Manning's  admission  and  his  failure  to  file 
his  certificate  with  the  Clerk  and  take  his  seat  in  the  usual  way  make  this  case  without  a  parallel  in  the 
annals  of  Congress,"  and,  ergo,  justify  them  in  going  behind  the  certificate. 

The  committee  could  not  have  known  anything  about  the  alleged  admissions  imtil  they  had  violated 
the  law  which  forbade  us  from  going  behind  the  credentials,  and  can  not  justify  their  violation  by 
subsequent  developments.  If  the  law  is  that  you  can  look  behind  every  certificate  to  see  what  the  facts 
are,  and  then  may  or  may  not  consider  such  facts  in  determining  the  prima  facie  right,  as  the  committee 
may  or  may  not  consider  them  without  parallel,  the  law  that  the  certificate  is  conclusive  of  the  prima 
facie  right,  so  explicitly  and  uniformly  laid  down  in  the  books,  is  but  a  delusion  and  a  snare. 

But  we  are  advised  that  Mr.  Manning's  delay  in  filing  his  certificate  is  not  unparalleled,  and  that 
heretofore  such  delay  has  not  even  excited  comment.  He  offered  his  certificate  the  day  on  which 
Congress  met,  and  certainly  his  failure  to  file  it  with  the  Clerk  in  vacation  infringed  no  law  and  affected 
only  his  individual  convenience. 

But  if  we  must  be  surprised  by  this  delay,  surely  no  one  will  seriously  contend  that  it  amounted  to 
a  waiver  or  a  resignation  of  his  right,  or  in  any  other  way  known  to  the  law  and  practice  of  legislative 
assemblies  defeated  or  impaired  it. 

This  proposition,  as  to  whether  the  House  might  at  this  stage  go  behind  a 
certificate  which  was  regular  and  not  impeached  by  anything  on  its  own  face,  was 
debated  at  length.  The  chairman  of  the  committee,  in  his  opening  speech,'  reviewedl 
the  older  usage  of  the  House  in  effecting  organization,  showing  that  in  the  early 

'  Record,  p.  1092. 


§  45  THE  clerk's  roll  of  the  members-elect.  31 

days  the  Members-elect  appeared  on  the  first  day  and  presented  their  credentials, 
which  were  read.  Whenever  a  Member's  credentials  were  assailed  the  question  was 
determined  at  once  from  an  inspection  of  the  credentials  alone.  The  plirase  "prima 
facie  case"  was  used  to  define  the  effect  of  the  usual  credentials  prior  to  organiza- 
tion, and  to  distinguish  that  case  from  a  trial  on  the  merits.  But  when  a  case  was 
taken  out  of  the  House  and  sent  to  a  committee  for  determination  without  an 
investigation  of  the  entire  case  on  all  the  merits  it  was  the  usual  practice  to  define 
the  limits  of  the  inquiry  by  the  committee  in  the  resolution  of  reference.  In  the 
case  of  Hunt  v.  Sheldon  it  was  settled  that  the  prima  facie  right  might  depend  on 
something  besides  the  certificate  alone.  The  case  of  Gunter  r.  Wilshire  was  also 
cited.  And  in  concluding  the  debate'  the  chairman  reaffirmed  the  principle  that 
in  determining  the  prima  facie  right  after  the  organization  had  been  effected  the 
House  was  not  restricted  to  examination  of  the  governor's  certificate. 

In  opposition  it  was  argued  -  that  the  question  of  prima  facie  right  was  really 
the  question,  "Who  has  the  return?"  In  this  case  ^Ir.  Manning  had  the  retiun, 
and  the  committee  might  not  consider  in  this  connection  the  other  question  as  to 
who  was  actually  elected. 

The  minority  report  also  says: 

We  maintain  the  constitutional  right  of  the  Second  Congressional  district  of  Mississippi  to  repre- 
sentation on  this  floor. 

It  is  admitted  that  her  citizens  voted  at  the  proper  time  and  places,  that  her  officers  did  all  the  law 
required  them  to  do,  from  the  beginning  to  the  issuance  of  the  proper  certificate  of  election;  indeed, 
that  all  was  done  there  that  was  done  in  any  district  in  the  United  States. 

It  is  further  admitted  that  Mr.  Manning  is  here  her  duly  accredited  Representative.  His  creden- 
tials are  from  the  proper  authority,  perfect  in  form,  and  verified  under  the  great  seal  of  the  sovereign 
State  of  Mississippi;  indeed,  that  his  credentials  are  as  valid  as  the  credentials  of  any  Member  occupy- 
ing a  seat  upon  the  floor  of  this  House.  Yet,  while  every  other  district  is  represented,  as  they  have  a 
right  to  be,  without  reference  to  whether  there  is  or  is  not  a  contest  over  the  seat,  the  majority  of  the 
committee  maintain  that  the  right  of  said  district  to  representation  mtist  be  denied,  and  Mr.  Manning 
kept  out  of  a  seat  upon  this  floor  until  they  can  decide  this  contest  upon  its  merits. 

We  must  protest  against  this  conclusion,  which  is  at  war  with  reason,  with  all  precedents,  and  with 
the  fundamental  right  of  representation. 

We  assert  that  Mr.  Manning's  credentials  are  absolutely  conclusive  of  his  right  to  be  sworn  in  as  a 
Member  of  this  House,  and  represent  the  Second  Congressional  district  of  Mississippi  on  this  floor  until 
the  House  shall,  in  the  exercise  of  its  constitutional  right,  determine  that  he  was  not  elected. 

This  principle  is  elementary,  sanctioned  by  the  wisdom  of  centuries,  clearly  announced  by  every 
text  writer  on  the  subject,  supported  by  innumerable  precedents,  and  unassailed  at  any  time,  by  any- 
body, in  any  quarters,  except  in  this  case,  at  this  time  by  the  majority  of  this  committee. 

The  majority  report  proceeds  to  an  enumeration  of  the  papers  other  than  the 
credentials  which  were  referred  to  the  committee. 

Pursuing  the  instructions  of  the  House,  we  find  from  the  papers  referred  to  us  that  the  secretary  of 
state  certified  to  the  governor  in  due  form  that  Van  H.  Manning  received  8,749  votes,  J.  R.  Chalmers 
8,257,  H.  C.  Carter  129,  and  J,  R.  Chambless  1,472.  It  appears  from  this  certificate  that  1,472  votes 
counted  for  J.  R.  Chambless  were  cast  in  Tate  County,  and  that  J.  R.  Chalmers  received  no  votes  in  that 
county.  On  looking  to  the  return  of  the  election  in  Tate  County,  certified  by  the  commissioners  of  elec- 
tion for  that  county,  duly  authenticated,  and  referred  to  us,  we  find  that  these  commissioners  certify 
that  at  the  election  in  that  county  J.  R.  Chalmers  received  1,472  votes,  and  add  these  words  to  the  certifi- 
cate: "AU  of  which  fully  appears  by  the  tally  sheet  on  the  opposite  side  of  this  page,  which  we  certify 

'  Record,  p.  1172. 

'  Especially  by  Mr.  J.  Randolph  Tucker,  of  Virginia,  Record,  p,  1159. 


32  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   45 

to  be  a  true  and  correct  tally  sheet  of  the  votes  cast  in  said  Tate  County."  On  the  back  of  this  certifi- 
cate we  find  not  a  "tally  sheet"  but  a  tabular  statement,  which  seems  to  count  1,472  votes  for  J.  R. 
Chambless,  and  omits  altogether  the  name  of  Chalmers.  This  tabular  statement  is  without  any  caption; 
but  if  it  is  intended  by  the  words  "tally  sheet,"  we  think  that  the  secretary  of  state  should  have  been 
guided  by  the  face  of  the  certificate,  which  was  complete  in  itself,  and  counted  these  1,472  vote.s  for 
J.  R.  Chalmers.  This  course  would  have  resulted  in  the  election  of  Chalmers,  according  to  the  face  of 
the  returns,  by  a  plurality  over  Manning  of  980  votes.  On  the  other  hand,  if  this  tabular  statement  on 
the  back  of  the  returns  from  Tate  County  is  to  be  taken  as  a  part  of  the  return,  this  construction  would 
render  that  return  so  absurd  as  to  void  it  altogether,  and  in  that  view  it  should  have  been  excluded 
altogether  from  the  canvass  by  the  secretary  of  state.  This  course  would  have  resulted  in  the  election 
of  Chalmers  by  a  plurality  of  674  votes. 

We  also  find  among  the  papers  referred  to  us  another  return  of  the  election  in  Tate  County,  certified 
by  the  commissioners  of  election  for  that  county,  dated  seven  days  after  their  first  return,  and  giving 
1,472  votes  to  J.  R.  Chalmers.  But  we  think  their  functions  had  ceased  with  their  first  return;  and 
this  subsequent  statement,  being  unofficial,  can  not  be  regarded  as  evidence. 

We  also  find  among  the  papers  referred  to  us  an  affidavit  made  by  one  J.  M.  Williams,  relating  to 
the  returns  of  the  election  in  Tate  County,  to  the  effect  that  he  was  one  of  the  clerks  of  the  commissioners 
of  election  who  canvassed  the  returns  of  the  votes  in  said  county,  that  he  made  out  the  "tally  sheet, "- 
etc.,  that  there  was  no  vote  returned  for  J.  R.  Chambless,  and  that  if  that  name  appeared  in  said  tally 
sheet  it  was  a  clerical  error,  etc.,  but  this  affidavit  being  ex  parte,  and  not  having  the  character  of  official 
evidence,  we  have  not  in  this  inquiry  given  it  much  weight.  The  official  returns  of  the  votes  cast 
at  the  various  voting  places  in  Tate  County,  or  copies  thereof  properly  authenticated,  would  have 
been  better  evidence  than  either  the  second  return  made  by  the  commissioners  of  election  for  that 
county  or  this  affidavit  of  Williams. 

We  also  find  among  the  papers  referred  to  us  certified  copies  of  a  verdict  and  judgment  on  a  man- 
damus instituted  by  Mr.  Chalmers  in  the  circuit  court  in  and  for  the  first  district  of  Hinds  County,  Miss., 
against  Henry  C.  Myers,  secretary  of  state,  in  which  proceeding  the  issues  involved  in  this  contest 
over  the  prima  facie  right  to  the  seat  seem  to  have  been  determined  by  the  court  in  favor  of  Mr.  Chalmers 
on  the  24th  day  of  January,  1883,  the  commission  having  been  awarded  to  Mr.  Manning  by  the  governor 
on  the  18th  day  of  November,  1882.  It  does  not  appear  that  the  governor  was  advised  of  this  pro- 
ceeding, although  it  does  appear  from  a  recital  in  said  verdict  and  judgment  that  the  secretary  of  state 
certified  the  canvass  of  the  vote  after  service  of  a  prohibitory  order  upon  him  from  the  court.  But  it 
seems  that  the  supreme  court  of  Mississippi  afterwards,  on  the  11th  day  of  June,  1883,  reversed  the 
judgment  of  the  circuit  court,  as  appears  from  a  certified  copy  of  the  judgment  of  the  supreme  court, 
among  the  papers  referred.  The  ground  of  the  reversal  of  the  judgment  of  the  lower  court  is  not  shown 
in  the  record.     Mr.  Manning  was  no  party  to  this  proceeding  in  either  court. 

On  examining  the  issues  between  the  parties  to  this  contest,  as  stated  in  the  notice  of  contest,  and 
the  answer  thereto,  we  find  that  Mr.  Chalmers  denies  Mr.  Manning's  prima  facie  right  to  the  seat  as 
well  as  his  ultimate  title;  and  Mr.  Manning  in  his  answer,  after  denying  various  charges  in  the  notice 
of  contest,  and  stating  the  circumstances  under  which  the  prohibitory  order  before  mentioned  in  this 
report  was  obtained,  and  averring  that  it  was  properly  disregarded  by  the  secretary  of  state,  makes 
this  statement: 

"I  deny  that  any  frauds  were  attempted  or  practiced  by  my  friends,  or  that  they  were  guilty  of 
fraudulent  or  illegal  practices,  or  that  you  received  a  majority  of  1,332  votes  as  a  Member  of  the  Fortys 
eighth  Congress  from  said  Congressional  district,  though  I  admit  that  the  inspectors  and  clerks  of  the 
several  election  precincts  did  certify  to  the  county  commissioners  of  election  in  their  respective  counties 
that  you  received  a  majority  of  the  votes  cast;  and  I  further  admit  that  the  1,472  votes  which  the 
commissioners  of  Tate  County  returned  as  cast  for  J.  R.  Chambless  were  in  fact  cast  for  you,  and  that 
the  name  Chambless  was  inserted  in  the  return  by  clerical  error  instead  of  your  name.  And  in  this 
connection,  I  state  that  because  of  said  error  to  your  prejudice,  I  wOl  not  take  a  seat  in  said  Congres- 
or  ask  the  clerk  to  enroll  my  name  as  a  Member  thereof  until  I  have  vindicated  and  the  House  shall 
have  affirmed  my  right  thereto." 

Mr.  Manning,  in  his  answer,  also  charges  against  the  contestant  a  resort  to  bribery,  corrupt  use 
of  official  patronage,  and  intimidation.  All  the  papers  referred  to  us,  and  hereinbefore  specified, 
are  exhibited  in  an  appendix  in  this  report. 


§45 


THE    clerk's    boll    OF    THE    MEMBERS-ELECT.  33 


This  case  is  without  precedent.  The  admissions  of  Mr.  Manning,  his  refusal  to  present  his  commission 
and  take  his  seat  in  the  usual  way,  and  the  instructions  of  the  House,  are  without  a  parallel  in  the  annals 
of  Congress. 

Guided  by  the  instructions  of  the  House,  and  having  considered  carefully  the  documentary  evidence 
referred  to  us,  we  are  unable  to  agree  that  Mr.  Manning  should  be  seated  upon  his  prima  facie  title. 
Mr.  Chalmers  having  no  such  credentials  as  the  law  contemplates,  we  do  not  think  that  he  ought  to  be 
seated  pending  the  contest. 

The  minority  views  declare  that  they  can  not  agree — 

that  the  admissions  of  Mr.  Manning  shall  be  held  to  affect  the  title  to  a  seat  in  Congress,  in  which  the 
citizens  of  the  Second  district  of  Mississippi  are  more  deeply  concerned  than  Mr.  Manning. 

The  minority  riews  go  on  to  argue : 

Now  this  question  is  not  a  new  one;  there  is  nothing  startling  nor  unparalleled  about  it. 

It  is  just  as  well  settled  that  the  returned  Member  has  tlie  right  to  hold  the  seat  pending  a  contest 
on  the  merits  with  the  person  who  would  have  been  returned  had  not  the  clerical  error  of  a  returning 
officer  inters'ened  as  that  you  can  not  go  behind  the  certificate  in  determining  who  should  hold  the 
seat  pending  a  contest  on  the  merits.  Indeed,  the  last  stated  rule,  which  all  admit,  grows  out  of  and  is 
founded  upon  the  first. 

If  the  person  who  ought  to  have  been  returned  was  entitled  to  the  seat  pending  a  contest  with  the 
Member  who  is  returned  no  rule  would  ever  have  been  made  excluding  the  evidence  by  which  the 
party  who  ought  to  have  been  returned  could  establish  his  right.  Because  the  evidence,  if  admitted, 
does  not  establish  any  right,  is  the  reason  for  excluding  it.  (See  Cushing,  sec.  144,  140,  and  authorities 
before  cited.)  The  admission  of  a  fact  by  Mr.  Manning  in  his  answer  can  not  give  any  right  which  proof 
of  the  fact  would  not  give. 

Rights  are  dependent  upon  facts,  and  a  defendant  can  neither  give  rights  by  admitting  them  nor 
abridge  rights  by  denj-ing  them.  If  you  should  hold  that  the  man  who  ought  to  have  been  returned 
is  entitled  to  occupy  the  seat  pending  a  contest  on  the  merits,  then  it  makes  no  difference  whether  the 
fact  that  the  person  ought  to  have  been  returned  lies  on  the  surface  of  the  investigation  in  the  shape  of  an 
admission  or  is  buried  under  volumes  of  proof. 

Such  a  precedent  would  double  the  labor  in  every  contest.  We  would  first  have  to  examine  the 
pleading  and  proof  to  ascertain  who  was  elected  on  the  face  of  the  returns.  After  seating  such  person 
we  would  have  to  institute  a  second  investigation  to  ascertain  who  was  elected  in  very  truth.  Now, 
as  it  is  apparent  that  the  person  who  has  the  majority  on  the  face  of  the  returns  has  no  more  right  to  a  seat 
than  the  person  who  is  returned,  since  the  right  to  the  seat  is  vested  all  the  time  in  the  person  really 
elected,  legislative  bodies  have  wisely  determined,  in  the  interest  of  economy,  of  their  time  and  the 
public  treasury,  to  have  no  intermediate  investigation  which  does  not  reach  the  merits  of  the  contest. 
As  the  man  elected  ought  to  be  returned,  and  as  fraud  at  the  ballot  box  should  be  as  promptly  corrected 
as  any  errors  committed  by  returning  officers,  you  can  not  say  who  ought  to  have  been  returned  until 
you  have  fully  investigated  the  merits  of  the  case. 

The  committee  are  not  prepared  to  report  that  Mr.  Manning  ought  not  to  have  been  returned,  because 
they  have  not  investigated  his  allegations  that  Mr.  Chalmers  was  not  only  not  elected  but  that  the  pre- 
cinct officers  would  have  returned  a  large  aggregate  majority  for  him  but  for  the  bribery  and  corruption 
of  the  voters  by  Mr.  Chalmers.  A  little  thought  will  make  it  apparent  that  you  must  hold  either  that  a 
contest  vacates  a  seat  until  a  decision  on  the  merits  or  that  the  returned  Member  shall  hold  the  seat 
pending  such  contest,  no  matter  what  facts  lie  behind  the  certificate.  Any  effort  to  ingraft  exceptions 
upon  the  settled  rule  leads  inevitably  to  confusion,  disorder,  injustice,  and  a  denial  of  the  right  to 
representation. 

The  great  right  here  for  your  adjudication  is  the  right  of  one  hundred  and  fifty  thousand  citizens  to 
representation  on  this  floor  while  the  individual  contest  between  Messrs.  Manning  and  Chalmers  is  being 
determined. 

Consideration  for  that  right  and  a  deep  sense  of  necessity  of  having  fixed  rules  for  the  exercise 
of  that  right  led  to  the  adoption  and  has  secured  the  maintenance  up  to  this  time  of  the  rule  that  the 
returned  Member  shall  hold  the  seat  pending  the  contest  on  the  merits. 
5994— VOL  1—07 3 


34  PRECEDENTS    OF    THE    HOUSE    OF    EEPRESENTATIVES.  §    46 

The  attempt  of  the  majority  of  the  committee  to  evade  that  rule  leads  to  a  denial  of  that  constitu- 
tional right  of  representation  which  the  rule  was  framed  to  protect. 

And  we  call  your  attention  now  to  a  startling  fact  in  this  case. 

The  committee  have  reported  unparalleled  action  on  the  part  of  this  House  and  on  the  part  of  Mr. 
Manning,  but  they  have  not  found  anything  to  criticise  upon  the  part  of  the  people  of  the  Second  district 
of  Mississippi,  whose  dearest  right  they  assail  and  ask  you  to  disallow. 

In  any  and  every  aspect  of  this  case  this  district  is  entitled  to  representation.  Reason,  analogy, 
precedent,  and  established  rules  unerringly  point  to  Mr.  Manning  as  the  one  person  entitled  to  repre- 
sent it. 

Instead  of  being  able  to  defend  their  conclusion  behind  the  resolution  of  this  House,  some  of  the 
committee  have  confessedly  gone  outside  of  and  beyond  any  authority  you  gave  them.  They  say,  "We 
are  unable  to  agree  that  Mr.  ^Manning  should  be  seated  upon  his  prima  facie  title."  Your  instructions 
were  to  find  out  whether  he  had  a  prima  facie  title.  They  have  found  that  he  has  such  prima  facie  title, 
and  then  proceed  without  warrant  and  without  direction  or  solicitation  from  you  to  advise  that  he  should 
not  be  allowed  the  right  his  prima  facie  title  insures. 

We  respectfully  submit  that  you  never  questioned  his  right  to  the  seat  if  it  appeared  in  our  investi- 
gation that  he  had  a  prima  facie  title  to  it. 

In  view  of  the  great  interests  and  important  principles  involved,  and  of  our  clear  convictions  as  to 
the  right,  we  are  impelled  to  submit  this  report  and  the  following  resolutions  for  your  adoption: 

Resolved,  That  the  Hon.  Van  H.  Manning  holds  perfect  credentials,  issued  in  due  form  and  by 
lawful  authority,  as  Member-elect  to  the  Forty-eighth  Congress  from  the  Second  Congressional  district 
of  the  State  of  Mississippi. 

Resolved,  That  being  the  duly  returned  Member  he  is  entitled  to  be  sworn  in  and  occupy  the  seat 
on  this  floor  pending  a  contest  on  the  merits  over  it. 

The  majority  recommended  this  resolution: 

Resolved,  That  the  Committee  on  Elections  be  discharged  from  the  further  consideration  of  the 
prima  facie  right  to  the  seat  in  the  contested  election  case  of  J.  R.  Chalmers  v.  Van  H.  Manning. 

The  report  was  very  fully  debated  on  February  13,  14,  and  16,  1884,'  and  on 
the  last  day  the  question  was  taken  on  the  proposition  included  in  the  first  resolu- 
tion of  the  minority.     This  was  disagreed  to,  yeas  106,  nays  139. 

The  second  resolution  of  the  minority  was  then  disagreed  to,  yeas  91,  nays  157. 

The  resolution  proposed  by  the  majority  was  then  agreed  to,  ayes  113,  noes  55. 

46.   The  Mississippi  election  case  of  Chalmers  v.  Manning,  continued. 

The  majority  of  the  Elections  Committee,  in  a  sustained  case,  con- 
cluded that  the  House  was  not  concerned  about  undue  influence  used  in 
the  nomination  of  a  candidate. 

A  contestant,  employed  after  the  election  as  assistant  to  a  United 
States  district  attorney,  was  held  qualified  to  be  seated,  especially  as  his 
employment  ceased  before  Congress  met. 

Instance  wherein  a  contestant  belonging  to  the  party  in  the  minority 
in  the  House  was  seated. 

On  June  20,  1884,-  Mr.  John  C.  Cook,  of  Iowa,  presented  the  report  of  the 
majority  of  the  committee  on  the  question  of  final  right  to  the  seat.  At  the  outset 
it  admits  that  Mr.  Chalmers  received  a  majority  of  the  votes. 

A  subordinate  question  was  presented  by  charges  and  testimony  relating  to 
use  of  money  and  Federal  patronage  in  the  district,  and  the  report  says: 


'  Record,  pp.  1091,  1126,  1156-1174;  Journal,  pp.  586-589,  591 
2  Report  H.  of  R.  No.  1599;  Mobly,  p.  34. 


§  46  THE  clerk's  roll  of  the  members-elect.  35 

Believing  that  it  is  the  duty  of  the  House,  whenever  it  is  shown  that  the  election  cf  a  Member  is  the 
result  of  this  influence,  to  declare  the  election  void;  and  believing,  further,  that  the  testimony  in  a  case 
is  to  be  taken  in  connection  with  contemporaneous  historical  facts,  your  committee  has  given  careful 
attention  to  the  record  and  evidence  in  this  case.  We  conclude  that  it  can  not  fairly  be  said  that  the 
election  of  Mr.  Chalmers  was  secured  by  such  undue  influence;  that  is  to  say,  that  without  it  he  would 
not  have  been  elected,  especially  in  view  of  the  large  majority  he  received.  It  was  perhaps  more  instru- 
mental in  making  him  the  candidate  of  the  Republican  party  and  suppressing  other  aspirants  for  party 
support.     But  with  this  we  think  the  House  has  no  concern. 

A  large  part  of  the  evidence  is  calculated '  to  show  that  the  contestant  was  deceitful  in  his  politics, 
treacherous  to  his  political  friends,  and  unworthy  of  so  high  an  office.  This,  however,  must  address  itself 
to  the  voters  of  his  district,  and  the  House  has  no  right  to  render  an  unjust  decision  because  a  man  law- 
fully elected  may  be  subject  to  this  criticism  more  or  less. 

The  minority  views  presented  by  Mr.  Ambrose  A.  Ranney,  of  Massachusetts, 
in  behalf  of  himself  and  five  others  of  the  committee,  dissented  from  any  conclu- 
sions that  would  imply  credence  in  the  charges. 

The  main  issue  in  the  case  is  thus  stated  and  decided  in  the  majority  report: 

It  is  next  claimed  that  Mr.  Chalmers,  if  legally  elected,  has  since  his  election  disqualified  himself 
from  holding  this  ofiice  by  accepting  another  office  from  the  L'nited  States  and  performing  its  duties 
within  the  term  of  office  of  a  Member  of  the  Forty-eighth  Congress,  under  the  following  provision  of  the 
Constitution: 

"And  no  person  holding  any  office  under  the  United  States  shall  be  a  Member  of  either  House 
dming  his  continuance  in  office." 

Because  on  the  9th  day  of  December,  1882.  Mr.  Chalmers  was  by  the  Attorney -General  of  the  United 
States  employed  or  appointed  ''special  assistant  to  the  district  attorneys  for  the  northern  and  southern 
districts  of  Mississippi,"  and  that  by  retaining  this  position  he  had  vacated  his  ofiice  as  Representative. 

Your  committee,  however,  passing  the  question  of  whether  this  is  an  office  within  the  meaning  of 
the  Constitution,  find  that  Mr.  Chalmers  was  retained  for  a  special  purpose,  and  that  prior  to  the  time 
for  the  convening  of  Congress  the  matter  for  which  he  was  appointed  or  employed  had  been  disposed  of. 
His  account  had  been  rendered  to  and  closed  by  the  Department.  No  resignation  had  been  made — 
none  was  necessarj-.     Practically  his  connection  with  the  office  of  district  attorney  had  ceased. 

We  recommend  to  the  Hotise  for  adoption  the  following  resolution: 

Resolved,  That  James  R.  Chalmers  was  duly  elected  as  a  Representative  in  the  Forty-eighth  Con- 
gress from  the  Second  district  of  Mississippi,  and  is  entitled  to  be  sworn  in  as  a  Member  of  this  House. 

The  minority  views  presented  by  Mr.  Ranney  practically  concurred  in  this 
decision: 

It  has  been  contended  that  contestant  was  not  eligible,  or  rather  that  he  had  lost  his  right  to  a  seat, 
because  employed  December  9,  1882,  by  the  Attorney-General,  to  act  as  counsel  and  aid  the  district 
attorneys  in  the  prosecution  of  some  criminal  cases  in  Mississippi.  His  employment  was  a  special  one 
in  the  line  of  his  profession,  and  it  was  in  no  sense  an  office  which  was  incompatible  with  his  holding 
the  position  of  Representative  to  Congress.  He  was  not  awarded  a  certificate  of  election  as  the  chosen 
Representative,  but  the  same  was  awarded  to  and  was  held  by  another  person,  to  wit,  the  contestee. 
He  was  only  a  contestant  claiming  the  seat.  He  was  employed  and  retained  after  the  day  of  election 
for  a  special  purpose,  to  assist  the  district  attorneys  for  the  northern  and  southern  districts  of  Mississippi 
in  the  prosecution  of  certain  criminal  cases.  The  emplojTuent  was  authorized  xmder  the  statutes  of  the 
United  States.  It  was  a  special  contract  employment  for  special  pay  according  to  what  he  did,  and  not 
an  appointment  to  fill  any  office  created  by  law,  with  duties  prescribed  and  a  salary  attached.  There 
is  no  good  reason  for  a  claim  that  it  was  the  holding  of  an  office  under  the  United  States  which  was  incom- 
patible with  his  being  a  Member  of  this  House  under  the  provisions  of  the  Constitution,  even  if  he  had 
been  a  Member  of  that  body.  But  whether  it  was  or  not,  inasmuch  as  he  was  not  then  accredited  as  a 
Member  and  another  person  was,  and  especially  inasmuch  as  his  emplojinent  had  ceased,  his  services 

'  It  was  explained  in  debate  that  "intended"  was  the  word  which  should  have  been  used. 


"36  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   47 

having  been  fully  performed  and  ended  before  the  Forty-eighth  Congress  met,  he  eould  not  in  any  event 
properly  be  held  to  come  within  the  provision  of  the  Constitution  referred  to  either  in  its  letter  or 
spirit.  (Contested  Elections  in  Congress,  1779-1837,  p.  122;  Hammond  v.  Herrick,  in  same,  p.  287; 
Earle's  case,  p.  314;  Mumford's  case,  p.  316;  Schenck's  case;  McCrary,  sees.  238,  244.) 

But  Mr.  L.  H.  Davis,  of  Missouri,  presented  views  wherein  it  was  argued  at 
length  that  an  assistant  district  attorney  was  an  officer  within  the  meaning  of  the 
Constitution.     Mr.  Davis  discussed  the  law  and  the  precedents  at  length. 

The  report  was  debated  on  June  25/  the  main  issue  being  on  the  question  as 
to  whether  or  not  the  office  of  assistant  district  attorney  was  incompatible  with  that 
of  Member  of  Congress.  Several  Members  who  thought  that  the  offices  might  be 
incompatible,  nevertheless  considered  that  the  contestant  had  the  power  of  electing 
which  office  he  would  accept  as  soon  as  it  should  be  determined  that  he  was  entitled 
to  the  seat  in  the  House. 

The  question  was  ffi-st  taken  on  the  following  resolution  proposed  by  Mr.  Davis 
in  his  minority  views: 

Resolved  further.  That  said  Chalmers  having  accepted  the  office  of  special  assistant  United  States 
district  attorney  for  the  northern  and  southern  districts  of  the  State  of  Mississippi,  since  the  said  election, 
and  holding  said  office  up  to  and  beyond  the  1st  day  of  February,  1884,  is  ineligible  to  a  seat  in  this 
Congress,  and  a  vacancy  exists  in  the  Second  Congressional  district  of  the  State  of  Mississippi. 

This  resolution  was  disagreed  to — ayes,  36 ;  noes,  98. 

Then  the  question  was  taken  on  a  second  resolution  proposed  by  Mr.  Davis : 

Resolved,  That  the  means  and  methods  employed  by  the  Federal  Administration  in  securing  the 
election  of  James  R.  Chalmers  as  a  Member  of  the  House  of  Representatives  of  the  Forty-eighth  Congress 
are,  as  appears  by  the  majority  report  and  the  evidence  on  file,  repugnant  to  and  subversive  of  true  repre- 
sentative government,  and  the  said  election  is  therefore  declared  void. 

This  resolution  was  disagreed  to — yeas,  56;  nays,  163. 

Then  the  resolution  of  the  majority  declaring  contestant  elected  was  agreed  to 
without  division,  and  Mr.  Chalmers  appeared  and  took  the  oath. 

It  should  be  noted  that  Mr.  Chalmers  belonged  to  the  minority  party  in  the 
House,  and  Mr.  Manning  to  the  majority  party. 

47.  No  credentials  being  received  from  a  district  prior  to  the  meeting 
of  Congress,  the  Clerk  placed  no  name  on  the  roll  for  that  district. 

The  Clerk,  while  presiding  at  the  organization,  declined  to  open  a 
paper  addressed  to  the  Speaker,  although  it  was  supposed  to  inclose  a 
missing  credential. 

On  October  15,  1877,^  at  the  organization  of  the  House,  while. the  roll  of  Mem- 
bers-elect was  being  called,  the  Clerk  ^  said: 

From  the  State  of  Missouri  there  is  one  district,  the  third  in  number,  from  which  no  credential  of  any 
kind  has  been  received  in  favor  of  any  person,  and  consequently  no  name  has  been  placed  upon  the  roll 
from  said  district.  There  has  been  handed  to  me  at  this  instant  a  paper  from  the  State  of  Missouri, 
addressed  to  the  Speaker  of  the  House  of  Representatives.  It  is  suggested  that,  as  there  is  no  Speaker, 
the  Clerk  should  open  it. 


'Record,  pp.  5591-5606;  Journal,  pp.  1548,  1550,  1553. 
^ First  session  Forty-fifth  Congress,  Record,  p.  52. 
'George  M.  Adams,  of  Kentucky,  Clerk. 


§  48  THE  clerk's  roll  of  the  members-elect.  37 

Several  Members  having  objected,  the  Clerk  said: 

The  Clerk  prefers,  inasmuch  as  it  might  raise  a  question  about  which,  at  this  late  hour,  he  is  not 
prepared  to  determine  what  he  should  or  should  not  do  in  reference  to  the  roll,  to  leave  it  for  the  House 
to  determine  when  it  shall  have  organized. 

48.  A  Member-elect  having  been  enrolled  on  the  strength  of  creden- 
tials in  due  form,  the  Clerk  declined  to  strike  him  from  the  roll  on  the 
strength  of  later  papers. — On  March  18,  1879/  at  the  time  of  the  organization 
of  the  House,  after  the  roh  of  Members-elect  had  been  called,  the  Clerk  -  said  in 
reference  to  one  of  the  seats  from  the  State  of  Florida: 

He  (the  Clerk)  received  a  certificate  of  election  signed  by  the  governor  and  authenticated  by  the 
seal  of  Florida,  as  prescribed  by  the  following  provision  in  the  statutes  of  that  State:  "Whenever  any 
person  shall  be  elected  to  the  office  of  elector  of  President  or  Vice-President,  or  Representative  in  Con- 
gress, the  governor  shall  make  out  and  sign  and  cause  to  be  sealed  with  the  seal  of  the  State  and  transmit 
to  such  person  a  certificate  of  his  election,"  duly  accrediting  Mr.  Hull  as  a  Representative-elect  to  the 
Forty-sixth  Congress.  He  subsequently  received  a  number  of  papers,  among  which  was  a  certified  copy 
of  a  canvass  of  the  votes  in  the  Second  district  of  Florida,  made  by  the  board  of  State  canvassers  in  pur- 
suance of  an  order  of  the  supreme  court  of  that  State,  from  which  canvass  it  appears  that  Mr.  Horatio 
Bisbee,  jr.,  was  elected;  but  those  papers  were  not  accompanied  by  the  certificate  of  the  governor, 
authenticated  by  the  seal  of  the  State,  as  required  by  the  statute  just  cited.  The  Clerk  did  not  feel  at 
liberty  to  regard  anj^hing  as  a  credential  within  the  meaning  oi  the  law  governing  him  in  making  up  the 
roll  except  a  certificate  made  out  and  signed  by  the  governor  and  sealed  with  the  seal  of  the  State,  as 
prescribed  by  this  provision  of  the  statutes  of  Florida;  and  as  Mr.  Bisbee,  who  claims  to  have  been 
elected,  presented  no  such  certificate,  the  Clerk  could  not  regard  him  as  possessing  the  prima  facie  evi- 
dence of  an  election  which  the  laws  of  Florida  requires  that  he  should  have,  and  consequently  omitted 
his  name  from  the  roll. 

49.  On  August  7,  1893,'  at  the  time  of  the  organization  of  the  House,  the 
Clerk,*  after  the  State  of  Michigan  had  been  called,  made  the  following  statement: 

The  Clerk  begs  leave  to  state,  in  reference  to  the  certificate  of  election  from  the  Fifth  Congressional 
district  of  Michigan,  that  on  December  22,  1892,  there  was  filed  in  his  office  a  certificate  of  election  to 
the  House  of  Representatives  from  that  district  in  due  and  authorized  form,  showing  the  election  of 
Hon.  George  F.  Richardson  as  a  Representative  to  the  Fifty-third  Congress  of  the  United  States,  and 
the  name  of  said  George  F.  Richardson  was,  by  the  Clerk  of  the  House,  then  duly  placed  upon  the  roll 
of  Representatives-elect.  Exactly  similar  certificates  in  every  respect,  certified  to  by  the  same  State 
officers,  were  filed  at  other  dates,  as  late  as  AprU  3,  1893,  showing  the  election  of  Representatives  to 
Congress  from  all  the  other  districts  of  Michigan,  and  similar  action  was  taken  in  each  case. 

On  February  20,  1893,  there  was  delivered  to  the  Clerk  an  alleged  certificate  of  election,  signed  by 
other  persons  (the  State  ofiicers  required  by  law  to  certify  the  election  of  Members  of  Congress  having 
been  changed  in  the  interim),  which  said  certificate,  accompanied  by  sundry  papers,  claimed  to  show 
the  election  of  Hon.  Charles  E.  Belknap  from  the  Fifth  Congressional  district  of  Michigan  as  a  Repre- 
sentative to  the  Fifty-third  Congress.  The  Clerk  refused  to  strike  off  the  roll  the  name  of  George  F. 
Richardson  as  a  Member-elect  from  this  district,  having  already  exercised  the  authority  given  to  him 
by  the  law.  The  matter  is  therefore  submitted  to  the  House,  which,  when  organized,  is,  under  the 
Constitution  and  the  law,  judge  of  the  elections,  returns,  and  qualification  of  its  own  Members. 

50.  In  1879  the  Clerk  honored  the  regular  credentials  from  the  gov- 
ernor of  Iowa,  although  papers  presented  in  opposition  thereto  raised  a 

'  First  session  Forty-sixth  Congress,  Record,  p.  4. 
^George  M.  Adams,  of  Kentucky,  Clerk. 
'First  session  Fifty-third  Congress,  Record,  p.  200. 
*  James  Kerr,  of  Pennsylvania,  Clerk. 


38  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   51 

doubt  as  to  the  lawful  day  of  election. — On  March  18,  1879,'  at  the  time  of 
the  organization  of  the  House,  after  the  roll  of  Members-elect  had  been  called  by 
the  Clerk,"  he  said: 

There  were  presented  to  the  Clerk  certificates  duly  signed  by  the  governor  of  the  State  of  Iowa, 
under  the  seal  of  the  State,  accrediting  the  nine  gentlemen  whose  names  have  been  announced  as  Rep- 
resentatives duly  elected  on  the  8th  day  of  October,  1878.  Sundry  papers  were  also  presented  to  the 
Clerk  in  reference  to  an  election  claimed  to  have  been  held  on  the  Tuesday  next  after  the  first  Monday 
in  November,  1878.  These  papers,  however,  do  not  conform  to  the  requirements  of  the  laws  of  Iowa. 
They  are  not  signed  by  the  governor;  they  are  not  under  the  seal  of  the  State;  they  are  simply  papers 
which  came  imauthenticatcd  and  in  no  sense  constitute  credentials  within  the  meaning  of  the  laws  of 
Iowa.  WTiatever  may  be  the  fact,  therefore,  in  reference  to  the  time  at  which  the  election  should 
have  been  held  in  the  State  of  Iowa,  even  though  it  were  definitely  and  clearly  settled  that  the  election 
should  have  been  held  in  November  instead  of  October,  the  Clerk  could  not  in  any  event  place  on  the 
rolls  the  names  of  those  persons  in  whose  behalf  papers  have  been  filed  in  reference  to  the  November 
election  for  the  reason  that  these  papers  do  not  comply  with  the  laws  of  the  State  of  Iowa  and  do  not 
constitute  credentials. 

As  to  whether  the  election  should  have  been  held  in  October  or  in  November  there  are  grave  doubts 
in  the  minds  of  those  learned  in  the  law.  It  is  a  question  about  which  he  confesses  he  has  not  been  able 
to  arrive  at  so  clear  and  satisfactory  conclusion  as  he  himself  could  have  desired.  But  in  the  discharge 
of  the  duty  imposed  upon  him,  unless  he  could  arrive  at  a  clear  and  satisfactory  conclusion  that  those 
gentlemen  were  not  elected  on  the  proper  day,  he  did  not  feel  at  liberty  to  withhold  their  names  from 
the  roll  of  Members-elect,  but  thought  it  proper  to  give  the  benefit  of  the  doubt  in  favor  of  representa- 
tion and  to  remand  that  question  for  the  consideration  of  the  House  when  it  shall  have  organized. 

51.  In  1879  the  Clerk  declined  to  honor  a  regular  credential  for  a 
Representative  at  large  to  which  the  State  was  not  entitled  by  law. — On 

March  IS,  1879,'  at  the  organization  of  the  House,  after  the  roll  of  Members-elect 
had  been  called,  the  Clerk ^  said: 

He  (the  Clerk)  has  received  a  certificate  accrediting  an  additional  Representative  from  the  State 
of  Kansas  as  elected  from  the  State  at  large;  but  as  he  is  not  aware  of  any  law  authorizing  that  State  to 
have  more  than  tliree  Representatives,  he  has  not  placed  the  name  of  the  person  who  is  claimed  to  have 
been  elected  for  the  State  at  large  upon  the  roll. 

52.  In  1885  the  Clerk  honored  the  Nebraska  credentials  which, 
although  they  did  not  fully  comply  with  tL  e  law,  were  identical  in  form 
with  certificates  sent  from  that  State  to  former  Congresses. — On  December 
7,  1885,^  at  the  time  of  the  organization  of  the  House,  when  the  State  of  Nebraska 
was  reached  in  the  caUing  of  the  roll,  the  Clerk  ^  said : 

The  Clerk  desires  to  state  that  he  has  some  doubt  as  to  whether  the  certificates  from  the  State  of 
Nebraska  fully  comply  with  the  law,  but  as  they  are  identical  with  the  certificates  filed  with  the  Clerk 
of  the  House  of  Representatives  of  the  Forty-seventh  and  Forty-eighth  Congresses,  and  as  there  is  no 
protest  or  contest,  he  has  placed  the  names  upon  the  roll. 

53.  The  Kentucky  election  case  of  Letcher  v.  Moore  in  the  Twenty- 
third  Congress. 

In  1833  the  House  declined  to  sustain  the  action  of  the  Clerk  in  en- 


'  First  session  Forty-sixth  Congress,  Record,  p.  4. 
^  George  M.  Adams,  of  Kentucky,  Clerk. 
'  First  session  Forty-ninth  Congress,  Record,  p.  lOG 
<  John  B.  Clark,  of  Maryland,  Clerk. 


§  53  THE  clerk's  roll  of  the  members-elect.  39 

rolling  a  person  whose  credentials  on  their  face  failed  to  comply  with  the 
requirements  of  the  State  law. 

An  instance  wherein,  at  the  organization  of  the  House,  before  the 
enactment  of  the  law  as  to  the  Clerk's  roll,  two  claimants  to  a  seat  were 
present  and  participated  in  the  proceedings. 

In  1833  the  House  decided  that  a  person  bearing  defective  creden- 
tials should  not  be  called  on  the  roll  call  until  after  the  election  of  Speaker 
and  other  officers. 

In  1833  the  House  declined  to  seat  either  claimant  until  the  final 
right  should  be  determined. 

Form  of  resolution  used  in  1833  to  authorize  the  institution  of  a  con- 
test. 

On  December  2,  1833,'  at  the  organization  of  the  House,  while  the  Clerk  of  the 
last  House  was  callmg  the  names  of  the  Members-elect,  and  had  called  as  far  as  the 
State  of  Kentucky.  Mr.  Chilton  Allan,  of  that  State,  arose  and  objected  to  the 
calling  of  Thomas  P.  Moore,  returned  to  serve  as  the  Member  for  the  Fifth  Congres- 
sional district  of  said  State,  on  the  ground  that  the  said  Thomas  P.  Moore  had  not 
been  duly  elected  and  that  the  return  of  the  said  Thomas  P.  Moore  was  not  in  the 
form  prescribed  by  the  laws  of  the  State  of  Kentucky. 

Debate  at  once  arose.  Some  question  was  made  as  to  the  competency  of  the 
body  of  unqualified  Members  to  make  a  decision;  a  proposition  was  made  that  a 
chairman  be  chosen  to  preside,  etc. 

It  appeared  from  the  debate  that  the  Clerk  had  put  the  name  of  Mr.  Moore  on 
his  roll  of  Members-elect,  and  the  Members  called  for  the  reading  of  the  papers  on 
wliich  the  Clerk  had  acted.  He  therefore  produced  Mr.  Moore's  certificate,  which 
was  signed  by  the  sheriffs  of  three  of  the  five  counties  composing  the  Congressional 
district,  although  tlie  law  required  it  to  be  signed  by  the  sheriffs  of  all  the  counties. 
This  certificate,  on  the  face  of  it,  stated  that  the  votes  of  one  county  were  not  taken 
into  account.  Both  Mr.  Moore  and  his  opponent,  Mr.  Robert  P.  Letcher,  were 
present,  ilr.  Moore  spoke  on  the  question,  and  the  report  of  debates  indicates  that 
^^Ir.  Letcher  was  also  heard  to  the  extent  of  making  a  proposition  that  both  with- 
draw until  after  the  election  of  Speaker. 

By  general  consent  it  w&s  agreed  that  Mr.  Moore  should  not  be  called  until  the 
House  should  have  become  organized  by  the  election  of  Speaker  and  other  officers. 

On  December  4  the  subject  was  resumed  and  gave  rise  to  an  extended  debate, 
during  which  the  insufficiency  of  the  credentials  of  Mr.  Moore  was  urged.  Finally, 
on  December  5,  the  House  agreed  to  these  resolutions: 

Resolved,  That  the  Committee  of  Elections,  when  appointed,  inquire,  and  report  to  this  House,  who 
is  the  Member  elected  from  the  Fifth  Congressional  district  of  the  State  of  Kentucky;  and,  until  the 
committee  shall  report  as  herein  required, 

Resolved,  That  neither  Thomas  P.  Moore  nor  Robert  F.  Letcher  shall  be  qualified  as  the  Member 
from  said  district. 

Resolved  further,  That  the  Committee  of  Elections  shall  be  required  to  receive  as  evidence  all  the 
affidavits  and  depositions  which  may  have  been  heretofore,  or  which  may  hereafter  be,  taken  by  either 
of  the  parties,  on  due  notice  having  been  given  to  the  adverse  party,  or  his  agent,  and  report  the  same  to 
this  House. 

'  First  session  Twenty-third  Congress,  Journal,  pp.  3,  26,  27;  Debates,  pp.  2130-2135,  2139-2160. 


40  PRECEDENTS    OF    THE    HOUSE    OF   BEPKESENTATIVES.  §   54 

54.   The  Kentucky  election  case  of  Letcher  v.  Moore,  continued. 

The  House  considered  the  constitution  and  laws  of  the  State  in 
which  the  election  was  held  as  affording  the  rule  by  which  irregularities 
should  be  tested. 

Although  the  State  constitution  required  that  every  vote  be  given 
viva  voce,  the  Elections  Committee  in  a  report  which  failed,  evidently 
for  other  reasons,  to  be  sustained  decided  that  the  votes  of  certain  mutes 
might  be  counted. 

In  an  inconclusive  case  the  House  reversed  the  decision  of  its  com- 
mittee, that  residence  while  attending  a  school  was  not  such  residence  as 
entitled  one  to  the  suffrage. 

In  1834  in  an  inconclusive  case  the  Elections  Committee  gave  the 
word  ''  residence  "  the  same  meaning  as  ''  home  "  or  "  domicile." 

In  an  inconclusive  case  in  1834  the  Elections  Committee  held  that 
right  of  suffrage  was  not  lost  by  removal  from  the  State  unless  there  was 
an  intention  to  remain  away  or  proof  of  permanent  location  elsewhere. 

The  law  requiring  the  presence  of  the  sheriff  at  the  voting,  the  com- 
mittee rejected  votes  cast  in  his  absence,  but  the  House  reversed  this 
ruling. 

In  1834  the  Elections  Committee  adopted  the  rule  that  depositions 
must  be  signed  by  the  witness,  unless  State  law  made  the  certificate  of  a 
magistrate  sufficient. 

On  May  6,  1834/  the  Committee  on  Elections  reported  in  the  case  of  Letcher  v. 
Moore,  from  Kentucky,  the  first  paragrapli  of  the  report  explaining  the  situation: 

The  subject  presented  itself  as  one  entirely  new  and  unprecedented.  Thomas  P.  Moore, esq.,  had 
a  certificate  from  three  only  of  the  five  sheriffs,  and  Robert  P.  I,etcher,  esq.,  a  majority  of  the  votes 
upon  the  poll  books  of  the  five  counties  composing  that  district.  As  Mr.  Letcher  had  no  certificate,  and 
tliat  of  Mr.  Moore  was  not  signed  by  all  the  sheriffs,  as  required  by  the  law  of  Kentucky,  neither  could 
produce  a  satisfactory  testimonial  of  his  election,  and  consequently  neither  was  permitted  to  take  his  seat. 

The  partial  certificate  was  the  result  of  the  action  of  the  sheriff  of  one  county, 
who  withheld  the  poll  book  and  thus  prevented  the  issuuig  of  a  certificate  to  Mr. 
Letcher,  who,  with  that  county  poll,  would  have  been  elected  so  far  as  the  face 
of  the  returns  went.  The  minority  of  the  committee,  united  with  the  majority 
in  condemning  the  conduct  of  the  sheriff,  and  in  the  opinion  that  the  certificate  of 
tliree  of  the  five  sheriffs  was  insufficient  to  entitle  Mr.  Moore  to  a  seat.  But  the 
minority  did  contend  that  certified  copies  of  the  poll  books  constituted  sufficient 
evidence  of  the  election  to  entitle  the  person  in  whose  favor  they  showed  a  majority 
to  take  the  seat,  subject  of  course  to  futtue  contest  and  final  decision  of  the  House. 

This  view  did  not  prevail,  however,  the  House  not  considering  this  aspect 
further,  and  neither  party  took  the  seat  on  prima  facie  right. 

The  committee  gave  to  the  contestants  a  certain  time  in  which  to  take  testi- 
mony, and  then  allowed  the  contestants  an  opportunity  to  examine  the  testimony 
and  make  briefs.     Both  contestants  also  presented  arguments. 

The  committee  found  in  their  examination  nearly  400  votes  objected  to, 
these  objections  arising  principally  as  to  the  qualifications  of  voters,  but  some  as 

'First  session  Twenty-third  Congress,  contested  elections  in  Congress,  from  1789  to  1834,  p.  715. 


§  54  THE  clerk's  koll  of  the  members-elect.  41 

to  the  conduct  of  officers  of  the  election.  The  constitution  and  laws  of  Kentucky- 
were  the  rule  of  the  election,  and  the  committee  examined  the  objections  with 
reference  to  that  constitution  and  system  of  laws. 

First,  in  relation  to  the  qualification  of  voters.  The  constitution  of  Kentucky 
provided  that  "in  all  elections  by  the  people"  the  "votes  shall  be  personally  and 
publicly  given  viva  voce."  Three  deaf-mutes,  able  to  read  and  write,  voted,  but 
objection  was  made  that  it  was  physically  impossible  for  them  to  comply  with  the 
requirements  of  the  constitution.  The  committee  finally  concluded  that  under  a 
liberal  construction  of  the  constitution  the  votes  might  be  received. 

The  State  constitution  also  allowed  every  male  over  the  age  of  21  to  vote  in 
the  county  where  he  was  actually  residing,  provided  he  had  resided  in  the  State  two 
years.  The  committee  gave  to  the  term  "  residence  "  the  same  meaning  as  "home," 
or  "domicile;"  and  three  men  who  had  been  in  another  State  five  years  were  still 
considered  entitled  to  vote.  Also  all  men  living  in  the  county  for  the  time  being, 
imless  the  business  bringing  them  there  was  merely  temporary,  were  allowed  to 
vote  unless  they  had  actual  home  or  domicile  in  another  part  of  the  State.  This 
principle  determined  the  votes  of  laborers  residing  where  they  could  get  work.  But 
the  students  of  a  theological  seminary  were  rejected  in  accordance  with  the  following 
principle  laid  down  by  the  committee:  "That  the  residence  of  young  men  from 
other  States  and  counties,  at  schools,  academies,  or  colleges,  as  scholars  or  students, 
is  not  such  a  residence  as  entitles  them  to  the  right  of  suffrage  in  the  county  where 
they  are  for  the  time  being."  The  committee  also  laid  down  the  followmg  principle 
in  reference  to  removal  from  the  State:  "An  individual  having  the  right  of  suffrage 
in  Kentucky  does  not  lose  it  by  removal  from  the  State  merely,  but  there  must 
be  an  evidence  of  his  intention  at  the  time  he  departs  to  leave  the  State  permanently 
or  proof  of  his  permanent  location  elsewhere  to  forfeit  his  rights  as  a  voter." 

In  their  investigation  the  committee  also  laid  down  the  following  rules  in  regard 
to  voters : 

That  no  name  be  stricken  from  the  polls  as  unkno-wm,  upon  the  testimony  of  one  witness  only 
that  no  such  person  is  known  in  the  county;  and  that  where  a  man  of  like  name  is  known,  residing  in 
another  county,  some  proof,  direct  or  circumstantial,  other  than  finding  such  a  name  on  the  poll  book, 
will  be  required  of  his  having  voted  in  the  county  or  precinct  where  the  vote  is  assailed. 

That  all  depositions  not  subscribed  by  the  witness  be  excluded,  unless  the  certificate  of  a  magistrate 
be  sufficient  according  to  the  law  of  Kentucky. 

That  votes  recorded  upon  the  poll  books  as  given  to  one  candidate  can  not  be  changed  and  trans- 
ferred to  the  other  by  oral  testimony. 

That  all  declarations  or  statements  made  by  voters  after  the  election,  relative  to  their  right  of  suffrage, 
be  rejected. 

That  when  a  man  is  found  on  the  poll  book,  proof  that  an  individual  of  that  name  resides  in  the 
county,  who  is  a  minor,  is  not  sufficient  to  strike  the  name  off  the  poll  book,  and  that  some  proof,  direct 
or  circumstantial,  other  than  finding  the  name  on  the  poll  book,  will  be  required  of  the  vote  having 
been  given  by  such  minor  in  the  county  or  precinct  where  the  vote  is  assailed. 

In  that  branch  of  the  case  relating  to  the  conduct  of  election  officers  the  law  of 
Kentucky  provided  for  the  appointment  of  two  judges  and  a  clerk  for  the  county 
by  the  county  court,  and  that  in  case  of  failure  to  appoint,  or  failure  of  any  or  all 
of  the  appointees  to  attend,  the  sheriff  should,  immediately  preceding  the  election, 
appoint  proper  persons  to  act  in  their  stead;  that  the  sheriff  or  other  presiding 
officer  should  "open  the  polls  by  10  o'clock  in  the  morning"  of  the  day  of  election; 


42  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   55 

that  the  judges  and  clerk  should  be  sworn  and  attend  to  receiving  the  votes  until 
the  completion  of  the  election  and  the  return;  that  voting  should  be  done  publicly 
and  viva  voce  "in  presence  of  said  judges  and  sheriff." 

In  Garrard  County  one  judge  declined  serving,  and  the  other  not  having 
appeared  at  9  a.  m.  when  the  sheriff  opened  the  election  (the  law  requiring  him  to 
do  it  "bylO")  the  sheriff  appointed  the  second  judge.  About  10  o'clock,  when  the 
originally  appointed  judge  appeared,  the  second  appointee  of  the  sheriff  resigned 
the  duties.  On  the  second  day  of  the  election  the  sheriff  was  absent  for  three 
hours,  the  two  judges  continuing  to  receive  votes  in  his  absence. 

The  committee  held  that  the  sheriff  was  not  authorized  to  appoint  the  second 
judge  imtil  10  o'clock,  as  the  law  intended  to  allow  imtil  that  time  for  the  arrival 
of  the  judges.  Not  until  that  time  could  a  judge  be  said  to  have  failed  to  attend. 
Therefore  the  committee  rejected  the  votes  taken  before  10,  during  the  officiating 
of  the  second  appointee,  who  resigned  as  soon  as  the  regular  judge  arrived  and  did 
not  "attend  to  receiving  the  votes"  imtil  the  election  and  return  were  completed. 

The  committee  also  rejected  the  votes  taken  in  the  absence  of  the  sheriff,  since, 
under  the  letter  of  the  law,  the  voting  must  be  in  his  presence.  The  State  had 
prescribed  the  "manner"  of  holding  the  election,  and  the  votes  were  not  taken  in 
the  prescribed  manner.  In  support  of  this  action  the  committee  cited  the  cases  of 
Jackson  and  Wayne  (1791),  Patton  (1793),  Morris  (1795),  Lyon  and  Smith  (1795), 
McFarland  and  Purviance  (1804),  wSpaulding  and  Mead  (1805),  McFarland  and 
Culpepper  (1807),  Bassett  and  Bayley  (1813),  Scott  and  Easton  (1816). 

As  a  result  of  the  corrections  made  in  accordance  with  the  above  principles,  the 
committee  found  Thomas  P.  Moore  entitled  to  the  seat  and  so  reported. 

55.   The  Kentucky  election  case  of  Letcher  v.  Moore,  continued. 

The  House  in  1834  reversed  the  decision  of  its  committee  that 
recorded  votes  on  the  poll  book  could  not  be  changed  by  oral  testimony. 

The  House  reversed  the  rule  of  its  committee  that  a  vote  might  be 
rejected  from  the  poll  on  the  testimony  of  more  than  one  witness  that  the 
voter  was  unknown  in  the  county. 

There  being  doubt  as  to  the  regularity  of  the  appointment  of  an  elec- 
tion judge,  the  committee  rejected  the  votes  cast  while  he  oflB.ciated;  but 
the  House  reversed  the  ruling. 

It  being  impracticable  for  the  House  to  determine  with,  any  certainty 
who  was  elected,  the  seat  was  declared  vacant. 

The  case  was  considered  in  the  House  during  the  period  from  May  13  to  June 
12,  the  House  disregarding  the  report  and  going  into  the  case  itself.  On  June  4  the 
House  decided  that  the  votes  cast  in  Garrard  County  wliile  the  second  judge 
appointed  by  the  sheriff  was  officiating  should  be  counted;  also  that  the  votes 
cast  during  the  absence  of  the  sheriff  should  be  counted. 

The  House  also  reversed  the  action  of  the  committee  in  the  case  of  the  theo- 
logical students  and  decided  that  their  votes  should  be  counted. 

Also  the  House  reversed  the  principle  laid  down  by  the  committee  that  recorded 
votes,  on  the  poll  book  could  not  be  changed  by  oral  testimony;  also  votes  which 
the  committee  rejected  on  the  testimony  of  more  than  one  witness,  that  the  voters 
were  unknown  in  the  county,  were  restored  by  the  House. 


§  56  THE  clerk's  roll  of  the  members-elect.  43 

On  June  12  a  proposition  that  Mr.  Letcher  was  entitled  to  the  seat  was  decided 
in  the  negative,  yeas  112,  nays  114.  And  then,  after  unavaihng  efforts  to  amend, 
the  House  agreed,  by  a  vote  of  114  j^eas  to  103  nays,  to  a  resohition  that  there  be  a 
new  election,  "it  being  impracticable  for  the  House  to  determine  with  any  cer- 
tainty who  is  the  rightful  representative." 

56.  The  prima  facie  election  case  of  Belknap  v.  Richardson,  from 
Michigan,  in  the  Fifty-third  Congress. 

An  instance  wherein  the  Clerk  and  the  House  honored  credentials, 
regular  in  form  and  issued  legally  by  the  proper  officer,  but  annulled  by 
the  State  supreme  court. 

There  being  conflicting  credentials,  the  House  honored  those  first 
issued,  although  by  reason  of  a  revision  of  returns  the  court  had  annulled 
the  said  prior  credentials. 

On  August  7,  1893,'  during  the  organization  of  the  House,  and  while  the 
Speaker  was  administering  the  oath  to  Members,  the  State  of  Micliigan  was  called 
and  ilr.  Julius  C.  Burrows,  of  that  State,  objected  to  the  oath  being  administered 
to  Mr.  George  F.  Richardson. 

The  Speaker  directed  Mr.  Richardson  to  stand  aside. 

The  other  Members  and  Delegates  having  been  sworn  in,  Mr.  Charles  T.  O'Fer- 
rall,  of  Virginia,  offered  this  resolution: 

Resolved,  That  George  F.  Richardson  be  now  sworn  in  as  a  Representative  for  this  Congress  from 
the  Fifth  district  of  the  State  of  Michigan. 

Mr.  Burrows  offered  the  following  substitute  for  this: 

Whereas  the  credentials  upon  which  George  F.  Richardson  claims  a  seat  in  the  Fifty-third  Congress 
from  the  Fifth  Congressional  district  of  the  State  of  Michigan  have  been  annulled  and  made  void  by 
reason  of  the  judgment  of  the  supreme  court  of  that  State;  and 

Whereas  in  pursuance  and  compliance  with  such  judgment  and  with  the  laws  of  said  State,  the  State 
board  of  canvassers  of  Michigan  have  determined,  declared,  and  certified  that  Charles  E.  Belknap  is 
duly  elected  a  Representative  to  the  Fifty-third  Congress  of  the  United  States  of  America  fi-om  the 
Fifth  Congressional  district  of  the  State  of  Michigan;  Therefore, 

Resolved,  That  Charles  E.  Belknap  is  entitled  to  be  sworn  in  as  a  Member  of  thLs  House  on  his  prima 
facie  case. 

By  unanimous  consent  the  consideration  of  these  resolutions  was  deferred  until 
the  organization  of  the  House  should  be  perfected. 

On  August  8,  after  debate  and  after  a  motion  to  commit  had  been  negatived, 
by  a  vote  of  yeas  128,  nays  193,  the  substitute  was  negatived,  yeas  114,  nays  199, 
and  Mr.  O'Ferrall's  resolution  was  agreed  to.  Then  the  oath  was  administered  to 
Mr.  Richardson. 

On  tliis  case,  as  stated  in  the  Clerk's  explanation,  both  parties  presented  regular 
credentials,  those  presented  by  Mr.  Richardson  being  exactly  similar  to  those  on 
which  the  other  Michigan  ^Members  were  seated.  But  in  the  case  of  Mr.  Richardson 
there  had  been  in  one  of  the  counties  of  his  district — the  county  of  Ionia — a  recount 
which  the  supreme  court  of  the  State  had  declared  illegal,  and  as  a  result  of  the 
action  of  the  court  there  appeared  a  plurality  of  votes  for  ^Ir.  Belknap.  So  a  new 
certificate  was  issued,  signed  by  the  same  officials  who  signed  the  Richardson  cer- 

'  First  session  Fifty-third  Congress,  Record,  pp.  201,  202,  226-238. 


44  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   57 

tificate  (although  not  by  the  same  individuals,  there  having  been  a  change  in  the 
State  government),  and  certifying  the  election  of  Mr.  Belknap.  The  certificate  fur- 
thermore stated  that  Mr.  Belknap  had  the  largest  number  of  votes  and  was  elected 
"in  accordance  with  the  laws  of  said  State  and  the  decision  of  the  supreme  court 
of  Micliigan  annulhng  the  certificate  heretofore  illegally  issued  to  George  F.  Rich- 
ardson and  is  issued  in  lieu  thereof." 

In  the  course  of  the  debate  the  action  of  Clerk  George  M.  Adams  in  the  Florida 
case  was  cited. 

A  resolution  was  adopted  to  allow  Mr.  Belknap  to  contest.* 

57.  The  Florida  prima  facie  election  case  of  Bisbee  v.  Hull  in  the 
Forty-sixth  Congress. 

The  Clerk  and  the  House  honored  credentials,  regular  in  form  and 
issued  by  a  competent  officer,  although  the  fact  was  notorious  that  the 
State  courts  had  found  a  different  result. 

On  March  18,  1879,^  wliile  the  Speaker  was  administering  the  oaths  to  Members 
at  the  time  of  the  organization  of  the  House,  the  State  of  Florida  was  called  and  Mr. 
Noble  A.  Hull  presented  liimself  to  be  sworn.  Mr.  WilUam  P.  Frye,  of  Maine, 
requested  that  he  stand  aside,  objecting  to  the  administration  of  the  oath  to  him. 

When  the  oath  had  been  administered  to  the  other  Members,  Mr.  John  T.  Harris, 
of  Virginia,  ofl^ered  this  resolution: 

Resolved,  That  Noble  A.  Hull  be  now  sworn  in  as  a  Representative  in  this  Congress  from  the  Second 
district  of  the  State  of  Florida. 

Mr.  Frye  offered  the  following  as  a  substitute : 

Whereas  the  credentials  upon  which  Noble  A.  Hull  claims  a  seat  *  *  *  have  been  annulled 
and  made  void  by  the  judgment  of  the  supreme  court  of  that  State;  and 

Wliereas,  in  pursuance  and  in  compliance  with  such  judgment  and  with  the  laws  of  said  State,  the 
State  board  of  canvassers  of  Florida  have  determined,  declared,  and  certified  that  Horatio  Bisbee,  jr., 
is  duly  elected  a  Representative,  etc. ;  Therefore, 

Resolved,  That  Horatio  Bisbee,  jr.,  is  entitled  to  be  sworn  in  as  a  Member  of  this  House  on  his  prima 
facie  case. 

On  March  19  Mr.  Frye  withdrew  the  preamble  and  resolution  and  offered  the 
following: 

Resolved,  That  the  question  of  the  prima  facie  as  well  as  the  final  right  of  Horatio  Bisbee,  jr.,  and 
Noble  A.  Hull,  contestants,  respectively,  claiming  a  seat  in  this  House  from  the  Second  district  of  Florida, 
be  referred  to  the  Committee  of  Elections,  hereafter  to  be  appointed;  and  until  such  committee  shall 
have  reported  in  the  premises  and  the  House  have  decided  such  question  neither  of  said  contestants 
shall  be  admitted  to  a  seat. 

Mr.  Frye  stated  in  support  of  his  resolution  that  because  of  irregularities  in  the 
coiuit  in  two  of  the  counties  of  the  district,  the  majority  which  should  have  been  for 
Mr.  Bisbee  had  been  changed  so  as  to  show  the  election  of  Mr.  Hull.  The  supreme 
court  of  the  State  ordered  a  review  by  the  State  canvassing  board,  which  resulted 
in  the  demonstration  that  Mr.  Bisbee  had  been  elected.  But  the  governor,  who  had 
already  issued  a  certificate  to  Mr.  Hull,  on  the  first  return  of  the  canvassmg  board, 
declined  to  revise  his  action  and  issue  a  certificate  to  Mr.  Bisbee.     Mr.  Bisbee 

'  Record,  p.  1359. 

^  First  session  Forty-sixth  Congress,  Record,  pp.  G,  27;  Journal,  pp.  12,  20,  21. 


§  58  THE  clerk's  roll  of  the  membeks-elect.  45 

applied  to  the  supreme  court  of  the  State  for  a  mandamus  to  compel  the  governor 
to  issue  the  certificate.  The  court  held  that  the  governor  ought  to  issue  the  cer- 
tificate, but  that  the  court  could  not  compel  him  to.  A  dissenting  judge  held  that 
the  court  might  compel  the  governor.  Mr.  Frye  cited  the  case  of  Davidson  and 
Purman  m  the  preceding  Congress,  where  there  were  two  certificates  from  two  gov- 
ernors, and  where  the  Clerk  placed  on  the  roll  the  name  of  the  claimant  whose 
certificate  was  in  accordance  with  the  law  of  the  State  as  interpreted  by  the  supreme 
court.  In  behalf  of  Mr.  Bisbee,  ilr.  Frye  and  others  claimed  that  the  action  of  the 
supreme  court,  and  the  second  canvass  had  sho\\Ti  the  certificate  issued  to  Mr.  Hull 
to  be  void,  and  therefore  that  the  prima  facie  right  to  the  seat  did  not  belong  to  Mr. 
HuU. 

On  the  other  hand,  it  was  contended  that  Mr.  Hull  had  the  certificate  of  the 
governor,  issued  according  to  law  and  regular  in  form.  Therefore  he  should  be 
seated.  The  facts  brought  forward  on  the  other  side  might  be  reason  for  an  inquiry 
as  to  the  final  right  to  the  seat,  but  not  as  to  the  prima  facie  right. 

The  question  being  taken  on  the  resolution  proposed  by  Mr.  Frye  it  was  dis- 
agreed to — yeas  137,  nays  140. 

The  resolution  proposed  by  Mr.  Harris  was  then  agreed  to — yeas  140,  nays  136. 

Thereupon  Mr.  Hull  appeared  and  the  oath  was  administered  to  him. 

58.  A  certificate  regvilar  in  form  and  legally  issued  by  a  competent 
oflB-cer  was  honored  by  both  Clerk  and  House,  although,  the  successor  of 
that  oflB.cer  had  issued  conflicting  credentials. — On  October  15,  1877,^  at  the 
organization  of  the  House,  while  the  Members-elect,  whose  names  had  been  placed 
on  the  roll  by  the  Clerk,  were  being  sworn,  Mr.  Richard  H.  Cain,  of  South  Carolina, 
was  challenged  and  stood  aside.  On  the  succeeding  day,  after  the  disposal  of  the 
case  of  Mr.  Joseph  H.  Rainey,  of  the  same  State,  Mr.  John  B.  Clarke,  of  Kentucky, 
offered  the  following: 

Resolved,  That  the  question  of  the  prima  facie,  as  well  as  the  right  of  M.  P.  O'Connor  against  Richard 
H.  Cain,  contestants,  respectively,  claiming  a  seat  in  this  House  from  the  Second  district  of  South  Caro- 
lina be  referred  to  the  Committee  of  Elections,  hereafter  to  be  appointed.  And  until  such  committee 
shall  have  reported  in  the  premises  and  the  House  has  decided  such  question  neither  of  said  contestants 
shall  be  admitted  to  a  seat. 

In  this  case  Mr.  Cain  had  the  regular  certificate,  as  did  Mr.  Rainey,  and  the 
secretary  of  state  (successor  to  the  one  who  had  issued  the  certificate)  had  issued  an 
impeaching  certificate. 

In  the  debate  it  was  urged  that  the  law  of  elections  laid  down  the  principle  that 
a  certificate  did  not  constitute  a  prima  facie  title  to  a  seat  in  cases  where  there  was 
a  second  impeaching  certificate.  In  this  case  the  same  officer  issued  the  first  cer- 
tificate, and  also  the  certificate  that  impeached  the  first.  It  did  not  matter  that  the 
officer  was  not,  in  the  two  cases,  the  same  person.  Both  certificates  were  from  the 
secretary  of  state  of  South  Carolina.  It  was  not  sufficient  to  say  that  one  came 
from  one  political  partisan  and  the  other  from  another  political  partisan.  Against 
this  it  was  urged  again,  as  in  the  case  of  Rainey,  that  the  certificate  was  regular  in 
form,  in  conformity  with  law,  and  must  be  followed. 

'  First  session  Forty-fifth  Congress,  Journal,  p.  16;  Record,  pp.  65-68. 


46  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §  59 

The  House,  by  a  vote  of  yeas  181,  nays  89,  adopted  the  following  substitute: 
Resolved,  That  Richard  H.  Cain  be  now  sworn  in  as  a  Representative,  etc. 

The  oath  was  accordingly  administered  to  Mr.  Cain. 

59.  Neither  the  Clerk  nor  the  House  honored  credentials  issued  by  a 
lieutenant-governor  in  the  temporary  absence  of  the  governor,  revoking 
regular  credentials. — On  October  15,  1877/  at  the  organization  of  the  House 
wliile  the  oath  was  being  administered  to  the  Members-elect,  whose  names  had  been 
placed  on  the  roll  by  the  Clerk,  objection  was  made  to  Mr.  C.  B.  Darrall,  of  Louisiana, 
and  he  stood  aside.  On  the  succeeding  day  Mr.  Randall  L.  Gibson,  of  Louisiana, 
by  whom  he  had  been  challenged,  stated  that  he  had  objected  because  the  lieutenant- 
governor  of  Louisiana,  acting  in  the  temporary  absence  of  the  governor,  had  issued 
a  certificate  in  effect  revoking  the  certificate  originally  issued  to  Mr.  Darrall,  and  cer- 
tifying J.  H.  Acklen  as  the  Representative.  Mr.  Gibson  proposed  the  following 
resolution,  which  was  agreed  to  %vithout  opposition: 

Resolved,  That  Mr.  Darrall,  of  the  Third  district  of  Louisiana,  be  sworn  in,  and  that  the  credentials 
of  Mr.  J.  H.  Acklen,  of  said  district,  with  the  papers  thereunto  attached,  be  referred  to  the  Committee 
of  Elections,  when  appointed,  with  instructions  to  report  upon  his  right  to  a  seat  in  this  House  from  said 
district. 

Mr.  Darrall  then  appeared  and  took  the  oath. 

60.  The  House  confirmed  the  action  of  its  Clerk  who  had  enrolled 
the  bearers  of  credentials  which  conformed  strictly  to  the  law,  although 
less  formal  credentials  had  been  issued  at  an  earlier  date  by  a  recognized 
governor. 

In  making  up  the  roll  the  Clerk  disregarded  entirely  credentials 
issued  by  a  person  claiming  to  be  governor,  but  who  never  exercised  the 
functions  of  that  office. 

On  October  15,  1877,'  at  the  organization  of  the  House,  after  the  roll  had  been 
called  by  the  Clerk,^  that  official  explained  as  follows: 

There  were  received  from  the  State  of  Louisiana  three  different  sets  of  credentials,  one  set  signed 
by  John  McEnery  as  governor  of  Louisiana,  bearing  date  December  20,  1876,  and  declaring  certain  per- 
sons elected  from  the  First,  Fourth,  and  Sixth  districts,  but  silent  as  to  the  persons  elected  from  the 
other  districts  of  said  State.  Inasmuch,  however,  as  said  McEnery  was  never  de  facto  governor  of  Louisi- 
ana, and  never  in  point  of  fact  exercised  or  performed  the  functions  of  that  office,  it  is  not  deemed 
necessary  to  make  here  any  statement  concerning  the  regularity  or  irregularity  of  the  credentials 
coming  from  that  source. 

Another  set  of  credentials  is  signed  by  William  Pitt  Kellogg  as  governor  of  Louisiana,  with  the  seal 
of  the  State  attached,  all  of  which  not  only  bear  different  dates,  but  also  reached  the  hands  of  the  Clerk 
at  different  times  and  through  different  channels,  and  simply  declare  the  persons  elected  from  each 
of  the  districts  of  said  State,  respectively,  except  the  Second  district,  as  to  which  no  certificate  seems 
to  have  been  issued  by  said  Kellogg  in  favor  of  any  one.  The  law  of  Louisiana  prescribing  the  character 
of  the  credentials  by  which  the  elections  of  its  Representatives  in  Congress  shall  be  authenticated  and 
known  provides  as  follows; 

"That  as  soon  as  possible  after  the  expiration  of  the  time  of  making  the  returns  of  the  election  for 
Representatives  in  Congress,  a  certificate  of  the  returns  of  the  election  for  such  Representatives  shall  bo 

'  First  session  Forty-fifth  Congress,  Journal,  p.  20;  Record,  p.  69. 

2  First  session  Forty-fifth  Congress,  Journal,  pp.  20-24;  Record,  pp.  51,  52,  7.3-76,  85-88,  89-92. 

'  George  M.  Adams,  of  Kentucky,  Clerk. 


§   61  THE    clerk's    roll    OF   THE    MEMBERS-ELECT.  47 

entered  upon  record  by  the  secretary  of  state,  signed  by  the  governor,  and  a  copy  thereof,  subscribed  by 
said  officers,  shall  be  delivered  to  the  persons  so  elected,  and  another  copy  transmitted  to  the  House  ot 
Representatives  of  the  United  States,  directed  to  the  Clerk  thereof." 

These  credentials  signed  by  Governor  Kellogg  are  in  no  sense  a  compliance  with  the  requirements 
of  the  laws  of  Louisiana.  They  do  not  even  purport  to  be  entered  on  the  record  by  the  secretary  of  state 
and  there  signed  by  the  governor,  but  are,  on  the  contrary,  a  simple  declaration  by  him  that  certain 
persons  are  elected  without  even  stating  the  sources  of  his  infonnation,  and  no  more  constitute  creden- 
tials within  the  meaning  of  the  laws  of  Louisiana  than  a  simple  statement  from  the  treasurer  or  other 
State  official  would  be. 

The  other  set  of  credentials  is  signed  by  Francis  P.  Nichols  as  governor  of  Louisiana,  and  Oscar 
Arroyo  as  assistant  secretary  of  state,  with  the  seal  of  the  state  attached.  All  of  them  bear  date  February 
27,  1877,  and  all  of  them  reached  the  hands  of  the  Clerk  at  the  same  time,  and  through  the  channels  pre- 
scribed by  law.  They  declare  the  persons  elected  in  each  of  the  districts  of  Louisiana,  respectively,  and 
conflict  with  the  certificates  signed  by  Governor  Kellogg  in  reference  to  two  districts  only.  These  cre- 
dentials comply,  it  is  thought,  with  the  laws  of  Louisiana  in  every  respect,  and  the  Clerk  has  accordingly 
placed  on  the  roll  the  names  of  persons  contained  in  these  credentials. 

Accordingly,  tlie  Clerk  had  placed  on  the  roll  the  names  of  Messrs.  J.  B.  Elam 
and  E.  W.  Robertson,  bearing  the  credentials  of  Governor  Nichols.  These  names 
were  challenged,  at  the  time  of  administering  the  oath,  and  Messrs.  Elam  and 
Robertson  stood  aside.  On  October  16  and  17  their  cases  were  considered  on 
motions  that  their  cases,  \^ath  those  of  Messrs.  George  L.  Smith  and  Charles  E.  Nash, 
holding  certificates  from  Governor  Kellogg,  should  be  referred  to  the  Committee 
of  Elections  with  instructions  to  determine  the  prima  facie  right. 

It  was  urged  in  behalf  of  the  Kellogg  certificates  that  Governor  Kellogg  was 
indisputably  governor  de  facto,  that  the  returning  board  under  the  law  having 
jurisdiction  made  returns  of  the  election  of  November,  1876,  and  that  the  governor 
on  those  returns  on  December  27, 1876,  issued  certificates  in  form  the  same  as  used  in 
years  previous  and  recognized  by  the  House  as  sufficient  in  the  Forty-third  Congress 
and  on  other  occasions.  Furthermore,  it  was  urged  that  the  certificates  of  Governor 
Nichols,  issued  after  the  Kellogg  government  expired,  were  based  on  the  canvass 
of  a  new  returning  board  provided  for  by  a  law  passed  after  Governor  Nichols 
came  in  antl  after  the  election,  and  that  that  returning  board  did  not  in  fact  have 
the  rettims  before  it. 

On  behalf  of  the  Nichols  certificates  it  was  urged  that  the  House,  in  deter- 
mining prima  facie  right,  had  no  right  to  travel  outside  of  the  record  presented  on 
the  face  of  the  certificates.  And  on  the  face  of  the  certificates  the  credentials  of 
Governor  Nichols  were  exactly  according  to  the  requirements  of  law,  and  the 
credentials  of  Governor  Kellogg  were  not.  The  full  language  of  the  two  forms  of 
certificates  were  presented  to  show  that  the  Nichols  certificate  corresponded  exactly 
to  the  technical  requirements  of  the  law,  while  the  Kellogg  certificate  did  not. 

The  House  in  the  case  of  Mr.  Elam  adopted  a  substitute  providing  that  he  should 
be  sworn  in  by  a  vote  of  144  yeas  to  119  nays. 

Mr.  Elam  accordingly  appeared  and  took  the  oath. 

In  the  case  of  Mr.  Robertson  similar  action  was  taken  without  any  roll  call, 
and  the  oath  was  administered. 

61.  It  has  been  held  that  there  is  no  roll  of  Delegates  which  the 
Speaker  is  obliged  to  recognize  at  the  time  of  swearing  in  Members-elect 


48  PRECEDENTS    OF    THE    HOUSE    OF    KEPEESENTATIVES.  §   61 

at  the  organization  of  the  House. — On  December  5,  1881,^  during  the  organ- 
ization of  the  House,  the  Speaker  announced  that  all  the  Members  had  been  sworn 
in  and  that  the  next  business  would  be  the  election  of  a  C'lerk. 

Mr.  Martin  Maginnis,  Delegate  from  Montana,  rising  to  a  question  of  privilege, 
asked  if  the  next  business  in  order  was  not  the  swearing  in  of  the  Delegates  from 
the  Territories. 

The  Speaker  ^  said : 

The  next  business  in  order  to  complete,  under  the  law,  the  organization  of  the  House  is  the  election 
of  a  Clerk.     The  matter  of  swearing  in  the  Delegates  will  follow. 

On  December  6  all  the  Delegates  were  sworn  in  except  the  Delegate  from 
Utah.  It  seems  that  the  name  of  Mr.  George  Q.  Cannon  had  been  placed  on  the 
roll  by  the  Clerk  of  the  preceding  House.^  The  governor  of  the  Territory,  however, 
had  given  a  certificate  of  election  to  Mr.  Allen  G.  Campbell. 

The  Speaker  stated  that  there  were  two  certificates  held,  respectively,  by  two 
different  gentlemen,  and  this  involved  a  question  which  could  not  be  determined 
in  advance  by  either  the  old  or  the  new  Clerk.  The  Clerk  of  the  preceding  House 
was  required  to  make  up  the  roll  of  Members  by  States.  But  that  obligation  did 
not  extend  to  a  roll  of  Delegates  from  the  Territories.  There  was  no  roll  of  the 
Delegates  from  the  Territories  which  the  Chair  was  bound  to  recognize. 

Mr.  Dudley  C.  Haskell,  of  Kansas,  offered  this  resolution: 

Resolved,  That  Allen  G.  Campbell,  Delegate-elect  from  Utah  Territory,  is  entitled  to  be  sworn  in 
as  a  Delegate  to  this  House  on  his  prima  facie  case. 

Mr.  Samuel  S.  Cox,  of  New  York,  made  the  point  of  order  that  the  roll  was  in 
existence  and  that  under  the  law  the  names  of  Members  and  Delegates  whose 
names  were  on  the  roll  should  be  sworn  in  unless  objection  should  be  made.  He 
quoted  the  Revised  Statutes  as  follows: 

Sec.  31.  Before  the  first  meeting  of  each  Congress  the  Clerk  of  the  next  preceding  House  of  Repre- 
sentatives shall  make  a  roll  of  the  Representatives-elect,  and  place  thereon  the  names  of  those  persons, 
and  of  such  persons  only,  whose  credentials  show  that  they  were  regularly  elected  in  accordance  with 
the  laws  of  their  States,  respectively,  or  the  laws  of  the  United  States. 

Sec.  38.  Representatives  and  Delegates-elect  to  Congress,  whose  credentials  in  due  form  of  law 
have  been  duly  filed  with  the  Clerk  of  tlie  House  of  Representatives,  in  accordance  with  the  provi- 
sions of  section  thirty-one,  may  receive  their  compensation  monthly,  etc. 

After  debate  the  Speaker  said: 

The  Chair  regards  this  question  as  one  of  importance,  because  in  some  view  its  decision  may  be 
regarded  as  a  guide  to  the  action  of  the  Clerk  hereafter.  Should  the  Chair  decide  with  reference  to  these 
Delegates  that  the  Clerk  had  the  right  to  put  their  names  on  the  roll  and  in  that  way  control  to  some 
extent  the  matter  of  their  being  sworn  in,  such  decision  might  affect  future  cases. 

As  the  Chair  understands  it,  there  is  a  difference  between  the  swearing  in  of  a  Member  and  the 
swearing  in  of  a  Delagate,  because  at  all  stages,  even  though  the  Clerk  may  place  upon  the  roll  the  name 
of  a  Member  of  Congress  from  a  State,  the  House  might  decide  not  to  swear  him  in,  notwithstanding 
his  name  is  on  tliat  roll.  We  are  therefore  dealing  here  with  a  question  that  stands  exactly  as  though 
there  was  before  the  House  a  Member  from  a  State  in  regard  to  whose  certificate  there  was  a  contest. 

'  First  session  Forty-seventh  Congress,  Record,  pp.  14,  23,  38. 

^  J.  Warren  Keifer,  of  Ohio,  Speaker. 

^  See  House  Report  No.  557,  p.  12,  first  session  Forty-seventh  Congress. 


§  62  THE  clerk's  roll  of  the  members-elect.  49 

The  Chair  reads  section  31  of  the  Revised  Statutes  in  the  light  of  the  object  of  that  section,  which 
was  to  repose  power  somewhere,  to  confer  some  authority,  to  make  up  a  roll  of  Members  to  be  called 
at  the  beginning  of  Congress,  so  that  the  House  might  be  enabled  to  take  the  first  step  in  its  organiza- 
tion; that  is,  the  election  of  a  Speaker,  and  following  that,  perhaps,  after  the  Members  are  sworn  in, 
the  election  of  a  Clerk.  There  was  no  object  in  putting  upon  such  a  roll  the  names  of  Delegates,  who 
have  no  right  to  vote,  unless  the  Congress  of  the  United  States  proposed  to  vest  in  the  outgoing  Clerk 
the  sole  power  of  determining  who  was  entitled  to  seats  in  the  incoming  Congress.  As  the  Chair  under- 
stands it,  that  power  has  been  vested  nowhere,  by  law  at  least;  not  in  the  Speaker,  and  certainly  not 
in  the  Clerk,  but  is  left  where  it  belongs,  to  be  determined  under  the  Constitution  and  laws  by  the 
House  of  Representatives. 

The  language  of  section  31,  which  has  been  so  often  read,  clearly  indicates  that  it  was  intended 
to  direct  that  there  should  be  placed  upon  the  roll  the  names  of  Members  of  Congress  elected  under  the 
"laws  of  their  States,  respectively,"  not  under  the  laws  relating  to  Territories.  It  is  true  the  section 
refers  to  their  being  elected  under  "the  laws  of  the  United  States;"  and  section  4,  of  Article  I,  of  the 
Constitution  of  the  United  States  provides  that  laws  may  be  passed  by  Congress  directing  the  mode 
of  electing  Members  of  Congress  from  States.  In  the  opinion  of  the  Chair,  that  power  also  rests  in 
Congress,  if  it  chooses  to  exercise  it. 

Section  38  of  the  Revised  Statutes,  so  much  relied  upon  by  some  Members,  refers,  to  use  the  lan- 
guage of  the  section,  to  "credentials  in  due  form  of  law  of  Representatives  and  credentials  filed  with  the 
Clerk  of  the  House  of  Representatives."  These  words  are  used  also,  "in  accordance  with  the  provi- 
sions of  section  31."  A  careful  reading  of  section  31  of  the  Revised  Statutes  will  show  nothing  at  all 
in  that  section  on  the  subject  of  filing  credentials.  It  is  a  singular  fact  that  section  38  refers  to  a  section 
that  contains  nothing  upon  the  matter  of  filing  credentials.  It  furnishes  us  no  guide,  no  reason,  by 
implication  or  otherwise,  for  the  inference  that  Delegates,  as  well  as  Mem\)ers,  were  included  in  the 
words  of  section  31.  The  Chair  therefore  overrules  the  point  of  order  made  by  the  gentleman  from 
New  York. 

62.  It  was  held  that  under  the  law  of  1867  the  Clerk  had  no  authority 
to  make  up  the  roll  of  Delegates.— On  March  5,  1867,^  on  the  second  day  of  the 
session  and  after  the  Members  had  been  sworn  in,  a  question  arose  as  to  the  swear- 
ing in  of  Delegates,  and  after  debate  the  Speaker^  said: 

Until  the  enactment  of  the  law  under  which  this  Congress  has  assembled  and  organized,  the  Clerk 
placed  upon  the  roll  the  names  of  such  as  he  saw  proper  to  place  there  *  *  ».  The  law  states  that 
the  Clerk  shall  place  on  the  roll  only  the  names  of  Representatives  from  those  States  represented  in 
the  preceding  Congress'  •  *  *.  The  Chair  has  conferred  with  the  Clerk  upon  the  subject,  and  the 
Clerk  says  that  he  does  not  think  he  has  the  right  under  the  law  to  decide  upon  the  prima  facie  cre- 
dentials of  Delegates  or  place  their  names  upon  the  rolls  without  further  direction  of  the  House. 

Later  the  House  ordered  the  names  of  such  delegates  as  had  not  contests  for 
their  seats  pending  to  be  placed  on  the  roll,  and  they  took  the  oath. 

63.  The  Senate,  after  debate,  permitted  a  claimant  to  a  seat  to  w^ith- 
draw  his  credentials. — On  December  14,  1875,^  the  Senate  debated  at  length  the 
propriety  of  allowing  a  claimant  for  a  seat  to  withdraw  his  credentials.  The 
vote  was  finally  in  favor  of  allowing  the  withdrawal. 

^  First  session  Fortieth  Congress,  Globe,  p.  7. 
^Schuyler  Colfax,  of  Indiana,  Speaker. 

'This  law,  dated  February  9, 1867,  provided  for  the  making  up  of  the  roll  by  the  Clerk  (14  Stat.  L. 
p.  397).     It  is  not  now  in  force. 

*  First  session  Forty-fourth  Congress,  Record,  pp.  200-2-04. 

5994— VOL  1—07 4 


Chapter  III. 

THE   PRESIDING  OFFICER  AT  ORGANIZATION. 


1.  Clerk  calls  House  to  order  and  presides.     Sections  64,  65.' 

2.  Election  of  a  chairman  in  place  of  Clerk.     Sections  66,  67. 

3.  Early  practice  of  Clerks  to  decide  questions  of  order.     Sections  68-72. 

4.  Later  practice  as  to  authority  of  Clerk.     Sections  73-80.- 


64.  A  rule — which,  however,  is  not  operative  at  the  time  the  House 
is  organized — provides  that  the  Clerk  shall  call  the  new  House  to  order 
and  preside  until  the  election  of  a  Speaker. 

At  the  organization  of  the  House  the  Clerk  calls  the  roll  of  Members 
by  States  in  alphabetical  order. 

Pending  the  election  of  a  Speaker  or  a  Speaker  pro  tempore  the  Clerk 
preserves  order  and  decorum  and  decides  questions  of  order,  subject  to 
appeal. 

Present  form  and  history  of  section  1  of  Rule  III. 

Section  1  of  Rule  III  jirovides: 

The  Clerk  shall,  at  the  commencement  of  the  first  session  of  each  Congress,  call  the  Members  to 
order,  proceed  to  call  the  roll  of  Members  by  States  in  alphabetical  order,  and,  pending  the  election 
of  a  Speaker  or  a  Speaker  pro  tempore,  call  the  House  to  order,  preserve  order  and  decorum,  and  decide 
all  questions  of  order  subject  to  appeal  by  any  Member. 

This  rule  was  adopted  on  January  27,  1880,^  in  Committee  of  the  Whole,  while 
the  revised  code  was  under  consideration.  The  committee  had  at  first  recom- 
mended a  section  providing  only  that  the  Clerk  should,  pending  the  election  of  a 
Speaker,  preserve  order  and  decorum  and  decide  all  questions  of  order  subject  to 
appeal  to  the  House,  taking,  in  fact  the  latter  half  of  the  old  rule,  146,  which  dated 
from  March  19,  I860,*  and  provided: 

*  *  *  and  pending  the  election  of  Speaker,  the  Clerk  shall  preserve  order  and  decorum,  and 
he  shall  decide  all  questions  of  order  that  may  arise,  subject  to  an  appeal  to  the  House. 

'  Thanked  by  the  House  for  presiding.     Section  222. 

^  Decisions  as  to  motions  to  correct  the  roll  and  appeals.     (See  sec.  22  of  this  volume.)     Declines 
to  open  a  communication  addressed  to  the  Speaker.     Section  47. 
^Second  session  Forty-sixth  Congress,  Record,  p.  5.55. 

*  First  session  Thirty-sixth  Congress,  pp.  1211,  1237. 

50 


§   65  THE    PRESIDING    OFFICEK    AT    ORGANIZATION.  51 

As  the  rules  are  not  adopted  until  after  the  Speaker  is  chosen,  this  rule  is  evi- 
dently of  persuasive  effect  onh"  at  the  time  of  organization. 

65.  In  1820  there  arose  a  question  as  to  the  right  of  the  Clerk,  pre- 
siding- during  organization,  to  rule  a  motion  out  of  order. — On  November  15, 
1820,'  aft«r  twenty-one  ineffectual  ballotings  for  Speaker,  under  the  rule  which 
provided  that  "a  majority  of  the  votes  given  shall  be  necessary  to  an  election; 
and,  when  there  shall  not  be  such  a  majority  on  the  first  ballot,  the  ballot  shall  be 
repeated  until  a  majority  be  obtained,"  Mr.  Peter  Little,  of  Maryland,  moved  a 
resolution  that  the  lowest  on  each  ballot  should  be  dropped  at  the  succeeding  ballot, 
and  that  any  votes  given  for  such  lowest  person  should  not  be  taken  into  account. 

The  Clerk  of  the  House  ^  declared  that,  imder  the  rules  of  the  House  which 
prescribed  the  mode  of  election  by  ballot,  he  could  not  receive  this  motion. 

Mr.  John  Randolph,  of  Virginia,  protested  against  what  he  pronounced  an 
assumption  of  power  on  the  part  of  the  Clerk,  and  asserted  the  right  of  any  Member 
to  propound  any  question  to  the  House  through  the  Clerk,  or  from  himself  if  he 
thought  proper.  Mr.  Little  asserted  his  right  to  make  the  motion,  but  waived  the 
right  to  save  time. 

66.  In  1837  a  proposition  was  made  that  the  Members-elect  choose 
one  of  their  number  to  preside  during  organization;  but  it  was  laid  on  the 
table  and  the  Clerk  of  the  last  House  continued  to  act. — On  September  4. 
1837,^  at  the  organization  of  the  House,  the  Clerk  of  the  last  House  was  calling  the 
roll  of  Members-elect  by  States,  when,  in  the  State  of  Massachusetts,  the  name 
of  Mr.  Caleb  Cushing  was  called.  Mr.  Cushing  arose  in  his  place  and  said  that 
before  responding  he  wished  to  say  a  few  words  in  explanation.  He  saw  before 
liim  many  Members  who  were  said  to  be  elected,  but  there  was  no  authentic  knowl- 
edge on  the  subject.  They  were  not,  in  his  opinion,  Members  of  the  House  until  a 
Speaker  had  been  elected  and  they  had  qualified.  He  was  aware  that  it  had 
been  the  usage  of  the  House  that  the  Clerk  should  prepare  a  roll  as  he  had  done, 
should  call  the  Members  individually,  and  should  also  officiate  at  the  organization 
of  the  House.  The  standing  rule  of  the  House  provided  that  he  should  be  Clerk 
until  a  successor  should  be  appointed.  But  the  arrangement  wliich  should  be 
adopted  would  be  for  the  gentlemen  present  to  be  organized  under  the  presidency 
of  one  of  their  own  number. 

The  roll  call  having  been  completed  and  a  question  as  to  tlie  election  of  two 
Members  from  Mississippi  having  been  raised,  Mr.  R.  Barnwell  Rhett,  of  South 
Carolina,  submitted  this  motion: 

That  Lewis  Williams,  of  North  Carolina,  being  the  oldest  Member  of  the  House  of  Representatives, 
be  appointed  chairman  of  this  House,  to  serve  until  the  House  be  organized  by  the  election  of  a  Speaker. 

Mr.  Williams  opposed  this  motion,  and  urged  that  the  Clerk  be  allowed  to  pre- 
side over  the  organization  as  he  had  from  the  beginning  of  the  Government. 
To  this  Mr.  Henry  A.  Wise,  of  Virginia,  replied  that  there  was  no  Clerk  of  this  House, 
and  that  the  rule  of  the  last  House  continuing  the  Clerk  until  his  successor  should 
be  elected  had  no  force  in  this  House. 

'  .Second  session  Sixteenth  Congress,  Annals,  pp.  437,  438. 

^Thomas  Dougherty,  of  Kentucky,  Clerk. 

^  First  seasion  Twenty-fifth  Congress,  Journal,  p.  4;  Globe,  pp.  1-3. 


52  PKECEDENTS    OF    THE    HOUSE    OF    EEPEESENTATIVES.  §   67 

On  motion  of  Mr.  Isaac  Toucey,  of  Connecticut,  the  motion  of  Mr.  Rhett  was 
laid  on  the  table  without  a  division. 

67.  The  Clerk  of  the  last  House  having  declined  to  put  any  motions 
except  the  motion  to  adjourn  during  organization  of  the  new  House,  the 
Members-elect  chose  one  of  their  number  chairman. 

The  Clerk  presiding  during  organization  declined  to  put  a  question, 
■whereupon  a  Member-elect  put  the  question  from  the  floor. 

A  clerk,  presiding  at  the  organization,  having  proposed  to  read  a  paper 
explaining  his  reasons  for  certain  acts,  the  Members-elect  declined  to 
permit  him  to  do  so. 

Discussion  of  the  functions  of  the  Clerk  of  the  former  House  presid- 
ing at  the  organization  of  a  new  House. 

On  December  2,  1839/  the  day  fixed  by  the  Constitution  for  the  meeting  of 
Congress,  at  12  o'clock  meridian,  Hugh  A.  Garland,  Clerk  to  the  late  House  of 
Representatives,  called  the  Members  to  order;  and  suggested  that,  if  not  objected 
to,  he  would  proceed  to  call  over  a  list  of  Members  of  the  Twenty-sixth  Congress 
for  the  purpose  of  ascertaining  who  were  present  and  whether  a  quorum  was  in 
attendance. 

No  objection  being  made,  the  Clerk  commenced  the  call  of  the  roll  by  States, 
beginning  with  the  State  of  Maine;  and,  having  called  as  far  as  the  State  of  New 
Jersey,  and  having  called  the  name  of  Joseph  F.  Randolph  from  that  State,  he  rose 
and  stated  that  five  seats  from  New  Jersey  were  contested;  that  it  was  not  for  him 
to  undertake  to  decide  who  were  entitled  to  them;  and  that,  if  it  was  the  pleasure 
of  the  House,  he  would  pass  by  the  further  call  from  New  Jersey,  and  complete  the 
call  of  the  roll,  when  he  would  submit  the  documents  and  evidence  in  his  possession 
to  the  House,  who  alone  were  capable  of  deciding  upon  them. 

This  course  was  objected  to  by  Mr.  William  Cost  Johnson,  of  Marj'land. 

The  reading  of  the  credentials  of  John  B.  Aycrigg,  William  Halstead,  John  P.  B. 
Maxwell,  Charles  C.  Stratton,  and  Thomas  Jones  Yorke,  was  then  called  for;  and 
being  read,  Mr.  Charles  F.  Mercer,  of  Virginia,  asked  that  the  law  of  New  Jersey 
relative  to  elections  of  Members  of  the  House  of  Representatives  of  the  United 
States  be  read;  when  Mr.  Cave  Johnson,  of  Tennessee,  asked  that  the  credentials 
of  Philemon  Dickerson,  William  R.  Cooper,  Joseph  Kille,  Daniel  B.  Ryall,  and 
Peter  D.  Vroom,  claiming  to  be  Members  of  the  House  of  Representatives  of  the 
United  States  from  the  State  of  New  Jersey  in  place  of  John  B.  Aycrigg  and  his 
associates,  be  also  read. 

Before  either  the  law  or  credentials  were  read,  debate  arose.  It  was  urged  that 
as  Messrs.  Aycrigg  and  his  associates  held  credentials  from  the  governor  of  New 
Jersey,  under  the  broad  seal  of  the  State,  and  precisely  similar  to  the  credentials  by 
virtue  of  which  Mr.  Randolph  of  that  State  had  already  been  called,  they  had  a 
prima  facie  right  to  be  called  and  participate  in  the  organization  of  the  House. 
There  was  objection  to  this,  and  a  proposition  that  the  subject  of  the  New  Jersey 
contest  be  laid  aside  until  the  roll  of  the  residue  of  the  Members  should  have  been 
called. 

'First  session  Twenty-sixth  Congress,  Journal,  pp.  1-6;  Globe,  pp.  1-20. 


§  67  THE    PRESIDING    OFFICER   AT   ORGANIZATION.  53 

The  Clerk,  in  the  course  of  the  day's  proceedings,  declared  that,  under  the  pres- 
ent imperfect  state  of  the  organization  of  the  House — no  quorum  having  answered 
to  their  names,  and  there  being  no  rules  in  existence  for  the  government  of  the  body — 
he  did  not  feel  authorized,  under  these  circumstances,  to  put  any  question  to  the 
House  except  by  general  consent. 

A  motion  being  made  to  adjourn,  the  Clerk  decided  that  he  could  not  submit 
that  motion  to  the  House,  and  so  the  House,  by  general  consent,  adjourned  imtil 
the  next  day,  without  a  question  put  to  that  effect.  On  the  succeeding  day,  also, 
the  House  adjourned  wathout  motion  put  by  the  Clerk;  but  on  December  4,  after  a 
motion  to  adjourn  had  been  made,  the  Clerk  stated  that,  on  the  two  preceding  days, 
he  had  not  adverted  to  that  clause  of  the  Constitution  of  the  United  States  which 
provides  that  less  than  a  quorima  may  adjourn  from  day  to  day.  Having  now 
adverted  to  that  clause,  he  had  changed  the  opinion  heretofore  given,  that  he  could 
not,  in  the  present  state  of  the  organization  of  the  House,  put  the  question  on  an 
adjournment;  that  he  would  now  put  a  question  on  a  motion  to  adjourn,  but  on  no 
other  motion. 

On  December  3  the  Clerk  stated  that  he  had  reduced  his  reasons  for  the  course 
he  had  taken  to  writing,  and  asked  permission  of  the  House  to  read  them.  This 
was  refused. 

In  the  discussion  which  arose  as  to  the  functions  of  the  Clerk,  Mr.  Henry  A.  Wise, 
of  Virginia,  speaking  of  the  present  Clerk,  said  it  was  true  that  he  was  not  techni- 
cally an  officer  of  the  House.  But  by  the  law  of  usage  and  necessity  he  was  always 
permitted  to  hold  the  office  which  he  now  held.  He  was  the  quondam  Clerk  of  the 
last  Congress,  and  presented  himself  here,  firstly  to  render  to  his  successor  the 
records  of  the  office;  and, secondly, he  was  here  by  the  law  of  usage.  The  ordinance 
of  1785  imposed  upon  the  Clerk  (Secretary)  of  the  preceding  Congress  the  duty  of 
keeping  a  roll  of  Members  of  Congress,  and  of  calling  over  that  roll  at  their  meeting. 
There  was  also  a  resolution  of  1791  relating  to  this  duty  of  the  Clerk.  Thus  the 
Clerk  was  bound  by  the  law  of  usage. 

Mr.  John  White,  of  Kentucky,  contended  that  the  ordinance  of  1785  and  the 
resolution  of  1791  were  of  no  more  binding  effect  than  the  rules  of  the  last  House. 

Mr.  Daniel  B.Barnard,  of  New  York,  contended  that  the  Clerk  was  not  only  the 
Clerk  of  the  last  House  of  Representatives,  but  also  the  Clerk  of  this  House.  And 
he  would  so  continue  until  his  successor  should  be  appointed.  It  was  a  cardinal 
principle  of  the  common  law  that  the  public  interests  should  never  be  permitted  to 
suffer  for  want  of  an  incumbent  to  fill  important  offices,  and  by  the  conmion  as  well  as 
by  the  parliamentary  law  the  functionary  holds  over  until  liis  successor  is  appointed. 
It  was  in  analogy  to  the  common  law  that  the  parliamentary  rule  was  adopted  that 
the  clerk  of  the  House  of  Commons  should  hold  over  until  his  successor  should  be 
appointed.  This  was  the  settled  parliamentary  rule  in  this  country  as  well  as  in 
England.  The  Clerk,  in  assuming  his  seat  and  calling  the  House  to  order,  was 
doing  nothing  more  than  he  was  fully  warranted  in  doing.  More  than  that,  he 
undoubtedly  had  the  authority  to  put  questions — any  question  which  the  House  in 
its  partially  disorganized  condition  might  entertain. 

The  Clerk  still  persisted  in  declining  to  put  any  question  except  the  motion  to 
adjourn.     Various  propositions  were  submitted:  To  call  the  uncontested  names, 


54  PBECEDENTS    OF   THE    HOUSE   OF   REPRESENTATIVES.  §  68 

and,  a  quorum  of  such  having  been  ascertained,  to  let  them  decide  the  contested 
cases  before  proceedin<jj  to  the  election  of  a  Speaker;  to  choose  a  temporaiy  Speaker 
and  a  committee  of  elections,  for  the  consideration  of  the  contests,  and  after  the 
settlement  to  choose  a  permanent  Speaker;  to  proceed  and  call  the  New  Jersey 
claimants  having  the  certificates  from  the  governor;  to  allow  those  to  whose  election 
there  was  no  objection  to  pass  upon  the  right  of  challengetl  gentlemen  to  participate 
in  the  organization. 

The  Clerk  putting  the  question  on  none  of  these  propositions,  Mr.  John  Quincy 
Adams  renewed  the  proposition  to  call  the  names  of  the  gentlemen  having  the  cer- 
tificates from  the  governor  of  New  Jersey,  and  on  this  proposed  to  put  the  question 
liimself. 

At  tliis  point  Mr.  R.  Barnwell  Rhett,  of  South  Carolina,  asked  the  Clerk  if  he 
would  put  questions  to  the  House.  To  this  the  Clerk  rephed  that  he  would  put 
no  question  except  to  adjourn;  but  said  that,  with  the  consent  of  the  House,  he 
would  put  questions  as  chairman  of  a  meeting  of  the  gentlemen  present,  if  instructed 
to  do  so  by  the  Members  present,  but  he  would  not  do  so  as  Clerk  of  the  House  of 
Representatives. 

Mr.  William  Cost  Johnson  objected  to  liis  putting  questions  as  chairman. 

Mr.  Rhett  then  moved  that  Mr.  Lewis  Williams,  of  North  Carolina,  the  oldest 
Member  of  the  House,  be  appointed  Chairman  of  the  House,  to  serve  until  the  election 
of  a  Speaker.  Mr.  Williams  declining  to  serve,  Mr.  Rhett  read  in  his  place  the 
following  resolution: 

Resolved,  That  the  Hon.  John  Quincy  Adams  be  appointed  Cliairman  of  this  House,  to  serve  until 
the  election  of  a  Speaker. 

Ml'.  Rhett  then  put  the  question  on  the  said  resolution  to  the  Members,  and  it 
passed  in  the  affirmative. 

Mr.  Adams  was  then  conducted  to  the  chair  by  two  Members  of  the  House,  and 
proceeded  to  discharge  the  duties  of  the  position. 

Mr.  Charles  F.  Mercer,  of  Virginia,  then  moved  that  the  rules  of  the  late  House 
of  Representatives,  so  far  as  applicable  to  this  body  in  its  present  state  of  organiza- 
tion, be  the  rules  for  the  government  of  its  proceedings. 

And  the  question  on  this  motion  being  put  by  the  Chairman,  it  passed  in  the 
affirmative  imanimously. 

68.  In  the  earlier  days  the  Clerk  of  the  last  House  presiding  at  the 
organization  declined  to  decide  questions  of  order  and  referred  them  to  the 
House. — On  December  4.  1843/  at  the  lime  of  the  organization  of  the  House  and 
after  the  presence  of  a  quorum  had  been  amiounced,  but  before  the  election  of  a 
Speaker,  Mr.  Daniel  D.  Barnard,  of  New  York,  arose  and  proposed  to  read  in  his 
place  a  paper  m  the  nature  of  a  protest  of  liimself  and  other  Members  of  the  House 
against  the  participation  of  the  Representatives  of  certain  States  in  the  election  of 
Speaker. 

Objection  was  made  that  it  was  not  in  order  to  read  the  paper  pending  the 
election  of  Speaker. 

'First  session  Twenty-eighth  Congress,  Journal,  p.  7;  Globe,  pp.  2,  3. 


§  69  THE    PRESIDING    OFFICER   AT    ORGANIZATION.  55 

The  Clerk  '  begged  respectfully  to  state  to  the  House  that,  in  its  present  state,  he 
should  feel  it  to  be  his  duty  to  put  the  question  on  granting  leave,  to  the  House,  and 
not,  in  his  humble  capacity,  undertake  to  decide  a  question  of  that  magnitude. 

A  motion  being  submitted,  the  Clerk  put  the  question  that  Mr.  Barnard  have 
leave  to  read  the  paper,  and  the  motion  was  decided  in  the  negative,  59  ayes  and 
124  noes. 

69.  On  December  21,  1849,=  before  the  election  of  a  Speaker,  Mr.  Samuel  W. 
Inge,  of  Alabama,  moved  that  the  resolution  adopted  on  the  14th  instant,  prohibiting 
debate  until  the  election  of  a  Speaker,  be  rescinded. 

ilr.  Robert  Toombs,  of  Georgia,  ha\'ing  taken  the  floor,  proceeded  to  debate  the 
motion. 

Mr.  Joseph  M.  Root,  of  Ohio,  called  Mr.  Toombs  to  order  for  debating. 

Mr.  Toombs  declined  to  surrender  the  floor,  but  proceeded  in  spite  of  the  protests 
of  Members. 

The  Clerk  ^  requested  Mr.  Toombs  to  allow  the  motion  to  be  put. 

Mr.  Toombs  declined  to  jield,  and  proceeded  amidst  much  confusion,  declaring 
that  the  Clerk  could  not  put  the  question  while  he  held  the  floor. 

Mr.  John  Van  Dyke,  of  New  Jersey,  called  Mr.  Toombs  to  order. 

The  Clerk  (Mr.  Toombs  continuing  to  speak)  put  the  question  whether  the 
gentleman  from  Georgia,  being  called  to  order,  should  be  allowed  to  proceed. 

Mr.  Toombs  continued  to  speak,  but  the  Clerk,  having  put  the  question,  declared 
that  the  point  of  order  was  sustained  by  the  House,  and  that  the  gentleman  from 
Georgia  was  decided  out  of  order. 

Mr.  Toombs  continued  to  speak,  but  the  Clerk  proceeded  to  put  the  question 
on  the  motion  of  Mr.  Inge,  and  the  question  being  put,  the  yeas  and  nays  were 
demanded  and  ordered. 

The  Clerk  thereupon  began  to  call  the  roll,  and  Mr.  Toombs  continued  his 
speech,  concluding  during  the  roll  call. 

70.  In  the  Thirty-first  Congress  the  House  did  not  choose  a  Speaker  until 
December  22,  1849,  nineteen  days  after  the  assembling  of  the  Congress.  The  Clerk  ^ 
of  the  preceding  House  presided  during  this  time.  He  did  not  decide  questions  of 
order,  but  submitted  them  to  the  House  for  decision.  Thus,  on  December  5  ^,  a 
motion  was  made  to  lay  a  pending  resolution  on  the  table,  and  the  question  was 
asked  whether  the  motion  to  lay  on  the  table  was  debatable,  no  rules  having  been 
adopted.  The  Clerk  referred  the  question  to  the  House,  which  decided  that  the 
motion  was  not  debatable. 

Again,  on  December  6  ^  the  question  arose  again,  and  Mr.  William  Duer,  of 
New  York,  made  the  point  of  order  that  the  motion  to  lay  on  the  table  was  not 
debatable.  The  Clerk  said  that  it  was  a  point  for  the  House  to  decide.  The  Clerk 
could  not  call  any  gentleman  to  order. 

'  Matthew  St.  Clair  Clarke,  Clerk. 

^  First  session  Thirty-first  Congre.ss,  Globe,  pp.  61,  62. 

^Thomas  J.  Campbell,  Clerk. 

■•First  session  Thirty-fir.=t  Congress,  Journal,  p.  34;  Globe,  pp.  6,  8,  17. 

^  Globe,  p.  8. 


56  PRECEDENTS   OF   THE    HOUSE   OF   KEPRESENTATIVES.  §  71 

Again  on  December  11',  a  motion  for  a  call  of  the  House  was  pending  and  a 
motion  to  amend  it  was  made.  Mr.  Jacob  Thompson,  of  Mississippi,  asked  if  the 
motion  was  in  order.  The  Clerk  declared  that  it  was  for  the  House  and  not  the 
Clerk  to  decide  the  question  of  order. 

71.  On  December  5,  1859,=  before  the  election  of  a  Speaker,  Mr.  John  B. 
Clark,  of  Missouri,  rose  and  proposed  to  submit  some  remarks. 

Mr.  Henry  C.  Burnett,  of  Kentucky,  raised  the  question  of  order  that  debate 
was  not  in  order  since  no  question  was  before  the  House. 
The  Clerk 'said: 

The  Clerk  having  no  power  to  decide  the  point  of  order  which  has  been  raised,  will  submit  it  to 
the  House.  *  *  *  The  Clerk  will  state  that  he  has  carefully  examined  this  subject,  and  can  find 
no  authority  conferred  upon  him  as  Clerk  of  the  former  House,  except  to  put  questions,  when  raised, 
to  the  House  for  its  decision,     fie  will  not,  therefore,  take  upon  himself  the  power  to  decide  this  question. 

Mr.  Clark  having  been  permitted  to  proceed,  Mr.  Israel  Washburn,  jr.,  of 
Maine,  made  the  point  of  order  that  the  gentleman  from  Missouri  must  confine 
himself  to  the  question. 

The  Clerk  said: 

The  Clerk  can  not  undertake  to  decide  whether  the  gentleman  from  Missouri  is  confining  himself 
to  the  question  of  order  or  not.  If  the  point  of  order  be  insisted  on,  he  must  submit  the  question  to 
the  House. 

72.  On  December  6,  1859,^  before  the  election  of  a  Speaker,  Mr.  Horace  May- 
nard,  of  Tennessee,  asked  of  the  Clerk  whether  he  would  make  decisions  of  questions 
of  order,  or  refer  them  to  the  House  to  be  settled  by  majorities. 

The  Clerk'  said: 

The  Clerk,  in  answer  to  the  inquiry  of  the  gentleman  from  Tennessee,  begs  leave  to  read  from  the 
Manual,  in  order  that  the  House  may  understand  the  power  which  the  Clerk  has  in  deciding  questions 
which  may  arise.     This  is  the  only  authority  the  Clerk  has  been  able  to  find  upon  the  subject. 

"  When  but  one  person  is  proposed  and  no  objection  made,  it  has  not  been  usual  in  Parliament  to 
put  any  question  to  the  House;  but  without  a  question  the  Members  proposing  to  conduct  him  to  the 
Chair.  But  if  there  be  objection,  or  another  proposed,  a  question  is  put  by  the  Clerk.  As  are  also 
questions  of  adjournment." 

"  That  being  all  that  the  Clerk  can  find,  he  does  not  feel  authorized  to  decide  questions  of  order  as 
they  arise." 

73.  Discussion  of  the  functions  and  authority  of  the  Clerk  of  the 
former  House  presiding  at  the  organization  of  the  new  House. — On  Decem- 
ber 8,  1859,^^  before  the  election  of  a  Speaker,  a  question  arose  as  to  the  power  of  the 
Clerk  of  the  preceding  House,  who  was  presiding,  to  decide  questions  of  order.  The 
Clerk  "  liad  repeatedly  declined  to  decide  such  questions,  and  when  the  precedent 
of  December  26,  1835,  was  quoted,  explained  that  the  Clerk  in  the  Thirty-fourth 
Congress,  while  suggesting  his  opinions  on  points  of  order,  in  no  instance  claimed 
the  right  to  make  a  final  decision. 

1  Globe,  p.  17. 

^  First  session  Thirty-sixth  Congress,  Globe,  pp.  2,  .3. 

'James  C.Allen,  Clerk. 

*  First  session  Thirty-sixth  Congress,  Globe,  p.  19. 

^  First  session  Thirty-sixth  Congress,  Globe,  p.  66. 

°  James  C.  Allen,  of  Illinois,  Clerk. 


§   74  THE    PRESIDING    OFFICER    AT    ORGANIZATION.  57 

Mr.  John  S.  Millson,  of  Virginia,  in  the  discussion  of  this  question,  said: 

The  Clerk  is  not  the  presiding  officer  of  this  House  in  any  sense  of  the  word.  \Mien  the  Clerk  puts  a 
question  to  the  House,  it  is  the  House  putting  a  question  to  itself,  selecting  its  o\5Ti  officer  as  its  organ. 
WTien  the  Clerk  propounds  a  question  to  this  House,  he  has  no  more  control  over  the  House  and  exercises 
no  other  function  than  the  reading  clerk  when  he  calls  the  yeas  and  nays.  It  is  the  House  calling  the 
roll  through  its  own  appointed  agent.  No  man  can  preside  over  the  House  of  Representatives  who  is  not 
a  Member  of  the  House  of  Representatives.  It  is  in  this  respect  that  we  differ  from  the  Senate  of  the 
United  States,  over  which,  by  the  Constitution,  the  Vice-President  of  the  United  States  is  appointed  to 
preside.  The  mistake  has  originated  altogether  from  the  convenient  usage  of  permitting,  by  the  suffer- 
ance of  the  House,  the  Clerk  of  the  former  House  to  propound  questions,  for  in  the  absence  of  any  other 
constituted  agent  there  must  be  some  one  to  address  the  House;  but  the  person  so  speaking  is  not  a  part 
of  the  House,  hut  simply  the  mouthpiece  of  the  House.  And  I  submit  to  gentlemen,  if  they  would 
protect  the  dignity  of  this  body,  that  they  would  never  consent  to  regard  the  Clerk  in  any  other  light 
than  as  one  who  for  convenience  sake  is  permitted  to  propound  questions  to  the  House,  just  as  the  reading 
clerk  is  permitted  for  convenience  sake  to  call  the  names  of  Members  when  the  yeas  and  nays  are  ordered. 

On  the  other  hand,  Mr.  Horace  Maynard,  of  Tennessee,  voiced  the  opposite 
opinion : 

It  is  not  Mr.  -Mien,  as  I  understand,  who  is  temporarily  the  presiding  officer  of  the  House;  it  is  the 
Clerk  of  the  last  House,  who  by  law  is  placed  for  the  time  being  as  the  presiding  officer  over  this  unorgan- 
ized body;  who  is  placed  there  for  the  very  purpose  of  giving  it  organization;  who  is  placed  there  with 
the  power  of  general  parliamentary  law  in  his  hands  to  exercise,  and  who  is,  to  all  intents  and  purposes, 
the  presiding  officer  of  the  House  as  long  as  it  remains  in  its  present  inorganic  condition.  '^Tien  that 
organization  shall  be  effected  by  a  selection  of  a  gentleman  of  our  own  body  as  the  Speaker  and  presiding 
officer,  the  Clerk  then  becomes  for  that  purpose  functus  officio,  but  till  that  time  he  is,  ex  vi  termini, 
compelled  to  be  the  presiding  officer  of  the  House;  and,  like  any  other  presiding  officer,  he  must,  under 
the  parliamentary  law,  exercise  the  power  which  that  law  confers  upon  him  and  clothes  him  with. 
One  of  these  powers  is  to  decide  questions  of  order  as  they  arise;  and  unless  practically  he  decides  these 
questions — although  he  may  not  formally  do  it — ^the  wheels  of  business  will  be  blocked,  and  we  could 
not  go  forward  a  single  step.  He  is,  unconsciously  perhaps,  deciding  questions  of  order  continually. 
He  does  so  in  giving  the  floor  to  this  or  the  other  Member,  in  asking  a  Member's  permission  to  allow  an 
interruption,  and  in  many  other  ways  which  I  need  not  instance. 

74.  Before  the  election  of  a  Speaker  the  Clerk  recognizes  Members. — 
Before  the  election  of  a  Speaker  in  1859  the  Clerk,  Mr.  James  C.  Allen,  of  Illinois, 
recognized  Members  who  were  to  address  the  House,  and  when  complaint  was  made 
by  a  Member,  on  December  21,  explained  that  he  was  governing  the  recognitions  so 
as  to  give  an  opportunity  to  all  Members  who  applied  for  time.' 

75.  In  1855,  while  the  Clerk  was  presiding  at  the  organization  of 
the  House,  a  question  of  order  was  decided  by  him,  and  the  decision  sus- 
tained.— On  December  20,  185.5,'  before  the  election  of  a  Speaker  or  the  adop- 
tion of  rules,  the  House  was  considering  a  proposition  that  the  Hon.  James  L.  Orr, 
of  South  Carohna,  be  invited  to  preside  over  the  House  until  the  election  of  Speaker, 
and  on  this  Mr.  Le\\as  D.  Campbell,  of  Ohio,  had  demanded  the  previous  question. 

Pending  this,  Mr.  George  W.  Jones,  of  Tennessee,  moved  that  the  House  take  a 
recess  until  11  o'clock  and  59  minutes  to-morrow. 

Mr.  Joshua  R.  Giddings,  of  Ohio,  submitted  as  a  question  of  order  that  it  was 
not  competent  to  take  a  recess  pending  the  demand  for  the  previous  question. 

'  First  session  Thirty-sixth  Congress,  Globe,  p.  209. 

^ First  session  Thirty-fourth  Congress,  Journal,  p.  181;  Globe,  p.  87. 


58  PRECEDENTS   OF   THE    HOUSE   OF    REPRESENTATIVES.  §   76 

The  Clerk '  decided  that  the  motion  to  take  a  recess  was  in  order. 
Mr.  Giddings  having  appealed,  the  appeal  was  laid  on  the  table. 

76.  In  1863,  at  the  organization  of  the  House,  the  hold-over  Clerk 
disclaimed  authority  to  enforce  the  rules,  but  decided  points  of  order  as 
authorized  by  a  rule  of  the  last  House. — At  the  organization  of  the  House  on 
December  7,  1863,'  Clerk  Emerson  Etheridge  held  that  he  had  no  power  to  preserve 
order,  having  no  power  to  enforce  the  rules.  No  rules  had  been  adopted,  but  the 
rules  Nos.  146,  147,  dated  March  19,  1860,  provided  that  "these  rules  shall  be  the 
rules  of  the  House  of  Representatives  of  the  present  and  succeeding  Congresses, 
unless  otherwise  ordered,"  and  that  "pending  the  election  of  a  Speaker,  the  Clerk 
shall  preserve  order  and  decorum,  and  shall  decide  all  ([uestions  of  order  that  may 
arise,  subject  to  appeal  to  the  House."  ^ 

77.  On  December  7,  1863,^  the  Clerk  ■>  of  the  last  House  presided  at  the 
organization  of  the  House,  and  ruled  on  points  of  order  on  two  several  cases.  No 
objection  was  made,  and  in  the  first  case  no  appeal  was  taken.  In  the  second  case 
Mr.  Thaddeus  Stevens,  of  Pennsylvania,  appealed  from  the  decision  of  the  Clerk, 
but  withdrew  his  proposition  before  a  vote  on  the  appeal. 

78.  Before  the  completion  of  the  organization  of  the  House,  in  1869, 
the  Clerk  refused  to  entertain  a  motion  referring  to  a  committee  a  sub- 
ject relating  to  the  election  of  a  Member. — On  March  4,  1869,"  at  the  organ- 
ization of  the  House,  after  the  roll  of  Members-elect  had  been  called  and  the  pres- 
ence of  a  quorum  had  been  announced,  Mr.  George  W.  Woodward,  of  Pennsylvania, 
offered  this  resolution  as  a  question  of  privilege: 

Resolved,  That  the  returns  of  the  election  from  the  Twenty-first  district  of  Pennsylvania  be  referred 
to  the  committee  of  elections  to  be  appointed,  witli  inc^tructions  to  report  at  as  early  a  day  as  practicable 
which  of  the  claimants  to  a  seat  in  this  House  has  the  prima  facie  right  thereto. 

Mr.  Glenni  W.  Scofield,  of   Pennsylvania,  made   the   point  of   order  that  the 
Clerk  could  not,  at  the  organization,  entertain  a  motion  for  reference  to  a  committee. 
The  Clerk'  sustained  tlie  point  of  order.* 

79.  In  1869  the  hold-over  Clerk,  basing  his  authority  on  the  law  of 
1863,  declined  to  entertain  a  question  of  order  or  an  appeal  pending  the 
motion  to  proceed  to  election  of  Speaker. — On  March  4,  1869,"  at  the  time  of 
the  organization  of  the  House,  the  previous  question  had  been  ordered  on  the 
motion  to  proceed  to  the  election  of  a  Speaker,  when  Mr.  James  Brooks,  of  New 

'  John  W.  Forney,  Clerk. 

-First  session  Thirty-eighth  Congress,  Journal,  p.  1051;  Globe,  p.  5. 

'  The  House  has  come  definitely  to  the  conclusion  that  one  House  may  not  impose  its  rules  on  a 
succeeding  House.     (See  sees.  6743-6745  of  Vol.  V  of  this  work.) 

*  First  session  Thirty-eighth  Congress,  Globe,  pp.  5,  6. 

'  The  Clerk  was  Emerson  Etheridge. 

° First  session  Forty-first  Congress,  Globe,  p.  3. 

"  Edward  McPherson,  of  Pennsylvania,  Clerk. 

*For  discussions  in  House  and  Senate  on  the  law  of  1866  relating  to  the  organization  of  the  House, 
including  the  designations  of  the  officers  to  act  in  case  of  the  death,  disability,  etc.,  of  the  Clerk,  see 
Globe,  second  session  Thirty-ninth  Congress,  pp.  66,  67,  379. 

^  First  session  Forty-first  Congress,  Globe,  p.  4. 


§  80  THE    PRESIDIlfG-    OFFICER    AT    ORGANIZATION.  59 

York,  announced  that  he  rose  to  a  question  of  order,  and  proceeded  to  call  atten- 
tion to  the  alleged  fact  that  the  Clerk  had  omitted,  in  calling  the  roll  of  States,  to 
call  the  names  of  the  Members  from  Georgia  and  Louisiana. 
The  Clerk  1  said: 

The  gentleman  is  out  of  order.  The  question  is  upon  the  adoption  of  the  resolution  that  the  House 
now  proceed  to  the  election  of  Speaker. 

Mr.  Brooks  having  proposed  to  appeal,  the  Clerk  declined  to  entertain  the 
appeal,  and  when  Mr.  Brooks  persisted,  directed  liim  to  take  his  seat,  saying: 

The  Clerk  l^y  law  is  Clerk  of  the  House  untU  his  successor  is  elected  and  qualified  *  *  *.  The 
Clerk  will  taks  pleasure  in  saying  to  the  gentleman  that  he  (the  Clerk)  is  governed  by  the  law  of  the 
land  and  the  rules  of  the  House.  *  *  *  The  Clerk  has  no  desire  whatever  to  make  any  decision 
doing  violence  to  the  feeling  of  any  gentleman  of  the  House.  He  has  no  desire  to  do  an  act  ofRcially 
calctdated  to  bring  the  body  into  confusion,  but  at  the  same  time  he  is  compelled,  under  the  obligations 
which  are  resting  upon  him,  bo  to  administer  the  law  and  the  rules  as  to  effect,  as  a  prime  duty,  the 
organization  of  the  House.  He  regrets  very  much  if  any  decision  which  he  felt  called  upon  to  make 
has  been  held  by  any  of  the  gentlemen  affected  as  an  invasion  of  their  personal  rights,  for  it  was  not  so 
intended;  and  the  Clerk  begs,  inasmuch  as  the  question  has  proceeded  thus  far,  that  the  persons  indi- 
cated as  tellers  may  take  their  places  and  the  organization  be  effected. 

80.  In  1867  the  Clerk,  acting  under  the  law  of  1863,  declined  to 
entertain  any  proposition  not  consistent  -with  the  organization  of  the 
House. 

The  Clerk,  presiding  at  the  organization,  has  declined  to  entertain  a 
protest,  although  it  related  to  the  organization. 

On  March  4,  1867,-  at  the  organization  of  the  House,  the  Congress  having 
assembled  in  accordance  with  the  act  of  January  22,  1867,  the  Clerk  had  called 
the  roll  of  Members-elect,  and  had  announced  the  presence  of  a  quonmi. 

Mr.  James  F.  Wilson,  of  Iowa,  moved  that  the  House  proceed  to  the  election 
of  a  Speaker  viva  voce. 

Mr.  James  Brooks,  of  Xew  York,  being  recognized  in  debate,  proceeded  to  pre- 
sent the  protest  of  Members  of  the  minority  party  of  the  House  aganist  proceed- 
ings for  its  organization  until  certain  States  should  be  represented.  Mr.  Brooks 
asked  that  this  protest  be  entered  on  the  Journal. 

The  Clerk'  said: 

The  Clerk  declines  to  entertain  any  paper  of  the  character  of  that  indicated  by  the  gentleman  from 
Xew  York,  or  any  other  matter  pending  the  action  of  the  House.  The  Clerk  is  now  acting  under  the 
law;  his  duties  are  clearly  prescribed,  and  it  is  impossible  for  him  to  entertain  any  motion  or  any  busi- 
ness not  consistent  with  the  organization  of  the  House. 

'  Edward  McPherson,  of  Pennsylvania,  Clerk. 
^  First  session  Fortieth  Congress,  Globe,  pp.  3,  4. 


Chapter  IV.' 


PROCEDURE  AND   POWERS   OF  THE   MEMBERS-ELECT  IN 

ORGANIZATION. 


1.  Forms  of  proceeding  at  organization.     Section  81. 

2.  Status  of  House  before  organization.     Section  82.' 

3.  Call  of  the  roll  of  Members-elect.     Sections  83-86. 

4.  Sessions,  adjournment,  etc.,  during  organization.     Sections  87-92.- 
6.  Adoption  of  rules.     Sections  93-102.' 

6.  Participation  of  contesting  delegations  in  organization.     Section  103.* 

7.  Fixing  the  hour  of  daily  meeting.     Sections  104-117.' 

8.  Illustration  of  a  body  called  to  order  at  organization  by  an  old  member.     Section  118. 

9.  The  drawing  of  seats.     Sections  119-121. 

10.  As  to  action  by  one  House  before  the  other  is  organized.     Sections  122-126. 


8 1 .  Proceedings  and  forms  at  the  organization  of  the  House  in  a  new 
Congress. 

Election  of  Speaker  and  other  officers,  administration  of  the  oath  to 
Members  and  officers,  notification  of  the  President  and  Senate,  and  draw- 
ing of  seats  at  the  beginning  of  a  Congress. 

Forms  of  procedure  at  the  opening  of  the  second  or  subsequent  sessions 
of  a  Congress. 

When  a  new  Congress  assembles  on  the  first  Mondaj^  in  December,  the  Members- 
elect  are  called  to  order  at  12  m.  by  the  Clerk  of  the  preceding  House,"  standing  at 
his  desk.     After  prayer  by  the  Chaplain  of  the  last  House,  the  Clerk  announces: 

Representatives-elect:  Under  the  provisions  of  the  Constitution  of  the  United  States  this  is  the 

hour  fixed  by  law  for  the  meeting  of  the  House  of  Representatives  of  the Congress  of  the  United 

States  of  America.     The  Clerk  of  the  House  of  Representatives  of  the  Congress  vv-ill  read  the 

names  of  those  whose  credentials  show  that  they  were  regularly  elected  to  this  body  in  pursuance  of 
the  laws  of  their  respective  States  and  of  the  United  States.''     As  the  roll  is  called,  following  the  alpha- 

•  See  Volume  VI,  Chapter  CLI. 

'  Status  with  reference  to  transaction  of  business.     (Sees.  6647-6(i.50  of  Vol.  V.) 

^  Adjournment  for  more  than  one  day  before  organization.     (Sec.  221  of  this  volume.) 

'  A  refusal  to  adopt  rules  until  the  Members-elect  were  sworn.     (Sec.  140   of  this  volume.) 

*  See  also  cases  of  Letcher  v.  Moore  (sec.  53  of  this  volume)  and  Ingersoll  v.  Naylor  (sec.  803  of  this 
volume). 

'  Discussion  as  to  why  the  House  of  Representatives  meets  at  12  m.  at  its  first  sitting,  before  organi- 
zation.    (Sec.  210  of  this  volume.) 

°  In  accordance  with  section  1  of  House  Rule  III.  (See  sec.  64  of  this  work.)  In  case  the  Clerk 
can  not  for  any  reason  officiate,  the  duties  devolve  on  the  Sergeant-at-Arms,  and  next  upon  the 
Doorkeeper.     (See  Revised  Statutes,  sees.  32  and  33.) 

'  This  roll  is  made  up  in  accordance  with  section  31  of  the  Revised  Statutes. 
60 


§   81       PROCEDUEE    AND   POWERS    OF   MEMBERS-ELECT    IN    ORGANIZATION.  61 

betical  order  of  the  States,  those  present  will  please  answer  to  their  names,  that  we  may  discover  if 
there  is  a  quorum  present.' 

When  the  roll  call  has  been  completed,  the  Delegates  being  called  last,  the 
Clerk  presents  a  tabulated  statement  of  the  changes  in  the  membership  that  have 
occurred  since  the  regular  election. 

Then,  if  a  quorum  be  present,  the  Clerk  announces  the  fact,  and  declares  that 
the  next  business  in  order  is  the  election  of  a  Speaker.  ^  Nominations  are  made 
from  the  floor,  simply  by  naming  the  candidates.^ 

The  House  has  for  many  years  elected  its  Speaker  by  viva  voce  vote.*  The  Clerk 
appoints  four  tellers,  from  the  Members-elect,  representing  the  parties  making  nomi- 
nations,* who,  seated  at  the  Clerk's  desk,  make  the  record  as  each  Member-elect,  when 
the  roll  is  called,  alphabetically,  announces  the  name  of  his  choice.  The  roll  call 
being  completed,  one  of  the  tellers,  usually  the  one  first  named,  announces  the  result 
of  the  vote,  the  Clerk  having  previously  read  over  the  names  of  those  voting  for  each 
candidate. 

The  Clerk,  having  restated  the  vote  as  reported  by  the  tellers,  announces  that — 

Mr. ,  a  Representative  from  the  State  of ,  having  received  a  majority  of  all  the  votes 

cast,  is  duly  elected  Speaker  of  the  House  of  Representatives  of  the Congress. 

The  Clerk  then  designates  certain  Members,  usually  the  other  candidates  who 
have  been  voted  for,  to  conduct  the  Speaker-elect  to  the  chair. 

The  Speaker-elect  having  taken  the  chair  and  addressed  the  House,  the  Clerk 
designates  the  Member-elect  present  who  has  served  longest  continuously  "  as  a 
Representative  to  administer  the  oath  of  office  to  the  Speaker-elect.' 

'  Form  used  by  Clerk  James  Kerr,  of  the  Fifty-third  Congress,  in  calling  to  order  the  House  of  the 
Fifty-fourth  Congress,  December  2,  1895.     (Congressional  Record,  p.  2.) 

^  See  sections  6747-6750  of  Volume  V  of  this  work  for  controversies  as  to  transaction  of  business  before 
organization.  Also  see  Congressional  Record,  first  session  Fifty-first  Congress,  p.  80,  and  first  session 
Fifty-fifth  Congress,  p.  15. 

3  Sometimes  a  resolution  to  proceed  to  election  of  Speaker  is  adopted ;  but  very  early  as  well  as 
very  late  precedents  exist  for  proceeding  without  the  resolution.  See  case  December  8,  1829,  when, 
without  resolution  or  motion,  the  House  proceeded  to  ballot  for  Speaker.  (First  session  Twenty-first 
Congress,  Journal,  p.  7.) 

*  See  section  187  of  this  work  for  rule  relating  to  viva  voce  election  and  its  origin.  The  rules, 
however,  are  not  adopted  until  the  House  is  organized. 

^See  Congressional  Record,  first  session  Fifty-fifth  Congress,  p.  15. 

^  This  does  not  always  seem  to  have  been  the  custom.     Thus,  in  1815,  the  oath  was  administered 
to  Speaker  Clay  by  Mr.  Robert  Wright,  of  Mar>-land,  who  was  much  younger  as  a  Member  than  either 
Nathaniel  Macon,  of  North  Carolina,  who  had  served  since  1793,  or  Richard  Stanford,  of  the  same  State, 
who  had  served  since  1797,  and  both  of  whom  were  present.     (First  session  Fourteenth  Congress,  Annals 
p.  374.) 

But  on  December  5,  1825,  we  find  Speaker  Taylor  conducted  to  the  chair  by  Mr.  Thomas  Newton, 
of  Virginia,  "the  father  of  the  House,"  who  also  administered  to  him  the  oath.  (First  session  Nineteenth 
Congress,  Journal,  p.  8;  Debates,  p.  795.)  Again,  in  1829,  Mr.  Newton  is  spoken  of  as  the  father  of  the 
House  when  he  administered  the  oath  to  Speaker  Stevenson.  (First  session  Twenty-first  Congress, 
Debates,  p.  471.)  Again,  in  1835,  Mr.  Lewis  Williams,  of  North  Carolina,  "the  oldest  Member  in  the 
House,"  administers  the  oath  to  Speaker  Polk.  (First  session  Twenty-fourth  Congress,  Journal,  p.  8; 
Debates,  p.  1946.)  Again,  on  December  16,  1839,  Mr.  Williams,  "the  oldest  Member,"  administers  the 
oath  to  Speaker  Hunter.     (Journal,  first  session  Twenty-sixth  Congress,  p.  80.) 

'  This  oath  is  the  same  as  that  administered  to  Members-elect.  (See  sec.  128  of  this  work.)  It  does 
not  seem  to  have  been  the  invariable  custom  for  the  Speaker  to  address  the  House  first.  Thus,  in  1815, 
Mr.  Clay  took  the  oath  first.     (First  session  Fourteenth  Congress,  Journal,  p.  7.) 


62  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  81 

After  the  administration  of  the  oath  the  Speaker  administers  the  oath  to  the 
Members-elect  and  Delegates,'  who  are  usually  called  to  the  area  in  front  of  the 
Speaker's  desk  several  at  a  time,  by  States.  The  Delegates  are  sworn  last.  Mem- 
bers of  whose  election  there  is  no  question,  but  whose  certificates  have  not  arrived, 
may  be  sworn  in  by  unanimous  consent. 

The  election  of  the  remaining  officers  of  the  House  is  next  in  order.  The  rule 
prescribes  that  these  elections  shall  be  viva  voce.^  It  is  usually  accomplished,  how- 
ever, by  the  adoption  of  a  resolution  of  five  paragraphs,  each  in  this  form: 

That ,  of  the  State  of ,  be,  and  he  is  hereby,  chosen  of  the  House  of 

Representatives, 

and  relating  to  the  Clerk,  Sergeant-at-Arms,  Doorkeeper,  Postmaster,  and  Chaplain, 
in  the  order  named. 

The  minority  party  usually  present  their  candidates  in  a  similar  resolution, 
wliich  they  move  as  a  substitute. 

The  Speaker  having  administered  the  oath  of  office  to  the  officers  elected,  the 
organization  of  the  House  is  completed,  whereupon  the  following  resolutions  are 
presented  and  agreed  to: 

Resolved,  That  the  Clerk  be  instructed  to  inform  the  President  of  the  United  States  that  the  House 

(if  Representatives  has  elected ,  a  Representative  from  the  State  of ,  Speaker,  and 

,  a  citizen  of  the  State  of ,  Clerk  of  the  House  of  Representatives  of  the 


Congress. 

Resolved,  That  a  message  be  sent  to  the  Senate  to  inform  that  body  that  a  quorum  of  the  House 

of  Representatives  has  assembled;  that ,  a  Representative  from  the  State  of ,  has 

been  elected  Speaker,  and ,  a  citizen  of  the  State  of ,  Clerk;  and  that  the  House  is 

ready  to  proceed  to  business. 

Resolved,  That  a  committee  of  three  be  appointed  by  the  Speaker  on  the  part  of  the  House  of  Rep- 
resentatives to  join  the  committee  appointed  on  the  part  of  the  Senate  to  wait  on  the  President  of  the 
United  States  and  notify  him  that  a  quorum  of  the  two  Houses  has  assembled,  and  that  Congress  is 
ready  to  receive  any  communication  he  may  be  pleased  to  make.' 

Resolved,  That  until  otherwise  ordered  the  rules  of  the  House  of  Representatives  of  the Con- 
gress be  adopted  as  the  rules  of  the  House  of  Representatives  of  the Congress.* 

Resolved,  That  until  otherwise  ordered  the  daily  hour  of  meeting  of  the  House  of  Representatives 
shall  be  12  o'clock  meridian. 

Resolved,  That  the  House  do  now  proceed  to  draw  seats  for  Members  and  Delegates  of  the  present 

Congress  in  pursuance  of  Rule  XXXII  of  the House,  and  when  names  of  Members  absent  from 

the  city  or  on  account  of  sickness  are  called,  that  seats  be  selected  for  them  by  their  colleagues.* 

'  This  order  is  according  to  the  old  form.     (First  session  Second  Congress,  Journal,  p.  434.) 

^See  section  187  of  this  work.  The  rules,  however,  are  not  usually  adopted  until  after  the  officers 
are  elected,  the  old  rule  that  the  rules  should  continue  in  force  from  Congress  to  Congress  having  been 
dropped  in  the  Fifty-first  Congress.  See  debate  of  May  15,  1797,  where  the  point  was  raised  and  dis- 
cussed that  the  rules  of  the  former  House  were  not  binding  in  the  election  of  a  Clerk.  (First  session 
Fifth  Congress,  Annals,  p.  51.) 

'  Such  a  resolution  is  in  accordance  with  the  most  ancient  precedents  of  the  House.  (First  session 
First  Congress,  Journal,  p.  134.) 

•*  While  this  resolution  is  usually  adopted,  the  House  sometimes,  as  in  the  Fifty-first  Congress,  pro- 
ceeds under  general  parliamentary  law  until  rules  are  adopted  permanently 

^  These  resolutions  are  the  forms  used  in  organization  of  Fifty-fourth  Congress.  (Congressional 
Record,  first  session,  Fifty-fourth  Congress,  pp.  5  and  6.) 


§  82       PROCEDUKE    AND   POWERS    OF    MEMBERS-ELECT    IN    ORGANIZATION.  63 

Before  the  drawing  begins  the  Members  usually  permit  by  unanimous  consent 
one  or  two  Members  of  long  service  to  select  their  seats.'  Also,  if  the  political 
parties  are  disproportionate  in  size  an  understanding  is  usually  arrived  at  as  to  the 
portions  of  the  Hall  which  they  are  to  occupy.^ 

When  the  Congress  assembles  by  proclamation  of  the  President,  before  the 
first  Monda}'  of  December,  the  formalities  are  the  same,  excepting  that  the  Clerk 
reads  the  proclamation  of  the  President  instead  of  the  usual  amiouncement.^ 

At  the  opening  of  sessions  other  than  the  first  the  Speaker  calls  the  House  to 
order,  and,  after  prayer  by  the  Chaplain,  directs  the  Clerk  to  call  the  roll  of  Mem- 
bers by  States.  This  roll  having  been  called  and  the  number  of  Members  present 
having  been  ascertained,  the  Speaker  announces  that  a  quorum  is  present,  if  such 
be  the  fact,  and  that  the  House  is  ready  to  proceed  to  business. 

Resolutions  are  then  adopted  providing  for  notifying  the  President  and  the 
Senate,  as  follows: 

Resolved,  That  a  committee  of  three  Members  be  appointed  on  the  part  of  the  House  to  join  the 
committee  appointed  by  the  Senate  to  wait  upon  the  President  and  inform  him  that  a  quorum  of  the 
two  Houses  has  assembled,  and  that  Congress  is  ready  to  receive  any  communication  he  may  have  to 
make. 

Resolved,  That  the  Clerk  of  the  House  inform  the  Senate  that  a  quorum  of  the  House  of  Representa- 
tives has  appeared,  and  that  the  House  is  ready  to  proceed  to  business.* 

82.  A  discussion  as  to  -whetlier  or  not  the  House  is  a  House  before  its 
organization. 

Congress  may  not  by  law  interfere  with  the  constitutional  right  of  a 
future  House  to  make  its  own  rules. 

A  proposition  to  regulate  the  organization  of  the  House  by  law. 

On  March  2,  1861,^  Mr.  Albert  G.  Porter,  of  Indiana,  made  a  report  from  the 
Committee  on  the  Judiciary  on  the  bill  (H.  R.  867)  "to  provide  for  and  facilitate 

'  These  favors  are  generally  divided  between  the  two  large  parties,  and  ex-Speakers  are  usually  the 
recipients,  but  the  favor  may  be  granted  to  any  distinguished  Member. 

On  February  13, 1847  (second  session  Twenty-ninth  Congress,  Globe,  p.  418),  while  the  House  was 
in  Committee  of  the  Whole  House  on  the  state  of  the  Union,  and  while  Mr.  W.  Hunt  was  speaking,  Mr. 
John  Quincy  Adams,  of  Massachusetts,  for  the  first  time  since  his  attack  of  paralysis,  entered  the  Hall. 
The  committee  rose  in  a  body  to  receive  him.  Mr.  Hunt  suspended  his  remarks,  and  Mr.  Andrew  John- 
son, of  Tennessee,  arose  and  said:  "  In  compliance  with  the  understanding  with  which  I  selected  a  seat 
at  the  commencement  of  the  present  session,  I  now  tender  to  the  venerable  Member  from  Massachusetts 
the  seat  which  I  then  selected  for  him,  and  will  furthermore  congratulate  him  on  being  spared  to  return 
to  this  House."     Mr.  Adams  having  briefly  acknowledged  the  courtesy,  the  business  proceeded. 

In  the  organization  of  the  Fifty-fourth  Congress,  ex-Speaker  Charles  F.  Crisp  (Fifty-second  and 
Fifty-third  Congresses)  and  ex-Speaker  Galuslia  A.  Grow  (Thirty-seventh  Congress)  were  accorded  this 
favor.  (Record,  first  session  Fifty-fourth  Congress,  p.  8.)  Also,  in  the  Fifty-second  Congress,  ex- 
Speaker  Thomas  B.  Reed  and  the  two  oldest  Members  on  the  two  sides,  Messrs.  Holman,  of  Indiana,  and 
O'Neill,  of  Pennsylvania,  were  designated  by  resolution  for  the  favor. 

^  The  Republicans  sit  on  the  left  of  the  Speaker  and  the  Democrats  on  the  right.  But  when  one  of 
these  parties  is  a  small  minority,  the  excess  of  the  majority  party  goes  to  the  extreme  left  or  right.  (See 
Congressional  Record,  first  session  Fifty-fourth  Congress,  p.  6.) 

^  See  Congressional  Record,  first  session  Fifty-fifth  Congress,  p.  13,  when  Clerk  Alexander  McDowell 
called  the  House  to  order. 

*  Congressional  Record,  second  session  Fifty-fourth  Congress,  p.  12. 

*  House  Report  No.  102,  second  session  Thirty-sixth  Congress. 


64  PEECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  83 

the  organization  of  the  House  of  Representatives  of  the  United  States  on  the  assem- 
bling of  each  Congress."  This  bill  undertook  to  prescribe  the  evidence  which 
should  authorize  one  who  claimed  to  be  a  Representative  to  vote;  the  mode  by 
which  that  evidence  should  be  presented;  the  manner  of  voting  for  a  temporary- 
presiding  officer,  for  the  Speaker,  and  other  officers;  the  order  of  business  previous 
to  the  organization,  and  the  number  of  votes  requisite  to  elect  the  several  officers. 
The  committee  came  to  the  conclusion  that  these  provisions  prescribed  "rules 
of  proceedings"  for  the  popular  branch  of  future  Congresses,  and  to  be,  therefore, 
in  contravention  of  Article  I,  section  5,  clause  2  of  the  Constitution:  "Each  House 
may  determine  the  rules  of  its  proceedings,"  etc.     The  report  continues: 

It  seems  to  have  been  thought  by  some  persons  that  the  term  "  House  "  in  the  clause  just  quoted 
applies  to  the  House  after  it  has  been  organized  by  the  election  of  a  Speaker  and  other  officers;  in 
other  words,  that  it  is  not  a  House  until  thus  organized.  But  a  reference  to  the  clause  in  the  same 
article  which  provides  that  "the  House  of  Representatives  shall  choose  their  Speaker  and  other  officers" 
shows  this  interpretation  to  be  erroneous.  That  clause  recognizes  the  body  of  Representatives  assem- 
bled as  being  a  "House"  before  the  Speaker  has  been  elected. 

The  bill  was  suggested  by  the  troubles  at  the  organization  of  the  Thirty-fourth 
Congress.     It  seems  never  to  have  been  acted  on  by  the  House.' 

83.  With  a  single  exception  the  call  of  the  roll  of  Members  at  the  be- 
ginning of  a  session  has  been  by  States  and  not  alphabetically. — On 
December  4,  1893,^  at  the  beginning  of  the  second  session  of  the  Congress,  the  roll 
was  called  alphabetically,  and  not  by  States. 

Mr.  Joseph  Wheeler,  of  Alabama,  made  the  point  of  order  that  the  roll  should 
be  called  by  States. 

The  Speaker  (Mr.  Crisp)  said: 

No  rule  of  the  House  requires  the  roll  to  be  called  or  recorded  in  the  manner  which  the  gentleman 
suggests;  on  the  contrary,  the  rules  require  that  the  roll  be  called  alphabetically,  except  that  upon 
the  organization  of  the  House  and  when  in  the  absence  of  the  Speaker  the  Clerk  discharges  the  duty 
of  calling  the  House  to  order,  the  rules  require  him  to  have  the  roll  called  by  States.  In  other  cases 
the  rule  is  that  the  roll  be  called  alphabetically. 

In  the  Journal,  however,  the  roll  call  appears  as  if  called  by  States. 

On  December  5  Mr.  Wheeler  presented  to  the  House  the  precedents  from  the 
foundation  of  the  Government  to  show  that  at  the  beginning  of  a  second  session 
the  roll  had  always,  with  the  exception  of  this  instance,  been  called  by  States. 

84.  The  call  of  the  roll  of  Members-elect  may  not  be  interrupted,  es- 
pecially by  one  not  on  that  roll. — On  December  4,  1805,^  at  the  time  of  the 
organization  of  the  House,  while  the  roll  of  Members-elect  was  being  called  by 
States,  Mr.  Horace  Maynard,  of  Tennessee  (whose  name  was  not  on  the  roll),  rose 
and  was  proceeding  to  address  the  Chair,  when  the  Clerk  *  declined  to  allow  any 
interruption  of  the  roll  call. 

'Journal,  p.  479. 

-Second  session  Fifty-third  Congress,  Journal,  p.  3;  Record,  pp.  13,  36. 

^  First  session  Thirty-ninth  Congress,  Globe,  p.  3. 

*  Edward  McPherson,  of  Pennsvlvania,  Clerk. 


§   85       PROCEDURE    AND   POWERS    OF    MEMBERS-ELECT    IN    ORGANIZATION.  65 

85.  The  House  declined  before  organization  to  add  to  the  roll  the 
name  of  a  Member-elect  whose  credential  had  been  lost;  but  after  organi- 
zation permitted  him  to  take  the  oath. — On  December  i,  1905/  at  the  organi- 
zation of  the  House,  and  immediately  after  the  roll  had  been  called  by  States  to 
ascertain  the  presence  of  a  quorum,  Mr.  Asle  J.  Gronna,  of  North  Dakota,  stated 
that  the  certificate  of  his  colleague,  Mr.  Thomas  F.  Marshall,  had  been  lost,  and 
asked  that  his  name  be  added  to  the  roll. 

Mr.  Sereno  E.  Payne,  of  New  York,  said: 

That  would  not  be  in  order  until  after  the  organization  of  the  House. 

The  Clerk'  said: 

It  would  be  a  matter  of  unanlmotis  consent.     The  gentleman  from  North  Dakota  asks  unanimous 
consent  that  the  name  of  his  colleague  [Mr.  Marshall]  be  added  to  the  roll.     Is  there  any  objection? 

Mr.  John  S.  Williams,  of  Mississippi,  said : 

At  this  stage  of  the  proceedings  I  shall  object.     At  the  proper  time  that  will  be  in  order. 

But  after  organization  Mr.  Marshall  was  permitted  by  the  House  to  take  the  oath, 
on  the  assurance  given  by  his  colleague  that  the  election  was  in  no  way  disputed. 

86.  At  the  organization  of  the  House  a  person  whose  name  is  not  on 
the  Clerk's  roll  may  not  be  recognized. — On  December  4,  18(35,^  at  the  organi- 
zation of  the  House,  and  after  the  roll  of  Members-elect  had  been  called  by  the 
Clerk,  after  the  presence  of  a  quorum  had  been  announced,  and  after  a  motion  had 
been  made  to  proceed  to  the  election  of  a  Speaker,  Mr.  Horace  Mapiard,  of  Tennes- 
see, whose  name  was  not  on  the  Clerk's  roll,  sought  recognition. 

Objection  being  made  by  Mr.  Thaddeus  Stevens,  of  Pennsylvania,  the  Clerk* 
held: 

The  Clerk  rules,  as  a  matter  of  order,  that  he  can  not  recognize  any  gentleman  whose  name  is  not 
on  the  roll. 

87.  It  has  been  held  that  the  House  is  technically  in  session  during 
the  period  of  organization. — On  January  i,  16.50,'^  Mr.  Speaker  Cobb  decided 
that  the  House  was  in  session  during  the  twenty  days  while  unsuccessful  votes  were 
being  taken  for  a  Speaker.  Mr.  Robert  C.  Winthrop,  of  Massachusetts,  had  sug- 
gested that  the  thirty  days  allowed  for  the  introduction  of  petitions  should  not  be 
counted  from  the  meeting  of  Congress,  but  from  the  date  of  the  organization  of  the 
House. 

88  On  March  11.  1875,"  the  point  was  raised  in  the  Senate  that  at  a  called 
special  session  it  was  not  in  order  to  take  any  action  looking  to  the  transaction  of 
legislative  business,  the  House  not  being  in  session.  The  point  was  debated  at  some 
length,  but  no  determination  was  reached. 

'  First  session  Fifty-ninth  Congress,  Record,  pp.  40,  41. 
-  Alexander  McDowell,  of  Pennsylvania,  Clerk. 
^  First  session  Thirty-ninth  Congress,  Globe,  p.  3. 

*  Edward  McPherson,  of  Pennsylvania,  Clerk. 

*  First  session  Thirty-first  Congress,  Globe,  p.  101. 
'First  session  Forty-fourth  Congress,  Record,  p.  25. 

5994— VOL  1—07 5 


66  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   89 

89.  The  House  may  adjourn  for  more  than  one  day  before  the  election 
of  a  Speaker. — On  January  13,  1860/  before  the  election  of  a  Speaker  it  was 
ordered  that  when  the  House  adjourns  it  adjourn  until  Monday  next. 

90.  At  the  organization  of  the  House  in  1855  the  Clerk  ordered  tell- 
ers.— On  December  7,  1855,-  during  the  protracted  struggle  over  the  election  of  a 
Speaker,  Mr.  Benjamin  F.  Leiter,  of  Ohio,  moved  that  the  House  adjourn. 

Mr.  Edwin  B.  Morgan,  of  New  York,  asked  for  tellers. 

The  Clerk  ^  ordered  tellers,  and  appointed  Mr.  Morgan  and  Mr.  John  Letcher, 
of  Virginia. 

91.  The  yeas  and  nays  may  be  ordered  before  the  organization  of  the 
House. 

In  1855  the  Clerk  decided  questions  of  order  at  the  organization. 

On  December  7,  1855,'  before  rules  had  been  adopted  or  a  Speaker  elected, 
Mr.  Benjamin  F.  Leiter,  of  Ohio,  moved  that  the  House  adjourn. 

Mr.  Benjamin  Stanton,  of  Ohio,  demanded  the  yeas  and  nays. 

Mr.  John  Letcher,  of  Virginia,  made  the  point  of  order  that  the  yeas  and  nays 
might  not  be  demanded  until  after  the  organization  of  the  House. 

The  Clerk  ^  said: 

It  is  in  order  to  call  for  the  yeas  and  nays. 

The  question  being  taken,  the  yeas  and  nays  were  not  ordered. 
But  on  many  other  occasions  during  the  protracted  period  before  a  Speaker  was 
elected,  the  yeas  and  nays  were  ordered  and  taken  without  question. 

92.  In  1839  the  difficulties  at  organization  prevented  the  daily  ap- 
proval of  the  Journal  until  finally,  on  one  day,  the  Journals  of  several 
days  were  approved. — From  December  2  to  6,  1839,*  the  House  was  jDi-evented 
from  settling  difficulties  as  to  its  organization  by  the  refusal  of  the  Clerk  of  the 
preceding  House  to  put  any  question,  except  the  motion  to  adjourn,  because  the 
call  of  the  roll  by  States  had  not  been  completed,  and  the  presence  of  a  quorum 
ascertained.  On  December  5  Mr.  John  Quincy  Adams,  of  Massachusetts,  was 
chosen  chairman  of  the  meeting  of  Members-elect.  On  December  6,  as  soon  as  the 
meeting  assembled,  the  Journals  of  the  proceedings  of  Monday,  Tuesday,  Wednes- 
day, and  Thursday,  the  2d,  3d,  4th,  and  5th,  were  read  and  approved. 

93.  Instance  wherein  the  rules  were  adopted  immediately  after  the 
election  of  Speaker. — On  December  21,  1839,^  the  House  adopted  rules  before 
proceeding  to  the  election  of  any  officers  except  the  Speaker.* 

94.  Before  the  election  of  a  Speaker  the  House  has  adopted  a  rule  reg- 
ulating debate. — On  December  22, 1855,'  during  the  organization  of  the  House, 

'  First  session  Thirty-sixth  Congress,  Journal,  p.  127;  Globe,  p.  444. 
^  First  session  Thirty-fourth  Congress,  Globe,  p.  10. 
^  John  W.  Forney,  Clerk. 

■•  First  session  Twenty-sixth  Congress,  Journal,  p.  7;  Globe,  p.  20. 
'  First  session  Twenty-sixth  Congress,  Journal,  p.  95. 

^  Usually,  however,  rules  are  not  adopted  until  the  officers  have  been  elected.  See  section  81  of 
this  work. 

'First  session  Thirty-fourth  Congress,  Journal,  p.  161;  Globe,  p.  69. 


§  95      PROCEDDEE    AND   POWEKS    OF    MEMBEKS-ELECT   IN    ORGANIZATION.  67 

and  before  the  election  of  a  Speaker  or  the  adoption  of  rules,  Mr.  John  A.  Quitman, 
of  Mississippi,  submitted  the  following  resolution,  which  was  agreed  to: 

Resolved,  That,  until  the  organization  of  this  House  by  the  election  of  a  Speaker,  no  Member  shall 
occupy  more  than  ten  minutes  in  debate  on  any  question  lief  ore  the  House,  nor  shall  any  Member 
speak  more  than  once  on  any  question  before  the  House,  until  every  Member  desiring  to  speak  thereon 
shall  have  spoken;  and,  upon  a  motion  to  lay  on  the  table,  there  shall  be  no  debate. 

95.  On  January  19.  185G,^  before  the  election  of  Speaker  or  the  adoption 
of  rules,  Mr.  Schuj-ler  Colfax,  of  Indiana,  offered  the  following  resolution,  which  was 
agreed  to: 

Resolved,  That  for  one  week,  unless  a  Speaker  is  sooner  elected,  no  debate  on  any  subject,  or  under 
the  form  of  personal  explanation,  shall  be  in  order;  but  any  Member  attempting  to  speak  shall  be  held 
out  of  order,  unless  the  unanimous  consent  of  the  House  shall  have  been  firBt  had,  upon  the  question 
being  submitted  by  the  Clerk. 

96.  The  House  has  adopted  a  rule  relating  to  the  privilege  of  the  floor 
before  the  election  of  a  Speaker. — ^On  December  4,  1855,-  at  the  time  of  the 
organization  of  the  House,  and  before  a  Speaker  had  been  elected  or  rules  adopted, 
it  was,  on  motion  of  Mr.  George  W.  Jones,  of  Tennessee — 

Ordered,  That  the  Doorkeeper  be  directed  to  enforce  so  much  of  the  rules  of  the  last  Congress  as 
relates  to  the  admission  of  persons  within  the  Hall  of  the  House. 

97.  On  January  30,  1860,^  before  the  election  of  the  Speaker,  the  House  adopted 
the  following: 

Ordered,  That  the  Doorkeeper  be  directed  to  execute  the  seventeenth  rule  of  the  House  of  Repre- 
sentatives of  the  Thirty-fifth  Congress,  in  regard  to  the  priAdleges  of  the  Hall. 

98.  On  December  27,  1855,*  before  the  election  of  Speaker  or  the  adoption 
of  rules,  a  proposition  for  the  drawing  of  seats  by  Members  was  offered  and  enter- 
tained without  any  point  of  order  raised,  but  after  debate  was  laid  on  the  table. 

99.  Before  the  election  of  officers  the  House  has  provided  for  opening 
its  sessions  with  prayer. — On  January  23,  1856,='  before  the  election  of  a  Speaker 
or  the  adoption  of  rules,  Mr.  James  F.  Dowdell,  of  Alabama,  offered  a  preamble  and 
resolution  reciting  the  propriety  of  the  House  showing  their  reverence  for  God,  and 
resolving  that  the  daily  sessions  be  opened  with  prayer,  and  providing  that  the 
ministers  of  the  gospel  in  the  city  be  requested  to  attend  and  perform  the  duty 
alternately. 

This  motion  was  agreed  to.     Later  in  the  session,  after  the  organization  of  the 
House,  a  Chaplain  was  elected. 

100.  On  December  7,  1859,"  before  the  election  of  a  Speaker,  Mr.  Alfred 
Wells,  of  New  York,  by  unanimous  consent,  offered  the  following  resolution : 

'  First  session  Thirty-fourth  Congress,  Journal,  p.  334;  Globe,  pp.  269,  270. 
^  First  session  Thirty-fourth  Congress,  Journal,  p.  4;  Globe,  p.  18. 
'First  session  Thirty-sixth  Congress,  Journal,  p.  149;  Globe,  p.  629. 
*  First  session  Thirty-fourth  Congress,  Journal,  p.  185;  Globe,  p.  89. 
'First  session  Thirty-fourth  Congress,  Journal,  pp.  3-54,  582;  Globe,  p.  282. 
'First  session  Thirty-sixth  Congress,  Journal,  p.  21;  Globe,  p.  42. 


68  PRECEDENTS   OF   THE    HOtTSE    OF   REPRESENTATIVES.  §   101 

Resolved,  That  until  this  House  shall  be  organized  by  the  election  of  a  Speaker,  the  clergy  of  this 
city,  of  the  various  religious  denominations,  be  respectfully  requested  to  open  the  daily  session  of  this 
House  with  prayer;  and  that  such  of  the  clergy  as  shall  accept  of  this  invitation  officiate,  one  each  day, 
in  alphabetical  order. 

Mr.  William  Smith,  of  Virginia,  questioned  the  power  of  the  House  to  transact 
any  business  until  after  its  organization,  but  withdrew  his  objection,  and  the  House 
agreed  to  the  resolution. 

101.  Before  the  election  of  a  Speaker  the  House  has  empowered  the 
Clerk  and  Sergeant-at-Arms  of  the  last  House  to  preserve  order. — On 
December  16,  1859,'  before  the  election  of  a  Speaker,  Mr.  William  E.  Niblack,  of 
Indiana,  by  unanimous  consent,  offered  the  following  resolutions,  which  were  agreed 
to: 

Resolved,  That  until  the  organization  of  this  House  by  the  election  of  a  Speaker,  the  Clerk  of  the 
last  House  shall  be  authorized  and  empowered  to  preserve  order  on  the  floor  of  the  House  and  in  the 
galleries,  and  as  far  as  possible  for  that  purpose  he  may  exercise  the  powers  devolved  on  the  Speaker, 
for  the  time  being,  under  the  rules  of  the  last  House  of  Representatives. 

Resolved,  further.  That  until  the  organization  of  this  House  as  aforesaid,  the  Sergeant-at-Arms  of  the 
last  House  of  Representatives  is  hereby  authorized  to  exercise  the  ordinary  powers  of  his  office  for  the 
preservation  of  order,  under  the  direction  of  the  Clerk  of  the  last  House  of  Representatives  as  aforesaid. 

A  question  was  raised  as  to  whether  or  not  these  resolutions  were  intended 
to  allow  the  Clerk  to  decide  questions  of  order,  and  Mr.  Niblack  responded  that 
they  were  not. 

102.  Before  the  election  of  officers  or  the  adoption  of  rules,  the  House 
has  made  a  rule  for  enforcing  order  in  the  galleries. — On  December  15, 1849,- 
before  the  House  had  been  able  to  elect  a  Speaker  and  before  rules  had  been  adopted, 
Mr.  James  Thompson,  of  Pennsylvania,  offered,  and  the  House  agreed  to,  the 
following  rule : 

Resolved,  That  the  Sergeant-at-Arms  and  Doorkeeper  are  hereby  authorized  and  directed  to  enforce 
the  seventeenth  rule  of  the  last  House  of  Representatives,  and  that  no  person  be  admitted  to  the  ladies' 
gallery  unless  accompanied  by  ladies  or  introduced  in  person  by  a  Member  of  Congress. 

This  resolution  was  agreed  to  without  question  as  to  the  authority  of  the 
unorganized  House  to  adopt  the  rule. 

103.  Proceedings  at  organization  of  the  House  in  the  New  Jersey, 
or  "  Broad  Seal,"  contest  of  1839. 

In  1839,  at  the  organization  of  the  House,  the  Members-elect  did  not 
permit  five  persons  bearing  regular  credentials  to  participate  in  the 
organization. 

In  1839  certain  persons  whose  titles  as  Members-elect  were  contested 
assumed  to  participate  in  the  organization;  but  the  meeting  passed  on  the 
vote  of  each  after  it  had  been  given. 

On  December  5,  1839,^  the  Members-elect  of  the  House,  having  been  prevented 
from  organizing  the  House  by  complications  arising  over  a  contest  as  to  the  occu- 
pants of  five  of  the  six  seats  of  the  State  of  New  Jersey,  Mr.  John  Quincy  Adams,  of 

'First  session  Thirty-sixth  Congress,  Journal,  p.  44;  Globe,  p.  165. 

^  First  session  Thirty-first  Congress,  Journal,  p.  102;  Globe,  p.  36. 

3  First  session  Twenty-sixth  Congress,  Journal,  pp.  6-80;  Globe,  pp.  20-56. 


§   103       PEOCEDDRE    AND    POWERS    OF   MEMBERS-ELECT    IN    ORGANIZATION.         69 

Massachusetts,  was  chosen  chairman  of  the  body  and  the  rules  of  the  last  House 
were  adopted  so  far  as  they  might  be  applicable. 

Mr.  Henry  A.  Wise,  of  Virginia,  then  offered  this  resolution: 

Resolved,  That  the  acting  Clerk  of  this  House  shall  proceed  with  the  call  of  the  Members  from  the 
different  States  of  the  Union  in  the  usual  way,  calling  the  names  of  such  Members  from  New  Jersey  as 
hold  the  regular  and  legal  commissions  from  the  executive  of  that  State.' 

On  the  succeeding  day  Mr.  R.  Barnwell  Rhett,  of  South  Carolina,  moved  that 
the  resolution  lie  on  the  table. 

On  this  question  tellers  were  called  for,  and  the  Chair  appointed  Messrs.  George 
C.  Dromgoole,  of  Virginia,  and  Edward  Davies,  of  Pennsylvania,  tellers  to  count 
the  House. 

Mr.  Dromgoole  inquired  of  the  Chair  who  were  to  be  coimted  as  Members  from 
New  Jersey,  and  stated  that  he  should,  unless  otherwise  directed  by  the  House, 
count  every  person  who  presented  himself. 

The  Chairman  answered,  and  so  decided,  that  those  must  be  counted  who  had 
been  commissioned  as  Members  of  the  House  of  Representatives  of  the  United 
States  for  the  Twenty-sixth  Congress  from  the  State  of  New  Jersey  by  the  governor 
of  that  State.  The  Chairman  further  stated  that  he  had  expressed  this  as  his 
opinion  before  he  was  placed  in  the  Chair. 

From  this  decision  Mr.  Aaron  Vanderpoel,  of  New  York,  took  an  appeal  to 
the  Members  on  the  ground  that  the  Chair  had  usurped  to  himself  the  decision  of 
the  very  question  that  the  Members  were  tn,nng  to  decide. 

Pending  the  appeal  the  House  adjourned.  The  session  of  the  next  day, 
December  7,  was  occupied  largely  with  proceedings  for  the  correction  of  the  Journal, 
in  the  course  of  which  a  vote  by  tellers  was  had,  and  the  Chairman  was  asked  who 
were  to  be  counted  as  Members  of  the  House.  He  replied  that  "  the  tellers  will  count 
whoever  passes  through;  and  if  any  pass  whose  title  to  a  seat  is  contested,  they 
will  report  the  fact  to  the  meeting,  and  the  meeting  will  decide  the  question." 
But  the  tellers,  in  reporting  their  vote,  reported  no  votes  by  gentlemen  whose 
titles  were  contested. 

Monday,  December  9,  was  occupied  largely  with  the  reading  of  documents 
relating  to  the  case,  and  with  questions  relating  to  the  reading.  It  was  not  until 
December  10  that  the  question  recurred  on  the  appeal  of  Mr.  Vanderpoel. 

Mr.  Henry  A.  Wise,  of  Virginia,  moved  the  previous  question,  and  on  the 
question  there  were  110  ayes  and  48  noes.  Mr.  John  T.  H.  Worthington,  of  Mary- 
land, one  of  the  tellers,  reported  that  three  of  the  persons  claiming  to  be  Members 
from  New  Jersey,  tinder  the  commission  of  the  governor,  voted  on  the  previous 
question. 

The  main  question  was  then  put:  "Shall  the  decision  of  the  Chair  stand  as 
the  judgment  of  the  meeting?"  and  passed  in  the  negative,  ayes  108,  noes  114. 

And  so  the  decision  of  the  Chair  was  reversed. 

Mr.  Wortliington,  one  of  the  tellers,  stated  that  four  of  the  Members  from 
New  Jersey,  commissioned  by  the  governor,  voted  on  that  question. 

'  For  these   five  seats  there  were  ten  claimants,  five  with  credentials  from  the  governor  and  five 
with  certificates  from  State  officials  stating  the  vote. 


70  PRECEDENTS    OF   THE    HOUSE    OF    REPRESENTATIVES.  §   103 

The  Chairman  here  stated  that  it  was  now  for  the  meeting  to  decide  who 
should  be  called  as  Members  from  New  Jersey. 

The  question  on  the  motion  of  Mr.  Rhett,  that  the  resolution  of  Mr.  Wise 
do  lie  on  the  table,  was  called  for. 

The  Chairman  decided  that  that  question  could  not  be  put  until  the  preliminary 
question  was  settled  as  to  who  should  vote  as  Members  from  New  Jersey. 

Several  propositions  were  made,  among  them  a  motion  that  neither  set  of 
Members  claiming  seats  from  New  Jersey  should  vote,  until  the  question  "Who 
shall  vote  from  New  Jersey?"  should  be  decided  by  the  House. 

The  Chairman  decided  that  he  was  not  competent  to  put  the  question  on 
this  motion,  nor  was  it  within  the  competency  of  the  meeting  to  pass  upon  the 
motion,  since  in  effect  the  motion  was  to  decide  that  the  people  of  New  Jersey 
should  not  be  represented  on  the  floor. 

After  incidental  questions  had  been  considered,  the  Chairman  suggested  a 
course  of  procedure  in  the  form  of  a  ruling,  but  an  appeal  being  taken,  he  withdrew 
it.  Thereupon  Mr.  George  N.  Briggs,  of  Massachusetts,  renewed  the  proposition 
in  this  resolution : 

Resolved,  That  on  the  motion  of  Mr.  Rhett  to  lay  Mr.  Wise's  resolution  on  the  table,  or  on  Mr. 
Wise's  resolution  itself,  the  tellers  shall  count  all  the  persons  who  may  pass  between  them,  and  if  any 
pass  whose  right  to  vote  is  disputed,  the  tellers  shall  report  their  names  to  the  Chair,  after  the  number 
of  votes  on  both  sides  are  reported,  for  the  decision  of  the  House. 

This  resolution  was  agreed  to  without  question  as  to  those  voting. 

The  question  then  recurred  on  Mr.  Rhett's  motion,  and  the  tellers  reported 
that  115  had  voted  in  the  affirmative,  and  114  had  voted  in  the  negative,  among 
which  latter  number  was  one  disputed  vote,  that  of  Mr.  Charles  Naylor,  of  Penn- 
sylvania, whose  seat  was  contested  by  Mr.  IngersoU. 

The  Chairman  announced  to  the  House  that  he  voted  with  the  nays,  whereby 
an  equal  division  was  produced,  and  the  question  on  Mr.  Rhett's  motion  was  lost. 

Mr.  Francis  O.  J.  Smith,  of  Maine,  challenged  the  right  of  Mr.  Naylor  to  vote, 
whereupon  Mr.  Naylor  challenged  Mr.  Smith's  right.  Mr.  Wise  moved  that  Mr. 
Naylor's  vote  be  counted.  The  question  was  about  to  be  put  on  this  motion  under 
the  operation  of  the  previous  question,  when  the  Chairman  ruled  that  Mr.  Naylor's 
right  to  vote  could  not  be  questioned,  since  all  controversy  and  proceedings  had 
reference  to  the  New  Jcrsej'  cases  and  none  other.  Therefore  the  resolution  moved 
by  Mr.  Briggs  and  adopted  by  the  House  had  no  relation  to  Mr.  Naylor's  right 
to  vote. 

From  this  decision  Mr.  Hopkins  L.  Tumey,  of  Tennessee,  appealed  to  the 
meeting. 

Pending  this  appeal  the  House  voted  on  a  motion  to  adjourn,  the  tellers  report- 
ing 116  in  the  affirmative  and  113  in  the  negative  and  that  three  disputed  votes  had 
been  given  on  each  side.  The  disputed  votes  bemg  eqiial  on  each  side,  and  therefore 
not  affecting  the  result,  the  Chairman  decided  that  the  question  was  carried  in  the 
affirmative,  and  the  meeting  accordmgly  adjourned. 

On  December  11  the  question  was  taken  on  the  appeal  by  Mr.  Tumey,  "Shall 
the  decision  of  the  Chair  stand  as  the  judgment  of  the  House?"  and  the  tellers 


§  103      PROCEDURE    AND   POWERS   OF   MEMBERS-ELECT   IN   ORGANIZATION.         71 

reported  112  votes  in  the  affirmative,  including  iii  that  number  the  votes  of  Mr. 
Naylor,  of  Pennsylvania,  and  Messrs.  Aycrigg,  Yorke,  Maxwell,  and  Stratton,  of 
New  Jersey,  commissioned  by  the  governor  of  that  State,  118  votes  in  the  negative, 
including  in  that  number  the  vote  of  Mr.  Ingersoll,  of  Petmsylvania,  claiming  to  be 
a  Member  in  place  of  Mr.  Naylor,  also  the  votes  of  Messrs.  Iville,  Cooper,  and  Ryall, 
of  New  Jerse}',  claiming  to  be  Members,  in  the  room  of  Members  commissioned  by 
the  governor  of  that  State. 

The  Chairman  then  stated  that  it  was  for  the  meeting  now  to  decide,  name  by 
name,  upon  the  right  to  vote  of  each  disputed  voter  whose  name  had  been  reported 
by  the  tellers. 

Mr.  F.  O.  J.  Smith,  of  Maiae,  objected  that  the  determination  of  the  rights  of 
the  disputed  voters  would  not  affect  the  result;  that  the  Chairman's  decision  was 
overruled,  no  matter  what  decisions  should  be  given  as  to  the  challenged  votes. 

The  Chairman  held,  however,  that  more  Members  were  voting  from  Pennsyl- 
vania and  New  Jersey  than  could  be  permitted  to  vote  under  the  Constitution  and 
the  laws;  therefore  the  meeting  must  decide  upon  these  disputed  rights. 

The  question  was  first  taken  on  Mr.  Naylor's  right  to  vote,  and  the  tellers 
reported  119  votes  in  the  affirmative,  112  votes  in  the  negative,  and  no  disputed 
votes.     So  it  was  decided  that  Mr.  Naylor's  vote  should  be  counted. 

The  question  was  next  taken  on  the  vote  of  Mr.  Aycrigg,  of  New  Jersey,  and  on 
the  motion  that  it  be  counted  the  tellers  reported  117  votes  in  the  affirmative, 
including  in  that  number  the  votes  of  Messrs.  Halstead,  Maxwell,  Stratton,  and 
Yorke,  of  New  Jersey,  commissioned  by  the  governor  of  that  State;  122  votes  in  the 
negative,  including  in  that  number  the  votes  of  Messrs.  Cooper,  Kille,  and  Ryall, 
of  New  Jersey,  claiming  to  be  Members,  in  the  room  of  Members  commissioned 
by  the  governor  of  that  State. 

It  was  therefore  decided  that  the  vote  of  Mr.  Aycrigg  should  not  be  counted. 

The  question  was  next  put,  "Shall  the  vote  of  Mr.  Maxwell  be  counted?" 

And  the  tellers  reported  116  votes  in  the  affirmative,  includmg  in  that  number 
the  votes  of  Messrs.  Halstead,  Stratton,  and  Yorke,  of  New  Jersey,  commissioned 
by  the  governor  of  that  State;  122  votes  in  the  negative,  including  in  that  number 
the  votes  of  Messrs.  Cooper,  Kille,  and  Ryall,  of  New  Jersey,  claiming  to  be  Members 
in  the  room  of  Members  commissioned  by  the  governor  of  that  State. 

And  so  it  was  decided  that  the  vote  of  Mr.  Maxwell  should  not  be  counted. 

It  was  then  agreed  that  the  question  be  taken  by  one  vote  on  Messrs.  Halstead, 
Stratton,  and  Yorke;  and  on  the  question  the  tellers  reported  110  votes  in  the 
affirmative,  117  votes  in  the  negative,  and  there  was  no  disputed  vote  on  either  side. 
And  so  it  was  decided  that  the  votes  of  Messrs.  Halstead,  Stratton,  and  Yorke  should 
not  be  counted. 

The  next  vote  decided  that  the  vote  of  Mr.  Ingersoll,  of  Pennsylvania,  should 
not  be  counted,  and  then  it  was  decided  that  the  votes  of  Messrs.  Cooper,  Balle, 
and  Ryall,  of  New  Jersej^,  should  not  be  counted. 

The  Chairman  then  announced  that  from  the  votes  thus  taken  and  the  decision 
thereby  made  the  House  had  determined  that  the  decision  of  the  Chair  that  Mr. 
Naylor's  vote  could  not  be  questioned,  should  be  reversed,  that  Mr.  Naylor's  vote 


72  PRECEDENTS    OF   THE    HOUSE   OF   REPRESENTATIVES.  §   103 

on  the  motion  made  by  Mr.  Rhett,  that  the  resolution  of  Mr.  Wise  do  lie  on  the  table, 
should  be  counted,  and  that  therefore  the  motion  of  Mr.  Rhett  had  been  determined 
in  the  negative. 

The  question  then  recurred  on  agreeing  to  the  resolution  offered  by  Mr.  Wise. 

The  previous  question  being  moved,  there  were  in  favor  of  it  113  votes,  against 
it  113  votes.  The  Chairman  thereupon  voted  in  favor  of  the  previous  question  and 
it  was  ordered. 

On  agreeing  to  the  resolution  there  were  115  yeas  and  118  nays;  and  so  the 
resolution  moved  by  Mr.  Wise  was  rejected. 

Mr.  Rhett  then  moved  the  following  resolution: 

Resolved,  That  the  House  will  proceed  to  call  the  names  of  gentlemen  whose  rights  to  seats  are  not 
disputed  or  contested;  and,  after  the  names  of  such  Members  are  called,  and  before  the  Speaker  is 
elected,  they  shall,  provided  there  be  a  quorum  of  such  present,  then  hear  and  adjudge  upon  the  elec- 
tions, returns,  or  qualifications  of  all  claimants,  Mr.  Naylorand  Mr.  Ingersoll  excepted,  to  the  seats 
contested  on  this  floor. 

This  resolution  being  divided,  the  portion  to  and  including  the  word  "con- 
tested" was  agreed  to  without  a  call  of  the  roll.  The  second  portion  was  then 
agreed  to,  yeas  138,  nays  92. 

On  December  12  the  roll  was  called  in  pursuance  of  this  order,  and  at  the  con- 
clusion of  the  roll  call  Mr.  Randolph,  of  New  Jersey,  read  in  liis  place  a  paper  pur- 
porting to  be  a  protest,  signed  by  the  five  gentlemen  commissioned  by  the  governor 
of  New  Jersey,  against  the  course  adopted  by  the  House  in  relation  to  their  claim 
to  be  Members  of  the  House.     This  paper  set  forth — 

That  the  determination  of  the  State  authorities,  authenticated  in  the  manner  prescribed  by  the 
State  laws,  is  the  only  evidence  of  the  election  of  Members  of  the  House  of  Representatives  which  can 
be  received  prior  to  the  organization  of  the  House,  and  is  final  and  conclusive  until  reversed  by  the 
House  itself,  duly  organized. 

That  no  one  who  can  not  produce  the  evidence  of  his  election,  prescribed  by  the  laws  of  his  State, 
is  entitled  to  take  a  seat  in  the  House  of  Representatives;  and  no  one  who  does  produce  such  evidence 
can  be  excluded  before  an  investigation  by  the  House,  without  a  gross  violation  of  the  Constitution  of 
the  United  States  and  the  rights  of  the  States  themselves. 

That  the  House  of  Representatives  can  not  be  constitutionally  organized,  nor  a  quorum  formed, 
until  all  the  States  of  the  Union  have  had  an  opportunity  to  appear  by  all  their  representatives;  and 
that  a  constitutional  quorum  is  not  merely  a  majority  of  the  Representatives  elect  after  the  arbitrary 
c-icclusion  of  other  Members,  on  any  pretext  whatever,  but  a  majority  of  all  the  Members  from  all  the 
States,  after  each  State  has  had  an  opportunity  to  appear  by  her  Representatives,  and  to  constitute  a 
part  of  that  quorum. 

That  the  body  here  assembled,  having  no  judicial  powers,  possessing  no  means  for  sending  for 
persons  and  papers,  not  legally  authorized  to  examine  witnesses  under  oath,  and  expressly  forbidden  by 
law  to  go  into  the  consideration  of  any  business  before  the  House  is  organized,  and  the  oath  to  support 
the  Constitution  administered  to  its  Members,  can  not  exercise  the  highest  judicial  function  belong- 
ing to  the  House  ol  Representatives,  that  of  reviewing  and  reversing  the  decisions  of  the  State  authori- 
ties in  relation  to  their  own  elections;  and  that  its  only  power  is  to  require  the  persons  appearing  here 
as  Members  to  produce  the  credentials  prescribed  by  the  laws  of  their  respective  States. 

That,  by  the  Constitution  of  the  United  States,  each  State  has  the  power  to  prescribe  by  law  the 
time,  place,  and  manner  of  holding  elections  for  its  own  Representatives  in  Congress,  which  power 
includes  the  right  of  prescribing  the  time,  place,  and  manner  of  ascertaining  and  making  known  the 
result  to  C<jngress  and  the  world. 


§   103       PROCEDURE    AND   POWERS    OF   MEMBERS-ELECT   IN    ORGANIZATION.         73 

Therefore  the  protestants  held  that  the  failure  of  the  House  to  recognize  their 
credentials  was  an  outrage  on  the  rights  of  their  State  and  a  violation  of  the  Consti- 
tution of  the  United  States. 

Mr.  Randolph  moved  that  the  protest  be  spread  on  the  Journal,  and  on  this 
question  there  appeared  yeas  114,  nays  117. 

Mr.  George  C.  Dromgoole,  of  Virginia,  then  submitted  the  following  resolution: 

Resolved,  That  a  select  committee,  to  consist  of  nine,  be  appointed,  viva  voce,  by  the  Members  of 
the  House,  to  whom  shall  be  referred  all  the  papere  in  the  possession  of  the  Clerk  relating  to  contests  for 
seats  on  this  floor  from  the  State  of  New  Jersey,  and  that  they  report  thereon. 

This  resolution  was  agreed  to,  yeas  123,  nays  104. 

Mr.  George  W.  Crabb,  of  Alabama,  then  moved  to  reconsider  the  vote,  the  point 
having  been  made  that  the  first  question  was  as  to  the  returns  and  not  as  to  the 
election.     By  general  consent,  then,  the  House  reconsidered  the  vote. 

Thereupon,  Mr.  Henry  A.  Wise,  of  Virginia,  offered  the  following: 

Resolved,  That  the  credentials  of  the  following  Members:  John  B.  Aycrigg,  John  P.  B.  Maxwell, 
William  Halstead,  Charles  C.  Stratton,  and  Thomas  Jones  Yorke,  are  sufficient  to  entitle  them  to  take 
their  seats  in  the  House,  leaving  the  question  of  contested  election  to  be  afterwards  decided  by  the  House. 

The  vote  on  this  resolution  was  taken  by  yeas  and  nays,  and  there  were  yeas 
(the  Chairman  voting  with  the  veas)  117,  nays  117.  The  House  being  equalh- 
divided,  the  question  was  lost. 

A  motion  was  then  made  by  Mr.  Smith,  of  Maine,  that  the  House  do  come  to 
the  following  resolution: 

Resolved,  That  this  House  proceed  at  this  time  to  the  election  of  a  Speaker. 

Mr.  Wise  raised  the  question  of  order  that  it  was  not  in  order  to  proceed  to  the 
election  of  a  Speaker,  since  by  the  terms  of  the  resolution  moved  by  Mr.  Rhett  the 
House  had  decided  to  proceed  with  the  contested  cases  before  the  election  of  a 
Speaker. 

The  Chairman  decided  that,  while  the  resolution  moved  by  Mr.  Rhett  was  in 
full  force,  the  resolution  proposed  by  Mr.  Smith  was  still  in  order. 

After  an  appeal,  which  was  subsequently  withdrawn,  and  several  roll  calls  on 
incidental  questions,  the  question  was  taken  on  Mr.  Smith's  resolution,  and  it  was 
agreed  to,  yeas  118,  nays  110. 

Then  followed  several  ineffectual  attempts  to  settle  the  status  of  the  five  gentle- 
men having  certificates  from  the  governor  of  New  Jersey  as  to  the  vote  for  Speaker. 
A  resolution  presented  by  Mr.  John  White,  of  Kentucky,  that  they  were  entitled  to 
vote  in  the  organization  until  excluded  by  a  majority  of  uncontested  votes,  was  laid 
on  the  table,  yeas  119,  nays  115. 

Finally,  on  December  14,  the  House  proceeded  viva  voce  to  the  election  of  a 
Speaker,  and  while  the  first  vote  was  being  taken  Thomas  Jones  Yorke,  John  B. 
Aycrigg,  William  Halstead,  Jolm  P.  B.  Maxwell,  and  Charles  C.  Stratton,  commis- 
sioned by  the  governor  of  New  Jersey  as  Members  from  that  State,  severally  and 
respectively,  rose  in  their  places,  exhibited  their  commissions,  and  demanded  that 
their  votes  for  Speaker  be  received ;  and  each  of  them  announced  his  vote  for  John 
Bell. 


74  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   104 

The  vote  was  then  reported  by  the  tellers,  but  before  the  result  was  announced 
Mr.  Wise  inquired  of  the  tellers  if  the  votes  of  the  New  Jersey  Members  who  had 
claimed  to  vote  had  been  received. 

The  tellers  answered  the  inquiry  in  the  negative. 

There  was  no  choice  on  this  vote,  and  the  voting  was  continued  until  December 
16,  when,  on  the  eleventh  vote,  Robert  M.  T.  Hunter,  of  Virginia,  had  119  votes,  a 
majority,  and  was  elected  Speaker. 

104.  At  the  beginning  of  each,  session  the  House  fixes  by  resolution 
the  daily  hour  of  meeting. — On  December  6,  18r>9/  before  the  election  of  a 
Speaker,  Mr.  Sherrard  Clemens,  of  Virginia,  by  unanimous  consent,  offered  this 
resolution,  which  was  agreed  to: 

Resolved,  That  the  daily  session  of  this  House  shall  be  at  12  o'clock  meridian. 

105.  On  December  4,  1855,^  on  the  fir.st  day  of  the  session,  and  when  the  House 
was  about  to  adjourn  after  several  unsuccessful  trials  to  elect  a  Speaker,  Mr.  George 
W.  Jones,  of  Tennessee,  offered  the  following,  which  was  agreed  to: 

Ordered,  That  the  daily  hour  of  meeting  be  fixed  at  12  o'clock  m.  untU  otherwise  ordered. 

106.  On  December  3  1860,^  at  the  beginning  of  a  second  session,  the  House 
adopted  an  order  fixing  the  hour  of  daily  meeting,  as  was  done  at  the  first  session. 

107.  On  December  6,  1886,*  at  the  opening  of  the  second  session  of  the  Con- 
gress, Mr.  William  S.  Holman,  of  Indiana,  offered  and  the  House  agreed  to  the  reso- 
lution establishing  the  hour  of  meeting  of  the  House  at  12  o'clock  noon. 

108.  On  December  5,  1892,'  at  the  beginning  of  the  second  session,  the  House 
adopted  the  resolution  fixing  the  hour  of  daily  meeting  until  otherwise  ordered. 

109.  On  December  1,  1902,"  at  the  opening  of  the  second  session  of  the  Con- 
gress, Mr.  John  Dalzell,  of  Pennsylvania,  presented  the  following  resolution,  which 
was  agreed  to: 

Resolved,  That  until  otherwise  ordered  the  hour  of  daily  meeting  of  the  House  of  Representatives 
shall  be  12  o'clock  meridian.' 

110.  In  the  early  practice  a  motion  to  change  the  hour  of  daily  meet- 
ing was  made  at  any  time,  but  as  the  order  of  business  grew  more  rigid 
the  motion  lost  its  privilege. — It  was  the  custom  in  the  early  days  to  agree  to  a 
resolution  or  order  on  the  first  day  of  a  Congress  fixing  the  "hour  to  which  the 
House  shall  stand  adjourned,"  and  then  on  motion  during  the  session  as  circum- 
stances required  the  hour  would  be  changed.*  In  those  days  the  necessity  of 
making  certain  motions  privileged  had  not  been  felt,  and  this  motion,  like  most 
other  motions,  was  offered  when  a  gentleman  got  the  floor. 

'  First  session  Thirty-sixth  Congress,  Journal,  p.  11;  Globe,  p.  16. 

^ First  session  Thirty-fotirth  Congress,  Journal,  p.  18;  Globe,  p.  4. 

'Second  session  Thirty-sixth  Congress,  Journal,  p.  8. 

*  Second  session  Forty-ninth  Congress,  Journal,  p.  10;  Record,  p.  14. 

^Second  session  Fifty-second  Congress,  Journal,  p.  5. 

^Second  session  Fifty-seventh  Congress,  Journal,  p.  6;  Record,  p.  4. 

'A  similar  resolution  was  agreed  to  in  the  Senate.     Record,  p.  1. 

'First  session  Sixteenth  Congress,  Journal,  pp.  3,  364,  418  (Gales  and  Seaton  ed.). 


§  111       PROCEDURE    AND   POWERS    OF   MEMBERS-ELECT   IN   ORGANIZATION.         75 

111.  On  Mai'ch  28,  1834,^  the  following  resolution  was  moved  and  agreed  to, 
apparently  without  a  motion  for  imanimous  consent  or  to  suspend  the  rules : 

Resolved,  That  11  o'clock  a.  m.  shall  be  the  hour  to  which  this  House  shall  stand  adjourned  until 
otherwise  ordered. 

112.  On  January  14,  1835,^  Mr.  Patrick  H.  Pope,  of  Kentucky,  apparently  by 
unanimous  consent,  submitted  and  the  House  agreed  to  a  resolution  changing  the 
hour  of  daily  meeting  of  the  House  from  12  to  11  o'clock  a.  m. 

113.  On  March  1.5,  183G,^  Mr.  John  Bell,  of  Tennessee,  asked  unanimous  con- 
sent for  the  consideration  of  a  resolution  changing  the  hour  of  the  daily  meeting 
of  the  House.  Objection  being  made,  he  moved  the  suspension  of  the  rules,''  and 
the  rules  being  suspended  for  the  purpose,  the  resolution  was  considered. 

114.  On  June  9,  1840,^  Mr.  Seaborn  Jones,  of  Georgia,  moved  that  when  the 
House  adjourns  this  day  it  adjourn  to  meet  at  10  o'clock  to-morrow  morning. 

Mr.  Joseph  R.  Ingersoll,  of  Pennsj'lvania,  raised  the  question  of  order  that, 
as  the  hour  for  the  meeting  of  the  House  was  fixed  by  a  standing  order  of  the  House, 
it  was  not  in  order  to  entertain  a  motion  to  change  the  same  at  any  time  except 
when  resolutions  were  in  order.^ 

The  Speaker '  stated  that,  although  the  forty-seventh  rule  of  the  House 
proAaded  that  "a  motion  to  fix  the  day  to  wliich  the  House  shall  adjourn  shall 
always  be  in  order,"  it  did  not  follow  that  a  motion  to  change  the  hour  already 
fixed  by  the  House  was  alwaj'S  in  order;  and  he  therefore  sustained  the  question 
of  order  raised  by  Mr.  Ingersoll  and  decided  that  the  motion  of  Mr.  Jones  was  not 
in  order. 

Mr.  Jones  having  appealed,  the  decision  of  the  Chair  was  sustained. 

115.  On  January  8,  1845,*  Mr.  Jacob  Thompson,  of  Mississippi,  moved  the 
following  resolution: 

Resolved,  That  from  and  after  this  day  the  regular  hour  for  the  meeting  of  this  House  shall  be  11 
o'clock  a.  m. 

While  a  motion  to  amend  tliis  resolution  was  pending,  Mr.  Isaac  E.  Holmes,  of 
South  Carolina,  moved  that  the  House  adjourn. 

'  First  session  Twenty-third  Congress,  Journal,  p.  459. 

-  Second  session  Twenty-third  Congress,  Journal,  p.  217;  Debates,  p.  988. 

'First  session  Twenty-fourth  Congress,  Journal,  p.  515;  Debates,  p.  2779. 

*  The  resolution  fixing  the  daily  hour  to  which  the  House  shall  stand  adjourned  does  not  seem 
to  have  been  considered  in  the  light  of  one  of  the  rules  of  the  House.  Thus,  on  May  3, 1828,  a  resolution 
to  change  the  hour  to  10  a.  m.  was  moved  and  at  once  considered.  But  a  motion  to  amend  it  by  insert- 
ing a  provision  that  it  should  not  be  in  order  to  move  an  adjournment  before  5  p.m.  was  ruled  out,  on 
the  ground  that  it  would  be  a  change  of  rule,  which  could  not  be  made  except  after  one  day's  notice, 
the  rules  so  providing.  (First  session  Twentieth  Congress,  Journal,  pp.  673,  674.)  The  Houi>e  quite 
often  changed  the  hoiu:  of  its  daily  meeting.  Thus  on  March  5,  1828.  (First  session  Twentieth  Con- 
gress, Journal,  p.  379.) 

*  First  session  Twenty-ninth  Congress,  Journal,  p.  933;  Globe,  p.  950. 

^  The  rule  providing  for  the  introduction  of  resolutions  has  been  changed  since  then. 

'John  W.  Davis,  of  Indiana,  Speaker. 

'Second  session  Twenty-eighth  Congress,  Journal,  p.  186;  Globe,  p.  113. 


76  PRECEDENTS   OF   THE    HOUSE   OF    REPRESENTATIVES.  §  H^ 

Mr.  William  J.  Brown,  of  Indiana,  moved  that  when  the  House  adjourn  to-day 
it  adjourn  to  meet  at  11  o'clock  to-morrow. 

Mr.  John  White,  of  Kentucky,  raised  the  question  of  order  that,  although 
under  the  forty-eighth  rule  a  motion  to  fix  a  different  day  from  that  to  which  the 
House  would  adjourn  took  precedence  of  a  motion  to  adjom-n,  a  motion  to  fix  a 
different  hour  was  not  contemplated  by  the  rule  and  did  not  take  such  precedence. 

The  Speaker '  decided  in  favor  of  the  question  raised  by  Mr.  White,  and  the 
House  acquiesced  in  the  decision. 

116.  The  resolution  of  the  House  fixing  the  hour  of  daily  meeting  is 
a  standing  order  rather  than  a  rule. — On  April  21,  1880,-  Mr.  John  T.  Harris, 
of  Virginia,  raised  a  question  of  order  as  to  the  following  resolution,  which  he  had 
offered  as  privileged: 

Resolved,  That  on  and  after  Wednesday  next,  until  otherwise  ordered,  the  hour  of  daily  meeting  of 
the  House  be  11  o'clock  a.  m. 

Debate  arising  as  to  the  nature  of  the  resolution,  the  then  existing  rule  was 
quoted  as  follows: 

No  standing  rule  or  order  of  the  House  shall  be  rescinded  or  changed  without  one  day's  notice  of 
the  motion  therefor,  and  no  rule  shall  be  suspended  except  by  a  vote  of  two-thirds  of  the  Members 
present,  etc. 

The  Speaker  ^  said,  in  relation  to  the  resolution  to  change  the  hour  of  meeting: 

The  Chair  thinks  that  this  is  an  order  of  the  House  and  not  a  rule.  The  latter  part  of  the  rule 
applies  to  a  suspension  of  the  rules  by  a  two-thirds  vote,  Init  that  part  of  the  nile  is  not  applicable  aa 
against  an  order  in  manner  as  provided  for  in  first  clause  of  the  rule  as  read. 

The  Speaker  therefore  held  that  the  resolution  was  included  under  the  first 
classification,  being  an  order  of  the  House  requiring  one  day's  notice,  and  that  the 
resolution  was  not  before  the  House. 

117.  On  April  21,  1884,^  Mr.  William  R.  Morrison,  of  Illinois,  claiming  the 
floor  for  a  privileged  report,  presented  the  following  from  the  Committee  on  Ways 
and  Means: 

Resolved,  That  on  and  after  April  22,  1884,  the  hour  of  daily  meeting  of  the  House  for  this  session 
be  11  o'clock  a.  m. 

Mr.  John  A.  Kasson,  of  Iowa,  asked  if  this  was  privileged. 
The  Speaker '  said : 

The  Chair  will  state  that  this  is  not  a  rule  of  the  House  which  it  is  now  proposed  to  change.  The 
rules  of  the  House  do  not  fix  the  time  of  meeting,  but  the  House  by  resolution  at  the  beginning  of  the 
session  provided  that  the  daily  session  should  begin  at  12  o'clock  until  otherwise  ordered. 

118.  The  Senate  having  assembled  and  there  being  no  presiding  oflB.- 
cer,  by  mutual  consent  one  of  the  older  Members  took  the  chair. 

'  John  W.  Jones,  of  Virginia,  Speaker. 

-  Second  session  Forty-sixth  Congress,  Journal,  p.  2612. 

^Samuel  J.  Randall,  of  Pennsylvania,  Speaker. 

*  First  session  Forty-eightli  Congress,  Record,  p.  3184. 

^  John  G.  Carlisle,  of  Kentucky,  Speaker. 


§   118       PROCEDURE    AND    POWERS    OF   MEMBERS-ELECT    IN    ORGANIZATION.         77 

The  Senate,  following  the  act  of  1789,  declined  to  administer  the  oath 
to  Members-elect  until  it  had  chosen  a  President  pro  tempore,  although  a 
precedent  for  the  proposed  action  was  cited. 

Argument  that  the  law  of  1789  as  to  organization  of  House  and  Sen- 
ate by  administration  of  the  oath  to  Members-elect  is  directory  merely. 

On  Monday,  October  10, 1881,'  the  Senate  assembled  in  special  session,  convened 
by  proclamation  of  the  President,  who  as  vice-President  had  succeeded  to  the  Presi- 
dency on  the  death  of  President  Garfield,  on  September  19.  When  the  Senate  had 
met  on  March  4,  1881,  it  had  been  evenly  divided  politically,  its  committees  having 
been  organized  by  the  casting  vote  of  the  Vice-President.  No  President  pro  tem- 
pore had  been  chosen;  therefore  when  the  Senate  met  this  day  there  was  no  pre- 
siding officer. 

Mr.  Isham  G.  Harris,  of  Tennessee,  rising  after  the  prayer  of  the  Chaplain,  stated 
that  he  had  been  requested  by  a  niunber  of  Senators  on  both  sides  of  the  Chamber 
to  call  the  Senate  to  order.  He  stated  that  if  there  was  no  objection  he  would  do 
so,  in  order  that  they  might  proceed  with  business.  There  being  no  objection, 
Mr.  Harris  took  the  chair. 

The  proclamation  of  the  President  was  then  read. 

Thereupon  Mr.  George  H.  Pendleton,  of  Ohio,  offered  a  resolution  that  Thomas 
F.  Bayard,  of  Delaware,  be  chosen  President  pro  tempore. 

Mr.  George  F.  Edmimds,  of  Vermont,  here  presented  the  credentials  of  Messrs. 
Warner  Miller  and  E.  G.  Lapham  as  Senators-elect  from  the  State  of  New  York, 
vice  Messrs.  Roscoe  Conkling  and  Thomas  C.  Piatt,  resigned;  and  Mr.  Nelson  W. 
Aldrich,  of  Rhode  Island,  vice  Ambrose  E.  Bumside,  deceased.  Mr.  Edmunds 
declared  that  imder  the  seventh  rule  of  the  Senate  the  presentation  of  credentials 
was  always  in  order  except  during  certain  business,  such  as  reading  of  the  Journal, 
etc. 

The  credentials  having  been  presented,  Mr.  Edmimds  moved  that  the  oath  be 
administered  to  them  by  Mr.  Henry  B.  Anthony,  the  oldest  member  of  the  Senate 
in  continuous  service. 

On  motion  of  Mr.  Pendleton,  this  motion  was  laid  on  the  table— yeas,  36  nays  34. 

Thereupon  Mr.  Edmunds  moved  as  a  substitute  for  the  resolution  of  Mr.  Pen- 
dleton a  proposition  that  the  credentials  be  placed  on  file,  and  that  the  oath  be 
administered  to  the  Senators-elect  by  Hon.  Henry  B.  Anthony. 

Mr.  Edmunds  said  he  had  heard  it  stated  that — 

the  law  of  Congress  requires  that  the  oath  of  office  of  a  Senator-elect  should  be  administered  by  the 
President  of  the  Senate,  either  the  Vice-President,  the  Constitutional  President  of  the  Senate,  or  the 
President  pro  tempore  acting  in  his  absence,  and  that  this  law  is  an  exclusive  law,  by  implication 
forbidding  any  other  administration  of  such  an  oath,  and  hence  that  it  is  impossible  legally  to  admit 
these  gentlemen  until  there  shall  be  a  President  pro  tempore  who  can  fulfill  the  statute  and  administer 
the  oath. 

Mr.  Edmunds  thereupon  called  attention  to  the  fact  that  the  act  of  1789  was 
passed  by  a  Senate  and  signed  by  a  President  pro  tempore,  not  one  of  whom  had 
taken  the  oath  prescribed  by  the  Constitution. 

'  Special  session  of  Senate,  Forty-seventh  Congre&s,  Record,  p.  505. 


78  PRECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §   119 

Therefore  Mr.  Edmunds  argued  that 

this  body  as  well  as  every  other  parliamentary  body  is  entitled,  when  the  just  exigency  of  the  case 
arises,  to  receive  members  who  otherwise  are  a  part  of  it,  and  to  act,  if  there  be  no  means  of  acting  other- 
wise, on  the  very  first  question  as  well  as  the  last  one  that  may  be  presented  to  the  body,  without  taking 
an  oath  at  all. 

Mr.  Edmunds  then  referred  to  the  Senate  precedent  of  March  4,  1853,  in  a 
similar  case,  when  it  was  ordered  that  "the  oath  required  by  the  Constitution  be 
administered"  by  Hon.  Lewis  Cass,  the  oldest  member  of  the  Senate.  After  that 
had  been  done,  a  President  pro  tempore  was  elected.  Mr.  Edmunds  argued  that 
the  Senators  of  1853  viewed  the  act  of  1789  as  a 

directory  provision  for  the  convenient  and  orderly  administration  of  the  Government,  which  the  two 
Houses  of  Congress  were  expected  to  follow,  unless  the  absence  of  the  convenient  means  of  following  it 
would  put  them  back  upon  their  own  inherent  powers.  I  need  not  tell  my  honorable  friend  from  Ohio, 
and  I  need  not  read  to  him  the  authority  to  show  it,  that  by  the  ancient  constitution  of  all  parliamentary 
bodies  the  power  to  administer  oaths  respecting  their  own  proceedings  (I  limit  it  to  that,  of  course)  is 
inherent,  and  part  of  their  power  and  existence  as  a  body. 

Mr.  Augustus  H.  Garland,  of  Arkansas,  admitted  that  by  unanimous  consent 
the  course  urged  by  Mr.  Edmunds  might  be  followed;  but  the  law  of  1789  and 
Rule  63  of  the  Senate  that  the  oath  "required  by  the  Constitution  and  prescribed 
by  the  act  of  June  1,  1789,  shall  be  taken  in  open  Senate,"  etc.,  constituted  a  rule 
which  the  Senate  should  follow,  and  the  act  of  1789  required  that  the  "President 
of  the  Senate  for  the  time  being"  should  administer  the  oath. 

Mr.  Edmunds's  amendment  was  rejected — yeas  33  nays  34 — and  a  President 
pro  tempore  was  elected  before  the  oath  was  administered.^ 

119.  Form  and  history  of  the  rule  for  the  drawing  of  seats  by  Mem- 
bers (Rule  XXXII,  sees.  1  and  2). — The  drawing  of  seats  by  the  Members 
is  provided  for  by  the  rule  of  the  House  No.  32: 

1.  At  the  commencement  of  each  Congress,  immediately  after  the  Members  and  Delegates  are 
sworn  in,  the  Clerk  shall  place  in  a  box,  prepared  for  that  purpose,  a  number  of  small  balls,  of  marble 
or  other  material,  equal  to  the  number  of  Members  and  Delegates,  which  balls  shall  be  consecutively 
numbered  and  thoroughly  inteiiningled,  and  at  such  hour  as  shall  be  fixed  by  the  House  for  that  pur- 
pose, by  the  hands  of  a  page,  draw  said  balls  one  by  one  from  the  box  and  announce  the  number  as  it 
is  drawn,  upon  which  announcement  the  Member  or  Delegate  whose  name  on  a  numbered  alphabetical 
list  shall  correspond  with  the  number  on  the  ball  shall  advance  and  choose  his  seat  for  the  term  for 
which  he  is  elected. 

2.  Before  said  drawing  shall  commence  each  seat  shall  be  vacated  and  so  remain  until  selected 
under  this  rule,  and  any  seat  having  been  selected  shall  be  deemed  forfeited  if  left  unoccupied  before 
the  call  of  the  roll  is  finished,  and  whenever  the  seats  of  Members  and  Delegates  shall  have  been  drawn 
no  proposition  for  a  second  drawing  shall  be  in  order  during  that  Congress. 

In  the  early  years  of  the  House  seats  were  evidently  selected  by  Members  in 
accordance  with  a  system  of  mutual  agreement.  On  February  16,  1826,^  Mr. 
Robert  Taylor,  of  Virginia,  proposed  a  rule  that  the  seats  be  numbered,  and  that 
on  the  first  or  second  day  of  each  session  Members  should  select  their  seats  by 
drawing  pieces  of  paper  bearing  those  numbers.     This  proposition  was  laid  on  the 

'  Special  session  Forty-seventh  Congress,  Record,  pp.  505-509. 
^  First  session  Nineteenth  Congress,  Journal,  pp.  263,  265. 


§   120       PROCEDURE    AND    POWERS    OF    MEMBERS-ELECT   IN    ORGANIZATION.         79 

table.  On  July  2,  1838,'  the  House  agreed  to  a  resolution  that  in  the  new  arrange- 
ment of  the  Hall  which  was  to  be  made  the  Members  should  be  entitled,  as  nearly 
as  possible,  to  the  same  relative  positions  which  they  then  held.  A  proposition  by 
Mr.  Horace  Everett,  of  Vermont,  that  seats  be  drawn  by  lot  was  not  considered 
seriously.  On  June  1,  1841,'  an  effort  was  made  to  establish  a  permanent  rule 
providing  for  drawing  of  seats  bj^  lot.  It  was  urged  that  Members  living  near  the 
seat  of  Government  obtained  an  undue  advantage  of  others  by  making  early  choices. 
The  rule  was  not  adopted.  On  December  8,  1841,^  the  House  was  called  on  to 
decide  wliich  of  two  Members  was  entitled  to  a  certain  seat,  one  Member  having 
attempted  to  transfer  it  to  another.  Finally,  on  J)ecember  1,  1845,*  Mr.  Howell 
Cobb,  of  Georgia,  proposed  to  remedy  the  unfairness  of  the  old  method  of  selection 
by  having  a  drawing  by  lot.  This  was  agreed  to,  and  on  December  4,  seats  were 
drawn  for  the  first  time. 

From  1845  until  1880  seats  were  drawn  in  accordance  with  a  resolution  adopted 
on  each  occasion.  At  the  time  of  the  revision  of  1880  the  Committee  on  Rules 
reported  a  plan  for  having  the  names  of  Members  WTitten  on  slips  of  paper,  wliich 
were  to  be  drawTi  from  a  box  by  the  Clerk.  But  Mr.  Walter  L.  Steele,  of  North 
Carohna,  having  recited  an  instance  in  the  House  where  such  a  plan  had  not  proved 
satisfactory',  offered  as  an  amendment  the  present  form  of  section  1.^  The  amend- 
ment was  adopted. 

Section  2  is  in  the  form  reported  in  the  revision  of  the  Forty-sixth  Congress." 
It  was  in  form  a  new  rule,  although  a  portion  of  it  comes  from  Rule  163  of  the  old 
rules  of  the  House,  which  provided: 

Whenever  the  seatsof  Members  shall  have  been  drawn,  no  propositionshall  be  in  order  fora  second 
drawing  during  the  same  Congress. 

This  restriction  dates  from  February  8,  1872,'  when  it  was  proposed  by  Mr. 
Samuel  S.  Cox,  of  New  York,  to  prevent  obstruction  of  the  public  business  by  the 
presentation  of  resolutions  for  new  drawings  of  seats.* 

120.  At  the  time  of  the  organization  of  the  House  the  motion  relat- 
ing to  the  drawing  of  seats  is  privileged. — On  December  .j,  185()/'  a  resolu- 
tion for  the  drawing  of  seats  at  the  beginning  of  a  session  was  offered  and  admitted 
as  a  question  of  privilege. 

'  Second  session  Twenty-fifth  Congress,  Journal,  p.  1207;  Globe,  p.  489. 

-  First  session  Twenty-seventh  Congress,  Journal,  pp.  20,  21,  34;  Globe,  pp.  9,  10. 

^Second  session  Twenty-seventh  Congress,  Journal,  pp.  27,  28;  Globe,  p.  9. 

■•  First  session  Twenty-ninth  Congress,  Journal,  pp.  13,  55;  Globe,  p.  4. 

*See  Congressional  Record,  second  session  Forty-sixth  Congress,  p.  1204. 

^  Congressional  Record,  second  session  Forty-sixth  Congress,  p.  207. 

'  Congressional  Globe,  second  session  Forty-second  Congress,  pp.  831,  904. 

*  Speaking  in  the  House  on  March  3,  1880  (second  session  Forty-sixth  Congress,  Record,  p.  1283), 
Mr.  .-Uexander  H.  Stephens,  of  Georgia,  indicated  that  the  Members  of  the  Whig  party  used  to  select 
seats  in  the  portion  of  the  Hall  to  the  left  of  the  Speaker,  where  members  of  the  Republican  party  now 
sit,  while  Members  of  the  Democratic  party  then  as  now  selected  seats  on  the  side  to  the  right  of  the 
Speaker.     Members  of  third  parties  usually  sit  with  the  minority. 

'  Third  session  Thirty-fourth  Congress,  Joiu-nal,  p.  59. 


80  PRECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §  121 

121.  Precedents  as  to  drawing  of  seats  where  a  large  portion  of 
the  majority  is  to  be  accommodated  on  the  minority  side  of  the  main 
aisle. — On  December  4,  1905,'  at  the  organization  of  the  House,  a  question  arose 
as  to  the  selection  of  seats,  and  Mr.  James  A.  Tawney,  of  Minnesota,  asked  and 
received  unanimous  consent  for  agreement  to  the  following: 

That  in  selecting  seats  the  precedents  of  the  Fifty-second  and  Fifty-fourth  Congresses  be  followed 
whereby  the  section  of  seats  next  the  main  aisle  on  the  minority  side  were  given  to  the  majority  side, 
leaving  any  further  excess  of  majority  Members  to  be  accommodated  in  the  seats  on  the  extreme  left  of 
the  minority  side. 

Mr.  Tawney  in  debate  referred  to  the  precedents  in  the  Fifty-second  -  and 
Fifty-fourth  ^  Congresses. 

122.  Before  an  organization  of  the  House  has  been  effected  the  Sen- 
ate has  not  usually  proceeded  to  general  legislation. 

In  the  earlier  practice  of  the  House  the  Senate  was  notified  of  the  elec- 
tion of  Speaker,  but  not  of  that  of  other  officers. 

In  1839  *  the  House  met  in  the  first  session  on  December  2,  but  the  organization 
was  not  completed  until  December  21.  On  that  day,  the  Speaker  having  been 
elected,  the  rules  adopted,  and  the  Clerk  and  Sergeant-at-Arms  elected — which 
steps  occurred  in  the  order  enumerated — a  message  was  sent  to  the  Senate  informing 
that  body  that  a  quorum  of  the  House  had  assembled,  that  Robert  M.  T.  Himter, 
of  Virginia,  had  been  elected  Speaker,  and  that  it  was  now  ready  to  proceed  to 
business.^  The  Doorkeeper  and  Postmaster  were  not  elected  until  the  day  after 
this  message  was  sent. 

On  December  23  a  message  was  received  from  the  Senate  informing  the  House 
that  the  Senate,  on  December  2,  formed  a  quorum,  and  was  ready  to  proceed  to 
business.  The  message  also  communicated  a  resolution  adopted  by  the  Senate  for 
appointing  the  customary  joint  committee  to  await  upon  the  President  and  inform 
him  that  the  two  Houses  were  ready  to  receive  any  coniinunication  from  liim.  The 
House  at  once  concurred  in  this. 

The  Senate  had  adopted  these  resolutions  on  December  2.  On  the  4th  Mr. 
Thomas  H.  Benton  said  that  he  understood  that,  as  the  other  branch  was  not 
organized,  it  would  not  be  proper  to  transact  legislative  business,  yet  he  thought 
some  resolutions  of  inquiry  might  be  adopted  in  order  to  obtain  a  basis  for  future 
action.  But,  on  the  succeeding  day,  doubts  as  to  the  propriety  of  this  being  raised, 
Mr.  Benton  decided  not  to  proceed. 

On  December  9  a  resolution  was  adopted  to  inform  the  President  that  a  quorum 
of  the  Senate  had  assembled,  and  that  they  were  ready  to  receive  any  communication 
of  an  executive  character  which  he  might  make. 

Thereafter,  until  the  organization  of  the  House  and  the  receipt  of  the  President's 
message,  the  Senate  transacted  no  business  but  executive  business,  not  even  bills 

'  First  session  Fifty-ninth  Congress,  Record,  pp.  43,  44. 
■^  First  session  Fifty-second  Congress,  Record,  pp.  9,  10. 
^  First  session  Fifty-fourth  Congress,  Record,  p.  6. 

^First  session  Twenty-sixth  Congress,  Journal,  pp.  79,  95-101;  Globe,  pp.  1-78. 
^  It  was  not  then  the  custom  to  transmit  to  the  Senate  information  as  to  the  election  of  other  officers 
than  the  Speaker. 


§   123       PROCEDUEE    AND    POWERS    OF    MEMBERS-ELECT    IN    ORGANIZATION.  81 

being  introduced.     Of  course  the  election  of  its  officers  and  appointment  of  its 
committees  occurred. 

123.  In  the  Thirty-first  Congi-ess  the  organization  of  the  House  was  delayed 
for  twenty  days  by  the  failure  to  elect  a  Speaker.  During  tliis  time  the  Senate  did 
no  general  legislative  business.  On  December  11,  1849,'  wliile  the  House  was  still 
unorganized.  Senator  Joseph  R.  Underwood,  of  Kentucky,  gave  notice  of  his  inten- 
tion to  introduce  a  bill. 

A  question  being  raised,  and  the  opinion  of  the  Vice-President  ^  being  asked,  he 
said  that  the  impression  of  the  Chair  was  that  no  proceeding  connected  with  legisla- 
tive business  could  be  had  until  both  Houses  were  organized.  As  notice  of  the 
introduction  of  a  bill  was  a  necessary  antecedent  step  to  the  introduction  of  a  bill,  and 
one  which  related  to  the  business  of  legislation,  in  the  opinion  of  the  Chair  it  was  not 
now  in  order  to  give  such  notice. 

On  December  15  the  Senate  adopted  a  resolution  appointing  a  committee  to  wait 
on  the  President  and  inform  liim  that  the  Senate  was  organized  and  ready  to  receive 
any  communication  he  might  tliink  proper  ' '  in  relation  to  matters  which  are  within 
the  sphere  of  their  separate  constitutional  action."  Mr.  Henry  Clay  approved  this, 
saying  that  it  was  in  accordance  to  precedent,  and  did  not  seem  wanting  in  courtesy 
to  the  other  body. 

124.  In  the  session  of  1855-56,'  while  the  House  was  unable  to  organize  because 
the  election  of  a  speaker  was  not  effected  until  February,  the  Senate  did  not  pro- 
ceed to  general  legislation,  but  on  December  4  notified  the  President  that  it  was 
ready  for  communications  of  an  executive  character;  on  December  31*  received  the 
annual  message  of  the  President  of  the  United  States;  organized  its  committees,  etc. 

125.  On  January  IS  and  19,  1860,^  while  the  House  was  endeavoring  to  elect 
a  Speaker,  the  Senate  debated  at  length  whether  or  not  it  might  proceed  to  genera 
legislative  business,  it  being  contended  on  the  one  hand  that  the  Congress  con- 
sisted of  an  organized  Senate  and  an  organized  House,  and  that  while  one  remained 
luiorganized  there  was  no  Congress.  On  the  other  hand,  it  was  contended  that 
the  Senate  might  proceed  with  business.  A  proposition  declaring  that  the  Senate 
might  not  proceed  to  legislative  business  until  the  House  should  be  organized  was 
laid  on  the  table,  and  then,  by  a  vote  of  45  yeas  to  7  nays,  the  Senate  voted  to 
allow  a  bill  to  be  referred  to  a  committee.  During  the  discussion  the  constitu- 
tional questions  and  the  precedents  were  examined  carefully. 

126.  At  the  beginning  of  a  second  session  of  a  Congress  the  House 
proceeded  to  business,  although  a  quorum  had  not  appeared  in  the  Senate. 

A  message  from  one  House  that  a  quorum  has  appeared  is  not  deliv- 
ered in  the  other  until  a  quorum  has  appeared  there  also. 

On  November  4, 1794,°  at  the  second  day's  session  of  the  second  session  of  the 

'  First  session  Thirty-first  Congress,  Globe,  pp.  15,  35,  36. 
^Millard  FUlmore,  of  New  York,  Vice-President. 
'First  session  Thirty-fourth  Congress,  Globe,  p.  4. 

*  Globe,  p.  107. 

*  First  session  Thirty-sixth  Congress,  Globe,  pp.  494,  517. 
"  Second  session  Third  Congress,  Annals,  p.  870. 

5994— VOL  1—07 6 


I 


82  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   126 

Third  Congress,  a  quorum  appeared,  and  a  message  announcing  that  fact  was 
sent  to  the  Senate. 

On  November  5  Mr.  Jonathan  Dayton,  of  New  Jersey,  said  he  saw  no  reason 
for  awaiting  the  attendance  of  a  quorum  in  the  Senate,  and  submitted  a  motion 
for  the  appointment  of  a  committee  to  examine  imfinished  business. 

Mr.  Benjamin  Goodhue,  of  Massachusetts,  objected  to  the  motion  as  improper, 
but  the  Speaker '  put  the  question  on  Mr.  Dayton's  motion. 

The  House  thereafter  proceeded  to  business,  no  ((uorvmi  of  the  Senate  appearing 
until  November  18,^  when  the  joint  committee  was  authorized  and  appointed  to 
notify  the  President  that  a  quorum  of  the  two  Houses  had  assembled. 

The  Journal  indicates  that  no  message  was  sent  to  the  Senate  until  the  quorum 
had  appeared,  excepting  the  message  of  November  4.  That  message  was  not 
delivered  in  the  Senate  until  the  quonnn  had  appeared,  on  November  18.- 

'  Annals,  pp.  787,  890;  Journal,  pp.  232,  233  (Gales  and  Seaton  ed.). 
^Senate  Journal,  p.  120  (Gales  and  Seaton  ed.). 


I 


Chapter  V.* 


THE  OATH. 


1.  Provisions  of  the  Constitution  and  statutes.     Sections  127,  128.' 

2.  Form  of  at  organization  of  First  Congress.     Section  129. 

3.  Administration  to  the  Speaker.     Sections  130-133.- 

4.  Limited  discretion  of  the  Speaker  in  administering.     Sections  134-139.'' 

5.  Challenging  the  right  of  a  Member  to  be  sworn.     Sections  140-150.' 

6.  Disposal  of  cases  of  challenge.     Sections  151-159. 

7.  Delays  in  taking  the  oath.     Sections  160-161. 

8.  Administration  before  arrival  of  credentials.     Sections  162-168.' 

9.  Administration  to  Members  away  from  the  House.     Sections  169,  170. 

10.  Halations  to  the  quorum,  reading  of  the  Journal,  etc.     Sections  171-181. 

11.  Status  of  the  Member-elect  before  taking.     Sections  183-185." 

127.  Senators  and  Representatives  are  bound  by  oath,  or  affirmation 
to  support  the  Constitution.— Article  G  of  the  Constitution  provides: 

The  Senators  and  Representativea  before  mentioned,  and  the  members  of  the  several  State  legis- 
latures, and  all  executive  and  judicial  officers,  both  of  the  United  States  and  of  the  several  States,  shall 
be  bound  by  oath  or  affirmation  to  support  this  Constitution;  but  no  religious  test  shall  ever  be  required 
as  a  qualification  to  any  office  or  public  trust  under  the  United  States. 

128.  The  Member's  oath,  its  form,  and  the  constitutional  require- 
ment.—The  Constitution,  in  article  G,  j^rovides  that  "  the  Senators  and 
Representatives     *     *     *     shall  be  bound  hj  oath  or  affirmation,  to  support  this 

*  See  Volume  VI,  Chapter  CLII. 

'  The  iron-clad  oath.  (Sees.  449,  45.5  of  this  volume.)  Senate  declines  to  permit  administration 
of  the  oath  until  after  choice  of  a  President  pro  tempore.     (Sec.  118  of  this  volume.) 

2  See  also  sections  81,  232,  and  233  of  this  volume.  Oath  administered  to  Speaker  by  Member 
oldest  in  continuous  service.     (Sec.  220  of  this  volume.) 

^  The  Speaker  consults  the  House  as  to  administering  the  oath  in  doubtful  cases.  (Sees.  396,  519, 
520  of  this  volume.)  In  later  practice  oath  is  administered  to  Delegates.  (Sees.  400,  401  of  this  volume.) 
Right  of  a  contestant  to  be  sworn  is  complete  as  soon  as  his  case  is  decided  favorably.  (Sees.  622,  623 
of  this  volume.) 

*  The  procedure  in  challenging  the  right  of  Brigham  H.  Roberts  to  be  sworn.  (Sec.  474  of  this 
volume.) 

*  Instance  wherein  a  Member-elect  did  not  present  his  credentials  pending  a  contest.  (Sec.  44 
of  this  volume.) 

"  The  oath  as  related  to  qualifications.     (Chap.  XIV,  Sees.  441-463  of  this  volume.) 

83 


84 


PRECEDENTS    OF    THE    HOUSE    OF    EEPRESENTATIVES. 


§  129 


Constitution;"  and  the  statutes  direct  that  "at  the  first  session  of  Congress  after 
every  general  election  of  Representatives  the  oath  of  office  shall  be  administered 
by  any  Member  of  the  House  of  Representatives  to  the  Speaker ;  and  by  the  Speaker 
to  all  the  Members  and  Delegates  present,  and  to  the  Clerk,  previous  to  entering 
on  any  other  business;  and  to  the  Members  and  Delegates  who  afterwards  appear, 
previous  to  their  taking  their  seats."  ' 

The  oath  is  also  prescribed  by  the  statutes,''  in  the  following  form: 

I,  A  B,  do  solemnly  swear  (or  aflBrm)  that  I  will  support  and  defend  the  Constitution  of  the  United 
States  against  all  enemies,  foreign  and  domestic;  that  I  will  bear  true  faith  and  allegiance  to  the  same; 
that  I  take  this  obligation  freely,  without  any  mental  reservation  or  purpose  of  evasion,  and  that  I  will 
well  and  faithfully  discharge  the  duties  of  the  office  on  which  I  am  about  to  enter.     So  help  me  God. 

129.  At  the  organization  of  the  first  House  an  order  prescribed  the 
oath  to  be  taken  by  Members  until  a  law  should  be  enacted. 

Administration  of  oath  to  Members  and  Clerk  in  the  First  Congress. 
On  April  6,  1789,^  it  was,  on  motion — 

Resolved,  That  the  form  of  oath  to  be  taken  by  the  Members  of  this  House,  as  required  by  the  third 
clause  of  tlie  sixth  article  of  the  Constitution  of  Government  of  the  United  States,  be  as  followeth,  to  wit: 
"I,  A  B,  a  Representative  of  the  United  States  in  the  Congress  thereof,  do  solemly  swear  (or  affirm, 
as  the  case  may  be),  in  the  presence  of  Almighty  God,  that  I  will  support  the  Constitution  of  the  United 
States.     So  help  me  God." 

On  April  8,  in  accordance  with  an  order  adopted  on  the  previous  day,  the  chief 
justice  of  New  York  attended  and  administered  the  oath,  first  to  Mr.  Speaker  in  liis 
place,  and  then  to  the  Members.* 

On  April  6,  previous  to  adopting  the  form  of  oath,  leave  had  been  granted  to 
bring  in  a  bill  to  regulate  the  taking  the  oath.  This  was  the  first  bill  to  become  a  law, 
the  President  affixing  his  signature  June  1,  1789. '^ 

On  June  2  the  Speaker  administered  the  oath  required  by  the  act  to  Members 
who  had  not  taken  a  similar  oath,  and  to  the  Clerk.' 

130.  The  act  of  1789  provides  that  at  the  organization  of  the  House 
and  previous  to  entering  on  any  other  business  the  oath  shall  be  adminis- 
tered by  any  Member  to  the  Speaker  and  by  the  Speaker  to  the  other 
Members  and  the  Clerk. — Section  30  of  the  Revised  Statutes,  reenacting  the 
act  of  June  1,  1789,  provides: 

At  the  first  session  of  Congress  after  every  general  election  of  Representatives,  the  oath  of  office  shall 
be  administered  by  any  Member  of  the  House  of  Representatives  to  the  Speaker;  and  by  the  Speaker 

'  Revised  Statutes,  section  30. 

^Revised  Statutes,  section  1757.  The  requirements  of  section  1759  of  Revised  Statutes  in  regard 
to  the  preservations  of  the  oaths  are  not  observed  in  regard  to  Members  or  Delegates  or  the  elected  officers 
of  the  House.  In  the  Senate,  however,  the  practice  has  varied,  the  subscribing  of  the  oath  being  required 
at  times.     (First  session  Forty-eighth  Congress,  Record,  p.  171.) 

^  First  session  First  Congress,  Journal,  p.  7.     (Gales  and  Seaton  ed.") 

■•  Journal,  p.  11. 

^  Journal,  p.  43. 

^  Journal,  p.  44. 


§  131  THE    OATH.  85 

to  all  the  Members  and  Delegates  present,  and  to  the  Clerk,  previous  to  entering  on  any  other  business; 
and  to  the  Members  and  Delegates  who  afterward  appear,  previous  to  their  taking  their  seats.' 

131.  It  has  long  been  the  practice  for  the  Member  of  longest  con- 
tinuous service  to  administer  the  oath  to  the  Speaker. — On  December  22, 
1849,^  the  oath  was  administered  to  Speaker  Howell  Cobb  by  Mr.  Tiinn  Boyd,  of 
Kentucky,  the  oldest  Member.  The  Speaker  descended  from  liis  seat  to  lake  the 
oath.^ 

132.  On  December  5,  1853,*  the  oath  of  oiEce  was  administered  to  Mr.  Speaker 
Bovd  bv  ilr.  Joshua  R.  Giddings,  of  Oliio,  "  the  oldest  consecutive  Member  of  the 
House." 

133.  On  February  1,  1860,^  Mr.  John  S.  Phelps,  of  Missouri,  "  the  oldest  con- 
secutive Member  of  the  House,"  administered  the  oath  to  Mr.  Speaker  Pennington. 

134.  The  Speaker  possesses  no  arbitrary  power  in  the  administration 
of  the  oath,  and  if  there  be  objection  the  majority  of  the  House  must 
decide. — On  January  24.  1871."  Mr.  P.  M.  B.  Young,  of  Georgia,  presented  the 
credentials  of  Stephen  A.  Corker,  of  the  Fifth  Congressional  district  of  Georgia,  and 
asked  that  the  oath  be  administered  to  him. 

Mr.  Benjamin  F.  Butler,  of  Massachusetts,  objected  to  the  administration  of 
the  oath. 

Mr.  James  Brooks,  of  New  York,  made  the  point  of  order  that,  when  credentials 
in  regular  form  were  presented,  they  did  not  form  a  subject  of  discussion. 

The  Speaker '  said : 

In  the  organization  of  the  House  Members  who  have  credentials  from  the  governors  of  their  respective 
States  are  entered  upon  the  Clerk's  list,  and  no  man  is  prejudiced,  of  course.  The  House  is  organized 
upon  the  list  so  made  up.  But  gentlemen  coming  subsequently  are  sworn  in  by  the  Chair,  if  there  is 
no  objection.  The  Chair  administers  the  oath  in  cases  where  there  is  no  objection;  but  if  there  be 
objection,  of  course  it  is  a  matter  which  must  be  determined  by  the  majority  of  the  House.  The  Chair 
possesses  no  arbitrary  power  in  the  matter  whatever.  It  is  a  matter  which  must  be  determined  by  a 
majority  of  the  House.  If  it  were  pre\'ious  to  the  organization  of  the  House,  of  course  the  gentleman's 
credentials  would  be  entered  on  the  Clerk's  list  and  he  would  be  sworn  in  with  the  other  Members. 

'  1  Statutes  at  Large,  p.  23,  gives  the  form  of  oath  at  that  time  as  follows:  "I,  A  B,  do  solemnly 
swear  or  affirm  (as  the  case  may  be),  that  I  will  support  the  Constitution  of  the  United  States." 

On  January  21,  1884,  the  House  passed  the  bill  (H.  R.  3926)  repealing  the  act  of  July  2, 1862,  and 
such  sections  of  the  Re\'ised  Statutes  of  the  United  States  as  perpetuated  the  oath  prescrilied  in  that 
act.  This  was  the  repeal  of  the  "test  oath,"  so  called.  The  bill  became  a  law.  (First  session  Forty- 
eighth  Congress,  Journal,  pp.  375,  1233;  Record,  pp.  551, 1420.)  On  July  27,  1867  (first  session  Thirty- 
ninth  Congress,  Journal,  p.  1168;  Globe,  pp.  4267-4273),  the  House  laid  on  the  table  by  a  vote  of  87  to 
31  a  joint  resolution  of  the  Senate  for  the  purpose  of  allowing  David  T.  Patterson,  of  Tennessee,  to 
take  his  seat  in  the  Senate  without  taking  the  whole  of  the  test  oath  required  by  law. 

The  subject  of  subscribing  to  the  oath  by  Senators  and  Representatives  was  discussed  somewhat  in 
the  Senate  on  December  19,  1883,  when  a  rule  was  adopted  to  enforce  the  provisions  of  the  Statute.  It 
was  stated  in  the  debate  that  Senators  had  not  until  recently  subscribed  to  the  oaths.  (First  session 
Forty-eighth  Congress,  Record,  p.  171.) 

^  First  session  Thirty-first  Congress,  Globe,  p.  67. 

^  But  this  is  not  the  present  practice.     The  Speaker  stands  in  his  place  at  his  desk,  while  the  Member 
administering  the  oath  stands  in  the  area  in  front  of  the  Clerk's  desk. 

*  First  session  Thirty-third  Congress,  Globe,  p.  2. 

5  First  session  Thirty-sixth  Congress,  Journal,  p.  165;  Globe,  p.  655. 

*  Third  session  Forty-first  Congress,  Globe,  p.  703. 
'  James  G.  Blaine,  of  Maine,  Speaker. 


86 


PKECEDENTS   OF    THE    HOUSE   OF   REPRESENTATIVES. 


§135 


135.  If  a  Member  object  the  Speaker  does  not  administer  the  oath 
to  a  Member-elect  without  the  direction  of  the  House,  even  though  the 
credentials  be  regular  in  form. — On  September  10,  1850,^  Mr.  Linn  Boyd,  of 
Kentucky,  presented  the  credentials  of  Edward  Gilbert  and  George  W.  Wright, 
Member-elect  from  the  State  of  California.  Mr.  Boyd  stated  that  the  Members- 
elect  were  present  and  were  ready  to  take  the  usual  oath. 

Mr.  Abraham  W.  Venable,  of  North  Carolina,  objected  to  the  administration  of 
the  oath,  and  moved  that  the  credentials  be  referred  to  the  Committee  of  Elections. 

Mr.  James  Thompson,  of  Pennsylvania,  made  the  point  of  order  that  it  was  the 
duty  of  the  Speaker  to  administer  the  usual  oath  upon  the  presentation  of  their 
credentials. 

The  Speaker  ^  decided  that,  inasmuch  as  the  fifth  section  of  the  first  article  of 
the  Constitution  constituted  "each  House  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  Members,"  whenever  objection  was  made  it  was  the  duty 
of  the  House,  and  not  of  the  Speaker,  to  determine  whether  or  not  the  oath  should 
be  administered.     He  therefore  overruled  the  point  of  order. 

Mr.  Thompson  having  appealed,  the  appeal  was  laid  on  the  table. 

136.  On  July  3,  1867,^  after  the  organization  of  the  House,  the  credentials 
of  eight  Members  from  Kentucky  were  presented  and  the  gentlemen  presented 
themselves  to  be  sworn. 

Mr.  Robert  C.  Schenck,  of  Ohio,  at  this  point  presented  a  protest  against  the 
administration  of  the  oath  to  one  of  the  gentlemen,  Mr.  John  D.  Young,  on  the 
ground  that  he  had  been  disloyal  to  the  Government  during  the  war. 

Mr.  Charles  A.  Eldridge,  of  Wisconsin,  having  raised  a  question  of  order,  the 
Speaker^  said: 

The  Chair  rule.s,  in  accordance  with  the  uniform  usage  of  the  present  occupant  of  the  chair  and  of 
every  occupant  of  the  chair,  that  it  is  for  the  House  to  determine  what  action  it  will  take  when  a  gen- 
tleman, claiming  to  have  been  elected  a  Representative,  presents  himself  to  be  sworn.  It  is  for  the 
House  to  determine. 

Later  the  Speaker  referred,  in  support  of  his  ruling,  to  the  precedent  of  July  24, 
1866,  when  Mr.  William  B.  Stokes,  of  Tennessee,  was  challenged  when  he  appeared 
to  take  the  oath,  and  his  credentials  were  referred  to  the  Committee  on  Elections. 

137.  On  March  7,  1867,"  Mr.  William  E.  Niblack,  of  Indiana,  presented  the 
credentials  of  A.  B.  Greenwood,  claiming  a  seat  as  a  Member  from  Arkansas,  and 
moved  that  the  same  be  referred  to  the  Committee  on  Elections. 

Mr.  Thaddeus  Stevens,  of  Pennsylvania,  moved  that  the  credentials  be  laid  on 
the  table,  and  the  motion  was  agreed  to. 

A  question  being  made  as  to  whether  or  not  Mr.  Greenwood  might  not  be  sworn 
in  on  the  presentation  of  the  credentials,  the  Speaker  *  said  that  the  oath  would  not 
be  administered  if  there  was  objection,  and  that  objection  had  been  indicated  by 
the  motion  to  lay  on  the  table. 

'  First  session  Thirty-first  Congress,  Journal,  p.  1442;  Globe,  pp.  1789,  1790. 

^Howell  Cobb,  of  Cieorgia,  Speaker. 

'Fii'st  session  Fortieth  Congress,  Globe,  pp.  470,  471. 

*  Schuyler  Colfax,  of  Indiana,  Speaker. 

*  First  session  Fortieth  Congress,  Journal,  p.  21 ;  Globe,  p.  25. 


§  138  THE    OATH.  87 

138.  On  December  6, 1869,^  at  the  beginning  of  the  second  session  of  the  Con- 
gress, a  question  being  raised  as  to  the  administration  of  the  oath  to  certain 
Members,  Mr.  Speaker  Blaine  said : 

The  Chair  did  not  propose  to  administer  the  oath  to  any  gentleman  to  whose  admission  a  single 
Member  on  the  floor  might  make  objection.  The  usage  has  alwaj's  been,  when  there  was  no  objection, 
to  allow  a  Member  to  be  sworn  in  without  any  further  ceremony. 

139.  In  1866  the  Speaker  declined  to  administer  the  oath  to  persons 
whose  credentials  were  regular,  but  who  came  from  States  declared  by 
the  two  Houses  not  entitled  to  representation  at  the  time. — On  July  23, 
1866,^  Mr.  Lawrence  S.  Trimble,  of  Kentucky,  proposed,  as  a  question  of  privilege, 
that  the  oath  be  administered  to  Messrs.  N.  G.  Taylor,  J.  W.  Leftwich,  and  Edward 
Cooper,  Members-elect  from  the  State  of  Tennessee. 

The  Speaker  ^  said : 

The  Constitution  does  declare  that  each  House  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  Members;  but  the  House  of  Representatives  has  decided,  with  the  concurrence 
of  the  Senate,  that  certain  States,  not  represented  during  the  la-st  four  years  in  the  Congress  of  the  United 
States,  shall  not  be  entitled  to  representation  again  until  by  concunent  action  of  both  branches  they 
shall  be  declared  to  be  entitled  to  representation.  The  House  therefore  declared  it  had  no  constitu- 
tional right  so  to  judge.  The  Chair  overrules  the  demand  that  the  gentlemen  claiming  seats  from  Ten- 
nessee shall  be  sworn  in. 

Mr.  Trimble  having  appealed,  the  appeal  was  laid  on  the  table — yeas  119, 
nays  30. 

140.  The  Members-elect  having  denied  to  certain  of  their  number  a 
right  to  participate  in  the  organization,  the  Speaker  declined,  without 
instruction  of  the  House,  to  administer  the  oath  to  those  thus  debarred, 
although  they  presented  certificates  in  proper  form. 

In  1839  the  House  refused  to  direct  the  Speaker  to  administer  the 
oath  to  certain  persons  having  regular  credentials  as  Members-elect,  and 
as  organ  of  the  House  he  declined  to  administer  the  oath. 

In  1839  the  House  declined  to  adopt  rules  until  the  Members  had  been 
sworn  in  according  to  the  Constitution  and  law  of  1789. 

On  December  9,  1839,  at  the  organization  of  the  House,*  when  the  clerk,  in 
calling  the  roll,  had  reached  the  State  of  New  Jersey  and  had  called  the  name  of 
Mr.  Joseph  F.  Randolph,  he  paused  and  explained  that  as  to  the  other  five  members 
from  that  State  there  was  conflicting  evidence  as  to  who  were  entitled  to  the  seats. 
Messrs.  John  B.  Aycrigg,  John  P.  B.  Maxwell,  William  Halstead,  Charles  C.  Stratton, 
and  Thomas  J.  Yorke  had  certificates  from  the  governor  of  the  State.  On  the 
other  hand,  the  Clerk  had  in  his  possession  certificates  from  the  secretary  of  state  of 
New  Jersey  showing  that  Messrs.  Philemon  Dickcrson,  Peter  D.  Vroom,  Daniel  B. 
Ryal,  William  R.  Cooper,  and  Joseph  Kille  had  received  the  greatest  number  of 
votes.^     The  controversy  over  these  New  Jersey  seats  was  prolonged  until  December 

'  Second  session  Forty-first  Congress,  Globe,  p.  9. 

2 First  session  Thirty-ninth  Congress,  Journal,  pp.  1088,  1089;  Globe,  pp.  4055,  4056. 

^Schuyler  Colfax,  of  Indiana,  Speaker. 

^  First  session  Twenty-sixth  Congress,  Globe,  pp.  1,  30,  50,  48;  Journal,  p.  80. 

'  Section  31,  Revised  Statutes,  under  which  the  Clerk  is  now  directed  to  place  on  the  roll  such 
Members  as  have  credentials  showing  them  to  be  regularly  elected,  is  made  up  of  laws  passed  in  1863 
and  18G7,  dates  later  than  the  events  above  recorded. 


88  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   140 

16  before  a  Speaker  was  elected.  In  the  election  of  Speaker  the  contestants  on 
neither  side  voted,  the  other  Members  present  having  formally  voted  that  the  five 
holding  the  governor's  certificate  should  not  vote.  The  Speaker  having  delivered 
his  address  and  the  Journal  of  the  previous  session  having  been  read,  Mr.  George  C. 
Dromgoole,  of  Virginia,  moved  that  the  rules  of  the  last  House  be  adopted  as  the 
rules  of  the  present  House.  Mr.  Lewis  Williams,  of  North  Carolina,  moved  that 
this  motion  lie  on  the  table  until  the  "  Members  of  the  House  shall  have  been  sworn 
into  office,  as  required  by  the  Constitution,  and  by  the  act  of  June  1,  1789."'  This 
motion  was  carried  by  a  vote  of  117  j'eas  to  116  nays,  the  Speaker  voting  aye.  In 
the  debate  the  point  was  made  that  under  the  law  of  1789  the  oaths  should  be 
administered  to  Members  before  business  could  begin. 

The  oaths  having  been  administered  to  all  the  Members  and  Delegates,  the 
Speaker '  informed  the  House  ''  that  the  five  gentlemen  from  New  Jersey  holding 
the  governor's  certificate  had  presented  themselves  at  the  desk  and  demanded  to  be 
sworn  into  office.  The  Speaker  further  stated  that,  in  consequence  of  the  proceed- 
ings which  had  already  taken  place  in  relation  to  the  rights  of  these  gentlemen  to 
seats  in  this  House  and  which  were  to  be  found  in  the  Journals,  he  had  declined 
to  administer  to  them  the  oath  of  office,  although  his  own  opinion,  heretofore  expressed 
in  another  situation  that  they  were  entitled  to  qualify,  was  unchanged.  He  there- 
fore submitted  their  demand  to  be  sworn  to  the  House. 

Various  motions  having  been  submitted  and  withdrawn  during  several  days  of 
debate,  on  December  20  Mr.  George  Evans,  of  Maine,  finally  offered  the  following: 

Resolved,  That  the  Representatives  of  the  Twenty-sixth  Congress  of  the  United  States  now  present 
do  advise  and  request  the  Speaker  to  administer  the  oath  required  by  law  to  the  five  gentlemen  from 
the  State  of  New  Jersey  who  have  presented  their  credentials  to  the  Spealcer  and  demanded  to  be  sworn. 

This  resolution  was  defeated,  yeas  112,  nays  116.*  In  the  course  of  the  debate  ^ 
the  case  of  Mr.  Land  on  (Lanman),  in  the  Senate  of  1825,°  was  referred  to;  also  the 
case  of  Claiborne  and  Gholson  in  1837,'  in  the  House.  The  Speaker,  in  the  course 
of  the  debate,*  said  that  in  regard  to  the  duty  of  the  Chair  in  swearing  in  the  New 
Jersey  Members  he  would  say  that  he  was  merely  the  organ  of  the  House,  and 
whether  it  was  a  House  de  facto  or  de  jure  was  not  a  question  for  him  to  decide; 
but  being  its  organ,  he  was  bound  to  carry  out  the  decisions  that  it  had  made  and 
which  were  staring  him  in  the  face. 

Mr.  John  Quincy  Adams,  during  the  debate,  contended  '  that  it  was  not  compe- 
tent for  the  House  to  entertain  the  previous  question  or  any  other  motion  while 
the  question  of  the  right  of  the  New  Jersey  Members  to  be  sworn  was  pending. 

'  Now  section  30,  Revised  Statutes. 
'  Robert  M.  T.  Hunter,  of  Virginia,  Speaker. 
'  Journal,  p.  87. 
<  Journal,  p.  92. 
6  Globe,  p.  59. 

6  This  occurred  March  4,  1825.     See  Contested  Elections  in  Congress,  1789  to  1834,  p.  871. 
'  First  session  Twenty-Fifth  Congress,  Journal,  pp.  3.  4,  71,  91,  106,  110,  117,  137,  139.     The  election 
of  these  men  was  questioned  at  the  organization,  but  they  were  sworn  in. 
s  Globe,  p.  65. 


§   1-41  THE    OATH.  89 

Mr.  Evans's  resolution  having  been  defeated,  a  resolution  adopting  rules  was 
agreed  to/  and  then  the  organization  of  the  House  was  completed  by  the  election 
of  a  Clerk  and  other  officers.  The  cases  of  the  New  Jersey  Members  were  referred 
to  the  Committee  on  Elections,  and  ultimately  the  delegation,  headed  by  Mr.  Dick- 
erson,  was  seated.' 

141.  The  fact  that  a  Member-elect  has  not  taken  the  oath  does  not 
debar  him  from  challenging  the  right  of  another  Member-elect  to  be 
sworn. — On  INIarch  4.  1871.^  while  the  Speaker  was  administering  the  oath  to 
the  Members-elect  at  the  organization  of  the  House  the  name  of  Mr.  Alfred  M. 
Waddell,  of  North  Carolina,  was  called. 

Mr.  Horace  Maynard,  of  Tennessee,  upon  his  authority  as  a  Member  of  the 
House,  charged  that  Mr.  Waddell  was  disqualified,  and  objected  to  the  administra- 
tion of  the  oath  to  him. 

Mr.  Charles  A.  Eldndge,  of  Wisconsin,  raised  the  question  of  order  that  Mr. 
Maynard  had  not  been  sworn,  and  therefore  might  not  make  the  objection. 

The  Speaker  *  said : 

He  is  a  Member  of  the  House.  If  he  were  not,  the  Chalrwould  of  course  not  recognize  him.  *  *  « 
The  gentleman  from  Tennessee  clearly  has  the  right  to  raise  this  question. 

142.  On  a  question  raised  while  the  oath  is  being  administered  to 
Members  the  right  to  vote  is  not  confined  to  those  already  sworn  in. — On 
March  4,  1869,'  at  the  organization  of  the  House,  after  a  Speaker  had  been  elected 
and  while  the  Members-elect  were  taking  the  oath,  a  question  was  raised  as  to  the 
qualifications  of  Messrs.  Boyd  Winchester  and  John  M.  Rice,  of  Kentucky,  and  a 
motion  was  made  to  refer  their  credentials  to  the  Committee  on  Elections  with 
instructions.  On  this  motion  the  previous  question  was  ordered  and  the  vote  was 
about  to  be  taken  when  Mr.  Charles  A.  Eldridge,  of  Wisconsin,  raised  the  question 
of  order  that  none  but  those  sworn  in  had  the  right  to  vote. 

The  Speaker  *  said: 

The  Chair  overrules  the  point  of  order.     The  uniform  usage  of  the  House  is  otherwise. 

143.  It  has  been  held,  although  not  uniformly,  that  in  cases  where 
the  right  of  a  Member-elect  to  take  the  oath  is  challenged  the  Speaker 
may  direct  the  Member  to  stand  aside  temporarily. — On  March  4,  ISGO,"  at 
the  organization  of  tlie  House  and  while  the  Speaker  was  administertag  the  oath 
to  Members-elect,  objection  was  made  to  the  swearing  in  of  Mr.  Patrick  Hamill,  of 
Maryland.  Mr.  Hamill  was  asked  to  step  aside  until  other  Members,  about  whom 
there  was  no  question,  should  be  sworn. 

Mr.  J.  Proctor  Knott,  of  Kentucky,  made  the  point  of  order  that  the  duty 
devolved  upon  the  Speaker  by  law  to  swear  in  each  Member  as  he  presented  him- 

'  Journal,  p.  95. 

=  Globe,  p.  256;  Journal,  p.  1297. 

'  First  session  Forty-second  Congress,  Globe,  p.  6. 

*  James  G.  Blaine,  of  Maine,  Speaker. 

'  First  session.  Forty-first  Congress,  Globe,  p.  6. 

"  First  session  Forty-first  Congress,  Journal,  p.  7;  Globe,  pp.  6,  13. 


90  PBECEDENTS    OF   THE   HOUSE    OF   EEPKESENTATIVES.  §   144 

self  for  that  purpose;  it  was  not  for  the  Speaker  to  decide  whether  he  could  prop- 
erly take  the  oath  or  not.  Moreover,  the  House  could  not  discharge  any  of  its 
functions,  either  legrislative  or  quasi  judicial,  which  were  conferred  on  it  by  the 
Constitution,  until  it  was  organized.  Therefore  there  was  no  power,  either  in  the 
Speaker  or  the  House,  at  present  to  exclude  a  Member-elect  from  taking  the  oath. 

The  Speaker '  replied  that  the  Chair  had  not  assumed  to  exclude  any  Member- 
elect  from  taking  the  oath.  But  the  gentleman  from  Marjdand,  in  order  to  relieve 
the  embarrassment  of  the  House,  voluntarily  withdrew,  as  he  had  a  right  to  do, 
from  those  who  had  presented  themselves  to  take  the  oath. 

144.  On  March  4,  1869,-  at  the  organization  of  the  House  objection  was  made 
to  the  taking  of  the  oath  by  Messrs.  Boyd  Winchester  and  John  M.  Rice,  of  Kentucky. 
^Tien  the  Speaker  '  requested  them  to  step  aside  until  the  remaining  Members  had 
taken  the  oath,  objection  was  made.  The  Speaker  thereupon  stated  that  the  ques- 
tion must  be  met  at  once,  and  a  resolution,  reciting  the  allegations  against  the  two 
gentlemen  and  providing  that  they  should  not  be  sworn  in  until  after  an  investiga- 
tion had  been  made,  was  presented. 

145.  On  December  5,  1881,^  at  the  organization  of  the  House  the  Speaker 
was  administering  the  oath  to  Members,  and  the  State  of  Alabama  had  been  called. 
As  Mr.  Joseph  Wlieeler  presented  himself  to  be  sworn  Mr.  George  W.  Jones,  of 
Texas,  objected,  and  asked  that  Mr.  Wheeler  stand  aside. 

The  Speaker  having  directed  Mr.  Wheeler  to  stand  aside,  Mr.  Samuel  J.  Randall, 
of  Pennsylvania,  raised  the  point  of  order  that  the  stepping  aside  of  a  gentleman 
who  had  been  thus  challenged  was  a  voluntary  act,  and  in  support  of  this  point  he 
cited  the  proceedings  in  the  Forty-first  Congress. 

After  debate  the  Speaker  *  said : 

The  Chair  is  inclined  to  hold  that  he  has  the  power  to  designate  the  order  in  which  Members  may  be 
called  and  sworn  in.     Unquestionably  the  Chair  has  no  right  to  decide  upon  the  title  of  any  Member. 

*  *  *  If  any  gentleman  is  objected  to,  for  mere  convenience  of  proceeding  the  Chair  will  ask  the 
gentleman  objected  to  to  stand  aside.  He  having  stood  aside,  and  all  others  not  objected  to  having  been 
sworn  in,  the  Chair  will  at  once  require  the  roll  to  be  called  for  those  persons  who  have  been  objected 
to  and  will  swear  them  in,  unless  there  shall  be  some  good  reason  given  upon  which  the  House  may  act 
and  direct  the  Chair  otherwise.  *  *  *  This  is  a  matter  of  order,  wholly  within  the  control  of  the 
Chair  for  the  convenience  of  procedure. 

A  resolution  relating  to  Mr.  Wheeler's  case  having  been  presented  and  laid  on 
the  table,  the  Speaker  said: 

The  Chair  will  state,  there  being  no  motion  before  the  House,  in  the  absence  of  instructions  he  will 
regard  it  his  duty  to  proceed  to  swear  in  the  Member. 

Accordingly  the  oath  was  administered  to  Mr.  "VMieeler. 

146.  At  the  organization  of  the  House  on  ilarch  i,  1871,^  after  the  Speaker 
had  been  elected  and  while  he  was  administering  the  oath  to  the  Members,  the 
name  of  Mr.  Alfred  M.  Waddell,  of  North  Carolina,  was  called.  Mr.  Waddell's 
name  was  on  the  roll  and  he  had  participated  in  the  election  of  Speaker.     ^Ir.  Horace 

'  James  G.  Blaine,  of  Maine,  Speaker. 

^  First  session  Forty-first  Congress,  Journal,  p.  7;  Globe,  p.  6. 

^  First  session  Forty-seventh  Congress,  Record,  pp.  9-13. 

*J.  Warren  Keifer,  of  Ohio,  Speaker. 

'First  session  Forty-second  Congress,  Globe,  pp.  7,  11. 


§   1-17  THE    OATH.  91 

Majmard,  of  Tennessee,  challenged  his  right  to  be  sworn,  on  the  ground  that  he  was 
ineligible  under  section  3  of  article  14  of  the  Constitution,  since  after  taking  an  oath 
as  a  civil  officer  of  North  Carolina  to  support  the  Constitution  of  the  United  States 
he  had  subsequently  participated  in  the  war  of  secession,  thereby  becoming  dis- 
qualified for  a  seat  in  Congress. 

When  this  objection  was  made  the  Speaker  said  that  he  would  first  swear  in 
those  Members  against  whom  there  was  no  objection. 

This  was  done,  and  later  on  the  same  day  the  House  voted  to  allow  Mr.  Waddell 
to  take  the  oath,  and  referred  his  credentials  to  the  Committee  on  Elections.' 

147.  When,  at  the  organization  of  the  House,  several  Members-elect 
are  challenged  and  stand  aside,  the  question  is  first  taken  on  the  Member- 
elect  first  required  to  stand  aside. — On  October  l.">.  1877,=  at  the  time  of  the 
organization  of  the  House,  objection  was  made  to  the  swearing  in  of  several  Mem- 
bers, and  they  stood  aside.  On  October  16  their  cases  were  considered,  and  Mr. 
Eugene  Hale,  of  Maine,  called  up,  as  a  question  of  privilege,  the  case  of  James  B. 
Belford,  of  Colorado. 

Mr.  Samuel  S.  Cox,  of  New  York,  made  the  point  of  order  that  the  question 
must  first  be  taken  on  the  case  of  the  Member  first  required  to  stand  aside. 

The  Speaker  '  sustained  the  point  of  order.     (Journal,  p.  15;  Record,  p.  60.) 

148.  On  December  0,  1875,*  at  the  time  of  the  organization  of  the  House, 
objection  was  made  to  the  swearing  in  of  several  Members.  During  the  proceed- 
ings Mr.  James  A.  Garfield  made  the  point  of  order  that  in  the  consideration  of 
these  cases  the  question  should  be  first  taken  on  the  one  who  was  first  called  on  to 
stand  aside. 

The  Speaker  ^  sustained  the  point  of  order. 

149.  When  Members-elect  are  challenged  at  the  time  of  taking  the 
oath  motions  and  debate  are  in  order  on  the  questions  involved  in  the 
challenge;  and  in  a  few  cases  other  business  has  intervened  by  unani- 
mous consent.— On  July  4,  ISCI,"  the  Speaker  had  been  elected  and  was  about  to 
proceed  to  administer  the  oath  to  Members  when  Mr.  Thaddeus  Stevens,  of  Peim- 
sylvania,  moved  that  such  names  upon  the  roll  as  should  be  objected  to,  when 
called,  be  passed  over  until  other  Members  should  be  sworn  in.  Mr.  Schuyler 
Colfax,  of  Indiana,  proposed  an  amendment  by  inserting  the  words  "as  may  be 
contested"  in  place  of  "as  should  be  objected  to."  Mr.  Colfax  explained  that  he 
did  this  because  there  was  a  question  as  to  one  or  more  of  the  Virginia  delegation, 
although  their  seats  were  not  contested. 

Mr.  Samuel  R.  Curtis,  of  Iowa,  made  the  point  of  order  that  both  the  motion 
and  the  amendment  were  out  of  order,  as  the  House  was  still  in  an  unorganized 
condition.  The  first  business  was  to  perfect  the  organization,  and  until  that  was 
done  such  motions  were  not  in  order. 


'  The  Journal  indicates  that  there  was  at  this  time  no  contest  for  this  seat. 

-  First  session  Forty-fifth  Congress,  Journal,  p.  15;  Record,  p.  60. 

'  Samuel  J.  Randall,  of  Pennsylvania,  Speaker. 

*  First  session  Forty-fourth  Congress,  Record,  pp.  167-171. 

^  Michael  C.  Kerr,  of  Indiana,  Speaker. 

'  First  session  Thirty-seventh  Congress,  Journal,  p.  12;  Globe,  p.  5. 


92  PBECEDENTS    OF   THE    HOUSE    OF   EEPEESENTATIVES.  §   150 

The  Speaker '  overruled  the  point  of  order. 

Mr.  Stevens's  motion  was  then  amended,  and  as  amended  was  agreed  to. 

The  names  of  all  those  whose  seats  were  not  contested  having  been  sworn  in, 
Mr.  Ellihu  B.  Washburne,  of  Illinois,  moved  that  the  rules  of  the  last  House  of 
Representatives  be  adopted  as  the  rules  of  this  House. 

The  Speaker  said: 

The  first  business  to  be  done  is  the  qualification  of  Members,  and  until  that  business  is  disposed  of 
the  Chair  thinks  it  is  not  proper  to  do  any  other  business. 

150.  On  March  4,  1869,-  at  the  organization  of  the  House,  the  Speaker  was 
administering  the  oath  to  the  Members-elect,  when  the  right  of  Mr.  Patrick  Hamill, 
of  Maryland,  to  take  the  oath  was  challenged.  Debate  having  begun  upon  Mr. 
Hamill's  case,  Mr.  Ebon  C.  Ingersoll,  of  Illinois,  made  the  point  of  order  that  debate 
was  not  in  order  on  the  question. 

The  Speaker  ^  held  that  debate  was  entirely  in  order,  as  the  House  was  con- 
sidering a  question  of  the  highest  privilege. 

Mr.  Jolui  F.  Farnsworth,  of  Illinois,  made  the  point  of  order  that  as  the  Mem- 
bers had  not  all  been  sworn  in  there  was  no  House  to  vote  on  the  question. 

The  Speaker  overruled  the  point,  sajong  that  the  present  mode  of  procedure 
was  that  warranted  by  all  the  precedents.  He  also  said  in  connection  with  a  simi- 
lar point  of  order  raised  later  that  he  considered  the  House  in  its  present  state 
competent  to  enforce  the  previous  question.  Such  was  the  case  even  in  the  pre- 
liminary stage  of  the  proceedings  for  organization  on  that  day  before  the  Clerk 
had  called  the  roll  for  the  election  of  Speaker.  The  House  had  certainly  lost  none 
of  its  powers  by  the  election  of  Speaker  and  by  its  proceeding  so  far  in  the  business 
of  organization. 

151.  By  unanimous  consent  the  House  has  proceeded  to  legislative 
business  pending  decision  as  to  the  right  of  a  Member  to  be  sworn  in. — 
On  October  15,  1877,"'  at  the  time  of  the  organization  of  the  House,  objection  was 
made  to  the  swearing  in  of  several  Members,  and  they  stood  aside.  Before  the 
determination  of  the  right  of  these  challenged  Members-elect  to  be  sworn  the  organ- 
ization of  the  House  was  completed  and  seats  were  dra^vTi.  On  October  16  the 
House  considered  the  cases  of  two  of  those  challenged,  and  then  the  reading  and 
reference  of  the  President's  message  intervened  before  the  disposal  of  the  remain- 
ing cases.  It  does  not  appear  that  unanimous  consent  was  formally  asked  for 
these  interruptions. 

152.  On  March  18,  1879,^  at  the  time  of  the  organization  of  the  House,  objection 
was  made  to  the  swearing  in  of  Mr.  Noble  A.  Hull,  of  Florida.  The  consideration 
of  Ml-.  Hull's  case  was  about  to  begin  when  Mr.  William  P.  Frye,  of  Maine,  requested 
that  it  be  postponed  until  the  next  day. 

'  Galusha  A.  Grow,  of  Pennsylvania,  Speaker. 

^  First  session  Forty-first  Congress,  Journal,  p.  7;  Globe,  p.  6. 

'  James  G.  Blaine,  of  Maine,  Speaker. 

■•  First  session  Forty-fifth  Congress,  Journal,  p.  20;  Record,  p.  69. 

^  First  session  Forty-sixth  Congress,  Record,  pp.  6,  27. 


§    153  THE    OATH.  93 

Mr.  Fernando  Wood,  of  New  York,  objected. 

The  consideration  of  the  case  thereupon  proceeded,  but  later,  by  unanimous 
consent,  the  matter  was  postponed  until  the  next  day/ 

153.  Questions  as  to  the  credentials  and  qualifications  of  Members- 
elect  may,  by  general  consent,  be  deferred  until  after  the  election  of 
Speaker  and  swearing  in  of  Members. — On  July  4,  1861,=  at  the  time  of  the 
organization  of  the  House,  while  the  Clerk  was  calling  the  names  of  the  Members- 
elect  by  States,  several  questions  were  raised  as  to  the  credentials  and  qualifications 
of  Members-elect,  but  by  general  consent  the  determination  of  these  matters  was 
waived  until  after  the  election  of  a  Speaker  and  the  administration  of  the  oath  to 
Members. 

154.  In  1861  it  was  held  that  the  House  might  direct  contested 
names  on  the  roll  to  be  passed  over  until  the  other  Members-elect  were 
sworn  in. — On  July  4,  1861,^  at  tne  organization  of  the  House,  after  the  Speaker 
had  taken  the  chair,  and  before  administering  the  oath  to  such  of  the  Members  as 
were  present,  it  was  voted,  on  motion  made  by  Mr.  Thaddeus  Stevens,  of  Pennsjd- 
vania,  as  amended  on  motion  of  Mr.  Schuyler  Colfax,  of  Indiana,  that  such  names 
on  the  roll  as  might  be  contested  should,  when  called,  be  passed  over  until  the 
other  Members  were  sworn  in. 

The  Speaker  *  overruled  a  question  of  order  that  the  motion  was  not  in  order 
prior  to  the  completion  of  the  organization. 

155.  A  Member-elect  challenged  as  he  is  about  to  take  the  oath  is  not 
thereby  deprived  of  any  right,  and  the  determination  of  his  case  has  pri- 
ority of  those  of  persons  claiming  seats  but  not  on  the  Clerk's  roll. — On 
October  15,  1877,^  at  the  time  of  the  organization  of  the  House,  while  the  oath  was 
being  administered  to  the  Members-elect,  several  Members-elect  were  challenged 
and  required  to  step  aside. 

On  October  16,  after  the  organization  of  the  House  had  been  perfected,  the 
cases  of  these  challenged  Members  were  taken  up. 

Mr.  Eugene  Hale,  of  Maine,  proposed  to  call  up  the  case  of  the  Representative 
from  Colorado,  from  which  State  no  name  had  been  placed  on  the  roll. 

Mr.  Samuel  S.  Cox,  of  New  York,  raised  the  question  of  order  that  those  fu-st 
challenged  should  be  first  considered. 

After  debate,  the  Speaker "  said: 

In  the  opinion  of  the  Chair,  the  proposition  that  before  taking  up  the  case  of  any  gentleman  whose 
name  was  not  upon  the  roll  at  all  the  House  shall  consider  the  qualifications  of  Members  upon  the  roll 
who  were  asked  to  step  aside  is  reasonable  and  right  and  in  accord  with  the  practice.  Any  other  ruling 
would  work  great  hardship.  These  gentlemen  were  placed  upon  the  roll  by  the  Clerk  under  the  law, 
and  upon  the  objection  of  an  individual  Member,  which  in  its  nature  is  arbitrary  and  might  be  factious, 
they  were  prevented  from  being  sworn  in.  The  Chair  stated  yesterday  that  such  a  single  objection 
did  not  deprive  those  gentlemen  of  any  right  which  they  possessed,  and  if  the  occasion  had  presented 

'  See  also  the  Roberts  case  in  the  Fifty-sixth  Congress.     (Sec.  474  of  this  work.) 

=  First  session  Thirty-seventh  Congress,  Globe,  p.  3. 

^  First  session  Thirty-seventh  Congress,  Journal,  p.  12;  Globe,  p.  5. 

*Galusha  A.  Grow,  of  Pennsylvania,  Speaker. 

'First  session  Forty-fifth  Congress,  Record,  pp.  59,  GO. 

^Samuel  J.  Randall,  of  Pennsylvania,  Speaker. 


94  PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   156 

itself  these  gentlemen,  in  the  opinion  of  the  Chair,  would  have  had  the  right  to  vote,  as  they  did  in  fact 
vote,  upon  the  election  of  Speaker,  in  the  same  manner  as  though  they  had  been  sworn  in.  For  these 
reasons  the  Chair  sustains  the  point  of  order  of  the  gentleman  from  New  York. 

156.  Members-elect  challenged  for  alleged  disqualifications  have  in 
several  cases  been  sworn  in  at  once,  the  qxiestion  of  their  qualifications  in 
some  cases  being  referred  to  a  committee  for  examination. — On  July  4, 
1861/  at  the  organization  of  the  House,  the  Speaker^  was  administering  the  oath 
to  the  Members-elect.  Wlien  the  State  of  Virginia  was  called,  Mr.  Henry  C.  Bur- 
nett, of  Kentucky,  offered  this  resolution: 

Resolved,  That  the  question  of  the  right  of  Charles  H.  Upton,  William  G.  Brown,  R.  V.  Whaley, 
John  S.  Carlile,  and  E.  H.  Pendleton,  to  seats  upon  this  floor,  be  referred  to  the  Committee  on  Elections, 
when  formed,  and  that  they  report  to  this  House  thereon. 

It  appears  from  the  debate  that  there  was  a  question  as  to  whether  or  not 
Mr.  Upton  was  a  citizen  of  Virginia,  it  being  alleged  that  he  was  a  citizen  of  Ohio 
and  that  he  had  voted  there  at  the  last  election. 

Both  Mr.  Upton  and  his  associates  were  among  those  whose  names  were  on 
the  roll  as  made  up  by  the  Clerk  and  they  had  voted  in  the  election  of  Speaker. 

On  motion  of  Mr.  John  A.  McClernand,  of  Illinois,  the  resolution  was  laid  on 
the  table,  and  the  Virginia  Members  took  the  oath. 

157.  On  March  4,  1869,^  the  Speaker  having  been  elected  and  having 
addressed  the  House,  the  swearing  in  of  the  Members  was  proceedmg,  and  the  name 
of  Mr.  Patrick  Hamill,  of  Maryland,  had  been  called,  when  Mr.  Benjamin  F.  Butler, 
of  Massachusetts,  objected  to  Mr.  Hamill  on  the  ground  that  he  had  been  disloyal 
during  the  war.  Mr.  Butler  proposed  a  resolution  that  Mr.  Hamill  be  not  allowed 
to  take  the  oath  until  his  case  should  be  investigated  by  the  Committee  on  Elections.'' 

On  March  5,  when  the  case  was  again  taken  up,  Mr.  Butler  stated  that  he  had 
examined  the  case  carefully  and  was  of  the  opinion  that  the  prima  facie  case,  as 
made  out  by  the  certificate  of  the  governor,  ought  at  the  present  time  to  prevail, 
and  that  Mr.  Hamill  ought  to  be  admitted  to  his  seat. 

A  resolution  was  therefore  presented  and  agreed  to  that  Mr.  Hamill  be  now 
sworn  in  and  that  the  papers  submitted  in  this  case  be  sent  to  the  Committee  on 
Elections  when  appointed.  Mr.  Hamill  therefore  took  the  oath.  Mr.  Hamill  had 
previously  participated  in  the  proceedings  of  organization,  having  answered  to  his 
name  on  the  vote  for  Speaker. 

158.  On  March  4,  18G9,'*  at  the  organization  of  the  House,  objection  was  made 
to  administering  the  oath  to  Messrs.  Boyd  Winchester  and  John  M.  Rice,  of  Ken- 
tucky, who  were  on  the  roll  and  had  voted  for  Speaker.  It  was  alleged  that  they 
were  disloyal  during  the  war.  A  resolution  was  presented  reciting  the  allegations 
against  them  and  providing  that  the  oath  should  not  be  administered  to  them. 

'First  session  Thirty-seventh  Congress,  Journal,  p.  12;  Globe,  pp.  fi,  7,  13. 

^Galusha  A.  Grow,  of  Pennsylvania,  Speaker. 

^  First  session  Forty-first  Congress,  Journal,  pp.  4,  5,  10;  Globe,  pp.  6,  10,  13. 

*The  Journal  indicates  that  there  was  no  contest  for  Mr.  Hamill's  seat  (First  session  Forty-first 
Congress,  p.  291).  It  does  not  appear  that  Mr.  Hamill  was  afterwards  disturbed  in  the  possession  of  his 
seat. 

'First  session  Forty-first  Congress,  Journal,  pp.  4,  5, 10;  Globe,  pp.  10, 13. 


§    159  THE    OATH.  95 

Explanations  of  the  charges  being  made,  the  resolution  was  withdrawn,  and  on 
March  5  the  oath  was  administered  to  them  b}"  order  of  the  House.' 

159.  On  December  3.  1889,-  during  the  organization  of  the  House,  as  the 
Speaker  was  administering  the  oath  to  the  Members,  and  as  the  State  of  Kansas  was 
called,  Mr.  William  M.  Springer,  of  Illinois,  asked  that  Mr.  S.  R.  Peters,  of  Kansas, 
stand  aside. 

The  Speaker  ^  directed  Mr.  Peters  to  stand  aside.  Mr.  Springer  then  presented 
a  memorial  from  the  governor  and  State  officers  of  Kansas  reciting  that  Mr.  Peters, 
who  had  been  elected  judge  for  the  four  years  ending  Januarj',  1884,  was  disquali- 
fied by  the  terms  of  the  constitution  of  that  State  from  holding  any  other  office 
imder  the  State  or  United  States,  and  proposed  a  resolution  referring  the  case  to 
the  Committee  on  Elections  for  examination  as  to  whether  Mr.  Peters  was  entitled 
to  the  seat,  and  also  to  examine  the  claims  of  Mr.  S.  N.  Wood,  who  contested  the  seat. 

The  Speaker  suggested  that  the  swearing  in  of  a  Member  being  a  matter  of  the 
very  liighest  privilege,  the  oath  should  be  first  administered,  and  then  the  resolution 
might  be  offered. 

This  was  accordingly  done.  Mr.  Peters's  cjualifications  were  afterwards 
examined  and  he  was  declaretl  entitled  to  the  seat. 

160.  Under  exceptional  circumstances  the  House  admitted  to  a  seat 
a  Member-elect  who  failed  to  present  himself  until  near  the  expiration  of 
the  Congress. — On  February  2o,  18G8,*  the  House  voted  to  admit  to  his  seat  Mr. 
George  W.  Bridges,  of  Tennessee,  who  had  been  elected  at  the  regular  Congressional 
election  in  his  State  in  1861,  but  who  had  been  unable  to  appear  in  his  place  when 
Congress  met  in  December  of  that  year  because  he  had  been  captured  by  the  Con- 
federates and  detained  a  prisoner.  As  soon  as  he  could  escape  he  made  his  way, 
arriving  at  Washington  so  as  to  appear  in  the  House  February  25,  a  few  days  before 
final  adjournment. 

161.  Instance  wherein  a  Member-elect  appeared  and  took  the  oath 
several  months  after  the  organization  of  the  House. — On  April  19,  190G.^ 
Mr.  Malcolm  R.  Patterson,  of  Tennessee,  appeared  and  took  the  oath.  He  had 
been  regularly  elected  in  November,  1904,  as  a  Member  of  this  Congress,  but  had 
not  appeared  at  the  organization  of  the  House  on  the  first  Monday  of  December, 
1905,  nor  thereafter  until  this  date.  No  question  was  raised  as  to  his  right  to 
qualify. 

162.  Although  the  House  has  emphasized  the  impropriety  of  swear- 
ing in  a  Member  without  a  certificate,  it  has  sometimes  been  done  by 
unanimous  consent. — On  April  20,  ISTl."  Mr.  Omar  D.  Conger,  of  Michi- 
gan, proposed  a  resolution  providing  that  Wilder  D.  Foster,  Member-elect  from 
the  Fourth  Congressional  district  of  Michigan,  be  sworn  in.     Mr.  Conger  explained 

'  The  Journal  (first  session  Forty-first  Congress,  p.  291)  indicates  that  there  was  a  contest  for  Mr. 
Rice's  seat,  but  not  for  Mr.  Winchester's. 

^ First  session  Forty-eighth  Congress,  Record,  p.  6. 

'John  G.  Carlisle,  of  Kentucky,  Speaker. 

*  Third  session  Thirty-seventh  Congress,  Journal,  pp.  489,  490;  Globe,  pp.  1295,  1296. 

^  First  session  Fifty-ninth  Congress,  Record,  p.  5523. 

^  First  session  Forty-second  Congress,  Globe,  p.  833. 


96  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    163 

that  the  official  certificate  of  Mr.  Foster  had  not  been  received,  but  it  was  apparent 
from  telegrapiiic  reports  of  the  canvass  that  he  had  been  elected  by  a  majority  of 
several  thousand. 

A  question  arose,  and  while  it  was  generally  assumed  that  by  unanimous  con- 
sent Mr.  Foster  might  properly  be  admitted  to  take  the  oath,  yet  it  was  objected 
that  admission  should  be  as  a  matter  of  right,  and  that  it  was  improper  to  admit 
without  a  certificate  of  some  Idnd.  Because  of  the  objection  Mr.  Conger  withdrew 
the  resolution. 

163.  On  December  1,  1879,^  Mr.  Waldo  Hutchins,  of  New  York,  was  sworn 
in  without  the  presentation  of  the  regular  certificate  required  by  law,  which  had 
not  been  issued  because  the  State  canvassers  would  not  meet  under  the  law  for 
several  days.  But  the  county  canvassers  had  shown  his  election  unmistakably, 
and  there  was  no  contest  or  question.  Therefore,  by  unanimous  consent,  the  House 
allowed  Mr.  Hutchins  to  be  sworn  in,  although  distrust  of  the  precedent  was 
expressed. 

164.  On  December  6,  1886,"  at  the  beginning  of  the  second  session  Mr.  Abram 
S.  Hewitt,  of  New  York,  as  a  question  of  privilege,  presented  a  letter  from  the 
secretary  of  state  of  New  York  stating  that  the  returns  officially  received  showed 
the  election  of  Mr.  Samuel  S.  Cox  to  fill  the  vacancy  caused  by  the  resignation  of 
Mr.  Joseph  Pulitzer,  of  the  Ninth  Congressional  district  of  New  York,  and  that 
the  proper  certificate  of  election  would  be  issued  as  soon  as  the  board  of  canvassers 
should  meet. 

There  being  no  objection,  the  Speaker  administered  the  oath  to  Mr.  Cox. 
On  the  same  day  and  under  similar  circumstances  the  oath  was  administered 
to  Mr.  Henry  Bacon,  of  New  York. 

165.  On  December  1,  1890,'  after  several  Members  presenting  regular  certifi- 
ficates  of  election  had  been  sworn  in,  the  request  was  made  that  Mr.  John  S.  Pindar, 
of  the  Twenty-fourth  district  of  New  York,  be  sworn  in.  The  official  certificate 
from  the  secretary  of  state  of  New  York  had  not  arrived,  but  the  certificate  of  the 
county  canvassers  showing  the  result  of  the  election  was  presented  at  the  Clerk's 
desk.     By  imanimous  consent  the  oath  was  administered  to  Mr.  Pindar. 

The  request  was  then  made  that  Mr.  E.  R.  Hayes,  of  Iowa,  be  sworn  in.  It 
was  stated  by  a  Member  of  the  Iowa  delegation,  Mr.  David  B.  Henderson,  that 
there  was  no  question  of  Mr.  Hayes's  election,  but  by  some  error  the  certificate 
had  not  been  transmitted.  He  presented  the  letter  in  which  tlie  certificate  was 
supposed  to  have  been  transmitted,  but  in  which  by  mistake  another  paper  had 
been  inclosed. 

Pending  the  request  for  unanimous  consent,  it  was  suggested  by  Mr.  Charles  F. 
Crisp,  of  Georgia,  "that  the  House  sometimes  accepts,  in  lieu  of  a  formal  certificate 
(as  in  the  case  of  the  gentleman  from  New  York,  Mr.  Pindar,  to  which  consent  has 
just  been  given),  the  certificate  of  the  local  boards  of  county  canvassers.  But  so 
far  as  I  Icnow  a  Member  presenting  himself  to  be  sworn  in  must  have  some  kind  of 

'  Second  session  Forty -sixth  Congress,  Journal,  p.  S;  Record,  p.  10. 
^Second  session  Forty-ninth.  Congress,  Journal,  p.  9;  Record,  p.  14. 

'Second  session  Fifty-first  Congress,  Journal,  p.  5;  Record,  p.  11.     Thomas  B.  Reed,  of  Maine, 
Speaker. 


§   166  THE    OATH.  97 

a  certificate  or  some  authority  from  some  source  having  charge  of  the  election  to 
warrant  the  granting  of  the  request."  No  objection  was  made,  however,  and  Mr. 
Hayes  was  sworn  in. 

In  a  similar  manner  the  oath  was  administered  to  'Mr.  Robert  H.  Whitelaw, 
of  the  Fourteenth  district  of  Missouri,  whose  certificate  had  not  arrived.  In  this 
case  a  semiofficial  statement  from  the  secretarj-  of  state  of  Missouri,  giving  the 
figures  of  the  election,  was  presented  by  a  colleague. 

On  May  5,  1896,'  at  the  request  of  J^Ir.  Charles  Daniels,  of  Xew  York,  and  by 
unanimous  consent,  the  oath  was  administered  to  Mr.  Rudolph  Kleberg,  of  Texas, 
who  presented  an  informal  statement  to  the  Speaker,  signed  by  the  governor, 
secretary  of  state,  and  attorney-general  of  Texas,  who  stated  "upon  general  and 
reliable  unofficial  informatipn"  that  Mr.  Kleberg  had  been  elected. 

On  December  19,  1896,'  on  motion  of  Mr.  Henj}-  G.  Turner,  of  Georgia,  and 
by  imanimous  consent,  the  oath  was  administered  to  Mr.  Charles  R.  Crisp,  of 
Georgia,  who  presented  an  informal  letter  from  the  governor  of  Georgia  to  the 
Speaker,  informing  him  that  there  was  only  one  candidate  at  the  election  and  that 
the  commission  would  be  forwarded  as  soon  as  the  returns  were  received.-^ 

166.  On  March  2,  1894,*  Mr.  William  S.  Holman,  of  Indiana,  announced 
that  Mr.  Galusha  A.  Grow,  of  Pennsylvania,  had  been  elected  a  Member  of  the 
House  from  Pennsylvania,  but  that  his  credentials  had  not  yet  arrived.  After 
remarks  on  the  public  career  of  Mr.  Grow  in  earlier  years  in  the  House,  Mr.  Holman 
asked  unanimous  consent  that  the  oath  be  administered  to  him.  There  being  no 
objection,  it  was  so  ordered,  and  Mr.  Grow  took  the  oath. 

167.  On  January  15,  190'2,=  the  House,  by  unanimous  consent,  authorized 
the  Speaker  to  administer  the  oath  to  Mr.  Montague  Lessler,  of  New  York,  on  the 
following  statement  of  fact  made  by  Mr.  Lucius  N.  Littauer,  of  New  York: 

Mr.  Speaker,  I  ask  unanimous  consent  that  Mr.  Montague  Lessler,  elected  to  this  House  at  a  special 
election  held  in  the  Seventh  district  of  New  York  to  fill  a  vacancy  caused  by  the  resignation  of  Mr. 
MuUer,  be  sworn  in.  The  certificate  of  the  secretary-  of  state  of  Xew  York  is  not  yet  at  hand,  but  there 
is  no  contest  over  the  result  of  this  election.  The  vote  has  been  canvassed  by  the  board  of  county  can- 
vassers, and  Mr.  Le-ssler  is  now  here  ready  to  be  sworn  in. 

168.  On  December  3,  1906,"  at  the  beginning  of  the  second  session  of  the 
Congress,  after  the  roll  of  the  Members  had  been  called  by  States,  and  when  several 
Members  elected  to  fill  vacancies  had  presented  credentials  and  taken  the  oath, 
Mr.  James  Hay,  of  Yirginia,  said: 

Mr.  Speaker,  I  ask  unanimous  consent  that  Mr.  E.W.Saunders,  a  Member  elect  from  the  Fifth 
Virginia  district,  be  sworn  in.  His  credentials  have  not  amved,  but  there  is  no  question  of  his  election, 
and  I  have  been  in  communication  with  the  secretary  of  state  of  Virginia,  who  tells  me  that  the  canvass 
of  the  votes  has  been  made  and  that  Mr.  Saunders  has  been  declared  duly  elected. 

'  First  session  Fifty-fourth  Congress,  Record,  p.  4846. 

^  Second  session  Fifty-fourth  Congress,  Record,  p.  301.     Thomas  B.  Reed,  of  Maine,  Speaker. 
^  It  is  a  safe  usage  to  permit  the  oath  to  be  administered  under  such  circumstances  only  by  unani- 
mous consent;  but  manifestly  in  a  case  of  such  high  privilege  the  House  might  act  by  majority  vote. 
■•Second  session  Fifty-third  Congress,  Record,  p.  2533. 
'First  session  Fifty-seventh  Congress,  Journal,  p.  223;  Record,  p.  692. 
'Second  session  Fifty-ninth  Congress,  Record,  p.  13. 
.i9S4— VOL  1—07- — 7 


98  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §   169 

On  this  statement  the  House  gave  consent,  and  the  oath  was  administered 
to  Mr.  Saunders.  Under  similar  conditions  the  oath  was  administered  to  Mr. 
Daniel  J.  Riordan,  of  New  York. 

169.  Instance  -wrlierein  the  House  authorized  the  Speaker  to  admin- 
ister the  oath  to  Members  away  from  the  House. — On  January  6,  1890,'  Mr. 
John  G.  Carlisle,  of  Kentucky,  having  announced  that  there  were  three  Members 
of  the  House  who  by  reason  of  illness  had  been  unable  to  attend  and  take  the  oath 
of  office,  offered  the  following  resolutions,  which  were  adopted : 

Whereas  Samuel  J.  Randall,  a  Representative  for  the  State  of  Pennsylvania  from  the  Third  district 
thereof,  David  Wilber,  a  representative  for  the  State  of  New  York  from  the  Twenty-fourth  district 
thereof,  and  W.  C.  \Miitthome,  a  Representative  for  the  State  of  Tennessee  from  the  Seventh  district 
thereof,  have  been  unable  from  sickness  to  appear  in  person  to  be  sworn  as  Members  of  the  House,  and 
there  being  no  contest  or  question  as  to  their  election:  Therefore, 

Resolved,  That  the  Speaker  be  authorized  to  administer  the  oath  of  office  to  said  Samuel  J.  Randall 
at  his  residence  in  Washington,  D.  C. ;  and  that  the  said  David  Wilber  and  W.  C.  Whitthome  be  author- 
ized to  take  the  oath  of  office  before  an  officer  authorized  by  law  to  administer  oaths;  and  that  said  oaths, 
when  administered  as  herein  authorized,  shall  be  accepted  and  received  by  the  House  as  the  oaths  of 
office,  respectively,  of  Samuel  J.  Randall,  David  Wilber,  and  W.  C.  Whitthome. 

Resolved,  That  the  oaths  of  office  administered  to  the  said  David  Wilber  and  W.  C.  Whitthome 
shall  be  certified  to  the  House  of  Representatives  by  the  officers  administering  the  same,  authenticated 
by  their  official  signatures  and  seals. 

On  the  following  day  the  Speaker  announced: 

The  Chair  desires  to  announce  that  in  compliance  with  the  resolution  yesterday  adopted  the  Speaker 
administered  the  oath  of  office  at  his  residence  to  Hon.  Samuel  J.  Randall,  a  Representative  from  the 
State  of  Pennsylvania,  and  the  Clerk  will  make  a  record  in  the  Journal. 

On  January  15"  the  Speaker  laid  before  the  House  the  oaths  of  Messrs.  Wilber 
and  Whitthome,  and  they  were  ordered  to  be  filed  in  the  office  of  the  Clerk. 

170.  By  authority  of  the  House  the  oath  may  be  administered  to  a 
Member  away  from  the  House  and  by  another  than  the  Speaker. 

As  to  the  competency  of  a  Speaker  pro  tempore  to  administer  the  oath 
to  Members. 

On  January  22,  1887,  Mr.  Nathaniel  J.  Hammond,  of  Georgia,  fi'om  the  Com- 
mittee on  the  Judiciary,  submitted  a  report'  on  the  case  of  Representative  D.  Wyatt 
Aiken,  of  South  Carolina,  who,  by  reason  of  illness,  seemed  likely  not  to  be  able  to 
appear  in  the  House  during  the  Congress,  and  to  whom  it  was  proposed  to  administer 
the  oath  away  from  the  House  by  a  judicial  officer  of  his  State.  The  committee 
quoted  the  third  section  of  Article  VI  of  the  Constitution,  which  requires  that  the 
Representatives  "shall  be  bound  by  oath  or  affirmation  to  support  the  Constitution," 
and  section  30,  Revised  Statutes.* 

The  conunittee  considered  two  questions  arising  under  this  statute:  (1)  Whether 
any  officer  but  the  Speaker  can  administer  that  oath,  and  (2)  whether  it  can  be 
administered  until  the  Member  is  "present"  or  "appears"  in  the  House,  or  elsewhere 
than  in  tlie  House. 

'  First  session  Fifty-first  Congress,  Journal,  pp.  89,  103;  Record,  pp.  399,  432. 
^Journal,  p.  124. 

=*  House  Report  No.  3745,  second  session  Forty-ninth  Congress.     (Record,  p.  1157.) 
*  See  section  14,  this  volume. 


§   170  THE    OATH.  99 

The  committee  say  that  a  construction  which  might  require  that  none  but  the 
Speaker  can  swear  in  a  Member  might  prove  seriously  inconvenient  ia  case  of  liis 
absence.  It  is  a  rule  of  the  House  onlj-  which  authorizes  him  temporarily  to  appoint 
a  Speaker  pro  tempore  to  the  chair.  Such  a  construction  would  give  to  the  Speaker 
the  dangerous  power  to  refuse  to  administer  the  oath  and  thereby  exclude  Members 
from  the  House.  No  such  constraction  should  be  allowed.  The  committee  here 
quote  an  English  precedent  where,  out  of  abundant  caution,  such  act  by  a  deputy 
speaker  was  ratified  by  action  of  Parliament  subsequently. 

In  regard  to  the  second  inquirj*  the  committee  cite  the  case  of  Wilham  Rufus 
King,  elected  Vice-President  in  185.5,  and  who,  being  detained  in  Habana,  was 
allowed  by  special  act  to  take  the  oath  there.  This  was  a  precedent  merely  for 
swearing  in  a  ilember  away  from  the  House.  The  statute  was  needed  to  authorize 
the  officer  abroad  to  administer  the  oath. 

The  committee  say  that  no  provision  has  been  made  by  statute  for  administering 
this  oath  by  any  but  the  Speaker,  nor  elsewhere  than  in  the  House.  As  to  absent 
Members  it  is  casus  omissus.  It  does  not  require  the  oath  to  make  one  a  Represent- 
ative. Mr.  Aiken  was  already  on  conmiittees  and  had  been  granted  leave  of  absence. 
The  statutes'  require  that  the  Speaker  certify  the  salaries  and  accounts  of  Members 
and  approve  the  employment  of  the  reporters.  Yet  these  things  may  be  done  by  a 
"Deputy  Speaker"  named  by  him,  with  the  approval  of  the  House.  That  Deputy 
Speaker  '^  swears  in  Members  also,  not  by  statute,  but  only  by  our  rule,  wliich  author- 
izes him  to  "perform  the  duties  of  the  Chair." 

The  Constitution  provides  that  when  sitting  to  try  impeachments  Senators 
"shall  be  under  oath  or  affirmation."  No  statute  prescribmg  the  form  and  method 
of  taking  the  oath,  the  Senate  has  determined  it  itself.  The  question  of  how  the 
oath  of  office  in  each  House  shall  be  taken  is  so  near  akin  to  the  "election  returns  and 
qualifications  of  its  o\vn  Members"  and  so  like  one  of  the  "rules  of  its  own  proceed- 
ing," wliich  constitutionally  belong  to  "each  House"  to  "judge"  and  "determine" 
for  itself,  that  in  the  opinion  of  the  committee  no  statute  was  necessaiy.  The  com- 
mittee concluded  by  recommending  the  adoption  of  a  resolution  as  follows: 

Whereas  D.  Wyatt  Aiken,  Representative  for  the  State  of  South  Carolina  from  the  Third  district 
thereof,  has  been  and  in  all  probability  will  remain  until  the  end  of  this  Congress  unable  from  sickness 
to  appear  in  person  to  be  sworn  as  a  Member  of  this  House,  but  has  sworn  to  and  subscribed  the  oath  of 
office  before  an  officer  authorized  by  law  to  administer  oaths,  and  the  said  oath  of  office  has  been  presented 
in  his  behalf  to  the  House, ^  and  there  being  no  contest  or  question  as  to  his  election:  Therefore, 

Resolved,  That  the  said  oath  be  accepted  and  received  by  the  House  as  the  oath  of  office  of  the 
said  D.  Wyatt  Aiken  as  a  Member  of  this  House. 

This  resolution,  after  debate,  was  adopted  by  the  House  January  29,  1887.* 

'  Sections  47  and  54,  Revised  Statutes. 

^On  June  15,  1898  (second  session  Fifty-fifth  Congress),  Mr.  John  Dalzell,  of  Pennsylvania,  by 
designation  of  the  Speaker,  in  writing,  acting  as  Speaker  pro  tempore,  administered  the  oath  to  Mr. 
Greene,  of  Massachusetts. 

^  The  oath  had  been  presented  in  the  House  on  January  10  as  a  question  of  privilege  (Journal,  p.  200; 
Record,  p.  493),  the  case  of  Mr.  Haskell,  of  Kansas,  being  cited  as  a  precedent. 

*  Second  session  Forty-ninth  Congress,  Record,  pp.  1156-1158. 


100  PEECEDENTS    OF    THE    HOUSE    OF    BEPRESENTATIVES.  §   171 

171.  An  adjournment  taking  place  after  the  election  of  a  Speaker,  but 
before  the  Members  had  taken  the  oath,  the  Journal  was  read  on  the  next 
day,  but  was  not  approved  until  the  oath  had  been  administered. 

It  has  been  held  that  the  a,dministration  of  the  oath  to  a  Member  takes 
precedence  of  a  motion  to  amend  the  Journal. 

On  December  22,  1849/  after  many  ballotings,  ^Ir.  Howell  Cobb,  of  Georgia, 
was  elected  Speaker.  After  the  oath  had  been  administered  to  him  the  House 
adjourned. 

On  the  next  legislative  day,  December  24,  the  Speaker  called  the  House  to  order, 
and  the  Journal  of  the  preceding  legislative  day  was  read. 

ilr.  David  S.  Kaufman,  of  Texas,  claimed  the  floor  on  a  privileged  question — a 
motion  to  amend  the  Journal. 

The  Speaker  held  that  no  question  was  in  order  until  the  Members  of  the  House 
had  been  sworn  in.  A  motion  to  amend  the  Journal  or  any  other  privileged  ques- 
tion would  then  be  in  order. 

The  Speaker  then  proceeded  to  administer  the  oath  to  the  Members. 

172.  Members  have  been  sworn  in  before  the  reading  of  the  Journal. — 
From  the  Journal  of  December  14,  1S40,-  it  seems  to  have  been  the  usage  at  that 
time  to  swear  in  new  Members  before  the  reading  of  the  Journal. 

173.  Instance  wherein,  at  the  organization  of  the  House,  the  oath 
was  administered  to  a  Member-elect  during  the  call  of  the  roll  on  a  motion 
to  agree  to  rules. — On  December  4.  1005,"  at  the  organization  of  the  House,  the 
yeas  and  nays  were  ordered  on  a  motion  for  the  previous  question  on  a  resolution 
agreeing  to  rules.  After  the  roll  had  been  called  once,  Mr.  Albert  S.  Burleson,  of 
Texas,  presented  himself  and  took  the  oath.  The  roll  call  was  then  completed,  Mr. 
Burleson  voting. 

174.  Members  have  been  sworn  in  when  a  roll  call  had  just  disclosed 
the  absence  of  a  quoi"um. — On  ^larch  29,  1897,^  on  a  motion  that  the  Journal 
be  approved,  the  Speaker^  announced  the  result  of  the  roll  call — yeas  164,  nays  2, 
present  2,  a  total  of  168;  not  a  quorum.  The  Speaker  then  announced  that  imder 
the  rule"  the  doors  of  the  House  would  be  closed  preparatory  to  the  call  of  the 
House. 

At  this  point  Mr.  James  D.  Richardson,  of  Tennessee,  announced  that  Messrs. 
Rudolph  Kleberg,  of  Texas,  and  William  A.  Jones,  of  Virginia,  were  present,  ready 
to  take  the  oath,  and  asked  that  it  be  administered  to  them. 

The  Speaker  said  that  a  question  arose  as  to  whether  or  not,  the  body  not  being 
constituted  to  do  business  and  the  roll  call  having  been  ordered  by  the  rule  of  the 
House,  the  proceedings  might  be  interrupted.  Therefore  he  advised  that  unani- 
mous consent  should  be  obtained. 

This  having  been  done,  the  oath  was  administered  to  the  two  Members. 

'  First  session  Thirty-first  Congress,  Globe,  p.  67. 

-  Second  session  Twenty-sixth  Congress,  Journal,  p.  31. 

^  First  session  Fifty-ninth  Congress,  Record,  p.  43. 

■•  First  session  Fifty-fifth  Congress,  Record,  p.  428. 

5  Thomas  B.  Reed,  of  Maine,  Speaker. 

*  Section  4  of  Rule  XV.     (See  sec.  3041  of  this  work.) 


I 


§   175  THE    OATH.  101 

175.  At  the  beginning  of  a  second  session  of  Congress  unsworn  Mem- 
bers-elect were  taken  into  account  in  ascertaining  the  presence  of  a  quo- 
rum, but  in  the  absence  of  the  Speaker  they  were  not  sworn  until  the  next 
day. — On  December  6.  1S30.'  at  the  beginning  of  the  second  session  of  the  Con- 
gress, there  appeared,  besides  those  who  answered  the  roll,  several  new  Members. 
These  Members-elect,  as  appears  in  the  Journal,  were  taken  into  account  in  ascer- 
taining the  presence  of  a  quorum,  but  the  Speaker  being  absent,  the  oath  was  not 
administered  to  them. 

On  December  7,  the  Speaker  being  in  attendance,  the  oath  was  administered  to 
these  and  other  new  Members  immediate]}-  after  the  reading  of  the  Journal. 

176.  Instance  at  the  beginning  of  a  second  session  wherein  the  oath 
was  administered  to  a  Member-elect  before  the  ascertainment  of  a 
quorum. 

By  unanimous  consent  the  oath  may  be  administered  to  Members- 
elect  whose  regular  certificates  have  not  arrived. 

On  December  7,  1903,-  at  the  beginning  of  the  second  session  of  the  Congress, 
the  Speaker  called  the  House  to  order,  and  the  Chaplain  offered  praj-er. 

Thereupon  ]Mr.  John  H.  Stephens,  of  Texas,  announced  that  Mr.  J.  M.  Pinckney, 
of  Texas,  a  Member-elect,  was  present  and  desired  to  be  sworn.  The  Speaker 
thereupon  laid  before  the  House  the  following  telegram: 

ArsTiK,  Tex.,  December  6,  1903. 
Hon.  Joseph  G.  Cannon, 

Speaker  Bouse  of  Representatives,  Washington,  D.  C: 
I  am  reliably  inionned  that  at  a  special  election  held  in  the  Eighth  Congressional  district  of  Texas 
on  the  17th  of  November  last  Hon.  J.  M.  Pinckney  was  elected  as  Member  of  Congress  to  succeed  Hon. 
Thomas  Ball,  resigned.     I  am  also  advised  that  Pinckney's  election  is  conceded  by  his  opponents. 
Under  our  laws,  the  official  returns  can  not  be  opened  and  counted  until  forty  days  after  the  election. 

S.  W.  T.  Lanham,  Governor  of  Texas. 

Thereupon,  by  the  imanimous  consent  of  the  House,  the  oath  was  administered 
to  ilr.  Pinckney. 

Then  the  Speaker  (Urected  the  call  of  the  roll  by  States  to  ascertain  the 
presence  of  a  cjuonun 

177.  On  December  31,  1834,^  as  soon  as  the  roll  of  Members  had  been  called 
by  States,  several  new  Members  appeared  and  were  qualified  and  took  their  seats. 
Then  the  Journal  announces  the  presence  of  a  quorum. 

178.  On  December  7,  1840,^  the  first  day  of  the  second  session  of  the  Con- 
gress, the  Speaker  called  the  House  to  order,  and  the  Clerk  called  the  roll  by  States. 
Then  six  new  Members  appeared  and  took  the  oath  and  their  seats ;  but  even  mth 
these  there  was  no  quorum  present,  and  so  the  House  adjourned. 

179.  In  the  absence  of  the  Speaker  a  Member-elect  has  produced  his 
credentials  and  taken  his  seat,  but  was  not  sworn  until  the  oath  could  be 
administered  by  the  Speaker. 

'  Second  session,  Twenty-first  Congress,  Journal,  p.  7;  Debates,  p.  350. 
^Second  session  Fifty-eighth  Congress,  Record,  pp.  15,  16. 
'Second  session  Twenty-third  Congress,  Journal,  p.  7;  Debates,  p.  751. 
Second  session  Twenty-sixth  Congress,  Journal,  p.  5;  Globe,  p.  1. 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 

RIVERSIDE 


102  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    180 

In  the  earliei'  years  of  the  House  the  absence  of  the  Speaker  caused 
adjournment  and  the  postponement  of  the  orders  of  the  day. 

On  December  1,  1797/  the  Speaker  being  absent,  a  new  Member,  Joseph  He ister, 
returned  to  serve  in  the  House  as  a  Member  from  the  State  of  Pennsylvania,  in  the 
room  of  George  Egge,  who  had  resigned  his  seat,  "appeared,  produced  his  credentials, 
and  took  his  seat  in  the  House." 

The  Speaker  being  indisposed  (the  Clerk  so  informed  the  House),  the  orders 
of  the  day  were  postponed  and  the  House  adjourned. 

On  the  next  legislative  day,  December  4,  the  oath  was  administered  to  Mr. 
Heister  by  the  Speaker. 

On  February  22,  1798,^  the  Speaker  being  absent,  the  orders  of  the  day  were 
postponed  and  the  House  adjourned. 

180.  It  was  held  in  1881  that  the  administration  of  the  oath  to  Dele- 
gates was  of  higher  privilege  than  the  adoption  of  rules. — On  December  5, 
1881,^  after  the  Members-elect  had  been  sworn  in,  and  after  the  officers  of  the  House 
had  been  elected,  but  before  the  oath  had  been  administered  to  the  Delegates,  Mr. 
Dudley  C.  Haskell,  of  Kansas,  presented  resolutions  providing  for  the  adoption 
of  rules. 

The  House  having  adjourned  pending  action  on  thcso  resolutions,  Mr.  Haskell, 
on  December  6,  called  them  up  for  consideration. 

Mr.  Samuel  J.  Randall,  of  Pennsylvania,  made  the  point  of  order  that  under  the 
law  other  business  of  higher  privilege,  viz,  the  swearing  in  of  the  Delegates,  as 
provided  by  section  30  of  the  Revised  Statutes,  which  provided  for  the  administra- 
tion of  the  oath,  as  follows: 

At  the  first  session  of  Congress  after  every  general  election  of  Representatives,  the  oath  of  office  shall 
be  administered  by  any  Member  of  the  House  of  Representatives  to  the  Speaker,  and  by  the  Speaker  to 
all  the  Members  and  Delegates  present,  and  to  the  Clerk,  previous  to  entering  on  any  other  business,  and 
to  the  Members  and  Delegates  who  afterward  appear,  previous  to  their  taking  their  seats. 

The  Speaker  *  sustained  the  point  of  order,  and  directed  the  Clerk  to  call  the 

Delegates  to  be  sworn. 

181.  The  presiding  oflScer  of  the  Senate  being  present,  the  oath  of 
office  was  administered  to  Senators-elect,  although  no  quorum  was  pres- 
ent.— On  December  6,  1804,'  the  second  day  of  the  second  session  of  the  Congress, 
a  quorum  did  not  appear,  but  the  President  of  the  Senate  administered  the  oath  to 
Messrs.  William  B.  Giles  and  Andrew  Moore,  of  Virginia,  who  appeared  with  cre- 
dentials showing  their  appointment  by  the  governor  of  the  State  to  fill  vacancies. 

182.  On  December  G,  1802,''  in  the  absence  of  the  Vice-President,  a  Member- 
elect  appearing  in  the  Senate  with  credentials,  but  there  being  no  quorum,  took 
his  seat,  but  was  not  sworn  until  December  14,  after  a  quorum  had  appeared  and 
a  President  pro  tempore  had  been  elected. 

1  Second  session  Fifth  Congress,  Journal,  p.  95  (Gales  &  Seaton  ed.);  Annals,  p.  670. 

2  Journal,  p.  191;  Annals,  p.  1062. 

^ First  session  Forty-seventh  Congress,  Journal,  pp.  16,  18;  Record,  p.  33. 
■"J.  Yv'arren  Keifer,  of  Ohio,  Speaker. 

*  Second  session  Eighth  Congress,  Senate  Journal,  p.  411.  Aaron  Burr, Vice-President  and  President 
of  the  Senate. 

"Second  session  Seventh  Congress,  Senate  Journal,  pp.  241,  243. 


§   183  THE    OATH.  103 

183.  Discussion  of  the  status  of  a  Member-elect  who  has  not  taken 
the  oath,  -w^ith  a  conclusion  that  it  is  distinguished  from  that  of  a  Member 
who  has  qualified. — Oa  June  13.  1801,  Mr.  Henry  L.  Dawes,  of  Massachusetts, 
from  the  Committee  on  Elections,  made  a  report '  relating  to  the  rights  of  Messrs. 
Robert  C.  Schenck,  of  Ohio,  and  Frank  P.  Blair,  jr.,  of  Missouri,  to  seats  in  the 
House.  In  the  course  of  this  report  the  follo^\^ng  discussion  was  given  of  the  status 
of  a  ilember-elect : 

No  one  can  be  a  "Member"  against  his  will.  He  may  be  elected  without  his  consent  or  knowledge, 
for  he  may  be  in  a  foreign  land;  but  to  become  a  "Member  "he  must  not  only  be  elected  but  he  must  take 
the  oath  of  office.  The  Constitution  says:  "Each  House  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  Members" — that  is,  of  those  who  have  qualified  and  taken  their  seats.  Again:  ' '  A 
majority  of  each  shall  constitute  a  quorum,  but  a  smaller  number  may  adjourn  from  day  to  day,  and  may 
be  authorized  to  compel  the  attendance  of  absent  Members."  But  the  attendance  of  a  Representative- 
elect  was  never  yet  compelled.  .\nd,  again:  "Each  House  maydetermine  the  rules  of  its  proceedings, 
punish  its  Members  for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a  Member." 
The  committee  are  not  aware  of  any  attempt  to  punish  a  Representative-elect,  and  of  but  one  instance  of 
an  attempt  to  expel  one.  A.  resolution  was  adopted  by  the  last  House,  under  the  previous  question, 
to  expel  a  person  who  was  a  Representative-elect,  but  had  never  signified  his  acceptance  of  the  ofBce  or 
qualified,  or  even  appeared  in  Washington  for  the  purpose  of  taking  his  seat.  But  when  the  Constitution 
uses  the  word  "Representative,"  it  is  in  this  connection:  "The  times,  places,  and  manner  of  holding 
elections  of  Senators  and  Representatives  shall  be,"  etc.  "No  person  shall  be  a  Representative  who  shall 
not  have  attained  to  the  age  of  25  years."  In  the  clause  now  under  consideration  the  language  is:  "No 
person  holding  any  office  under  the  United  States  shall  be  a  Member  of  either  House  during  his  contin- 
uance in  office."  No  one  doubts  that  the  object  of  the  Constitutional  inhibition  was  to  guard  the  House 
against  Executive  influence.  This  object  is  attained  so  far  as  it  can  be  by  this  provision,  if  the  inhibition 
attaches  the  moment  the  ember  Menters  upon  the  discharge  of  his  d\ities  as  such,  and  nothing  is  gained 
by  an  earlier  application  of  it. 

184.  Discussion  of  the  status  of  a  Member-elect  in  relation  to  the  law 
prohibiting  the  holding  of  two  offices  of  certain  salaries,  with  the  conclu- 
sion that  it  is  distinguished  from  the  status  of  the  Member  who  has  qual- 
ified.— On  July  19,  1866,^  Mr.  Samuel  Shellabarger,  of  Ohio,  made  a  report  from 
the  select  committee  appointed  April  .30,  1866,  to  investigate  certain  statements 
and  charges  relating  to  Hon.  Roscoe  Conkling  and  Provost-Marshal-General  Fry. 
In  April, 1865,  Mr.  Conkling  had  accepted  an  appointment  from  the  War  Department 
to  investigate  frauds  in  the  office  of  the  provost-marshal  for  the  western  district  of 
New  York.  He  was  at  the  same  time  a  Member-elect  of  the  Hotise  of  Representa/- 
tives.  The  special  committee  consisted  of  Messrs.  Shellabarger,  of  Ohio,  William 
Windom,  of  Minnesota,  B.  M.  Boyer,  of  Pennsylvania,  Burton  C.  Cook,  of  Illinois, 
and  Samuel  L.  Warner,  of  Connecticut,  and  they  made  an  unanimous  report,  in 
which  they  foimd,  among  other  things,  that  Mr.  Conkling  had  not  violated  the 
law  or  the  Constitution  by  accepting  the  appointment. 

The  act  of  1852  ^  had  provided  against  the  holding  of  two  offices  of  certain  sala- 
ries under  the  United  States;  and  in  the  course  of  their  inquiry  the  committee 
considered  the  status  of  the  Member-elect,  as  follows : 

'  House  Report  No.  110,  First  session  Thirtj'-eighth  Congress,  pp.  8,  9. 
-  First  session  Thirty-ninth  Congress,  Globe,  pp.  3935-3942. 
^Now  section  1763,  Revised  Statutes. 


104  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §1^4 

The  first  of  these  inquiries  is,  in  the  judgment  of  the  committee,  answered,  so  far  as  is  necessary 
in  deciding  upon  the  effect  of  the  act  of  1852,  by  the  cases  of  Hammond,  of  Earl,  of  Mumford,  of  Schenck," 
and  others,  which  we  have  already  cited.  These  cases,  as  we  have  seen,  all  determine  that,  prior  to 
the  time  when  the  Constitution  requires  the  Memlser-elect  to  commence  the  duties  of  his  legislative 
office,  and  before  he  has  assumed  these  duties  and  taken  the  oath  of  office,  he  may  receive  compensation 
for  discharging  the  duties  of  another  office.  As  we  have  already  said,  these  cases  do  not  determine 
that  he  may  also  be  compensated  as  a  Member  of  Congress  for  the  same  time  for  which  he  was  compen- 
sated in  the  other  office.  But  they  do  determine  that  being  a  Member-elect  of  Congress  does  not  make 
him  an  "officer"  in  such  sense  as  to  bring  him  within  the  prohibition  of  the  act  of  1852.  This  question, 
in  substance,  received  the  careful  attention  of  the  House  in  the  Thirty-eighth  Congress  upon  an  able 
report  of  one  of  its  committees.-  The  conamittee  and  House  came  to  what  your  committee  deem  a 
just  conclusion  when  it  determined  that  one  merely  elected  to  Congress,  but  who  had  not  entered 
upon  his  duties  nor  been  qualified,  was  not  a  Member  of  this  House — that  is,  did  not  hold  an  ofTicc  so 
as  to  prevent  him  from  continuing  to  hold  another  office  and  receive  compensation  therefor.  The 
committee,  in  concluding  their  argument  showing  that  one  merely  elected  to  Congress  was  not  a  Memlter 
of  the  House  and  not,  as  such,  amenable  to  its  jurisdiction,  says:  "The  committee  are  not  aware  of 
any  attempt  to  punish  a  Representative-elect,  and  of  but  one  instance  of  an  attempt  to  expel  one.  A 
resolution  was  adopted  by  the  last  House,  under  the  previous  question,  to  expel  a  person  who  was  a 
Representative-elect,  but  had  never  signified  his  acceptance  of  the  office,  nor  qualified,  nor  even 
appeared  in  Washington  for  the  purpose  of  taking  his  seat." 

In  that  case  -  the  House  determined,  in  effect,  that  the  act  of  1852  did  not  prohibit  General  Schenck 
while  a  Member-elect  of  Congress  from  receiving  the  pay  of  another  office — to  wit,  that  of  major-general 
of  volunteers. 

This  is  the  last  case  in  which  the  question  came  before  the  House.  But  the  same  question  received 
in  the  Fifteenth  Congress,  in  the  case  of  Hammond  v.  Herrick  (Clark  and  Hall,  Contested  Elections, 
pp.  293,  294),  a  still  more  elaborate  and  exhaustive  consideration.  In  the  report  in  that  case  (which 
also  received  the  sanction  of  the  House)  this  doctrine  was  explicitly  stated,  and  was  affirmed  after  a 
thorough  review  of  the  English  and  American  cases  touching  it.  The  case  held  the  rule  which  was 
stated  by  the  committee  in  these  words:  "Neither  do  election  and  return  constitute  membership. 
*  *  *  Our  rule  in  this  particular  is  different  from  that  of  the  House  of  Commons.  It  is  also  better, 
for  it  makes  our  theory  conform  to  what  is  fact  in  both  countries — that  the  act  of  becoming  in  realil  y  a 
Member  of  the  House  depends  wholly  upon  the  person  elected  and  returned.  Election  does  nol  of 
itself  constitute  membership,  although  the  period  may  have  arrived  at  which  the  Congressional  term 
commences." 

This  House  has  again  and  again  determined  that  men  elected  to  it  who  do  not  appear  in  the  body  and 
assume  the  constitutional  oath  of  office  are  not  to  be  reckoned  as  Members  of  the  House  in  determining 
the  number  required  to  make  a  majority  or  quorum  of  the  body. 

The  committee  in  coming  to  this  conclusion  have  not  overlooked  the  fact  that  Members-elect,  but 
not  qualified,  are  by  the  laws  accorded  certain  privileges  and  salary.  The  effect  of  this  right  to  enjoy  these 
privileges  before  becoming  qualified  as  a  member  of  the  legislative  body  has  received  the  fullest  attenl  ion 
both  in  this  House  and  in  the  English  Parliament.  The  result  attained  is  that  these  special  privileges 
are  not  necessarily  indicia  of  actual  official  authority  or  station,  and  may  by  law  as  well  be  attached  to 
one's  person  before  and  after  he  is  an  officer  as  during  his  official  tenure.  The  Representatives  after  the 
expiration  of  their  terms,  the  President  of  the  United  States  after  such  expiration,  and  the  widows  of 
certain  ex-Presidents,  all  have  the  franking  privilege,  and  these  are  not  then  officers  of  the  Government 
in  any  sense.  The  assumption  of  office  in  this  country,  as  well  as  its  relinquishment,  is  voluntaiy,  and 
one  elected  to  Congress  is  at  perfect  liberty  to  refuse  to  assume  the  office.  His  exercise  of  the  franking 
privilege  with  the  knowledge  that  he  never  would  enter  upon  the  duties  of  the  office  would  be  an  act  of 
bad  faith  toward  his  Government:  but  that  would  not  render  him  a  Member  of  Congress,  nor  would  the 
exercise  prevent  him,  should  failure  of  health  or  other  cause  render  it  improper  to  enter  upon  his  office, 
from  rightly  refusing  ever  to  take  the  office. 

Other  and  perhaps  more  conclusive  considerations  bearing  upon  this  important  inquiry  might  be 

'  Report  No.  110,  first  session  Thirty-eighth  Congress. 

-  House  Report,  No.  110,  first  session  Thirty-eighth  Congress. 


§   185  THE   OATH.  105 

given,  but  it  is  not  deemed  best  to  pursue  it  further.  The  committee  are  entirely  satisfied  that  the  law 
of  this  House  is  fully  and  rightly  settled  as  to  this  point,  and  that  he  is  not  a  Member  of  Congress,  nor  one 
who  "holds  any  office  under  the  Government  of  the  United  Stares"  who  has  only  been  elected  to  this 
House,  but  who  has  never  taken  any  oath  of  office  nor  entered  upon  the  duties  of  that  position. 

185.  In  1901,  in  a  divided  report,  the  Judiciary  Committee  discussed 
the  status  of  the  Member-elect,  the  major  opinion  being  that  he  was  as 
much  an  officer  of  the  Government  before  taking  the  oath  as  afterwards. — 
On  Februan"  4,  1901,'  ^Ir.  George  W.  Ray,  of  Xew  York,  from  the  Judiciary- 
Committee,  submitted  a  report  on  a  question  relating  to  the  salary  of  Hon.  William 
Richardson,  who  had  been  elected  to  represent  the  district  formerly  represented  by 
Hon.  Joseph  Wheeler.  The  discussion  of  this  question  involved  an  examination  of 
the  status  of  a  Member-elect. 

Does  a  person  duly  elected  Representative  in  Congress  hold  an  office  prior  to  the  meeting  of  Congress 
at  the  time  fixed  by  the  Constitution,  or  pursuant  to  a  special  call  by  the  President  and  before  taking  the 
oath  required  by  the  Constitution? 

It  has  been  strenuously  urged  that  a  person  so  duly  elected  does  not  hold  any  office  until  Congress 
assembles  and  the  oath  is  taken.  With  this  contention  we  can  not  agree.  Article  I  of  the  Constitution 
provides: 

"  Sectign  1.  -Vll  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of  the  United  States, 
which  shall  consist  of  a  Senate  and  House  of  Representatives. 

"Sec.  2.  The  House  of  Representatives  shall  be  composed  of  Members  chosen  every  second  year  by 
the  people  of  the  several  States,  etc.  *  *  *  The  House  of  Representatives  shall  choose  their  Speaker 
and  other  officers,  etc. 

"Representatives  and  direct  taxes  shall  be  apportioned,  etc. 

"No  person  shall  be  a  Representative  who  shall  not  have  attained,  etc. 

"Sec.  4.  The  time,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives  shall 
be  prescribed  in  each  State  by  the  legislature  thereof,  etc. 

"Sec.  6.  The  Senators  and  Representatives  shall  receive  a  compensation  for  their  services  to  be 
ascertained  by  law,  etc.     *    *    * 

"No  Senator  or  Representative  shall  during  the  time  for  which  he  was  elected  be  appointed,  etc. 
*  *  *  And  no  person  holding  any  office  under  the  United  States  shall  be  a  Member  of  either  House 
during  his  continuance  in  office." 

The  Constitution  frequently  speaks  of  "each  House."     Article  VI  provides: 

"The  Senators  and  Representatives  before  mentioned,  and  the  members  of  the  several  State  legisla- 
tures, and  all  executive  and  judicial  officers,  both  of  the  United  States  and  of  the  several  States,  shall  be 
bound  by  oath  or  affirmation  to  support  this  Constitution,  etc." 

The  Constitution  does  not  prescribe  the  time  when  or  the  officer  before  whom  such  oath  is  to  be 
taken.     Taking  the  oath  is  not  made  a  condition  precedent  to  holding  the  office. 

But  section  1,  chapter  1,  of  the  first  act  or  statute  of  the  First  Congress,  wliich  assembled  at  the  city  of 
New  York  March  4,  1789,  prescribed  the  form  of  the  oath  to  be  taken  pursuant  to  the  Constitution,  and 
section  2  of  such  act  provided  as  follows: 

"That  at  the  first  session  of  Congress  after  every  general  election  of  Representatives  the  oath  or  affir- 
mation aforesaid  shall  be  administered  by  any  one  Member  of  the  House  of  Representatives  to  the 
Speaker,  and  by  him  to  all  the  Members  present,  and  to  the  Clerk,  previous  to  entering  on  any  other 
business,  and  to  the  Members  who  shall  afterwards  appear  pre\'ious  to  taking  their  seats,  etc." 

Section  2  of  Article  I  says: 

"Each  House  may  determine  the  rules  of  it?  proceedings,  etc." 

If  we  note  carefully  the  language  of  this  act  of  the  First  Congress,  it  is  apparent  that  it  was  not  con- 
sidered that  the  oath  was  a  prerequisite  to  becoming  '  a  Member,"  for  it  says — 
"the  oath  or  affirmation  aforesaid  shall  be  administered  by  any  one  Member  of  the  House  of  Representa- 

'  Second  session  Fifty-sixth  Congress,  House  Report  No.  26.56,  pp.  10-13,  17,  27-29,  42-.50. 


106  PRECEDENTS   OF    THE   HOUSE   OF   KEPEESENTATIVES.  §   185 

tives  to  the  Speaker,  and  by  him  to  all  the  Members  present ,  and  t  o  the  Clerk ,  previous  to  entering  on  any 
other  business,  and  to  the  Members  who  shall  afterwards  appear  previous  to  taking  their  seats." 

All  duly  elected  are  "Members"  before  taking  the  oath,-  but  they  can  not  take  their  seats  until  the 
required  oath  is  taken. 

Then  is  it  not  true  that  all  Representatives  elected  become  "Members"  from  the  very  hour  and 
minute  of  the  commencement  of  the  term  for  which  elected? 

The  commencement  of  the  term  for  which  Representatives  are  elected  was  fixed  and  determined  as 
follows: 

After  the  adoption  of  the  Constitution  by  the  requisite  number  of  States  the  Continental  Congress 
adopted  the  following  resolution  on  the  13th  day  of  September,  1788:' 

"Resolved,  That  the  first  Wednesday  in  January  next  be  the  day  for  appointing  electors  in  the  several 
States  which  before  the  said  day  shall  have  ratified  the  said  Constitution;  that  the  first  Wednesday  in 
February  next  be  the  day  for  the  electors  to  assemble  in  their  respective  States  and  vote  for  President, 
and  that  the  first  Wednesday  in  March  next  be  the  time  and  the  present  seat  of  Congress  the  place  for 
commencing  proceedings  under  the  said  Constitution." 

The  several  States  elected  Representatives  in  Congress  for  the  First  Congress,  and  it  assembled 
March  4,  1789,  the  first  Wednesday  of  that  month,  pursuant  to  the  above  resolution.  By  the  Constitu- 
tion Representatives  are  chosen  every  second  year,  thus  fixing  the  terms  of  office. 

In  the  various  acts,  or  some  of  them,  providing  for  the  apportionment  and  election  of  Representa- 
tives in  Congress  future  Congresses  have  been  referred  to  as  commencing  on  the  4th  day  of  March. - 

It  seems  clear  that  taking  the  oath  is  not  a  condition  precedent  to  becoming  a  Member,  although  the 
Member  can  not  take  his  seat  in  the  House  until  the  oath  is  taken.  This  is  a  rule  of  action  prescribed 
by  the  House. 

"Membei's"  organize  the  House;  "Members"  elect  the  Speaker,  and  this  is  a  most  important  func- 
tion. Any  Representative  before  taking  the  oath  may  administer  the  oath  to  the  Speaker,  and  the 
Speaker  administers  the  oath  to  whom?  Representatives-elect?  No;  but  to  "Members."  "The 
House  of  Representatives  shall  choose  their  Speaker."  The  House  exists  before  a  Speaker  is  chosen  or 
the  oath  taken. 

After  quoting  Blackstone  to  the  effect  that  an  office  is  "a  right  to  exercise  a 
public  or  private  emplojmient  and  to  take  the  fees  and  emoluments  thereunto 
belonging,"  and  other  authorities,'  in  the  same  line,  the  report  cites  authority  Mn 
support  of  the  statement  that  there  is  nothing  in  the  Constitution  or  in  the  statutes 
that  makes  the  taking  of  the  oath  a  condition  precedent  to  taking  and  holding  the 
office  of  Representative  in  Congress  when  elected  by  the  people  for  a  definite  term 
fixed  b}^  law.  Even  when  a  statute  fixes  the  time  and  it  is  not  complied  with,  the 
person  elected  or  appointed  is  in  and  vested  with  the  office  when  the  term  commences 
unless  it  is  declined. 

The  report  further  contends : 

The  word  "Member-elect"  was  never  used  in  any  of  the  statutes  until  1873  (as  we  can  find)  and 
was  not  intended  to  overthrow  the  Constitution,  which  provides  that  Members  are  elected  by  the 
people,  not  made  such  by  taking  an  oath,  but  was  used  simply  to  distinguish  between  Members  who 
had  become  entitled  to  a  seat  by  taking  the  oath  and  those  not  entitled  to  sit  in  the  House  after  its 
organization.     *    *    * 

We  should  also  call  attention  to  the  fact  that  we  always  have  a  Congress — always  have  a  Senate; 
always  have  a  House  of  Representatives  and  Members  of  the  House  of  Representatives. 

'  See  Journal  of  Continental  Congress. 

-  Revised  Statutes,  sec.  25. 

'Blackstone's  Commentaries,  Book  2,  chapter  3,  p.  36;  Kent's  Commentaries,  p.  454;  United 
States  V.  Hartwell,  6  Wall.,  385-393. 

■•Mechem's  Public  Ofiices,  sec.  247;  Throop,  Public  Ofiices,  sees.  3  and  173;  Clark  v.  Stanley,  66 
N.  C,  59. 


§  185  THE    OATH.  107 

The  House  may  not  be  organized,  but  it  exists,  nevertheless.  Section  2,  Constitution  United  States, 
says:  "The  House  of  Representatives  shall  choose  their  Speaker."  The  Representatives  in  Congress 
or  Members  of  the  House  may  not  have  taken  the  oath  of  office,  but  they  are  elected,  and  each  comes 
into  office,  if  eligible,  the  very  moment  the  term  of  his  predecessor  ceases. 

ilr.  D.  H.  Smith,  who  filed  individual  views,  held  the  same  opinion,  saying: 

When  it  is  remembered  that  the  Clerk  of  the  House  usually  makes  up  the  roll  of  the  House  between 
the  election  and  the  4th  of  March  following,  the  word  "Representative-elect"  used  in  section  31  of  the 
Revised  Statutes  is  perhaps  as  aptly  used  as  any  that  could  have  been  selected  and  not  necessarily  in 
conflict  with  the  above  definition.  Likewise  when  attention  is  called  to  the  fact  the  credentials  of  those 
elected  at  the  regular  time  for  electing  Representatives  are  almost  universally  filed  before  the  term 
begins,  while  they  are  really  and  truly  Members-elect,  it  is  not  astonishing  that  this  language  is  found  in 
section  38,  though  other  words  less  liable  to  confuse  might  have  been  used.  But  whatever  influence 
such  citations  might  have,  it  is  entirely  safe  to  say  the  instances  in  which  persons  elected  to  Congress 
are  referred  to  after  their  terms  have  begun  as  Members  are  much  more  numerous  than  those  where  the 
other  expression  is  employed. 

There  are  manystat  utes  prohibiting  Members  of  Congress  from  doing  things  that  might  bedetrimental 
to  the  best  interests  of  the  Government — such  as  those  that  forbid  a  Member  from  practicing  before  the 
Court  of  Claims,  from  taking  compensation  for  procuring  public  contracts  or  oflices,  from  being  interested 
in  public  contracts,  and  a  great  number  of  similar  statutes.  If  it  be  true  that  prior  to  the  convening  of  a 
Congress  in  its  first  session  those  chosen  thereto  are  not  Members,  then  it  is  a  matter  of  serious  and  mgent 
importance  that  Congress  address  itself  to  the  work  of  amending  a  multitude  of  statutes  heretofore  sup- 
posed and  believed  to  apply  to  a  Member  of  Congress  before  he  is  sworn,  as  well  as  afterwards.  *  *  « 
But  it  is  said  that  the  oath  of  office  is  not  taken  until  Congress  meets,  and  that  one  can  not  therefore  be  a 
Member  before  that.  Without  the  Constitution  or  the  statute  makes  the  taking  of  the  oath  a  prerequisite 
to  becoming  a  Member  it  may  be  taken  at  a  subsequent  time,  and  in  the  absence  of  such  requirement 
one  may  become  a  Member  without  it. 

The  First  Congress  of  the  United  States  met  on  the  4th  of  March,  1789,  and  no  Member  of  the  House 
took  the  oath  until  April  S,  and  no  Senator  took  the  oath  until  the  3d  of  June,  although  prior  to  either 
date  much  business  was  transacted,  including  the  count  of  the  electoral  vote  for  President  and  Vice- 
President  fif  the  United  States.  In  that  Congress  was  many  of  those  who  had  been  in  the  convention 
and  assisted  in  forming  the  Constitution,  and  while  all  were  familiar  with  its  provisions  these  no  doubt 
possessed  that  thorough  knowledge  of  the  instrument  in  detail  that  could  only  be  acquired  by  having 
participated  in  constructing  it.  By  their  official  course  they  gave  us  an  interpretation  of  that  part 
requiring  an  oath  which  was  in  effect  that  the  oath  could  be  taken  after  the  session  had  begun,  but  the 
statute  has  so  far  modified  this  as  to  require  it  to  be  taken  at  the  beginning  of  the  first  session.  *  *  * 
Congress  can  not  commence  without  Members,  hence  all  such  persons  chosen  to  compose  the  Congress 
who  have  not  died,  resigned,  or  declined,  and  who  are  eligible  on  the  4th  of  March  succeeding  their 
election,  if  it  be  at  the  regular  time,  become  Members  of  the  Congress  to  which  they  have  been  elected. 
From  the  commencement  of  the  Congress  to  which  they  have  been  elected  they  are  Members  until  they 
in  some  manner  vacate  their  positions. 

Messrs.  Charles  E.  Littlefield,  of  Maine,  and  Julius  Kahn,  of  California,  dis- 
sented from  the  view  taken  in  the  report  of  the  committee,  and  in  the  views  which 
they  jointly  submitted  contend  that  until  a  "Member-elect"  or  "Representative- 
elect"  has  taken  the  oath  of  office  as  a  "Member"  he  is  not  a  "Member"  of  the  House. 
A  "Member-elect"  is  simply  a  person  who,  by  reason  of  possessing  the  requisite 
qualifications,  having  been  elected  therefor,  is  capable  when  the  constitutional  time 
arrives  of  becoming  a  "Member."  The  first  mention  of  "Member-elect"  or 
"Representative-elect"  in  the  statutes  was  in  section  31,  Revised  Statutes,  and 
then  in  section  .38.  The  statutes  relating  to  salary  provided  that  the  Member-elect 
should  draw  salary  mthout  the  oath;  the  Member  only  after  the  oath.  For  at  least 
seventy-seven  years  the  laws  in  relation  to  compensation  were  such  that  the  ilcmber- 


108 


PRECEDENTS    OF    THE    HOUSE    OF    KEPRESEISTTATIVES. 


§185 


elect  received  no  salary,  payments  being  made  only  to  Members  who  had  taken  the 
oath.  Furthermore,  the  "Member-elect"  had  none  of  the  attributes  or  privileges 
of  a  "Member"  except  as  they  are  specially  conferred  by  statute.  Thus  the 
Member-elect  has  the  franking  privilege;  but  so  also  does  the  ex-Member  for  a 
certain  time  after  the  expiration  of  his  term.  The  views  of  the  two  Members  are 
given  further: 

A  "Member-elect"  is  in  no  sense  within  the  constitutional  inhibition,  for  asa  "Member-elect"  he 
has  neither  power  nor  opportunity  to  do  any  act  inconsistent  vrith  the  duties  of  any  other  office.  He 
can  not  vote,  except  for  Speaker.  He  can  not  discharge  any  of  the  duties  or  exercise  any  of  the  powers 
of  a  "Member."  He  can  only  enjoy  certain  privileges  specifically  annexed  to  his  status  as  a  "Member- 
elect"  by  statute.  However  much  the  elements  that  inhere  in  an  inconsistent  office  might  control 
for  good  or  ill  the  manner  in  which  a  "Member"  might  discharge  hie  duties  as  such,  these  elements  can 
have  no  effect  upon  the  action  of  a  "Member-elect,"  who  can  nc^t  act  at  all.  The  inhibition  is  based 
upon  the  idea  that  the  inconsistent  office  involves  considerations  whose  probable  tendencies  would  be 
to  improperly  affect  the  discharge  of  public  duties  by  a  Member.  MTien  considered  in  connection 
with  a  "Member-elect,"  who  has  no  power  to  discharge  such  duties,  the  reason  fails. 

As  to  the  contention  that  the  provision  of  section  30,  Revised  Statutes,  shows 
that  Members  are  Members  before  they  are  sworn,  it  is  urged  that — 

That  does  not  follow.  The  election  of  a  Speaker  is  but  one  of  the  steps  in  the  organization  of  the 
House.  It  is  clear  that  Members-elect  necessarily  have  the  inherent  power  to  take  this  step  in  order 
that  the  House  may  be  organized  of  which  they  may  become  Members.  You  can  only  predicate  the 
idea  of  Members  upon  an  existing  body,  and  to  hold  that  you  can  not  have  an  organized  body  unless 
you  first  have  members  is  to  beg  the  question.  The  organization  of  a  corporation  created  by  special 
act  illustrates  the  idea.  The  act  creates  certain  persons,  called  associates  or  corporators,  a  body  cor- 
porate, but  this  does  not  organize  the  corporation  or  make  the  corporators  stockholders  or  members 
thereof.  It  does  confer  upon  the  corporators  power  to  organize  a  corporation  of  which  they  may  after- 
wards become  members  by  becoming  stockholders,  but  the  fact  that  they  can  and  do  exercise  the  indis- 
pensable power  of  organizing  does  not  of  itself  make  or  tend  to  make  them  "members"  of  the  body  they 
organize.     The  same  result  follows  as  to  "Memljers-elect." 

If  the  right  of  voting  for  Speaker  demonstrates  that  a  person  is  a  Member,  then  the  objection  to 
Roberts,  of  Utah,  was  not  interposed  early  enough.  No  one  thought  of  questioning  his  right  to  vote  for 
Speaker.  The  question  in  his  case  was  solely  one  of  exclusion  or  expulsion.  Exclude  him,  and  prevent 
hira  from  becoming  a  Member.  Therefore  he  was  halted  at  the  oath.  But  it  is  now  contended  that  the 
oath  is  not  an  essential  prerequisite  to  membership  for  the  purpose  of  establishing  the  proposition  that 
a  Representative-elect  becomes  a  "Member"  on  the  4th  of  March  of  a  House  not  in  existence  and  so 
continues,  and  the  formality  of  an  oath,  though  required  by  the  Constitution,  is  thus  dispensed  with,  as 
under  such  a  construction  it  is  not  essential.  Still,  although  they  have  thus  reasoned  the  oath  out,  they 
miist  concede  that  this  "Member"  can  not  draw  compensation  without  taking  the  oath,  while  a  "Mem- 
ber-elect" can.  Such  an  inconsistency  demonstrates  the  fallacy  of  the  reasoning.  Roberts,  of  Utah, 
drew  salary  as  Member-elect  until  November  3,  1899,  exercised  the  franking  privilege,  and  voted  for 
Speaker.  Was  he  a  "Member"  from  March  4,  1899?  If  so,  his  exclusion  from  the  office  nearly  a  year 
later  was  hardly  effective.  Notwithstanding  this  now  construction  it  was  never  suggested  before  that 
he  was  even  a  Member  de  facto. 

Moreover,  on  the  2Gth  day  of  January,  1900,  by  a  large  majority,  the  House  held  that  he  was  not 
entitled  to  membership  therein,  and  excluded  him  therefrom.  It  was  expressly  understood  that  a 
majority  was  necessary  to  exclude,  while  it  was  conceded  that  two-thirds  were  necessary  to  expel  a 
"Member."  Did  Roberts,  under  this  new  theory  of  the  committee,  become  in  any  legal  sense,  de  facto, 
de  jure,  or  otherwise,  a  "Member"  March  4,  1899?  If  so,  the  proceedings  were  had  under  a  curious 
misconception  of  the  situation.  If  he  did  not  then  become  a  "  Member,"  could  he,  on  the  theory  of  the 
committee,  be  the  "predecessor,"  within  the  meaning  of  section  51,  of  his  successor?    Yet  his  successor 


§   -^^^  THE    OATH.  109 

^elected  in  March  1900  and  upon  the  proper  certificate  drew  compensation  back  to  Jantiary  26 
tZ'scctL  ^''^  ^"'  '"'^'^  ^''  ^"'^■•'^  "^"^  ^^^'^  ^'^  "predecossor"  within  the  leaning  of 

romn?r!l^.?'J  ^.^  t''  ""^  ^his  contention  the  two  Members  quote  a  decision  of  the 
Comptroller  of  the  Treasuiy  ■  m  the  case  of  llr.  Boatner,  and  of  Attorney-General 
Devens-  m  the  case  of  Delegate  Romero,  in  both  of  which  the  Member-elect  was 
aot  regarded  as  a  Member. 

There  was  no  action  by  the  House  on  the  report. 

■  Opinions  of  Comptroller  of  Treasury,  Vol.  3,  p.  20.     See  sec.  28  of  this  work 
15  Attorneys-General  Opinions,  p.  280;  also  14  A.  G.  Decisions,  p.  40(i. 


Chapter  VL* 

THE   OFFICERS   OF   THE    HOUSE  AND   THEIR  ELECTION. 


1.  Provisions  of  Constitution  and  rule.     Sections  186,  187. 

2.  General  procedure  of  election.     Sections  188-203. 

3.  The  election  of  Speaker,     Sections  204-230.' 

4.  Resignation  or  death  of  Speaker.     Sections  231-234.- 

5.  The  Clerk  and  his  election.     Sections  235-245. 

6.  Absence  of  the  Clerk.     Sections  246-248. 

7.  Authority  and  duties  of  the  Clerk.     Sections  249-253.' 

8.  The  Clerk  custodian  of  the  seal  of  the  House.     Sections  254-256. 

9.  The  duties  of  the  Sergeant-at-Arms.     Sections  257-259. 

10.  The  Doorkeeper  and  his  duties.     Sections  260-263. 

11.  Resignations  and  deaths  of  officers.     Sections  264-268.^ 

12.  The  Postmaster  and  his  duties.     Sections  269-271. 

13.  The  Chaplain  and  his  duties.     Sections  272-282. 

14.  Defense  of  officers  in  actions.     Section  283. 


186.  The  Speaker  and  other  ofl&cers  are  chosen  by  the  House. — The 
Constitution  of  the  United  States,  in  Article  I,  section  2,  provides  that  "the  House 
of  Representatives  shall  choose  their  Speaker  and  other  officers." 

187.  The  elective  officers  of  the  House,  in  addition  to  the  Speaker, 
are  the  Clerk,  Sergeant-at-Arms,  Doorkeeper,  Postmaster,  and  Chaplain. 

A  rule,  which,  however,  is  not  in  force  at  the  time  of  organization, 
provides  that  all  the  elective  officers  except  the  Speaker  shall  be  chosen 
by  viva  voce  vote. 

The  Speaker,  who  was  at  first  chosen  by  ballot,  has  been  chosen  by 
viva  voce  vote  since  1839. 

The  elective  officers  other  than  the  Speaker  continue  in  office  until 
their  successors  are  chosen  and  qualified. 

The  elective  officers  of  the  House  are  sworn  to  support  the  Constitu- 
tion and  discharge  their  duties  faithfully. 

*  See  Volume  VI,  Chapter  CLIII. 

'  Clerk  preserves  order  during.  Section  64  of  this  volume.  As  to  general  duties  of  the  Speaker. 
Chapter  XLIV,  sections  1307-1376  of  Vol.  II  of  this  work.  Contests  over  election  of,  in  1855  and  1859. 
Sections  6647-6650  of  Vol.  V. 

2  See  also  section  1356  of  Vol.  II. 

^  Presiding  officer  during  organization.     Chapter  III,  sections  64-80  of  this  volume. 

*  See  also  section  292  of  this  volume. 

110 


§   187  THE    OFFICERS    OF    THE    HOUSE    AND   THEIR    ELECTION.  Ill 

Origin  of  an  obsolete  requirement  that  the  officers  of  the  House  shall 
be  sworn  to  keep  its  secrets. 

Each  of  the  elected  officers  of  the  House  appoints  the  employees  of 
his  department  provided  by  law. 

The  attempt  to  establish  the  theory  that  one  House  might  prescribe 
rules  for  its  successor,  and  the  end  thereof. 

The  House  formerly  provided  by  special  rule  that  the  Clerk  should 
continue  in  office  until  another  should  be  appointed. 

Rule  II  provides: 

There  shall  be  elected  by  a  viva  voce  vote,  at  the  commencement  of  each  Congress,  to  continue  in 
office  vmtil  their  successors  are  chosen  and  qualified,  a  Clerk,  Sergeant-at-Arms,  Doorkeeper,'  Post- 
master, and  Chaplain,  each  of  whom  shall  take  an  oath  to  support  the  Constitution  of  the  United  States, 
and  for  the  true  and  faithful  discharge  of  the  duties  of  his  office  to  the  best  of  his  knowledge  and  ability, 
and  to  keep  the  secrets  of  the  House;  and  each  shall  appoint  all  of  the  employees  of  his  department 
provided  for  by  law. 

Tliis  rule  is  the  result  of  many  changes  in  the  relations  of  the  House  and  its 
elected  officers.  It  is,  of  course,  of  advisory  force  only,  as  it  has  not  been  the  cus- 
tom of  the  House  to  adopt  rules  until  it  has  organized  by  the  choice  of  some,  at 
least,  of  its  officers;  but  at  the  time  this  rule  was  framed  into  its  present  form — in 
1880 — there  existed  and  was  continued  another  rule  which  provided:  "These  rules 
shall  be  the  rules  of  the  House  of  Representatives  of  the  present  and  succeeding 
Congresses  unless  otherwise  ordered."'  This  attempt  to  enable  one  House  to 
dictate  rules  to  its  successor  was  often  challenged  and  was  finally  brought  to  an  end 
in  1890,  after  having  continued  from  1860.^  It  is  evident,  then,  that  this  rule  as 
to  the  election  of  officers  is  never  in  existence  at  the  time  at  wliich  a  large  portion 
of  it  would  be  expected  to  apply. 

The  portion  of  the  rule  providing  for  election  by  viva  voce  vote  is  the  embodi- 
ment in  the  form  of  rule  of  the  result  of  a  long  contest  in  the  House.  The  first 
Speaker  was  elected  by  ballot,  and  such  continued  to  be  the  practice  both  as  to  the 
Speaker  and  other  officers  for  many  years.  As  early  as  March  1,  1826,^  Mr.  James 
Buchanan,  of  Pennsylvania,  proposed  a  rule  that  the  Speaker  be  elected  by  viva 
voce  vote,  but  no  action  was  taken.  On  Januarj"  16  and  17,  1829,*  a  proposition 
that  the  officers  of  the  House  be  elected  by  viva  voce  vote  was  debated  at  length, 
and  finally  laid  on  the  table  by  a  vote  of  97  to  92.  And  election  by  ballot 
continued  up  to  and  including  the  election  of  James  K.  Polk  as  Speaker  in 
1837,  although  in  1835^  the  proposition  for  viva  voce  election  had  been  advanced 
again.  In  1839  °  there  was  a  long  contest  over  the  choice  of  Speaker,  and  hj 
determination  of  the  House  all  the  votes  were  taken  viva  voce,  although  there  was 
much  opposition  to  the  method. 

'  An  Assistant  Doorkeeper  was,  in  1821,  an  elective  officer  of  the  House  (first  session  Seventeenth 
Congress,  Journal,  p.  49);  but  the  office  was  abolished  many  years  ago. 
^  See  sections  6743-6745  of  Vol.  V  of  this  work. 
'  First  session  Nineteenth  Congress,  Journal,  pp.  296,  30-5. 
■*  Second  session  Twentieth  Congress,  Journal,  pp.  165,  171. 

'Second  session  Twenty-third  Congress,  Journal,  p.  283;  Debates,  pp.  879,  1051, 1070 
°  First  session  Twenty-sixth  Congress,  Journal,  pp.  59-79;  Globe,  pp.  69-74. 


112  PKECEDENTS   OF    THE    HOUSE    OF   REPRESENTATIVES.  §   187 

The  contest  of  1839'  left  the  House  with  this  rule:  "In  all  cases  of  election 
by  the  House  of  its  officers,  the  vote  shall  be  taken  viva  voce."  And  this  rule  was 
continued  until  1880/  when  the  Committee  on  Rules,  in  framing  the  present  form 
of  rule,  omitted  the  Speaker  from  the  list  of  officers  who  should  be  elected  viva 
voce.  At  that  time  Mr.  J.  Warren  Keifer,  of  Ohio,  proposed  that  the  Speaker 
should  be  included  among  the  officers  elected  viva  voce,  as  had  been  the  practice  for 
forty  years  by  the  old  rule ;  but  it  seems  to  have  been  the  intention  that  the  House 
on  each  occasion  should  determine  how  it  would  elect  its  Speaker.  The  Speakers  are 
always  elected  viva  voce,  and  in  recent  years  sometimes  without  even  the  prelim- 
inary vote  to  proceed  to  the  election  of  a  Speaker.^  In  fact,  as  stated  above,  the 
rule  is  not  in  existence  when  the  Speaker  and  other  officers  are  usually  elected, 
and  the  House  may  determine  for  itself  at  the  time  what  method  shall  be  used. 
It  elects  the  Speaker  viva  voce  and  the  other  officers  usually  by  resolution. 

The  portion  of  the  rule  specifying  the  officers  who  shall  be  elected  is,  like  the 
portion  relating  to  viva  voce  voting,  a  summary  of  the  practice  of  the  House  in 
the  past. 

On  April  1,  1789,*  a  quorum  appeared  for  the  first  time  in  the  first  House  of 
Representatives,  and  at  once  the  House  proceeded  to  elect  the  only  officer  of  the 
House  specifically  mentioned  in  the  Constitution — the  Speaker.  And  next  it  pro- 
ceeded "to  the  appointment  of  a  Clerk." 

On  April  2,  1789,*  the  House— 

Resolved,  That  a  Doorkeeper  and  Assistant  Doorkeeper  be  appointed  for  the  service  of  this  House. 

On  April  13,  1789,^  among  the  supplemental  rules  adopted  was  this: 

The  Clerk  of  the  House  shall  take  an  oath  for  the  true  and  faithful  discharge  of  the  duties  of  hie 
o£&ce,  to  the  best  of  his  knowledge  and  abilities. 

And  on  March  1,  1791,°  just  at  the  close  of  the  First  Congress,  this  rule  was 
agreed  to: 

Resolved,  That  the  Clerk  of  the  House  of  Representatives  shall  be  deemed  to  continue  in  office 
until  another  be  appointed. 

This  rule  was  in  existence  in  1859,'  but  seems  to  have  dropped  out  in  the 
revision  of  I860.'  But  the  Clerk  continues,  by  ancient  usage,  and  by  the  implied 
authority  from  the  Statutes,  to  act  until  his  successor  is  chosen."  The  first  rule  of 
the  House  specifying  the  Clerk  as  an  officer  of  the  House  dates  from  March  16, 
1860,'°  and  before  that  it  was  commented  on  as  a  curious  fact  that  there  was  no 
rule,  resolution,  order,  or  law  directing  the  appointment  of  a  Clerk." 

'  First  session  Twenty-sixth  Congress,  Journal,  p.  1517. 
'  Second  session  Forty-sixth  Congress,  Record,  pp.  199,  553,  554. 

'First  session  Fifty-first  Congress,  Record,  p.  80;  first  session  Fifty-fifth  Congress,  Record,  p.  15. 
*  First  session  First  Congress,  Journal,  p.  6. 
'  First  session  First  Congress,  Journal,  p.  13. 
'  Third  session  First  Congress,  Journal,  p.  396. 
'Second  session  Thirty-fifth  Congress,  Journal,  p.  629;  Rule  21. 
'Second  session  Thirty-sixth  Congress,  Journal,  pp.  492,  49.3. 

'Section  31  of  the  Revised  Statutes  imposes  on  the  Clerk  of  the  preceding  House  duties  as  to  the 
organization  of  the  new  House. 

"•  First  session  Thirty -sixth  Congress,  Journal,  p.  528. 

"  Third  session  Twenty-seventh  Congress,  Journal,  p.  733. 


§   188  IHE    OFFICERS    OF    THE    HOUSE    AND   THEIR    ELECTION.  113 

On  December  23,  1811/  at  the  time  when  the  war  with  Great  Britain  was  com- 
ing on  and  secret  sessions  were  frequent,  a  rule  was  adopted  providing  that  the 
Doorkeeper  and  Sergeant-at-Arms  should  keep  the  secrets  of  the  House.  On  Decem- 
ber 25,  1825,^  in  a  Congress  where  there  was  one  secret  session,  the  Sergeant-at- 
Arms  and  Doorkeeper  took  that  oath.  In  the  combinations  of  old  rules  made  in 
the  revisions  of  1860^  and  1880,*  the  provision  requiring  the  oath  of  secrecy  was 
placed  in  such  position  as  to  apply  to  all  the  officers  of  the  House;  but  inasmuch 
as  no  secret  session  has  been  held  for  about  seventy  years,  the  observance  of  this 
portion  of  the  rule  is  naturally  neglected.  The  portion  of  the  rule  requiring  an  oath 
to  support  the  Constitution  of  the  United  States  dates  from  the  revision  of  1880. 

On  March  15,  1860,  a  rule  was  adopted  that  the  appointees  of  the  Doorkeeper 
and  Postmaster  should  be  approved  by  the  Speaker,^  but  tliis  did  not  continue 
beyond  the  revision  of  1880,  having  become  obsolete.  " 

After  the  election  of  the  Speaker  the  other  elective  officers  are  usually  chosen 
by  the  adoption  of  resolutions.^ 

The  Speaker  is  always  a  Member  of  the  House;  the  other  elective  officers 
never  are. 

188.  The  House  formerly  proceeded  to  the  election  of  an  officer  on  a 
motion  so  to  do. 

Discussion  as  to  whether  or  not  the  Clerk  of  the  former  House  con- 
tinues until  his  successor  is  elected. 

On  December  7,  1829,*  after  the  Speaker  had  administered  the  oath  to  the 
Members  and  Delegates,  !Mr.  William  Ramsey,  of  Pennsylvania,  offered  this 
resolution : 

Resolved,  That  this  House  do  now  proceed  to  the  election  of  a  Clerk. 

Mr.  Richard  M.  Johnson,  of  Kentucky,  moved  to  amend  by  striking  out  the 
words  "do  now"  and  inserting  "will,  on  Wednesday  next,  at  12  o'clock  meridian." 

A  question  at  once  arose  as  to  whether  or  not  the  Clerk  of  the  former  House 
would  continue  in  service  untU  the  election  of  his  successor.  There  was  a  divergence 
of  opmion,  the  Speaker'  informally  expressing  the  opinion  that  the  Clerk  of  the 
preceding  House  would  continue  to  act. 

The  House  by  a  large  majority  decided  the  amendment  in  the  negative,  and 
the  resolution  was  then  agreed  to. 

'  First  session  Twelfth  Congress,  Report  No.  38. 
^  First  session  Nineteenth  Congress,  Journal,  pp.  9,  645. 
'  First  session  Thirty-sixth  Congress,  Journal,  p.  492. 
*  Second  session  Forty-sixth  Congress,  Record,  pp.  199,  554. 
'  First  session  Thirty-sixth  Congress,  Globe,  p.  1178. 
"  Second  session  Forty-sixth  Congress,  Record,  p.  199. 
'  See  section  81  of  this  work. 

'First  Session  Twenty-first  Congress,  Journal,  p.  9;  Debates,  p.  471. 
'Andrew  Stevenson,  of  Virginia,  Speaker. 
5994— VOL  1—07 8 


114 


PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTAXn'ES. 


§189 


189.  A  resolution  that  the  House  proceed  to  the  election  of  an  officer 
presents  a  question  of  privilege. — On  April  5,  1878,^  there  being  a  vacancj'  in 
the  office  of  Doorkeeper,  which  the  House  had  provided  for  temporarily  by  ordering 
the  Sergeant-at-Arms  to  perform  the  duties,  Mr.  Benjamin  F.  Butler,  of  Massachu- 
setts, submitted  as  a  question  of  privilege  the  following: 

Resolved.  That  the  House  proceed  to  the  election  of  a  Doorkeeper,  and  that  the  true  Union  maimed 
soldier,  Brigadier  James  Shields,  of  Missouri,  he  chosen  to  that  place. 

Mr.  Samuel  S.  Cox,  of  New  York,  made  the  point  of  order  that  the  resolution 
did  not  present  a  question  of  privilege. 
The  Speaker '  said : 

The  Chair  finds  himself  without  an  example  to  follow  in  the  past.  In  this  case,  therefore,  the  House 
will  establish  a  precedent  for  the  future.  In  the  judgment  of  the  Chair,  under  the  resolution  adopted 
yesterday,  an  oiBcer  was  appointed  to  discharge  temporarily  the  duties  of  Doorkeeper.  It  is  stated  in 
the  Manual  that  when  a  proposition  is  submitted  which  related  to  the  privileges  of  the  House,  it  is  the 
duty  of  the  Speaker  to  entertain  it,  at  least  to  the  extent  of  submitting  the  question  to  the  House  as  to 
whether  or  not  it  presents  a  question  of  privilege.  The  Chair  now  proposes,  in  this  instance,  to  allow 
the  question  to  be  determined  by  the  House  as  to  whether  or  not  it  presents  a  question  of  privilege. 

After  debate,  on  April  8,  the  House,  by  a  vote  of  yeas  220,  nays  4,  decided  that 
the  resolution  presented  a  question  of  privilege.' 

190.  The  House  often  proceeds  to  the  election  of  its  officers  as  a  mat- 
ter of  course,  without  motion  to  that  effect. — On  December  S,  1863,*  after  the 
election  of  a  Speaker,  and  after  the  Senate  and  President  had  been  informed  of  the 
organization  of  the  House,  we  find  the  Speaker  announcing  that  the  business  next  in 
order  was  the  election  of  Clerk,  without  waiting  for  the  order  of  the  House  to  proceed 
to  the  election  of  Clerk.  The  House  also  proceeded  to  the  election  of  other  officers  as 
a  matter  of  course,  and  without  order. 

An  exception  is  found  in  the  vote  for  Chaplain,  which  was  taken  on  motion  made 
and  carried.^ 

191.  An  election  by  resolution  is  not  a  compliance  Avith  the  rule 
requiring  election  of  officers  viva  voce. — On  January  9, 1850,"  while  the  House 
was  voting  viva  voce  for  Clerk  in  accordance  \\-ith  the  rules  of  the  House,  Mr.  Robert 
C.  Schenck,  of  Ohio,  offered  the  following  resolution,  contending  that  the  resolution 
came  within  the  rule: 


Resolved,  That  ■ 


be,  and  he  is  hereby,  elected  Clerk  of  this  House  for  the  present  session. 


Mr.  Schenck  proposed  to  move  to  insert  in  the  blank  the  name  of  Solomon  Foot, 
holding  that  thus,  when  the  yeas  and  nays  were  called  on  filling  the  blank,  a  viva 
voce  vote  would  be  obtained. 


1  Second  session  Forty-fifth  Congress,  Journal,  pp.  801,  809;   Record,  pp.  2310,  2341. 

^Samuel  J.  Randall,  of  Pennsylvania,  Speaker. 

^The  point  that  the  resolution  involved  besides  the  order  to  proceed  to  the  election,  also  the  choice 
of  a  particular  candidate,  does  not  seem  to  have  occurred  to  those  considering  the  matter.  The  rules 
required  the  election  of  officers  viva  voce,  and  therefore  this  resolution  contained  a  change  of  rule.  It 
is  now  a  principle  that  the  presence  of  a  nonprivileged  provision  destroys  the  privilege  of  a  proposition. 
In  this  case  the  House  declined  to  elect  in  this  way,  and  proceeded  to  a  choice  viva  voce. 

*  First  session  Thirty-eighth  Congress,  Journal,  pp.  14,  15,  16,  etc.;  Globe,  pp.  11,  etc. 

'Journal,  p,  35. 

°  First  session  Thirty-first  Congress,  Journal,  p.  265;  Globe,  p.  125. 


§   192  THE    OFFICERS    OF    THE    HOUSE    AND    THEIR    ELECTION.  115 

The  Speaker '  decided  the  resolution  out  of  order. 

Mr.  Schenck  having  appealed,  the  decision  of  the  Speaker  was  afBrmed. 

Again,  on  January  16,  the  Speaker  affirmed  this  decision,  saying  -  that  election 
by  resolution  was  not  a  comphance  with  the  rule  requiring  the  election  of  the  officers 
of  the  House  viva  voce.  It  was  true  that  they  had  sometimes  been  elected  by  reso- 
lution, but  he  had  no  recollection  of  such  an  election  where  objection  had  been  made. 

Mr.  Alexander  Evans,  of  Maryland,  having  appealed,  the  decision  of  the  Chair 
was  sustained,  yeas  133,  nays  64.^ 

192.  On  December  6,  1S5G,*  rules  having  been  adopted  and  the  organization 
of  the  House  having  been  perfected  as  far  as  the  election  of  the  Public  Printer,'  Mr. 
Jolm  A.  Bingham,  of  Ohio,  offered  the  following  resolution: 

Resolved,  That  Oram  Follett,  of  Columbus,  Ohio,  be,  and  he  is  hereby,  elected  Public  Printer  for 
the  House  of  Representatives  of  the  Thirty-fourth  Congress. 

Mr.  Thomas  L.  Clingman,  of  Xorth  Carolina,  submitted  as  a  question  of  order 
that  it  was  not  competent,  under  the  rules,  to  elect  a  Printer,  except  after  a  previous 
nomination  and  upon  a  viva  voce  vote,  and  that  the  resolution  was  out  of  order. 

The  Speaker  °  sustained  the  point  of  order. 

This  decision  was  acquiesced  in  by  the  House. 

193.  A  resolution  declaring  certain  persons  elected  officers  of  the 
House  is  at  variance  with  the  standing-  rule  of  the  House. 

Instance  wherein  the  House  failed  to  elect  a  Doorkeeper  and  Post- 
master, the  officers  of  the  preceding  House  continuing  to  serve. 

On  Januarv-  19,  1850,'  the  House  had  not  elected  a  Doorkeeper  or  Postmaster, 
and  postponed  the  election  of  those  officers  until  the  first  day  of  March,  1851.  The 
Doorkeeper  and  Postmaster  of  the  former  House  continued  to  discharge  the  duties 
of  their  positions. 

On  April  18,  1850,'  Mr.  Nathaniel  S.  Littlefield,  of  Maine,  submitted  the  fol- 
lo%ving  resolution: 

Resolved,  That  Robert  E.  Homer,  of  New  Jersey,  be,  and  he  hereby  is,  declared  elected  Doorkeeper 
of  this  House:  and  John  M.  Johnson,  of  Virginia,  be,  and  he  hereby  is,  declared  duly  elected  Post- 
master of  this  House;  to  hold  their  respective  offices  until  others  are  chosen  in  their  stead. 

Mr.  Homer  was  Doorkeeper  of  the  preceding  House  and  Mr.  Johnson  the  Post- 
master. They  were  acting  in  those  offices  at  this  session,  by  the  acquiescence  of 
the  House. 

'  Howell  Cobb,  of  Georgia,  Speaker. 

2  Journal,  pp.  333,  334;  Globe,  p.  162. 

'It  b  to  be  noticed  that  the  conditions  under  which  this  ruling  was  made  differs  from  the  condi- 
tions at  the  organization  before  the  rules,  including  the  rule  prescribing  viva  voce  voting,  have  been 
adopted. 

*  First  session  Thirty-fourth  Congress,  Journal,  pp.  464,  466;  Globe,  p.  372. 

*  The  Public  Printer  is  no  longer  an  officer  of  the  House. 
^  Nathaniel  P.  Banks,  jr.,  of  Massachusetts,  Speaker. 

'  First  session  Thirty-first  Congress,  Journal,  p.  363. 
^Journal,  p.  806;  Globe,  pp.  764,  765. 


116 


PRECEDENTS    OF    THE    HOLTSE    OF    REPRESENTATIVES. 


194 


The  Speaker '  declared  that  the  resolution,  as  a  question  of  privilege,  was  out 
of  order,  on  the  grountl  that  the  House,  on  a  former  occasion,  had  so  decided  against 
the  opinion  of  the  Chair  when  a  similar  proposition  was  submitted,  and  also  for 
the  reason  that  it  proposed  a  mode  of  election  at  variance  with  a  standing  rule  of 
the  House.^ 

Mr.  Littlefield  having  appealed,  the  appeal  was  laid  on  the  table  on  motion  of 
Mr.  Thaddeus  Stevens,  of  Pennsylvania. 

194.  The  election  of  oflB.cers  by  resolution  is  subject  to  objection,  but 
is  often  permitted  by  unanimous  consent. 

In  recent  years  all  the  oflicers  have  been  elected  before  the  President 
and  Senate  have  been  informed  of  the  organization. 

At  the  organization  of  the  House  on  December  4,  1865,  after  the  election  of 
Speaker,  but  before  the  adoption  of  rules,  Mr.  James  F.  WilsoU;  of  Iowa,  offered  a 
resolution  for  the  election  of  the  other  officers  of  the  House. 

Mr.  Samuel  J.  Randall,  of  Pennsylvania,  objected  on  the  ground  that  some 
Members  wanted  to  vote  for  candidates  not  named  in  the  resolution. 

Thereupon  a  motion  was  made  to  suspend  the  rules  so  as  to  offer  the  resolu- 
tion, and  this  being  done  the  resolution  was  agreed  to. 

At  that  time  Rule  147  provided  that  the  rules  of  the  preceding  House  should 
govern  this  until  superseded.^  But  whether  this  could  actually  be  so  was  a  disputed 
question,  and  so  it  is  doubtful  whether  the  motion  to  suspend  the  rules  applied  to 
the  rules  of  the  last  House  or  to  the  long  custom  of  the  House  as  to  its  elections.* 

195.  On  December  4,  1805,'^  the  subordinate  officers  of  the  House  were  elected 
by  one  resolution,  and  not  by  separate  roll  calls.  So  the  resolution  notifying  the 
Senate  and  the  one  notifying  the  President  were  not  offered  and  agreed  to  until  all 
the  officers  had  been  elected. 

196.  On  December  2,  1873,"  the  officers  of  the  House,  except  the  Speaker,  were 
elected  by  resolution,  the  minority  offering  a  substitute  containing  the  names  of 
their  nominees.  The  officers  having  been  elected,  a  message  was  sent  to  the  Senate 
informing  that  body  that  the  House  had  organized,  and  that  James  G.  Blaine 
had  been  chosen  Speaker.     But  no  reference  was  made  to  any  other  of  the  officers. 

197.  Although  a  former  riile  of  the  House  required  a  nomination  be- 
fore voting  for  certain  ofl&cers,  yet  the  Speaker  refrained  from  ruling 
that  votes  might  not  be  cast  for  persons  not  nominated. — It  was  a  former 
rule  of  the  House  that  where  others  than  Members  of  the  House  were  eligible  to 
election  as  officers  of  the  House,  there  should  be  a  nomination.  Mr.  Speaker  Cobb 
refrained,  however,  from  deciding  that  under  this  rule  Members  were  prohibited 
from  voting  for  anyone  not  nominated.' 

'  Howell  Cobb,  of  Georgia,  Speaker. 

-  The  rule  requiring  viva  voce  election.  See  section  187  of  this  volume.  It  will  be  observed  that 
this  ruling  was  made  not  at  the  beginning  of  the  Congress,  but  after  the  House  had  adopted  rules. 

^The  theory  that  the  rules  of  the  preceding  House  controlled  until  the  adoption  of  new  rules  pre- 
vailed at  this  time,  but  has  since  been  abandoned.     See  sections  6743-G745  of  Vol.  V  of  this  work. 

*  First  session  Thirty-ninth  Congress,  Globe,  p.  5;  Journal,  p.  1217,  for  the  rule. 

'First  session  Thirty-ninth  Congress,  Journal,  pp.  8,  10;  Globe,  pp.  5,  6. 

5  First  session  Forty-third  Congress,  Journal,  pp.  11,  12;  Record,  pp.  6,  7. 

'  January  3,  1850.     First  session  Thirty-first  Congress,  Globe,  p.  94. 


§  198  THE    OFFICERS    OF   THE    HOUSE    AND    THEIE    ELECTION.  117 

198.  The  Senate  and  President  are  informed  of  the  presence  of  a  quo- 
rum and  the  organization  of  the  House. 

In  the  earlier  practice  the  messages  announcing  the  organization  were 
sent  immediately  after  the  election  of  Speaker,  and  did  not  refer  to  the 
election  of  Clerk. 

On  December  7,  1790/  after  the  House  had  appointed  its  committee  to  join 
with  a  Senate  committee  to  wait  on  the  President  and  inform  him  that  a  quorum 
of  the  two  Houses  had  assembled,  a  message  was  received  from  the  Senate  stating 
that  they  had  agreed  to  a  resolution  for  the  appointment  of  a  conmiittee,  jointly 
with  the  committee  to  be  appointed  by  the  House,  to  wait  on  the  President,  etc. 
The  House  disagreed  to  the  resolution  of  the  Senate.  Later  a  message  from  the 
Senate  announced  that  they  had  appointed  a  committee  to  act  jointly  with  the 
House  committee. 

199.  On  December  1,  1845,-  the  House  informed  the  Senate  that  a  quorum 
had  assembled,  and  that  John  W.  Davis  had  been  elected  Speaker,  while  the  Clerk 
was  not  elected  until  the  following  day. 

200.  At  the  organization  of  the  Twenty-seventh  Congress,  in  1841,=  the 
Speaker  and  Clerk  were  elected  on  May  31,  the  first  day  of  the  session,  and  the 
usual  messages  were  sent  to  the  Senate  and  to  the  President,  informing  them  that 
the  House  was  organized  and  ready  for  business.  But  the  election  of  Sergeant-at- 
Arms,  Doorkeeper,  Assistant  Doorkeeper  (not  now  an  elective  officer).  Postmaster, 
and  Chaplain  were  not  ordered  by  the  House  until  June  8,  after  rules  had  been 
adopted  and  the  committees  appointed.  The  message  to  the  Senate  announcing 
the  presence  of  a  quorum  announced  that  John  ^Vhite  had  been  elected  Speaker, 
but  did  not  mention  the  election  of  the  Clerk. 

201.  On  December  5,  18.53,*  at  the  organization  of  the  House,  as  soon  as 
the  Speaker  was  elected  the  usual  messages  were  sent  to  the  Senate  and  President, 
notifying  them  of  the  organization  of  the  House.  This  was  in  accordance  with  the 
practice  of  the  early  years  of  the  House's  existence.  Then  rules  were  adopted,  and 
after  that  a  motion  was  made  and  carried  to  proceed  to  the  election  of  a  Clerk.  This 
was  done  viva  voce.  Then  the  Sergeant-at-Arms,  Doorkeeper,  and  Postmaster  were 
elected  together  by  a  resolution. 

202.  On  December  8,  18G3,'  the  Senate  and  President  were  informed  of  the 
organization  of  the  House  before  the  election  of  a  Clerk  and  other  subordinate 
officers  of  the  House. 

203.  On  December  0.  1875,*  the  usual  resolution  notifying  the  Senate  that 
a  quorum  of  the  House  was  present  and  had  elected  Hon.  Michael  C.  Kerr,  Speaker, 
was  presented  by  Mr.  William  S.  Holman,  of  Indiana.  Thereupon  Mr.  James  A. 
Garfield,  of  Ohio,  proposed  an  amendment  to  include  also  the  name  of  the  Clerk. 
Mr.  Holman  stated  that  such  was  not  the  usual  form,  but  made  no  objection  to  the 
amendment,  which  was  agreed  to. 

'  Third  session  First  Congress,  Journal,  p.  4. 

-  First  session  Twenty-ninth  Congress.  Journal,  pp.  9,  13. 

'First  session  Twenty-seventh  Congress,  Journal,  pp.  11,  18,  19,  52. 

*  First  session  Thirty-third  Congress,  Journal,  pp.  10-14;  Globe,  p.  4. 

*  First  session  Thirty-eighth  Congress,  Journal,  p.  14;  Globe,  p.  10. 

°  First  session  Forty-fourth  Congress,  Journal,  p.  14;  Record,  p.  173. 


118  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   204 

204.  Although  always  at  liberty  to  choose  its  manner  of  electing  a 
Speaker,  the  House  has  declined  in  later  years  to  substitute  balloting  for 
viva  voce  choice. — On  May  31,  1841/  at  the  first  day  of  the  first  session  of 
the  Congress  the  roll  of  Members-elect  was  called  by  the  Clerk  of  the  last  House,  and 
the  presence  of  a  quorum  ascertained. 

Thereupon,  Mr.  Hiram  P.  Hunt,  of  New  York,  moved  this  resolution: 

Resolved,  That  the  Members  will  now  proceed  to  the  organization  of  the  House  by  the  election  of  a 
Speaker,  viva  voce. 

A  motion  was  made  by  Mr.  Lewis  Williams,  of  North  Carolina,  that  the  words 
"viva  voce"  be  stricken  out  and  that  the  words  "by  ballot"  be  inserted. 

The  question  on  the  amendment  being  taken  by  yeas  and  nays,  there  were  66 
yeas  and  154  nays.     So  the  amendment  was  disagreed  to. 

Mr.  Henry  A.  Wise,  of  Virginia,  then  moved  to  amend  the  resolution  by  adding 
thereto  the  following: 

And  after  the  Speaker  shall  have  sworn  the  Members  they  will  proceed  to  the  election  of  a  Clerk  in 
like  manner. 

This  motion  was  disagreed  to,  and  then  the  original  resolution  was  agreed  to.^ 

205.  On  December  4,  1843,"  at  the  organization  of  the  House,  the  Clerk 
(Matthew  St.  Clair  Clarke)  called  the  roll  and  announced  the  presence  of  a  quorum. 
Thereupon  he  reminded  the  House  that,  as  no  rules  had  been  adopted,  there  was  no 
form  prescribed  for  the  election  of  the  Speaker. 

Thereupon,  a  motion  was  made  and  carried  that  the  House  do  proceed  to  the 
election  of  a  Speaker  viva  voce. 

The  rule  at  that  time  (i.  e.,  the  code  of  rules  adopted  by  the  House  in  this  and 
several  preceding  Congresses) ,  provided  that  all  elections  of  officers  of  the  House 
should  be  viva  voce.  The  rule  at  present  does  not  include  the  Speaker  among  those 
to  be  elected  viva  voce. 

206.  The  Thirty-first  Congress  assembled  on  December  3,  1849,*  but  the 
House  was  unable  to  elect  a  Speaker  until  December  23.  While  this  voting 
was  going  on  a  motion  was  generally  made  at  the  beginning  of  each  legislative  day 
that  the  House  proceed  viva  voce  to  elect  a  Speaker.  Then  the  votings  would 
proceed  as  a  matter  of  course  through  the  day.  As  time  went  on  motions  were 
offered  and  entertained  proposing  election  by  ballot,  by  lot,  and  by  resolution. 
These  were  not  adopted,  and  the  House  would  resume  the  viva  voce  voting  by 
motion  made  and  carried,  or  as  a  matter  of  course.  Rules  had  not  been  adopted 
at  this  time,  and  consequently  the  rule  providing  for  viva  voce  election  was  not  in 
operation. 

'  First  session  Twenty -seventh  Congress,  Journal,  pp.  8,  9;  Globe,  pp.  2,  3. 

-  The  rules  had  before  this  been  amended  to  provide  for  the  election  of  the  Speaker  by  viva  voce 
vote;  but  as  rules  had  not  been  adopted  yet  in  this  Congress  there  was  no  rule  applying.  The  usage  of 
voting  viva  voce  has  become  so  strong  in  later  years  that  the  method  has  not  been  questioned  for  a  long 
time. 

^  First  session  Twenty-eighth  Congress,  Journal,  p.  7;  Globe,  p.  3. 

*  First  session  Thirty-first  Congress,  Journal,  pp.  2-165;  Globe,  pp.  1-67. 


§   207  THE    OFFICERS    OF   THE    HOUSE    AND   THEIR   ELECTION.  119 

207.  On  December  3,  1855,^  at  the  organization  of  the  House,  after  the  Clerk 
of  the  preceding  House  had  called  the  roll  and  announced  the  presence  of  a  quorum, 
Mr.  George  W.  Jones,  of  Tennessee,  moved  that  the  House  proceed  to  the  election, 
viva  voce,  of  a  Speaker  for  the  Thirty-fourth  Congress. 

The  question  being  put,  the  motion  was  agreed  to. 

Thereafter,  on  each  day,  the  House  proceeded  to  the  voting  without  special 
vote,  unless  propositions  in  regard  to  the  organization  intervened.  And  as  soon 
as  they  were  disposed  of  the  voting  was  resumed  as  a  matter  of  course. 

208.  On  December  19,  ISoo,"  after  sixtj'-five  ineffectual  attempts  to  elect  a 
Speaker  viva  voce,  a  motion  was  made  that  the  House  proceed  to  election  by 
ballot.     Tliis  motion  was  disagreed  to — yeas  214,  nays  7. 

209.  As  late  as  1837  the  House  maintained  the  old  usage  of  electing 
the  Speaker  by  ballot. — On  September  4,  1837,^  the  roll  of  Members  by  States 
having  been  called,  and  the  presence  of  a  quorum  having  been  announced,  it  was, 
on  motion  of  ilr.  David  Petrikin,  of  Pennsylvania, 

Resolved,  That  the  Members  present  now  proceed  to  the  organization  of  the  House  by  the  choice 
of  a  Speaker. 

The  House  then  proceeded  bj'  ballot  to  the  election  of  a  Speaker;  and  upon 
an  examination  of  the  first  ballot  it  appeared  that  James  K.  Polk,  one  of  the  Repre- 
sentatives from  the  State  of  Tennessee,  was  duly  elected,  having  received  a  majority 
of  all  the  votes  given  in. 

210.  The  House  and  not  the  hold-over  Clerk  decides  by  what  method 
it  shall  proceed  to  elect  a  Speaker. 

Why  the  House  in  a  new  Congress  meets  at  12  m. 

Discussion  as  to  whether  or  not  the  rules  of  one  House  remain  the 
rules  of  the  next  House  until  changed.* 

On  December  7,  183-5,'  at  the  beginning  of  the  first  session  of  the  Congress,  the 
Members-elect  were  called  to  order  by  the  Clerk  of  the  last  House,  and  the  roll 
having  been  called,  and  the  presence  of  a  quorum  having  been  ascertained  and 
announced,  the  Members  were  about  to  proceed  by  ballot  to  the  election  of  a  Speaker, 
the  Clerk  having  announced  that  the  next  business  in  order  was  the  election  of  a 
Speaker  by  ballot. 

At  this  point  !Mr.  John  M.  Patton,  of  Virginia,  raised  a  question  as  to  the 
authority  by  wliich  the  Clerk  announced  that  the  House  would  proceed  by  ballot 
to  the  election  of  a  Speaker.  The  House,  if  it  was  competent  to  elect,  was  also 
competent  to  prescribe  the  method  of  election.  He  preferred  the  method  of  election 
by  viva  voce  voting  They  were  not  bound  by  the  rules  of  the  last  House  and 
might  proceed  as  they  pleased.  Mr.  Samuel  Beardsley,  of  New  York,  argued  that 
the  House  might  proceed  to  the  election  by  ballot  or  viva  voce,  as  it  might  please. 
Custom  alone  had  sanctioned  the  practice  that  the  Clerk  of  the  House  should,  on 

'  First  session  Thirty-fourth  Congress,  Journal,  pp.  8,  18,  43,  etc.;  Globe,  pp.  4,  6. 

^ First  session  Thirty-fourth  Congress,  Journal,  p.  153;  Globe,  p.  53. 

'First  session  Twenty-fifth  Congress,  Journal,  p.  9;  Globe,  p.  3. 

*  See  sections  6743-6745  of  Volume  V  of  this  work. 

'  First  session  Twenty-fourth  Congress,  Jotimal,  p.  8;  Debates,  pp.  1943-1945. 


120 


PKECEDENTS   OF    THE    HOUSE   OF   EEPEESENTATIVES. 


§211 


the  first  day  of  the  session,  at  12  o'clock,  call  over  the  names  of  the  Members; 
and  custom  also  had  sanctioned  the  practice  of  the  Clerk  calling  for  the  Members 
to  vote  and  putting  the  question  for  Speaker.  Mr.  James  Parker,  of  New  Jersey, 
urged  that  the  House  should  not  depart  from  the  old  usage  of  fifty  years  and  more, 
wliich  had  come  to  have  the  force  of  common  law,  and  in  accordance  with  which 
the  Clerk  called  the  House  to  order  at  12  o'clock,  and  at  no  other  hour,  ascertained 
the  presence  of  a  quorum  by  a  call  of  the  roll;  and  then  the  House,  in  accordance 
with  the  same  custom,  proceeded  to  choice  of  a  Speaker  by  ballot. 

The  Clerk  read  the  rule  of  the  last  House  providing  the  method  of  electing  the 
Speaker  by  ballot,^  and  Mr.  Abijah  Mann,  jr.,  of  New  York,  contended  that  the 
rules  of  the  last  House  were  the  laws  of  the  present  until  changed,  and  that  the 
Clerk  did  not  hold  his  position  and  perform  the  functions  at  this  time  by  mere 
custom. 

Mr.  Patton  moved  that  the  Speaker  be  elected  viva  voce. 

On  motion  of  Mr.  George  Evans,  of  Maine,  this  motion  was  laid  on  the  table. 

Then,  on  motion  of  Mr.  Beardsley,  it  was 

Resolved,  That  the  House  do  now  proceed  to  the  election  of  a  Speater  by  ballot. 

211.  Procedure  for  electing  the  Speaker  by  viva  voce  vote. — On 
December  7, 1857,-  226  Members  having  answered  to  their  names,  the  Clerk  announced 
that  a  quorum  was  present.  Then,  on  motion  of  Mr.  John  Smith  Phelps,  of  Missouri, 
it  was  ordered  that  the  House  do  now  proceed  viva  voce  to  the  election  of  a  Speaker 
for  the  Thirty-fifth  Congress. 

The  Clerk  having  appointed  tellers,  and  nominations  having  been  made,  the 
Members  then  proceeded  to  vote  viva  voce  for  Speaker.^ 

212.  At  the  organization  of  the  House  the  motion  to  proceed  to  the 
election  of  a  Speaker  is  of  the  highest  privilege. — On  March  4,  1869,*  at  the 
organization  of  the  House,  after  the  Clerk  had  called  the  roll  of  Members-elect  and 
announced  the  presence  of  a  quonmi,  Mr.  George  W.  Woodward,  of  Pennsylvania, 
submitted  the  following  resulution: 

Resolved,  That  the  roll  of  Members  of  the  Forty-first  Congress  be  amended  by  the  addition  of  tln' 
name  of  Henry  D.  Foster,  as  the  Representative  of  the  Twenty-first  Congressional  district  of  Pennsyl- 
vania, and  that  said  Foster  be  called  and  admitted  as  the  sitting  Member  prima  facie  entitled  to  represent 
said  district. 

Mr.  Ellihu  B.  Washbume,  of  Illinois,  moved  that  the  House  proceed  to  the 
election  of  a  Speaker,  claiming  precedence  for  the  motion  as  involving  a  qtiestion 
of  privilege. 

Mr.  John  A.  Logan,  of  Illinois,  made  the  point  of  order  that  the  law  gave  to  the 
Clerk  the  making  of  the  roll  of  members  to  be  called  prior  to  the  organization. 

'  See  section  187  of  this  work  for  rule  for  election  by  ballot  as  it  existed  at  that  time.  The  nil., 
was  then  classified  among  those  rules  relating  to  the  Speaker. 

^  First  session  Thirty-fifth  Congress,  Journal,  p.  8, 

^  In  recent  years  the  House  has  often  proceeded  at  once  to  election  viva  voce  without  the  f.::- 
mality  of  a  motion. 

*  First  session  Forty-first  Congress,  Globe,  p.  3. 


§   213  THE    OFFICEES    OF   THE    HOUSE    AND    THEIR    ELECTION.  121 

The  Clerk'  said: 

The  gentleman  from  Illinois,  Mr.  AVashbmne,  rose  to  a  question  of  privilege  which  has  prece- 
dence of  that  of  the  gentleman  from  Pennsylvania,  and  therefore  the  question  before  the  House  is  on 
the  motion  to  proceed  to  the  election  of  a  Speaker.  *  *  *  The  duty  of  the  House  to  organize  itself 
is  a  duty  devolved  upon  it  by  law.  and  any  matter  looking  to  the  performance  of  that  duty  takes  prece- 
dence in  all  parliamentary  bodies  of  all  minor  questions. 

213.  The  motion  that  the  House  proceed  to  elect  a  Speaker  is  debat- 
able unless  the  previous  question  is  ordered. — On  March  4,  1867,"  at  the 
organization  of  the  House,  the  Congress  having  assembled  in  accordance  with  the 
act  of  January  22,  1867,  the  Clerk  had  called  the  names  of  the  Members-elect  and 
had  announced  that  a  quorum  was  present. 

Thereupon  Mr.  James  F.  Wilson,  of  Iowa,  moved  that  the  House  proceed  to 
the  election  of  a  Speaker  viva  voce. 

Mr.  James  Brooks,  of  New  York,  having  the  floor,  was  proceeding  to  debate, 
when  Mr.  John  F.  Famsworth,  of  Illinois,  made  the  point  of  order  that  no  debate 
was  in  order  until  after  the  House  had  proceeded  to  the  election  of  its  officers. 

The  Clerk'  said: 

The  Chair  overrules  the  point  of  order,  the  previous  question  not  having  been  called. 

After  further  debate  the  previous  question  was  moved  and  ordered,  and  under 
the  operation  thereof  the  motion  of  Mr.  Wilson  was  agreed  to. 

214.  A  resolution  to  proceed  to  the  election  of  a  Speaker  presents  a 
question  of  privilege,  and  pending  the  decision  another  question  of  privi- 
lege may  not  be  presented. — On  December  4.  187(5.^  iit  the  opening  of  the 
session,  250  Members  having  answered  to  their  names,  the  Clerk  announced  that  a 
quorum  was  present. 

Mr.  William  S.  Holman,  of  Indiana,  submitted  the  following  preamble  and 
resolution : 

Whereas  the  House  being  informed  that  since  its  last  adjournment  Hon.  Michael  C.  Kerr,  who  at 
the  commencement  of  the  present  Congress  was  elected  Speaker  (if  the  House,  has  departed  this  life, 
creating  a  vacancy  in  the  office  of  Speaker;  Therefore, 

Resolved,  That  the  House  do  now  proceed  to  the  election  of  a  Speaker  viva  voce. 

Mr.  Nathaniel  P.  Banks,  of  Massachusetts,  as  a  question  of  privilege,  pre- 
sented the  credentials  of  James  B.  Belford  as  Representative  from  the  State  of 
Colorado,  and  moved  that  the  oath  of  office  be  administered  to  the  said  Belford. 

Mr.  Holman  demanded  the  previous  question  on  the  adoption  of  the  said 
resolution,  when  Mr.  Banks  made  the  point  of  order  that  the  right  of  a  Member  to 
participate  in  the  election  of  a  Speaker  was  a  question  of  higher  privilege  than  the 
election  of  a  Speaker. 

This  question  of  order  was  debated  at  considerable  length,  it  being  urged  that 
the  election  of  Speaker  was  secondary  to  the  determination  of  what  Members 
should  be  on  the  roll  to  participate  in  that  election.  The  distinction  was  also  drawn 
between  this  election  and  one  at  the  beginning  of  a  Congress  when,  under  the  law, 

'  Edward  McPherson,  of  Pennsylvania,  Clerk. 

-  First  session  Fortieth  Congress,  Globe,  p.  2. 

^Second  session  Forty-fourth  Congress,  Journal,  p.  8;  Record,  p.  5. 


122  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   215 

the  Clerk  judges  what  names  are  to  go  onto  the  roll.  Not  only  Mr.  Belford  was 
waiting  to  be  sworn  in,  but  also  Mr.  Edwin  Flye,  of  Maine,  successor  of  Mr.  James 
G.  Blaine. 

The  Clerk  '  overruled  the  point  of  order,  on  the  ground  that  the  resolution  sub- 
mitted by  Mr.  Holman  presented  a  question  of  privilege,  and  that  pending  the 
decision  of  such  question  another  question  of  privilege  could  not  be  submitted. 

From  this  decision  of  the  Clerk  Mr.  Banks  appealed.  Mr.  Cox  moved  that  the 
appeal  be  laid  on  the  table,  which  was  done  by  a  vote  of  165  yeas  to  84  nays. 

215.  In  1809  the  House  held  that  a  Speaker  should  he  elected  by  a 
majority  of  all  present. — On  May  '27,  180!),-  at  the  urgauization  of  the  House, 
the  ballot  for  Speaker  showed  the  following  result : 

For  Joseph  B.  Vamum CO 

For  Nathaniel  Macon 3() 

For  Timothy  Pitkin,  jr 20 

For  Roger  Nelson 1 

For  C.  W.  Goldsborough 1 

Blank  ballots 2 

Total 120 

The  tellers  submitting  the  question  as  to  whether  Mr.  Vamum  was  elected  or 
not,  Mr.  Nathaniel  Macon,  of  North  Carolina,  the  rival  candidate,  expressed  the 
opinion  that  Mr.  Vamum  was  elected;  but  Mr.  John  Randolph,  of  Virginia,  opposed 
this  view  strenuously,  insisting  that  the  House  should  elect  its  Speaker  more 
majorum,  after  the  manner  of  their  ancestors.  And  on  motion  of  Mr.  Randolph 
the  House  proceeded  to  ballot  again,  which  motion  was  carried — ayes  67,  noes  43. 
On  the  next  ballot  Mr.  Vamum  was  elected  by  65  votes  out  of  119. 

On  the  succeeding  day  the  Journal  was  found  to  state  that  a  majority  of  the 
votes  were  for  Mr.  Vamum,  whereupon,  on  motion  of  Mr.  Randolph,  it  was  amended 
to  read:  "Sixty-five  votes,  bemg  a  majority  of  the  whole  number  of  Members 
present,  were  found  in  favor  of  Joseph  B.  Vamum. "  The  call  of  the  roU  by  States 
just  preceding  Mr.  Vamum's  election  showed  126  responding.  The  65  voting  for 
Mr.  Vamum  were  a  majority  of  this  number. 

216.  In  1879  it  was  held  that  a  Speaker  might  be  elected  by  a  major- 
ity of  those  present,  a  quorum  voting,  a  majority  of  all  the  members  not 
being  required. 

Discussion  as  to  the  size  of  a  valid  vote  when  a  quorum  is  present. 
On  March  IS,  1879,^  at  the  organization  of  the  House,  on  the  viva  voce  vote 
for  Speaker,  the  following  result  was  announced  by  the  tellers: 

For  Samuel  J.  Randall 144 

For  James  A.  Garfield 125 

For  Hendrick  B .  Wright 13 

For  William  D.  Kelley 1 

Total 283 

'  George  M.  Adams,  of  Kentucky,  Clerk. 

-  First  session  Eleventh  Congress,  Journal,  p.  5;  Annals,  pp.  54-66. 

'  First  session  Forty-sixth  Congress,  Record,  p.  5. 


§  217  THE    OFFICERS    OF    THE    HOUSE    AND   THEIR    ELECTION.  123 

The  total  membership  of  the  House,  however,  imder  the  existing  apportionment 
was  293,  and  the  vote  for  Mr.  Randall  fell  short  of  a  majority  of  that  number. 

Mr.  Omar  D.  Conger,  of  Michigan,  asked  if  it  did  not  require  a  majority  of 
all  the  Members  elected  to  the  House  to  elect  a  Speaker. 

The  Clerk  1  replied: 

It  requires  a  majority  of  those  voting  to  elect  a  Speaker,  as  it  does  to  pass  a  bill.  The  rule  requires 
that  a  quorum  shall  vote.-    That  is  the  opinion  of  the  Clerk. 

Thereupon  Mr.  Randall  was  declared  elected  Speaker. 

217.  Tellers  of  the  vote  on  the  election  of  a  Speaker  are  appointed 
by  the  Clerk. — On  December  5,  1859,''  the  House  having  voted  to  proceed  viva 
voce  to  elect  a  Speaker,  the  Clerk  appointed  Mr.  George  S.  Houston,  of  Alabama, 
Thomas  Convin,  of  Ohio,  Gamett  B.  Adrian,  of  New  Jersey,  and  George  Briggs,  of 
New  York,  tellers.  The  Clerk  made  the  appointment  of  these  tellers  without  sug- 
gestion or  vote  from  the  floor,  and  the  Journal  records  the  appointment. 

218.  The  House  has  in  one  instance  asked,  the  candidates  for  Speaker 
to  state  their  views  before  proceeding  to  election. — On  January  11,  1856,* 
before  the  election  of  a  Speaker  or  the  adoption  of  rules,  Mr.  Felix  K.  Zollicoffer,  of 
Tennessee,  offered  the  following: 

Resolved,  That  in  conformity  with  the  principles  of  a  great  popular  Government,  such  as  that  of 
the  United  States,  it  is  the  duty  of  all  candidates  for  political  position  frankly  and  fully  to  state  their 
opinions  upon  important  political  questions  involved  in  their  election,  and  especially  when  they  are 
interrogated  by  the  body  of  electors  whose  votes  they  are  seeking. 

'  George  M.  Adams,  of  Kentucky,  Clerk. 

^  Since  1890  the  requirement  has  been  the  quorum  present,  rather  than  the  quorum  voting.  See 
section  2895  of  Vol.  IV  of  this  work.  In  the  decision  of  the  Supreme  Court  sustaining  the  ruling  of  Mr. 
Speaker  Reed,  the  court  had  used  this  language:  "And  here  the  general  rule  of  all  parliamentary  bodies 
is  that  when  a  quorum  is  present,  the  act  of  a  majority  of  the  quorum  is  the  act  of  the  body  itself."  On 
January  10, 1896  (First  session  Fifty-fourth  Congress,  Record,  pp.  579-581)  a  question  arose  on  this  feature 
of  the  subject,  Mr.  Joseph  W.  Bailey,  of  Texas,  contending  that  for  lawful  action  there  must  be  the  vote 
of  a  majority  of  a  quorum.  In  other  words,  the  quorum  of  the  existing  House  was  179.  Granted  that  this 
number  should  be  present,  yet  by  reason  of  some  not  voting,  there  might  be  on  the  passage  of  a  bill 
yeas  76,  nays  74.  So  a  majority  of  those  present  would  not  vote  affirmatively,  and  Mr.  Bailey  contended 
that  the  bill  would  not  be  lawfully  passed. 

The  Speaker  (Mr.  Reed)  intervened  to  ask:  "  Does  the  gentleman  from  Texas  hold  that  it  is  neces- 
sary that  89  persons  at  least  [the  Speaker  must  have  meant  90  instead  of  89,  since  90  is  a  majority  of 
179]  should  vote  for  every  proposition  that  passes  the  House?  " 

Mr.  Bailey  contended  that  on  a  recorded  vote  it  would  be  necessary. 

The  Speaker  replied,  with  the  concurrence  of  Mr.  Bailey,  that  many  bills  had  been  passed  without 
fulfilling  the  requirement,  and  continued: 

"The  Chair  *  *  *  having  examined  the  matter  somewhat  carefully  at  various  times,  he  finds 
that  the  court  in  making  that  decision  perhaps  decided  that  it  was  within  the  most  extreme  contention 
of  the  opponents,  some  people  having  contended  that  it  is  necessary  to  have  a  majority  of  a  quorum 
voting.  The  court  pointed  it  out  in  this  case;  but  it  was  not  necessary  to  discuss  that  question.  They 
might  have  decided,  had  they  come  to  the  plain  question  of  the  body  being  constituted  of  the  persons 
who  participated  in  the  presence  of  the  rest  of  the  body,  they  were  controlled  by  their  votes,  because 
the  rest  of  the  body,  being  present,  could  have  intervened  and  overruled  them  if  they  had  so  chosen; 
but  not  having  chosen  to  do  so  it  [they]  allowed  88  [90]  or  any  less  number  to  pass  a  measure  practically 
by  their  assent,  because  declining  to  participate  was  assent." 

^  First  session  Thirty-sixth  Congress,  Journal,  p.  8;  Globe,  p.  2. 

^  First  session  Thirty-fourth  Congress,  Journal,  p.  302;  Globe,  pp.  213,  222. 


124  PRECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §  219 

Although  objection  was  made  that  this  resolution  constituted  business  wliich 
the  House  in  its  disorganized  condition  was  not  competent  to  transact,  it  passed  in 
the  affirmative.  Later,  on  January  12,  the  candidates  for  Speaker  answered  inter- 
rogatories in  accordance  with  the  requirements  of  the  resolution. 

219.  After  the  election  of  a  Speaker  and  before  he  has  been  conducted 
to  the  chair  no  debate  or  business  is  in  order. — On  February  1,  ISGO,'  the 
Clerk  had  announced  the  election  of  William  Pennington,  of  New  Jersey,  as  Speaker, 
when  Mr.  Thomas  C.  Hindman,  of  Arkansas,  sought  recognition  and  began  to 
speak. 

Mr.  Galusha  A.  Grow,  of  Pennsylvania,  made  the  point  of  order  that  a  Speaker 
had  just  been  elected  by  the  House,  and  that  nothing  could  be  in  order  until  he  had 
been  conducted  to  the  chair. 
Clerk'  said: 

The  Clerk  begs  leave  respectfully  to  suggest  to  the  gentleman  from  Arkansas  that  this  House  has 
just  declared  a  Speaker-elect,  and  that  the  first  thing  in  order  is  to  conduct  that  Speaker  to  the  chair. 
The  Clerk  has  no  power  further  to  preserve  order.  Until  the  Speaker  has  been  conducted  to  the  chair, 
the  House  is  without  an  organ  or  any  person  having  authority  to  entertain  motions  or  questions  of  order. 

The  Clerk  then  appointed  a  committee  of  two  to  conduct  the  Speaker-elect  to 
the  chair. 

220.  The  Clerk  appoints  the  committee  to  escort  the  newly  elected 
Speaker  to  the  chair. 

It  has  long  been  the  usage  that  the  oldest  Member  in  continuous  serv- 
ice shall  administer  the  oath  to  the  Speaker. 

After  a  Speaker  has  been  elected  the  Clerk  appoints  the  committee  to  escort 
him  to  the  chair.  On  February  2,  1856,^  after  Mr.  Speaker  Banks  had  finally  been 
elected  after  a  long  struggle,  Mr.  John  Wheeler,  of  New  York,  proposed  to  designate 
the  committee  by  resohition,  but  desisted  because  of  the  remonstrances  of  Mr. 
Joshua  R.  Giddings,  of  Ohio,  who  as  "the  oldest  consecutive  Member"  was  about 
to  administer  the  oath  to  the  Speaker.  Mr.  Giddings  said  that  the  Clerk  always 
appointed  the  committee,  and  to  arrange  it  otherwise  would  be  an  "innovation  on 
the  whole  past  practice  of  the  House." 

221.  The  contest  over  the  organization  of  the  House  in  1849.* 
The  House  declined  to  determine  the  choice  of  a  Speaker  by  lot. 

The  House  by  special  rule  chose  a  Speaker  by  a  plurality  of  votes, 
but  confirmed  the  choice  by  a  majority  vote. 

The  question  as  to  whether  or  not  the  House,  before  its  organization, 
may  adjourn  over  for  more  than  one  day. 

On  December  22, 1849,Hhe  House  had  been  in  session  nineteen  days'^  ^vithout 
being  able  to  elect  a  Speaker,  no  candidate  having  received  a  majority  of  the  votes 
cast.     The  voting  was  viva  voce,  each  Member  when  called  naming  the  candidate 

'First  session  Thirty-sixth  Congress,  Globe,  pp.  654,  655. 

-James  C.  Allen,  of  Illinois,  Clerk. 

^  First  session  Thirty-fourth  Congress,  Globe,  p.  342. 

*  There  had  also  been  a  prolonged  contest  over  the  organization  of  the  House  in  1840  (see  sec.  103  of 
this  work),  but  it  was  not  occasioned  by  a  difficulty  over  the  election  of  Speaker. 

*  First  session  Thirtj'-first  Congress,  Journal  pp.  15G,  1G3,  164. 


§   221  THE    OFFICERS    OF    THE    HOUSE    AND    THEIR    ELECTION.  125 

for  whom  he  voted.  After  the  thirteenth  ballot  Mr.  Andrew  Johnson,  of  Tennes- 
see, offered  a  resolution  providing  that  if,  on  the  next  ballot,  no  individual  should 
receive  a  majority  of  the  votes  cast,  the  individual  receiving  a  plurality  of  votes 
should  be  the  Speaker  for  the  present  session.  An  amendment  was  proposed,  to 
provide  that  the  vote  be  taken  by  ballot.  Both  the  resolution  and  amendment  were 
laid  on  the  table  by  a  vote  of  210  to  11.'  A  resolution  proposed  by  Mr.  Frederick 
P.  Stanton,  of  Tennessee,  to  restrict  the  voting  to  the  four  highest  candidates,  and 
in  the  event  of  no  choice  to  the  two  highest,  was  also  laid  on  the  table.  - 

On  December  6,  after  the  fourteenth  ballot,  Mr.  John  A.  McClernand,  of  Illinois, 
offered  a  resolution  to  adopt  the  rules  of  the  last  House  and  appoint  ^Ir.  Linn 
Boyd,  of  Kentucky',  chairman  until  a  Speaker  should  be  elected.  After  an  amend- 
ment had  been  proposed  to  alternate  ilr.  Samuel  F.  Vinton,  of  Ohio,  with  Mr. 
Boyd,  and  after  Mr.  McClernand  had  modified  his  proposition  so  as  to  permit  the 
proposed  chairman  merely  to  keep  order  during  the  proceedings  on  the  election  of 
Speaker,  the  whole  proposition  was  laid  on  the  table  by  a  vote  of  116  to  105. 

After  the  thirtieth  ballot  Mr.  Lewis  C.  Levin,  of  South  Carolina,  offered  a  reso- 
lution that  each  of  the  five  parties,  or  factions,  in  the  House  should  put  the  name 
of  its  candidate  in  a  box  and  that  the  Clerk  should  draw  one  therefrom,  thus  deter- 
mining the  Speakership  by  lottery.  This  resolution  was  promptly  laid  upon  the 
table.  After  the  thirty-first  ballot  it  was  proposed  that  lots  be  drawn  between  Mr. 
Howell  Cobb  and  Mr.  Robert  C.  Winthrop  to  determme  who  should  be  Speaker. 
This  was  not  approved.  A  motion  that  the  vote  be  taken  bj  ballot  was  also  defeated 
by  a  vote  of  162  to  62. 

After  the  forty-first  ballot  ^Ir.  George  Ashmun,  of  Massachusetts,  proposed  a 
plan  for  electing  by  plurality  of  votes,  but  it  did  not  meet  with  favor. 

On  motion  of  ^Ir.  Milo  iL  Dimmick,  of  Pennsylvania,  it  was  ordered  that  the 
House  should  proceed  with  the  election  of  a  Speaker  and  that  there  should  be  no 
debate  until  such  an  election  shoidd  be  effected. 

Various  solutions  of  the  difficulty  were  offered  as  the  balloting  proceeded,  such 
as  modifications  of  the  plurality  plan,  proposals  to  raise  a  committee  to  devise  a 
plan  for  organization,  to  elect  a  Speaker  pro  tempore,  etc. 

Finally,  after  the  fifty-ninth  ballot,  Mr.  Frederick  P.  Stanton  offered  and  the 
House  adopted,  after  attempts  to  amend  and  protests  from  the  minority  at  the  pro- 
hibition of  debate,  the  following  resolution  by  a  vote  of  11.3  yeas  to  106  nays: 

Resolved,  That  the  House  will  proceed  immediately  to  the  election  of  a  Speaker,  viva  voce;  and 
if,  after  the  roll  shall  have  been  called  three  times,  no  Member  shall  have  received  a  majority  of  the 
whole  number  of  votes,  the  roll  shall  again  be  called,  and  the  Member  who  shall  then  receive  the  largest 
number  of  votes,  provided  it  be  a  majority  of  a  quorum,  shall  be  declared  to  be  chosen  Speaker. 

A  strong  protest^  was  made  against  the  plurahty  resolution  and  against  the 
resolution  proliibiting  debate.  Mr.  Robert  Toombs,  of  Georgia,  insisted  on  making 
his  protest,  although  the  Clerk  began  a  roll  call  while  he  was  on  the  floor,  and  there 
was  great  disorder  and  confusion.     He  denied  the  right  of  the  unorganized  House 

'  Journal,  p.  32.  -  Journal,  p.  34.  ^  First  session  Thirty-first  Congress,  Globe,  p.  62. 


126  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §   222 

to  limit  debate  or  adopt  the  plurality  rule,  basing  his  opposition  on  the  second 
section  of  the  act  of  1789— 

That  at  the  first  session  of  Congress  after  every  general  election  of  Representatives,  the  oath  or 
affirmation  aforesaid  shall  be  administered  by  any  one  Member  of  the  House  of  Representatives  to  the 
Speaker,  and  by  him  to  all  the  Members  present,  and  to  the  Clerk,  previous  to  entering  on  any  other 
business.' 

A  motion  having  been  made  to  adjourn  over  to  a  day  beyond  the  next  day, 
Mr.  Alexander  H.  Stephens,  of  Georgia,  arose  and  suggested  the  constitutional  point 
that  the  House  could  not,  until  it  was  organized,  do  otherwise  than  adjourn  from 
day  to  day.     The  House  decided  the  motion  to  adjourn  over  in  the  negative.^ 

Under  the  operation  of  the  plurality,  resolution,  the  sixty-third  vote  resulted  as 
follows : 

For  Howell  Cobb 102 

For  Robert  C.  Winthrop 100 

For  David  Wilmot 8 

For  Charles  S.  Morehead 4 

For  William  Strong 3 

For  Alexander  H.  Stephens 1 

For  ■\Villiam  F.  Colcock 1 

For  Charles  Durkee 1 

For  Emery  D.  Potter 1 

For  Linn  Boyd 1 

Whole  number  of  votes  given 222 

Of  which  number,  Mr.  Howell  Cobb,  of  Georgia,  having  received  102  votes, 
being  the  largest  number  cast  for  any  one  Member,  under  the  resolution  adopted  by 
the  House,  and  being  a  majority  of  a  quorum  of  the  House,  Mr.  Stanly  thereupon 
offered  the  following  resolution: 

Resolved,  That  Howell  Cobb,  a  Representative  from  the  State  of  Georgia,  be  declared  duly  elected 
Speaker  of  the  House  of  Representatives  for  the  Thirty-first  Congress. 

This  resolution  having  been  adopted,  Mr.  Cobb  was  conducted  to  the  chair  by 
Mr.  Robert  C.  Winthrop,  of  Massachusetts,  and  Mr.  James  McDowell,  of  Virginia. 

223.  The  contest  over  the  organization  of  the  House  in  1855  and 
1856. 

The  House  by  special  rule  chose  a  Speaker  by  plurality  of  votes,  but 
confirmed  the  choice  by  a  majority  vote  on  a  resolution  declarative  of  the 
result. 

'  This  now  section  30,  Revised  Statutes.     (See  also  sec.  128  of  this  work.) 

2  See  also  Section  89  of  this  volume.  During  the  prolonged  contest  in  the  first  session  Thirty- 
fourth  Congres.s,  which  resulted  in  the  election  of  Speaker  Banks,  the  House  voted,  on  December  24, 
1855,  to  adjourn  over.  (Journal,  p.  172;  Globe,  pp.  78,  79.)  Mr.  Joshua  R.  Giddings,  of  Ohio,  sug- 
gested that  they  had  no  power  to  adjourn  over,  and  that  a  majority  of  the  Members  might  come  the 
next  day  and  elect  a  Speaker,  notwithstanding  the  adjournment  over;  but  the  point  was  not  further 
insisted  on.  Mr.  Alexander  H.  Stephens,  of  Georgia,  who  had  suggested  it  in  the  Thirty-first  Congress, 
participated  in  the  debate,  but  said  nothing  on  this  point.  Previous  to  this  (Journal,  p.  18)  the  Door- 
keeper had  been  directed  to  enforce  so  much  of  the  rules  of  the  last  Congress  as  related  to  the  admission 
of  persons  within  the  hall  of  the  House. 


§  222  THE    OFFICERS    OF   THE    HOUSE    AND   THEIR    ELECTION.  127 

The  House  declined  to  permit  any  announcement  but  its  own  declara- 
tion in  a  case  wherein  a  Speaker  was  chosen  by  plurality  of  votes. 

Use  of  the  motion  to  rescind  in  proceedings  for  organization  of  the 
House. 

Instance  of  thanks  to  the  Clerk  for  presiding  during  a  prolonged 
contest  over  the  organization. 

On  February  2,  1856/  the  House  was  in  the  midst  of  a  struggle  over  the  election 
of  a  Speaker.  One  himdred  and  twenty-nine  ballots  had  been  taken  without  any 
candidate  receiving  the  majority  of  the  votes  cast.  Various  devices,  including 
attempts  to  elect  Members  by  means  of  adopting  resolutions  declaring  such  a  one  to 
be  Speaker,  had  been  tried  without  success.  On  this  day  the  proposition  to  elect 
by  a  plm-ality  of  votes  was  revived,  and  Mr.  Samuel  A.  Smith,  of  Tennessee,  submitted 
the  following  resolution,  viz : 

Resolved,  That  the  House  will  proceed  immediately  to  the  election  of  a  Speaker  viva  voce.  If,  after 
the  roll  shall  have  been  called  three  times,  no  Member  shall  have  received  a  majority  of  all  the  votes 
cast,  the  roll  shall  again  be  called,  and  the  Member  who  shall  then  receive  the  largest  number  of  votes, 
provided  it  be  a  majority  of  a  quorum,  shall  be  declared  duly  elected  Speaker  of  the  House  of  Represent- 
atives for  the  Thirty-foiirth  Congress. 

This  resolution  was  adopted  by  a  vote  of  113  yeas  and  104  nays.  After  its 
adoption  a  motion  was  made^  to  rescind  it,  and  was  laid  on  the  table  by  a  vote  of 
117  to  110.  After  a  motion  to  adjourn  had  been  voted  on,  the  motion  to  rescind 
was  again  made,  but,  the  question  being  submitted  to  the  House,  the  House  decided 
that  the  motion  to  rescind  was  not  again  in  order. 

After  the  one  hundred  and  thirty- third  vote  the  following  result  was  reached : 

For  Nathaniel  P.  Banks,  jr 103 

For  William  Aiken 100 

For  Henry  M.  Fuller 6 

For  Lewis  D.  Campbell 4 

For  Daniel  Wells,  jr 1 

Whole  number  of  votes 214 

Of  which  number  Nathaniel  P.  Banks,  jr.,  of  Massachusetts,  having  received  103 
votes,  being  the  largest  number  cast  for  any  one  Member,  and  a  majority  of  a  quo- 
riun  of  the  House,  was  declared  by  the  tellers  to  have  been  duly  elected  Speaker  of 
the  House  of  Representatives  for  the  Thirty-fourth  Congress. 

Mr.  Samuel  P.  Benson,  of  Maine,  taking  the  roll,  announced  the  vote,  concluding 
with  the  declaration  that  Mr.  Banks  "is  declared  Speaker  of  the  House  of  Repre- 
sentatives for  the  Thirty-foiuth  Congress."^  Immediately  there  was  a  question  of 
the  right  of  the  gentleman  from  Maine  to  make  such  a  declaration.  It  was  declared 
that  only  the  House  could  make  such  a  declaration,  and  the  precedent  of  1849  was 
recalled,  when  a  resolution  was  adopted  declaring  Mr.  Howell  Cobb,  of  Georgia,  duly 
elected  Speaker.     Mr.  Cobb,  in  reply,  said  that  he  had  not  believed  the  declaratory 

'  First  session  Thirty-fourth  Congress,  Journal,  pp.  429,  430,  444. 
'  Congressional  Globe,  first  session  Thirty  fourth  Congress,  p.  336. 
^  Congressional  Globe,  first  session  Thirty-fourth  Congress,  p.  339. 


128  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   223 

resolution  necessary  in  1849  and  he  did  not  believe  it  necessary  now.  If  a  majority 
of  the  House  adopted  the  plurality  rule,  when  a  plurality  vote  was  cast  for  a  Member 
he  was  elected  by  virtue  of  the  resolution  originally  adopted  by  a  majority  of  the 
House.  On  the  other  hand,  it  was  urged  by  Mr.  William  W.  Boyd,  of  South  Caro- 
lina, that  the  majority  could  not  empower  a  minority  to  designate  a  Speaker, 
because  delegated  power  could  not  be  delegated. 

Mr.  Thomas  L.  Clingman,  of  North  Carolina,  submitted  the  following  resolution: 

Resolved,  That,  by  reason  of  the  adoption  of  the  proposition  known  as  the  plurality  resolution,  and 
the  votes  taken  under  it,  the  Hon.  N.  P.  Banks,  of  Massachusetts,  has  been  duly  chosen  Speaker,  and  is 
hereby  so  declared. 

This  resolution  having  been  agreed  to  by  a  vote  of  156  j-eas  to  40  nays,  Mr. 
Banks  was  conducted  to  the  chair  by  Mr.  William  Aiken,  of  South  Carolina,  Mr. 
Henry  M.  Fuller,  of  Pennsylvania,  and  Mr.  Lewis  D.  Campbell,  of  Ohio,  and  addressed 
the  House. 

Mr.  Stanton  submitted  the  following  resolution;  which  was  unanimously 
agreed  to,  viz: 

Resolved,  That  the  thanks  of  this  House  are  eminently  due,  and  are  hereby  tendered,  to  John  W. 
Forney,  esq.,  for  the  distinguished  ability,  fidelity,  and  impartiality  with  which  he  has  presided  over 
the  deliberations  of  the  House  of  Representatives  during  the  arduous  and  protracted  contest  for  Speaker 
which  has  just  closed. 

223.  In  1860  the  election  of  a  Speaker  proceeded  slowly,  the  voting 
being  interspersed  with  debate  which  the  Clerk  did  not  prevent. — At  the 
first  session  of  the  Thirty-sixth  Congress,  which  began  on  December  5,  1859,  there 
was  a  prolonged  delay  over  the  election  of  Speaker,  a  result  being  reached  on  Feb- 
ruary 1,  1860,  after  fifty-four  ballots.  On  the  first  day  of  the  session  it  was  ordered 
that  the  House  proceed  viva  voce  to  the  election  of  a  Speaker. 

Thereupon  a  ballot  was  taken  mthout  result.  Debate  then  began;  and  as  the 
Clerk  declined  to  decide  any  questions  of  order,  the  voting  for  Speaker  proceeded 
very  slowly.  All  questions  of  order  were  submitted  to  the  House  and  were  debated, 
so  it  became  practically  impossible  to  hasten  proceedings.  Sometimes  only  one 
vote  would  be  taken  during  a  day,  the  remainder  of  the  time  being  consumed  in 
debate.  It  was  urged  by  Mr.  Israel  Washbiu-n,  jr.,  of  Maine,  and  by  others  that 
the  order  to  proceed  to  the  election  of  a  Speaker  was  a  standing  order  and  that 
debate  and  other  matters  were  not  in  order.'  He  also  contended  that  the  House 
should  each  day  proceed  to  vote  without  a  special  order  so  to  do  each  time.  But 
it  was  impossible  to  arrive  at  a  determination  of  the  question  raised,  and  we  find 
the  House,  at  the  last  of  the  proceedings,  adopting,  under  operation  of  the  previous 
question,  an  order  to  proceed  to  the  election  of  Speaker  before  each  vote.  Ques- 
tions of  personal  privilege  were  raised  by  Members,  and  a  resolution  relating  to  the 
qualifications  of  the  candidates  for  Speaker  ^  was  presented  and  debated,  but  no 
decision  was  reached  on  the  point  of  order  that  it  was  not  in  order  or  on  the  reso- 

'  Thus,  on  January  18  (Journal,  p.  130;  Globe,  p.  499),  the  Clerk  declined  to  carry  out  the  order, 
as  he  did  not  feel  at  lil)erty  to  arrest  the  remarks  of  a  Member. 

'  On  January  5,  1860,  during  the  contest  over  the  election  of  a  Speaker,  a  proposition  to  elect  a 
Speaker  pro  tempore  was  presented  and  discussed  somewhat,  but  not  adopted.  (First  session  Thirty- 
sixth  Congress,  Globe,  pp.  341-343.) 


§    224  THE    OFFICERS   OF   THE    HOUSE    AND   THEIR    ELECTION.  129 

lution  itself,  the  Clerk  declining  to  decide  and  the  House  being  unable  to  reach  a 
decision.  A  resolution  for  a  plurality  rule  was  proposed,  but  was  not  acted  on. 
Finally  a  Speaker  was  elected  by  majority  vote.' 

224.  A  new  Speaker  being  elected  at  the  beginning  of  a  second  ses- 
sion of  Congress,  Members-elect  present  and  unsworn  participated  in  that 
election. — On  Xovember  13,  1820,-  at  the  beginning  of  the  second  session  of  the 
Congress,  the  Clerk  called  the  House  to  order,  and  the  roll  of  Members  was  called  by 
States  to  ascertain  the  presence  of  a  quorum. 

At  the  conclusion  of  the  roll  call  several  new  Members  appeared,  produced  their 
credentials,  and  took  their  seats. 

Then,  a  quorum  being  present  (the  new  Members  were  not,  however,  necessary 
to  produce  this  quorum,  and  there  is  no  evidence  as  to  whether  or  not  they  were 
counted  as  part  of  it)  the  Clerk  laid  before  the  House  the  resignation  of  the  Speaker, 
and  the  House  proceeded  to  elect  a  Speaker,  a  choice  being  effected  on  November  15. 
The  new  Speaker,  Mr.  John  W.  Taylor,  of  New  York,  having  taken  his  seat  and 
addressed  the  House,  and  a  message  annoimcing  his  election  having  been  sent  to  the 
Senate,  he  proceeded  to  administer  the  oath  to  the  new  Members  who  appeared  on 
the  13th  instant. 

It  seems  evident,  from  a  comparison  of  the  Joiunal  and  Annals,  that  the  new 
unsworn  Members  voted  for  Speaker.  They  were  7  in  number,  and  the  Journal 
records  only  131  old  members  as  appearing  on  the  first  day.  Yet  the  total  votes  in 
the  first  day's  baUotings  range  from  132  to  138.  On  the  second  day  the  Journal 
records  the  appearance  of  enough  more  old  Members  to  bring  the  total  of  old  Mem- 
bers up  to  142,  yet  during  this  day  the  total  of  votes  reached  as  high  as  148;  and  on 
the  third  day,  with  147  old  Members  recorded,  the  totals  of  ballots  ranged  from  141 
to  148.  If  the  appearance  of  Members  was  recorded  with  care,  as  it  seems  to  have 
been,  it  is  evident  that  the  imswom  new  Members  voted  for  Speaker.^ 

225.  A  Speaker  elected  after  the  organization  of  the  House  takes  the 
oath,  although  he  may  have  taken  it  already  as  a  Member. 

Mr.  Speaker  Colfax,  having  been  elected  Vice-President,  resigned  his 
Speakership  on  the  last  day  of  the  Congress. 

The  Speaker  called  a  Member  to  the  chair  and,  taking  the  floor,  ten- 
dered his  resignation  verbally. 

On  March  3,  1869,*  the  Speaker^  called  Mr.  James  F.  Wilson,  of  Iowa,  to  the 
chair  and,  having  been  recognized  on  the  floor,  offered  his  resignation  as  Speaker,  tu 
take  effect  upon  the  election  of  his  successor. 

•  First  session  Thirty-sixth  Congress,  Journal,  pp.  8,  12,  130,  151,  154,  164;  Globe,  pp.  187,  233, 
483,  499,  637. 

^  Second  session  Sixteenth  Congress,  Journal,  pp.  5-7  (Gales  and  Seaton  ed.);  Annals,  pp.  434-438. 

^At  the  beginning  of  the  Fifty-fifth  Congress  (March  15.  1897,  first  session  Fifty-fifth  Congress, 
Record,  p.  15)  several  Members  present  without  credentials  in  due  form,  and  whose  names  were  not  on 
the  Clerk's  roll,  asked  to  be  allowed  to  vote  for  Speaker.  The  Clerk  (Alexander  McDowell,  of  Pennsyl- 
vania) declined  to  permit  them  to  do  so.  Had  they  presented  credentials  in  due  form,  the  situati'  'U 
would  e\'idently  have  been  different. 

■•  Third  session  Fortieth  Congress,  Journal,  pp.  511-513;  Globe,  pp.  1867,  1868. 

'  Schuyler  Colfax,  of  Indiana,  Speaker.     He  had  been  elected  Vice-President,  and  this  resignation 
was  tendered  at  the  beginning  of  the  laat  legislative  day  of  the  Congress. 
5994— VOL  1—07 9 


130  PBECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   226 

A  resolution  expressing  regret  at  his  retirement  and  a  high  appreciation  of  his 
services  having  been  adopted  by  the  House,  Mr.  Henry  L.  Dawes,  of  Massachusetts, 
moved  that  Hon.  Theodore  M.  Pomeroy,  of  New  York,  "be  declared  duly  elected 
Speaker  in  place  of  Hon.  Schuyler  Colfax,  resigned,  for  the  remaining  term  of  this 
Congress." 

This  resolution  was  agreed  to  unanimously. 

A  committee  was  appointed  to  escort  the  Speaker-elect  to  the  chair,  and  the 
Speaker  pro  tempore  designated  Mr.  Dawes  to  administer  the  oath  to  the  Speaker- 
elect. 

The  Speaker-elect  having  addressed  the  House  briefly,  the  oath  was  administered 
to  him. 

Resolutions  were  then  adopted  directing  that  the  Senate  be  informed  of  the 
election  and  that  a  committee  of  three  be  appointed  to  inform  the  President. 

226.  On  December  4,  1876,^  at  the  second  session  of  the  Congress,  Mr.  Samuel 
J.  Randall,  of  Pennsylvania,  was  elected  Speaker  in  place  of  Michael  C.  Kerr,  of 
Indiana.  The  oath  was  administered  to  Mr.  Randall  after  liis  election,  no  question 
being  raised  on  the  point.  Of  course  he  had  already  taken  the  oath  as  Member 
at  the  first  session. 

227.  When  the  Speaker  is  absent  at  the  beginning  of  a  session  the 
House  may  adjourn  or  elect  a  Speaker  pro  tempore. — On  December  fi,  1830, 
at  the  opening  of  the  second  session,'  the  Clerk  ^  called  the  House  to  order,  and 
the  presence  of  a  quonmi  having  been  ascertained,  Mr.  William  S.  Archer,  of  Vir- 
ginia, arose  and  announced  that  the  Speaker  *  was  prevented  by  indisposition  from 
attending.  He  had  looked  into  the  records  and  found  that  in  such  cases  the 
practice  had  been  twofold.  In  some  cases  the  House  adjourned  from  day  to 
day;  and  in  two  other  cases,  occurring  in  1798,  the  House  had  elected  a  Speaker 
pro  tempore.  Then,  on  motion  of  Mr.  James  K.  Polk,  of  Tennessee,  the  House 
adjourned. 

228.  The  Speaker  pro  tempore,  whom  the  House  had  just  elected,  not 
being  present,  the  Clerk  held  that  the  motion  to  adjourn  was  not  business, 
and  under  the  circumstances  was  the  only  motion  in  order. — On  June  24, 
1876,'^  the  Clerk,  in  the  absence  of  the  Speaker "  and  the  Speaker  pro  tempore, 
called  the  House  to  order,  when  Mr.  Samuel  J.  Randall,  of  Pennsylvania,  at  12 
o'clock  and  5  minutes  p.  m.,  moved  that  the  House  adjourn. 

This  motion  being  disagreed  to,  Mr.  William  S.  Holman,  of  Indiana,  submitted 
the  following  resolution;  which  was  read,  considered,  and  agreed  to: 

Resolved,  That  Hon.  Milton  Sayler,  a  Representative  from  the  State  of  Ohio,  be,  and  he  is  hereby, 
appointed  Speaker  pro  tempore  during  the  present  absence  of  the  Speaker. 

The  Speaker  pro  tempore  elect  not  being  present,  Mr.  Holman,  at  12  o'clock 
and  25  minutes,  moved  that  the  House  adjourn. 

^  Second  session  Forty-fourth  Congress,  Journal,  p.  12;  Record,  p.  7. 

^  Second  session  Twenty-first  Congress.     Debates,  pp.  347-350. 

^  Matthew  St.  Clair  Clarke,  of  Pennsylvania. 

■*  Andrew  Stevenson,  of  Virginia. 

'  First  session  Forty-fourth  Congress,  Journal,  p.  1153;  Record,  p.  4132. 

'  Michael  C.  Kerr,  of  Indiana. 


§  229  THE    OFFICERS    OF   THE    HODSE    AND    THEIR    ELECTION.  131 

Mr.  Omar  D.  Conger,  of  Michigan,  made  the  point  of  order  that  the  House 
having  elected  a  Speaker  pro  tempore,  the  fimctions  of  the  Clerk  as  a  presiding 
officer  thereupon  ceased,  and  that  it  was  not  competent  for  him  to  entertain  or 
submit  any  motion  to  the  House  in  the  nature  of  business. 

The  Clerk  '  overruled  the  point  of  order,  holding  that  a  motion  to  adjourn  was 
not  business,  and  in  the  absence  of  the  Speaker  or  Speaker  pro  tempore  was  the 
only  motion  in  order. 

In  this  decision  of  the  Clerk  the  House  acquiesced.  And  then  the  motion  of 
Mr.  Holman  was  agreed  to,  and  the  House  accordingly  adjourned. 

229.   A  Speaker  pro  tempore  elected  by  the  House  is  not  sworn. 

Discussion  of  the  nature  and  functions  of  the  office  of  Speaker  pro 
tempore. 

On  February-  17,  1876,-  Mr.  Samuel  J.  Randall,  of  Pennsylvania,  offered  the 
following  resolution,  which  was  agreed  to : 

Resolved,  That  Hon.  Samuel  S.  Cox,  a  Representative  from  the  State  of  New  York,  be,  and  he  is 
hereby,  appointed  Speaker  pro  tempore  during  the  present  temporary'  absence  of  the  Speaker. 

Mr.  James  A.  Garfield,  of  Oliio,  moved  that  the  oath  of  office  prescribed  by  the 
act  of  July,  1862,  be  administered  to  the  Speaker  pro  tempore  before  he  should 
enter  upon  the  duties  of  the  office  to  which  he  had  just  been  appointed. 

After  debate  the  motion  of  ifr.  Garfield  was  decided  in  the  negative,  yeas  73, 
nays  171. 

A  resolution  informing  the  Senate  of  the  election  of  Mr.  Cox  as  Speaker  pro 
tempore  was  then  agreed  to. 

The  motion  of  ^Ir.  Garfield  was  debated  at  length.  He  urged  it  on  the  ground 
that  the  act  of  1862  made  it  incumbent  on  all  officers  except  the  President  to  take 
the  oath  before  entering  on  the  duties  of  the  office,  and  contended  that  the  prece- 
dents cited  of  Speakers  pro  tempore  who  had  taken  no  additional  oath  were  all 
before  1862,  while  the  case  of  Mr.  Pomeroy,  who  took  the  additional  oath,  was  after 
the  enactment  of  the  test  oath.  On  the  other  hand,  it  was  stated  that  Mr.  Pomeroy, 
although  chosen  only  for  a  day,  was  in  fact  a  Speaker,  since  Speaker  Colfax  had 
resigned.  The  discussion  also  embraced  a  consideration  of  the  relations  of  the 
offices  of  Speaker,  Speaker  pro  tempore  by  election  of  the  House,  and  Speaker  pro 
tempore  by  designation  of  the  Chair  under  the  rules.  The  idea  was  advanced  that 
the  latter  was  merely  a  presiding  officer,  without  the  power  to  sign  bills  or  do  other 
things  devolving  on  a  Speaker.  As  to  the  distinction  between  an  elected  Speaker 
and  an  elected  Speaker  pro  tempore  there  was  a  diversity  of  opinion.  It  was  con- 
tended that  the  Speaker  pro  tempore  was  as  different  from  the  Speaker  as  a  Presi- 
dent pro  tempore  of  the  Senate  from  Vice-President,  and  the  idea  was  opposed  on 
the  groimd  that  the  House  might  at  any  time  remove  its  Speaker  and  choose  one  pro 
tempore,  who  would  have  all  the  attributes  of  his  predecessor.  It  was  also  con- 
tended that  when  the  Speaker  was  sworn  at  the  organization  of  the  House  he,  in 
fact,  took  two  oaths  at  the  same  time,  one  as  Member  and  the  other  as  Speaker. 
Hence  it  was  argued  that  a  Speaker  elected  after  the  organization,  to  fill  a  vacancy, 
would  take  an  additional  oath. 

'  George  M.  Adams,  of  Kentucky. 

^  First  session  Forty-fourth  Congress,  Journal,  pp.  412^13;  Record,  pp.  1146-1153. 


132  PEECEDENTS   OF   THE    HOUSE    OF   EEPRESENTATIVES.  §  230 

330.  A  Member  being  elected  Speaker  after  the  organization  of  the 
House,  it  is  assumed  that  his  committee  places  are  thereby  vacated. — On 
December  11,  1876,'  Mr.  Speaker  Randall  aimounced  the  appointment  of  Mr.  Hiester 
Clymer,  of  Pennsylvania,  on  the  Committee  on  Appropriations  in  place  of  himself, 
who  had  retired  hj  reason  of  being  elected  Speaker.  It  does  not  appear  that  any 
request  was  made  of  the  House  to  relieve  Mr.  Randall  of  this  committee  service. 

231.  Rising  in  his  place,  Mr.  Speaker  Clay  addressed  the  House, 
announcing  his  resignation. 

The  Speaker  having  resigned,  the  chair  remained  vacant,  and  the 
Clerk  presided  until  a  successor  was  elected. 

The  Speaker  having  resigned  in  1814,  his  successor,  when  elected, 
took  the  oath. 

A  Speaker  being  elected  to  fill  a  vacancy  caused  by  resignation,  the 
Senate,  biit  not  the  President,  was  notified  of  the  fact. 

A  resolution  of  thanks  to  a  Speaker  who  had  resigned  was  agreed  to 
before  the  election  of  a  successor. 

On  January  19,  1814,^  after  the  business  of  the  House  had  proceeded  some  time, 
the  Speaker,  rising  in  his  place,  addressed  the  House  briefly,  announcing  his  resigna- 
tion as  Speaker. 

He  then  left  the  chair,  which  remained  vacant. 

Then,  on  motion  of  Mr.  William  Findley,  of  Pennsylvania,  the  Clerk  putting 
the  motion : 

Resolved,  That  the  tlianks  of  this  House  be  presented  to  Henry  Clay,  in  testimony  of  their  approba- 
tion of  his  conduct  in  tlip  arduous  and  important  duties  assigned  to  him  as  Speaker  of  this  House. 

A  motion  to  adjourn  having  been  decided  in  the  negative,  the  House  proceeded 
by  ballot  to  the  choice  of  a  Speaker,  in  place  of  Henry  Clay,  resigned;  and,  upon 
the  examination  of  the  ballots,  it  appeared  that  Langdon  Cheves,  one  of  the  Repre- 
sentatives from  the  State  of  South  Carolina,  was  duly  elected. 

Mr.  Cheves,  having  been  conducted  to  the  chair,  addressed  the  House.  Then 
the  oath  was  administered  to  him  by  Mr.  Findley. 

On  the  next  day: 

Resolved,  That  the  Clerk  of  tliis  House  inform  the  Senate  that,  Henry  Clay  having  yesterday  resigned 
his  seat  as  Speaker,  the  House  of  Representatives  have  made  choice  of  Langdon  Cheves,  one  of  the  Rep- 
resentatives from  the  State  of  South  Carolina,  as  their  Speaker. 

No  message  seems  to  have  been  sent  to  the  President. 

232.  In  1820,  at  the  beginning  of  a  second  session,  the  Clerk  called 
the  House  to  order,  and  after  ascertaining  the  presence  of  a  quorum  pre- 
sented a  letter  of  resignation  from  the  Speaker. 

The  Speaker  having  resigned,  no  action  of  the  House  excusing  him 
from  service  is  taken. 

The  Speaker  having  resigned  in  1820,  it  does  not  appear  that  his  suc- 
cessor took  the  oath. 

'  Second  session  Forty-fourth  Congress,  Journal,  p.  56;  Record,  p.  129. 

-  Second  session  Thirteenth  Congress,  Jomnal,  pp.  240-242  (Galea  &  Seaton,  ed.);  Annals,  p.  1057. 


§   233  THE    OFFICERS    OF   THE    HOUSE    AND    THEIR    ELECTION.  133 

A  Speaker  being  elected  to  fill  a  vacancy  caused  by  resignation,  the 
Senate,  but  not  the  President,  was  notified  of  the  fact. 

In  the  earlier  practice  when  a  series  of  ballots  were  taken,  the  Jour- 
nal recorded  only  the  bare  result  of  the  decisive  ballot. 

On  November  13,  1820,'  the  House  was  called  together  at  the  opening  of  the 
second  session  of  the  Congress  by  the  Clerk,  and  the  roll  of  Members  was  called  by 
States.  A  quorum  appearing,  the  Clerk  stated  that  fact,  and  then  announced  to 
the  House  a  letter^  addressed  to  him  by  Henry  Clay,  Speaker  of  the  House,  in  wliich 
Jklr.  Clay  requested  the  Clerk  to  communicate  to  the  House  the  fact  of  his  inability 
to  attend — 

and  to  respectfully  ask  it  to  allow  me  to  resign  the  office  of  its  Speaker,  which  I  have  the  honor  tij  hold, 
and  to  consider  this  as  the  act  of  my  resignation. 

This  letter  being  read,  no  motion  was  made  to  permit  the  Speaker  to  be  excused 
from  serving,  but  the  House  proceeded  at  once  to  ballot^  to  elect  a  Speaker.  Messrs. 
Thomas  Xe\vi;on,  of  Virginia,  and  Jonathan  O.  Moseley,  of  Connecticut,  were 
appointed  a  committee  to  count  the  ballots.  After  7  ballots,  in  wliich  no  one  had 
a  majority  of  the  votes  given,  as  required  by  the  rule,^  the  House  adjourned.  On 
the  succeeding  day,  also,  the  balloting  was  fruitless,  but  on  November  15,  on  the 
twenty-second  ballot,  the  result  was  announced  as  follows:  The  whole  number  of 
votes  were  148,  75  necessary  to  a  choice.  The  votes  were:  For  Mr.  Taylor,  76;  for 
Mr.  Lowndes,  44;  for  Mr.  Smith,  27;  scattering,  1.^ 

So  John  W.  Taylor,  a  Representative  from  the  State  of  New  York,  was  elected 
Speaker. 

Mr.  Taylor  addressed  the  House,  but  the  Journal  does  not  indicate  that  the  oath 
was  administered. 

On  motion  of  Mr.  Nelson,  of  Virginia: 

Ordered,  That  a  message  be  sent  to  the  Senate,  to  inform  them  that  a  quorum  of  this  House  is  assem- 
bled; that  they  have  elected  John  W.  Taylor,  one  of  the  Representatives  from  the  State  of  New  York, 
their  Speaker,  in  the  room  of  Henry  Clay,  resigned,  and  are  now  ready  to  proceed  to  business;  and  that 
the  Clerk  go  with  the  said  message. 

There  is  nothing  to  indicate  that  a  notice  of  the  election  of  the  new  Speaker 
was  sent  to  the  President. 

233.  In  1834  the  Speaker,  intending  to  resign,  arose  in  his  place  and 
informed  the  House,  setting  a  futvire  day  for  the  act. 

The  Speaker  having  announced  his  resignation,  made  a  farewell 
address  and  left  the  chair. 

The  farewell  address  of  the  Speaker  appears  in  full  in  the  Journal. 

The  Speaker  having  resigned  in  1834,  his  successor  took  the  oath. 

'Second  session  Sixteenth  Congress,  Journal,  pp.  5-7  (Gales &  Seaton  ed.);  Annals,  pp.  434-438. 

^  This  letter  appears  in  full  in  the  Journal. 

'  The  Journal  makes  no  mention  of  a  motion  to  proceed  to  the  election  of  a  Speaker;  but  the  .Vnnals 
states  that  such  a  motion  was  made  by  Mr.  Thomas  Newton,  of  Virginia. 

*  See  section  6003,  Volume  V,  of  this  work  for  the  rule  at  that  time. 

'  The  Journal  does  not  record  these  ballotings  in  detail,  but  announces  merely  that  "upon  an  exami- 
nation of  the  twenty-second  Vjallot,  it  appeared  that  John  W.  Taylor,  etc.,  was  duly  elected." 


134  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   234 

On  May  30,  1834,'  the  Journal  has  this  entry: 

Mr.  Speaker  Stevenson  rose,  and  informed  the  House  that  he  liad  taken  the  chair  this  morning, 
though  still  laboring  under  severe  and  continued  indisposition,  for  tlie  purpose  of  opening  the  House, 
and  preventing  any  delay  in  its  business,  and  likewise  for  the  purpose  of  announcing  his  determination 
of  resigning  the  Speaker's  chair  and  his  seat  in  Congress.  This  he  proposed  doing  on  Monday  next  at  11 
o'clock.  He  had  formed  this  resolution  under  a  deep  sense  of  duty,  and  because  his  state  of  liealth 
rendered  it  impossible  for  him  (as  must  be  apparent  to  the  House)  to  discharge,  in  person,  the  laborious 
duties  of  the  Chair,  and  he  had  therefore  deemed  it  respectful  and  proper  to  give  this  early  notice  of 
his  intention  to  retire. 

On  Monday,  June  2,^  immediately  after  the  reading  of  the  Journal,  the  Speaker 
arose  and  addressed  the  House.  He  said  he  had  attended  for  the  purpose  of  resign- 
ing the  office  of  Speaker,  and  of  annoimcing  the  fact  that  he  had  communicated  to 
the  executive  of  Virginia  liis  resignation  as  one  of  the  Representatives  of  that  State. 
Mr.  Speaker  then  addressed  farewell  remarks  to  the  House.  These  appear  in  full 
in  the  Journal. 

Having  completed  liis  remarks,  Mr.  Stevenson  then  descended  from  the  chair 
and  withdrew. 

Mr.  Charles  F.  Mercer,  of  Virginia,  then  moved  that  the  House  proceed  to  the 
election  of  a  Speaker. 

The  Clerk  put  this  motion,  which  was  agreed  to ;  and  then  nominated  6  tellers 
to  collect  and  count  the  ballots.  Of  this  proceeding,  however,  the  Journal  has  only 
this  entry. 

The  House,  on  motion,  proceeded  by  ballot  to  the  choice  of  a  Speaker  in  the  place  of  Andrew  Steven- 
son, resigned,  and,  upon  an  examination  of  the  tenth  ballot,  it  appeared  that  John  Bell,  one  of  the 
Representatives  from  the  State  of  Tennessee,  was  duly  elected;  upon  which,  Mr.  Bell  was  conducted 
to  the  Speaker's  chair  by  Mr.  John  Quincy  Adams  and  Mr.  Richard  M.  Johnson,  from  whence  he  addressed 
the  House  as  follows:    [Address  follows  in  full.] 

The  oath  of  office  to  support  the  Constitution  of  the  United  States  was  then  administered  to  the 
Speaker-elect  by  Mr.  Williams,  one  of  the  Representatives  from  t'ne  State  of  North  Carolina. 

234.  The  Speaker  having  died  during  the  recess  of  Congress,  the 
Clerk  called  the  House  to  order,  ascertained  the  presence  of  a  quorum, 
and  entertained  a  motion  to  proceed  to  election  of  a  Speaker. — On  Decem- 
ber 4,  1876,^  on  the  first  day  of  the  session,  the  Clerk  of  the  House,  having  called 
the  House  to  order  at  12  m.,  announced  the  death  of  Hon.  Michael  C.  Kerr,  late 
Speaker;  and  then  proceeded  to  call  the  roll  of  Members  by  States. 

A  quorum  having  been  disclosed,  and  its  presence  announced  by  the  Clerk, 
Mr.  William  S.  Holman,  of  Indiana,  presented  this  resolution: 

Whereas  the  House  being  informed  that  since  its  last  adjournment  Hon.  Michael  C.  Kerr,  who  at 
the  commencement  of  the  present  Congress  was  elected  Speaker  of  the  House,  has  departed  this  life, 
creating  a  vacancy  in  the  office  of  Speaker;  therefore 

Resolved,  That  the  House  do  now  proceed  to  the  election  of  a  Speaker  viva  voce. 

This  resolution,  which  was  held  to  be  of  high  privilege,  was  agreed  to. 

'First  session  Twenty-third  Congress,  Journal,  p.  672;    Debates,  p.  4335.     The  Speaker  addressed 
the  House  immediately  after  the  reading  of  the  Journal. 
2  Journal,  pp.  689-691;  Debates,  pp.  4368-4373. 
^Second  session  Forty-fourth  Congress,  Journal,  pp.  3-10;  Record,  pp.  3-6. 


§   235  THE    OFFICERS    OF    THE   HOUSE    AND    THEIR    ELECTION.  135 

235.  The  House,  in  a  rule  continuing-  the  Clerk  in  office  until  the 
election  of  his  successor,  assumed  to  perpetuate  its  authority  beyond  its 
own  existence. — On  March  1,  1791,^  at  the  close  of  the  first  Congress,  it  was 

Resolved,  That  the  Clerk  of  the  House  of  Representatives  of  the  United  States  shall  be  deemed 
to  continue  in  office  until  another  be  appointed. 

Again,  on  ilarch  2,  1793,^  at  the  close  of  the  Second  Congress,  a  similar  reso- 
lution was  agreed  to. 

236.  The  Clerk  having  died  in  the  recess  of  Congress,  the  House  was 
informed  as  soon  as  a  quorum  had  been  ascertained  and  new  Members 
sw^orn  in. 

The  Clerk  having  died,  the  House  at  once  elected  a  successor,  declin- 
ing to  have  the  chief  clerk  fill  the  vacancy  temporarily. 

On  December  3,  1838,^  the  Speaker  laid  before  the  House  the  following  com- 
munication: 

Office  House  of  Representatives  of  the  United  States, 

Washington,  December  3,  1838. 

Sir:  The  painful  duty  is  devolved  upon  me  of  informing  you,  and,  through  you,  the  House  of 
Representatives  of  the  United  States,  of  the  death  of  Walter  S.  Franklin,  esq.,  Clerk  of  the  House. 
He  died  on  the  20th  of  September  last,  at  Lancaster,  in  Pennsylvania. 

In  making  this  communication,  I  can  not  omit  to  embrace  the  opportunity  publicly  to  express 
the  deep  regret  of  every  officer  of  the  House  at  the  loss  the  public  and  themselves  have  sustained  in 
the  death  of  Mr.  Franklin. 

With  much  respect,  sir,  your  obedient  servant, 

S.  BURCH, 

Chief  Clerk  of  the  Office,  and  Acting  Clerh  House  of  Representatives. 
Hon.  J.  K.  Polk, 

Speaker  House  of  Representatives. 

The  House  disagreed  to  a  proposition  that  the  principal  assistant  clerk  act  as 
Clerk  until  the  House  should  fill  the  vacanc}',  and  entertained  and  agreed  to  a 
motion  that — 

the  House  do  forthwith  proceed  to  the  election  of  a  Clerk. 

Accordingly  the  House  proceeded  to  the  election  of  a  Clerk. 

These  proceedings  took  place  after  the  roll  had  been  called  by  States  to  ascer- 
tain the  presence  of  a  quorum,  and  after  the  new  Members  had  been  sworn  in, 
but  before  the  Senate  or  the  President  had  been  informed  that  a  quorum  of  the 
House  was  in  attendance. 

It  does  not  appear  that  anj"  message  was  sent  to  the  Senate  informing  them 
that  the  House  had  elected  a  Clerk. 

237.  The  election  of  the  Clerk  of  the  House  presents  a  question  of 
privilege. 

The  office  of  Clerk  becoming  vacant  it  was  held  that  the  House  would 
not  be  organized  for  business  until  a  Clerk  should  be  elected. 

The  preparation  and  reading  of  the  Journal  is  not  prevented  by  the 
death  of  the  officer  having  it  in  charge. 

•Third  session  First  Congress,  Journal,  p.  396  (Gales  &  Seaton,  ed.). 
'Second  session  Second  Congress,  Journal,  p.  731  (Gales  &  Seaton,  ed.). 
'Third  session  Twenty-fifth  Congress,  Journal,  p.  S;  Globe,  p.  1 


136  PBECEDENTS   OF    THE    HOUSE   OF    REPRESENTATIVES.  §   238 

On  April  16,  1850,'  Mr.  Thomas  L.  Harris,  of  Illinois,  moved  that  the  House 
proceed  to  the  election  of  a  Clerk,  to  supply  the  vacancy  occasioned  by  the  death  of 
Thomas  J.  Campbell. 

Pending  the  consideration  of  this  motion,  Mr.  Albert  G.  Brown,  of  Mississippi, 
submitted  the  following  resolution: 

Resolved,  That  the  order  heretofore  passed  by  the  House  postponing  the  election  of  a  Doorkeeper 
be,  and  the  same  is  hereby,  rescinded ;  and  that  the  House  of  P^epresentatives  will  proceed  at  once  to 
the  election  of  a  Clerk  and  Doorkeeper  for  the  Thirty-first  Congress. 

The  Speaker^  decided  that  the  resolution  was  out  of  order,  on  the  ground  that 
the  House  could  take  no  action  upon  or  transact  other  business  than  the  election  of 
Clerk  until  such  election  is  effected.  Until  a  Clerk  should  be  elected  the  House 
would  not  be  organized. 

From  tliis  decision  of  the  Chair  Mr.  A.  G.  Brown  appealed,  and  the  question 
being  put,  "Shall  the  decision  of  the  Chair  stand  as  the  judgment  of  the  House?" 
it  was  decided  in  the  affirmative. 

The  record  of  the  debate^  shows  that  the  Speaker  expressed  the  opinion  that 
the  House  was  not  organized  until  a  Clerk  was  elected.^  In  this  case  the  Clerk  had 
died,  and  the  Journal  on  this  morning  was  read  by  one  of  the  subordinate  officers 
of  the  late  Clerk.  Question  as  to  tliis  proceeding  having  been  raised  by  Mr.  Wil- 
lard  P.  Hall,  of  Virginia,  the  Speaker  said  that  the  Journal  had  been  prepared  as 
usual  under  the  direction  of  the  Speaker.  The  Chair  did  not  think  that  the  death 
of  the  Clerk  should  prevent  the  reading  or  preparation  of  the  Journal.^ 

238.  The  Clerk  having  resigned,  the  House  elected  his  successor. 

In  the  early  days  of  the  House  two  oaths  were  administered  to  the 
Clerk. 

On  December  9,  1800,"  the  Clerk  having  resigned,  the  House  elected  John  Holt 
Oswald  his  successor.  The  oath  to  support  the  Constitution  of  the  United  States, 
together  with  the  oath  of  office  as  prescribed  by  the  act  entitled  "An  act  to  regu- 
late the  time  and  manner  of  administering  certain  oaths,  "were  then  administered 
by  Mr.  Speaker  to  the  Clerk.' 

239.  The  Clerk  ha.ving  resigned,  the  House,  after  some  intervening 
business,  elected  his  successor. — On  Saturday,  January  28,  1815,*  the  Speaker 
laid  before  the  House  a  letter,  addressed  to  the  Speaker  by  the  Clerk  of  the  House, 
resigning  the  office  of  Clerk. 

The  letter  was  ordered  to  lie  on  the  table. 

'  First  session  Thirty-first  Congress,  Journal,  p.  789. 

-Howell  Cobb,  of  Geoi-gia,  Speaker. 

3  Globe,  p.  741. 

<0n  December  2,  1833,  Walter  S.  Franklin,  of  Pennsylvania,  was  elected  Clerk  of  the  House.  On 
December  3  he  appeared  and  qualified.     (First  session  Twenty-third  Congress,  Journal,  pp.  9,  10.) 

'The  Joiu-nal  is  now  prepared,  not  by  the  Clerk,  but  by  the  Jotunal  Clerk,  and  is  read  by  one  of 
the  reading  clerks. 

''Second  session  Sixth  Congress,  Journal,  p.  736  (Gales  &  Seaton,  ed.). 

'By  the  act  of  1789  (1  Stat.  L.,  p.  23)  two  oaths  were  required  of  the  Clerk.  This  has  since  been 
changed. 

'Third  session  Thirteenth  Congress,  Journal,  pp.  (594,  697-699  (Gales  &  Seaton,  ed.):  Annals,  pp. 
1107,  1113. 


§  240  THE    OFFICERS    OF    THE    HOUSE    AND    THEIR   ELECTION.  137 

On  Monday,  Januarj'  30,  after  business  had  proceeded  for  a  time,  it  was 

Resolved,  That  this  House  will  proceed,  on  this  day  at  2  o'clock,  to  the  appointment  of  a  Clerk, 
in  the  room  of  Patrick  Magruder,  who  has  resigned  that  office. 

Accordingly  at  2  o'clock  a  ballot  was  taken,  and  it  appears  that  Thomas 
Dougherty  was  duly  elected. 

On  January  31  he  gave  his  attendance  and  took  the  oath  of  ofRce. 

240.  In  1860  the  House  decided  that  it  might  inform  the  Senate  and 
President  of  its  organization  and  election  of  a  Speaker  before  it  had 
elected  a  Clerk. — On  February  1,  1860.^  a  Speaker  had  been  elected,  the  oath  had 
been  administered  to  the  Members  and  Delegates,  and  rules  had  been  adopted. 
Thereupon  Mr.  Reuben  E.  Fenton,  of  New  York,  offered  this  resolution : 

Resolved,  That  a  message  be  sent  to  the  Senate  to  inform  that  body  that  a  quorum  of  the  House  of 
Representatives  has  assembled,  and  that  WiUiam  Pennington,  one  of  the  Representatives  from  the  State 
of  New  Jersey,  has  been  chosen  Speaker,  and  that  the  House  is  now  ready  to  proceed  to  business. 

Mr.  William  Smith,  of  Virginia,  questioned  the  propriety  of  the  resolution 
before  the  election  of  a  Clerk. 

After  debate,  in  which  it  was  stated  that  it  had  been  the  custom  of  the  House 
to  agree  to  similar  resolutions  before  the  election  of  Clerk,  the  Speaker^  held  that 
the  practice  of  the  House  had  been  in  accordance  with  the  proposed  action,  and 
that  there  was  no  necessity  that  the  notice  should  be  delayed  until  the  election  of  a 
Clerk.     The  present  Clerk  could  communicate  the  message. 

The  resolution  was  accordingly  agreed  to.  Then,  also,  a  resolution  of  notifi- 
cation to  the  President  was  agreed  to  before  the  election  of  Clerk.  After  that  the 
House  proceeded  to  the  election  of  Clerk. 

241.  By  unanimous  consent,  in  1867,  the  House  elected  its  Clerk  by 
resolution. 

In  1867  the  law  of  1789  was  considered  as  binding  the  House  to  elect 
a  Clerk  before  proceeding  to  business. 

On  March  4,  1867,'  at  the  organization  of  the  House,  after  the  Speaker  had  been 
elected,  and  the  oath  had  been  administered  to  him  and  by  him  to  the  Members, 
resolutions  were  adopted  for  notifying  the  President  and  the  Senate  of  the  organ- 
ization of  the  House.     Then  rules  were  adopted. 

After  this  ilr.  Henry  L.  Dawes,  of  Massachusetts,  presented  a  resolution  that 
Edward  McPherson,  of  Pennsylvania,  be,  and  hereby  is,  elected  Clerk. 

The  Speaker  asked  unanimous  consent  to  the  procedure  of  electing  a  Clerk  bj' 
resolution,  when  Mr.  Robert  C.  Schenck,  of  Ohio,  objectetl  to  the  election  of  a  Clerk 
at  this  time,  on  the  ground  that  it  had  been  understood  that  no  other  officers  than 
the  Speaker  were  to  be  elected  this  day. 

Mr.  Thaddeus  Stevens,  of  Pennsj^lvania,  said  that  such  had  been  the  under- 
standing, but  a  reference  had  showTi  that  under  the  law  no  business  could  be  trans- 
acted until  the  election  of  both  a  Speaker  and  Clerk. 

'  First  session  Thirty-sixth  Congress,  Journal,  pp.  167, 170;  Globe,  pp.  656,  661,  662. 

-  William  Pennington,  of  New  Jersey,  Speaker. 

^  First  session  Fortieth  Congress,  Globe,  pp.  5,  7;  Journal,  pp.  9, 10. 


138  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   242 

The  Speaker '  said : 

The  Chair  has  ascertained  that  there  are  precedents  on  this  subject.  In  the  thirty-first  Congress, 
when  the  Clerk  died,  the  Speaker  said  that  no  business  could  be  transacted  until  another  Clerk  was 
elected,  because  there  was  no  officer  to  carry  messages  to  the  Senate. 

Accordingly,  there  being  no  objection,  the  resohition  was  acted  on  and  Mr. 
McPherson  was  elected. 

On  the  succeeding  day,  and  after  business  had  intervened,  the  remaining  officers 
were  elected. 

242.  It  has  been  decided  that  notwithstanding  the  requirements  of 
the  act  of  1789,  the  House  may  proceed  to  business  before  the  election  of 
a  Clerk. — On  December  31,  IS-iO,-  after  the  election  of  Speaker,  the  House  agreed 
to  this  resolution: 

Resolved,  That  the  House  will  proceed  to  the  election  of  a  Clerk  and  other  officers  on  Thursday,  the 
3d  day  of  January,  1850. 

No  choice  of  Clerk  being  effected  on  January  3,  the  Speaker  held  the  order 
unfinished  business  on  the  4th.  On  that  day  the  further  execution  of  the  order  was 
postponed  until  the  7th. 

Then  the  House  proceeded  to  the  regular  order  of  business  provided  in  the 
rules,  when  Mr.  Samuel  W.  Inge,  of  Alabama,  rose  to  a  question  of  privilege.  The 
provisions  of  the  act  of  1789  required  the  Clerk  of  the  House  to  be  sworn  before  it 
was  competent  for  the  House  to  proceed  to  other  business.  He  therefore  moved 
that  the  House  proceed  to  the  election  of  a  Clerk  in  compliance  \vith  the  provisions 
of  the  said  act. 

The  Speaker  ^  decided  that  the  House  having  by  resolution  fixed  a  day  for  the 
election  of  Clerk  and  other  officers,  the  motion  of  Mr.  Inge  was  out  of  order.  The 
House  had  put  its  own  construction  on  the  point  raised. 

Mr.  Jolin  L.  Robinson,  of  Indiana,  appealed,  but  Mr.  Inge  withdrew  his  motion, 
and  the  matter  fell. 

243.  A  question  has  arisen  as  to  whether  or  not  the  House,  in  the  face 
of  the  provision  of  law,  may  proceed  to  business  before  the  election  of  a 
Clerk. — On  February  1,  18G0,*  the  House  had  elected  a  Speaker  and  adopted  rules, 
but  had  not  chosen  a  Clerk,  when  Mr.  John  S.  Phelps,  of  Missouri,  proposed  to 
introduce  a  bill  making  appropriations  to  defray  certain  deficiencies  in  the  appro- 
priations for  the  Post-Office  Department. 

Mr.  Thaddeus  Stevens,  of  Pennsylvania,  made  the  point  of  order  that  the  bill 
could  not  be  introduced  at  this  time. 

The  Speaker  '  said : 
The  opinion  of  the  Chair  is  tliat  such  business  can  not  be  transacted  until  after  the  election  of  a 
Clerk." 

'  Schuyler  Colfax,  of  Indiana,  Speaker. 

=  First  session  Thirty-first  Congress,  Journal,  pp.  190,  228;  Globe,  p.  102. 

^Howell  Cobb,  of  Georgia,  Speaker. 

■*  First  session  Thirty-sixth  Congress,  Globe,  p.  656. 

'  William  Pennington,  of  New  Jersey,  Speaker. 

"  Mr.  Phelps,  who  was  the  oldest  Member  of  the  House  in  the  years  of  consecutive  service,  said, 
after  the  decision  of  the  Speaker,  that  as  the  House  had  elected  a  Speaker,  and  under  the  provisions  of 
the  Constitution  allowing  it  to  make  rules  had  adopted  rules,  and  as  among  those  rules  was  one  contin- 
uing the  present  Clerk  until  another  should  be  elected,  it  seemed  clear  to  him  that  the  House  might 
proceed  to  business.  He  cared  not  what  the  law  might  be.  The  House  might  make  rules  overriding 
the  law.     (Globe,  p.  656.) 


§   244  THE    OFFICERS    OF    THE    HOUSE    AND    THEIR    ELECTION.  139 

244.  A  Speaker  having  been  elected,  the  House  has  proceeded  to  leg- 
islative and  other  business  before  the  election  of  a  Clerk. 

The  Clerk  of  the  former  House  continues  to  act  as  Clerk  of  the  new- 
House  until  his  successor  is  elected. 

An  instance  wherein  certain  oflicers  of  the  former  House  continued  to 
act  through  the  new  Congress,  no  successor  being  elected. 

On  December  22,  1S49,  the  House,  after  a  long  contest,  elected  Mr.  Howell 
Cobb,  of  Georgia,  Speaker. 

On  the  next  legislative  day,  December  24,  the  oath  was  administered  to  the 
Members  of  the  House.  Then,  before  any  suggestion  was  made  as  to  the  election 
of  other  officers,  a  message  was  sent  to  the  Senate  informing  that  body  that  a  quorum 
of  the  House  had  assembled,  that  Howell  Cobb  had  been  chosen  Speaker,  and  that 
the  House  was  ready  to  proceed  to  business.  Then  the  appointment  of  the  usual 
committee  to  join  the  Senate  committee  in  notifying  the  President  of  the  United 
States  that  a  quorum  had  assembled  and  that  Congress  was  ready  to  receive  any 
communication  was  authorized. 

A  proposition  was  then  made  to  adopt  rules,  but  postponed.  Seats  were 
dra^vn  and  the  hour  of  daily  meeting  was  fixed.  Then  the  message  of  the  President 
was  received  and  ordered  printed. 

On  December  27  the  rules  of  the  preceding  House  were  adopted  temporarily, 
the  President's  message  was  read,  and  the  committees  were  appointed. 

Before  the  appointment  of  committees  George  W.  Jones,  of  Tennessee,  uro-ed 
that  under  the  act  of  1789  the  committees  should  not  be  appointed  imtil  a  Clerk 
had  been  elected  and  sworn.  And  soon  after  Mr.  James  Thompson,  of  Pennsylvania, 
offered  this  resolution: 

Resolved,  That  the  House  will  proceed  to  the  election  of  Clerk  and  other  officers  on  Thursday,  the 
3d  of  January,  1850. 

On  December  31  this  resolution  was  agreed  to.  On  this  day,  also,  the  House 
passed  House  bill  No.  1,  and  ordered  the  Clerk  (the  Clerk  of  the  last  House,  of 
course)  to  request  the  concurrence  of  the  Senate. 

Voting  for  Clerk  began  on  January  3,  and  on  January  4  was  postponed  until 
January  7,  although  a  point  of  order  was  made  that  it  was  not  competent  for  the 
House  to  proceed  to  other  business  until  the  Clerk  had  been  elected.  Then,  on  Jan- 
uary 7,  the  House  proceeded  to  vote  for  Clerk,  and  continued  to  do  so  until  January 
11,  when  Thomas  J.  Campbell  was  elected. 

The  House  then  proceeded  to  the  election  of  a  Sergeant-at-Arms,  but  on  Jan- 
uary 14  suspended  the  voting  by  postponing  the  further  execution  of  the  order 
until  the  next  day.  Thereupon  the  House  proceeded  to  the  consideration  of  the 
report  of  the  Committee  on  Rules. 

On  January  15  a  Sergeant-at-Arms  was  elected  and  the  House  next  proceeded 
to  the  election  of  Doorkeeper.  No  choice  resulting,  after  many  trials,  the  House 
voted  to  postpone  the  further  execution  of  the  order  for  the  election  of  officers 
until  March  1,  1851,  or  until  within  two  days  of  the  end  of  the  Congress.  This 
motion  was  agreed  to,  and  the  Doorkeeper  and  Postmaster  of  the  previous  House 
continued  in  their  positions  by  the  acquiescence  of  the  House.' 


'  First  session  Thirty-first  Congress,  Journal,  pp.  164,  167,  168,  184,  186,  190,  202,  225,  291  308 
366;  Globe,  pp.  66,  84,  88,  89,  102,  141,  188. 


140  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §   245 

On  March  3,  1851,'  the  last  day  of  the  session,  the  election  of  Doorkeeper  was 
postponed  indefinitelj'. 

245.  The  House  has  held,  notwithstanding  the  law  of  1789,  that  it 
may  adopt  rules  before  electing  a  Clerk. — On  February  1,  18G0,-  the  Speaker 
was  elected,  and  after  he  had  taken  the  oath  and  had  in  turn  administered  the  oath 
to  the  Members  and  Delegates,  Mr.  Israel  Washburn,  jr.,  of  Maine,  submitted  the 
follomng  resolution: 

Resolved,  That  the  rules  of  the  House  of  Representatives  of  the  Thirty-fifth  Congress  shall  be  the 
rules  of  the  House  of  Representatives  until  otherwise  ordered. 

Mr.  William  G.  Whiteley,  of  Delaware,  made  the  point  of  order  that  after  the 
election  of  Speaker  nothing  was  in  order  but  the  election  of  Clerk.  He  quoted  that 
passage  of  the  law  of  1789  which  provides  that  the  oath  shall  be  administered  "to 
the  Clerk  previous  to  entering  on  any  other  business." 

The  Speaker '  overruled  the  point  of  order,  stating  that  it  had  been  the  custom 
of  the  House  to  adopt  its  rules  pre-vnous  to  the  election  of  a  Clerk. 

246.  The  Clerk  desiring  to  be  away,  the  House  gave  him  leave  of 
absence. — On  xVpril  28,  1834,*  a  Member  stated  that  the  Clerk  of  the  House  had 
received  news  of  the  death  of  a  member  of  his  family,  whereupon 

Ordered,  That  the  Clerk  have  leave  to  be  absent  from  the  service  of  this  House  for  four  or  five  days. 

247.  On  November  20,  1800,= 

Ordered,  That  the  Clerk  of  this  House  have  leave  to  he  absent  from  the  service  of  the  House  for  three 
weeks. 

248.  In  the  temporary  absence  of  the  Clerk  the  House  has  chosen  a 
Clerk  pro  tempore. — On  December  D,  1813,"  Patrick  Magruder.  the  Clerk  to 
the  House,  being  absent  from  indisposition,  the  House  proceeded  to  the  choice  of 
a  Clerk  pro  tempore,  and  George  Magruder  was  unanimously  chosen. 

249.  The  House  declined  to  interfere  with  the  Clerk's  power  of 
removing  his  subordinates. — On  December  31,  1833,'  Mr.  John  Davis,  of  Massa- 
chusetts, called  attention  of  the  House  to  the  removal  from  office  by  the  Clerk  of 
the  House  of  Noah  Fletcher,  who  had  been  an  employee  of  the  office  since  1819. 
He  presented  a  memorial  from  Fletcher,  in  which  the  latter  said  that  he  had  been 
removed  without  cause,  and  appealed  to  the  House  to  rectify  the  injustice.  Mr. 
Davis  offered  tliis  resolution : 

Resolved,  That  Noah  Fletcher  was  removed  from  his  office  of  Assistant  Clerk  in  this  House  without 
any  sufficient  cause,  and  ought  to  he  immediately  reinstated. 

After  debate,  in  the  course  of  wliich  it  was  urged  that  the  Clerk,  being  responsi- 
ble to  the  House,  had  the  right  to  select  his  own  assistants,  the  House,  on  January  13, 
1834,  laid  the  resolution  on  the  table — yeas,  120;  nays,  83. 

'  Second  session  Thirty-first  Congress,  Journal,  p.  406. 

^  First  session  Thirty-sixth  Congress,  Journal,  p.  167;  Globe,  p.  655. 

^William  Pennington,  of  Now  Jersey,  Speaker. 

*  First  session  Twcnty-tliird  Congress,  Journal,  p.  566;  Debates,  p.  3821. 

5  Second  session  Sixth  Congress,  Journal,  p.  722  (Gales  and  Seaton,  ed.);  Annals,  p.  783. 

"  Second  session  Thirteenth  Congress,  Journal,  p.  169  (Gales  and  Seaton,  ed.);  Annals,  p.  787. 

'  First  session  Twenty-third  Congress,  Journal,  pp.  140,  183;  Debates,  pp.  2290,  2368. 


§   250  THE    OFB'ICEES    OF   THE    HOUSE    AND    THEIR    ELECTION.  141 

250.  There  being  a  conflict  of  authority  between  the  Clerk  and 
another  officer,  the  House  investigated. — In  1841  ^  a  conti-oversy  occurred 
between  the  Clerk  of  the  House  and  the  Printer  as  to  the  power  of  the  Clerk  to  con- 
trol the  binding  of  certain  documents.  The  letter  of  the  Clerk  was  presented  to  the 
House  by  the  Speaker,  and  referred  to  a  select  conmiittee,  who  investigated  the 
subject. 

251.  The  Clerk  is  required  to  note  all  questions  of  order  and  the 
decisions  thereon,  and  print  the  record  thereof  as  an  appendix  to  the 
Journal. 

It   is   the   duty   of  the   Clerk  to   print   and    distribute   the   Journal. 

The  Clerk  attests  and  affixes  the  seal  of  the  House  to  all  writs,  war- 
rants, and  subpoenas  issued  by  order  of  the  House. 

The  Clerk  is  required  to  certify  to  the  passage  of  all  bills  and  joint 
resolutions. 

The  Clerk  makes  or  approves  all  contracts,  etc.,  for  labor,  materials, 
etc.,  for  the  House. 

The  Clerk  keeps  account  of  disbursement  of  the  contingent  fund  and 
the  stationery  accounts  of  Members. 

The  Clerk  is  required  to  pay  the  officers  and  employees  of  the  House 
on  the  last  secular  day  of  each  month. 

Present  form  and  history  of  section  3  of  Rule  III. 

Section  3  of  Rule  III  provides : 

He  [the  Clerk]  shall  note  all  questions  of  order,  with  the  decisions  thereon  ,the  record  of  which  shall 
be  printed  as  an  appendix  to  the  Journal  of  each  session;  and  complete,  as  soon  after  the  close  of  the 
session  as  possible,  the  printing  and  distribution  to  Members  and  Delegates  of  the  Journal  of  the  House, 
together  with  an  accurate  and  complete  index;  retain  in  the  library  at  his  office,  for  the  use  of  the  Mem- 
bers and  officers  of  the  House,  and  not  to  be  withdrawn  therefrom,  two  copies  of  all  the  books  and  printed 
documents  deposited  there;  send,  at  the  end  of  each  session,  a  printed  copy  of  the  Journal  thereof  to  the 
executive  and  to  each  branch  of  the  legislatiu-e  of  everj^  State  and  Territory;  preserve  for  and  deliver 
or  mail  to  each  Member  and  Delegate  an  extra  copy,  in  good  binding,  of  all  documents  printed  by  order 
of  either  House  of  the  Congress  to  which  he  belonged ;  attest  and  affix  the  seal  -  of  the  House  to  all  writs, 
warrants,  and  subpoenas  issued  by  order  of  the  House;  certify  to  the  passage  of  all  bills  and  joint  resolu- 
tions; make  or  approve  all  contracts,  bargains,  or  agreements  relative  to  furnishing  any  matter  or  thing, 
or  for  the  performance  of  any  labor  for  the  House  of  Representatives,  in  pvu-suance  of  law  or  order  of  the 
House;  keep  full  and  acciirate  accounts  of  the  disbursements  out  of  the  contingent  fund  of  the  House; 
keep  the  stationery  account  of  Members  and  Delegates,  and  pay  them  as  provided  by  law.  He  shall 
pay  to  the  officers  and  employees  of  the  House  of  Representatives,  the  last  day  of  each  month,  the 
amount  of  their  salaries  that  shall  be  due  them;  and  when  the  last  day  of  the  month  falls  on  Sunday  he 
shall  pay  them  on  the  day  next  preceding. 

This  rule,  except  the  last  sentence,  is  as  agreed  on  by  the  House  at  the  time  of 
the  revision  of  1880.'     It  was  composed  of  seven  of  the  former  rules:  Rule  14, 

'  Second  session  Twenty-sixth  Congress,  Journal,  pp.  128,  193,  279. 

^  This  provision  relating  to  the  seal  is  from  former  Rule  8,  providing  that  "all  writs,  warrants,  and 
subpoenas  issued  by  order  of  the  House  shall  be  under  his  [the  Speaker's]  hand  and  seal,"  and  which 
dated  from  November  13,  1794  (Journal  Third  and  Fourth  Congresses,  p.  229),  and  existed  until  the 
adoption  of  the  present  form  in  1880. 

^  Second  session  Forty-sixth  Congress,  Record,  p.  555. 


142  PRECEDENTS   OF   THE    HOUSE   OF   EEPRESENTATIVES.  §   252 

dating  from  November  13,  1794/  and  providing  for  distributing  the  Journals  to  the 
States;  Rule  15,  dating  from  December  23,  1811,^  providing  for  noting  decisions  of 
order;  Rule  16,  dating  from  June  IS,  1832,^  and  providing  for  sending  the  Journal 
to  Members  and  Delegates;  Rule  17,  dating  from  December  22,  1826,^  and  provid- 
ing for  retaming  books  and  documents  in  the  Library;  Rule  18,  dating  from  Feb- 
ruary 9,  1831,^  providing  for  sending  bound  volumes  of  documents  to  Members; 
Rule  20,  dated  June  18,  1832,^  providing  for  an  index  to  the  acts  of  Congress;  and 
Rule  21,  dated  January  30,  1846,"  providing  for  the  making  and  approval  of  con- 
tracts. The  last  sentence,  relating  to  payment  of  officers  and  employees,  dates 
from  January  28,  1892.' 

252.  It  is  the  duty  of  the  Clerk  to  have  printed  and  delivered  to  each 
Member  a  list  of  the  reports  required  to  be  made  to  Congress. 

Present  form  and  history  of  section  2  of  Rule  III. 
Section  2  of  Rule  III  provides: 

He  [the  Clerk]  shall  make  and  cause  to  be  printed  and  delivered  to  each  Member,  ormailed  to  his 
address  at  the  commencement  of  every  regular  session  of  Congress,  a  list  of  the  reports  which  it  is  the 
duty  of  any  officer  or  Department  to  make  to  Congress,  referring  to  the  act  or  resolution  and  page  of  the 
volume  of  the  laws  or  Journal  in  which  it  may  be  contained,  and  placing  under  the  name  of  each  officer 
the  list  of  reports  required  of  him  to  be  made. 

This  rule  dates  from  March  13,  1822.'  On  April  21,  1836,"  a  provision  was 
added  requiring  the  Clerk  to  make  a  weekly  statement  of  business  on  the  Speaker's 
table;  but  this  was  stricken  out  in  the  revision  of  1890,  when  the  change  in  the 
order  of  business  had  prevented  an  accumulation  of  business  on  the  Speaker's 
table. 

253.  The  statutes  prescribe  certain  duties  for  the  Clerk  as  to  the 
organization  of  the  House  and  the  administration  of  its  affairs. — Before  the 
meeting  of  each  Congress  the  Clerk  makes  up  a  roll  of  such  Members  as  are  shown 
by  their  credentials  to  be  regidarly  elected.'"  If  chcumstances  are  such  that  the 
Clerk  may  not  perform  tliis  duty,  it  devolves  in  succession  upon  the  Sergeant-at- 
Arms,  and  then  upon  the  Doorkeeper." 

Except  when  Congress  is  in  session  the  Clerk  certifies  the  paj^  certificates  of 
Members."' 

Reports  of  conmiittees  are  preserved,  bound,  and  indexed,  and  distributed 
under  direction  of  the  Clerk."  The  Clerk  is  entitled  to  10  cents  for  each  100  words 
of  certified  extracts  from  the  Journal,  except  where  such  transcripts  are  required 

'Third  and  Fourth  Congresses,  Joiunal,  p.  229.     (Gales  &  Seaton  ed.) 

2  First  session  Twelfth  Congress,  Reports,  No.  38. 

^  First  session  Twenty-second  Congress,  Journal,  p.  899. 

*  Second  session  Nineteenth  Congress,  Journal,  p.  87. 

*  Second  session  Twenty-first  Congress,  Jotu-nal,  p.  284. 
^  First  session  Twenty-ninth  Congress,  Globe,  p.  279. 
'First  session  Fifty-second  Congress,  Cong.  Record,  p.  652. 

*  First  session  Seventeenth  Congress,  Journal,  p.  351. 

^  First  session  Twenty-fourth  Congress,  Cong.  Globe,  p.  320. 
'"Revised  Statutes,  section  31. 
"  Revised  Statutes,  sections  32,  33. 

'^  Revised  Statutes,  section  38;  Laws,  second  session  Forty-third  Congress,  p.  389;  19  Stat.  L.,  p.  145. 
"24  Stat.  L.,  p.  346;  vol.  28,  p.  622. 


§  254       THE  OFFICEBS  OF  THE  HOUSE  AND  THEIR  ELECTION.         143 

in  connection  ^\-ith  the  duties  of  a  Government  office.'  Printing  and  binding  and 
the  furnishing  of  blank  books  for  the  House  are  subject  to  the  written  order  of  the 
Clerk.'  The  distribution  of  certain  documents  to  various  homes  for  soldiers  and 
sailors  is  made  by  the  Clerk.^ 

On  the  first  day  of  each  session  of  Congress  the  Clerk  submits  to  the  House 
certain  statements  and  reports  the  names,  compensations,  etc.,  of  clerks  and  mes- 
sengers of  the  House,  and  whether  any  of  them  may  be  dispensed  with;  an  itemized 
statement  of  the  expenditure  of  the  contingent  fund :  *  an  exhibit  of  the  sums  drawn 
from  the  Treasury-,  and  the  balance  remaining;  ^  all  the  expenditures  of  the  House 
at  the  end  of  each  fiscal  year;  *  a  full  and  complete  statement  of  his  receipts  and 
expenditures  as  Clerk,'  and  an  account  of  all  property  of  the  United  States  in  liis 
possession.* 

The  Clerk  requires  of  the  disbursing  officers  acting  under  him  precise  and  ana- 
lytical returns  of  the  moneys  expended,  as  a  basis  for  an  annual  return  to  Congress.^ 

The  Clerk,  after  advertisement  for  bids,  contracts  for  the  stationery  for  sup- 
phdng  the  House,  giving  preference  to  domestic  articles  over  foreign,  providing 
such  can  be  had  on  as  satisfactory  terms  as  imported  articles.'" 

The  Clerk  may,  with  permission  of  the  Joint  Committee  on  the  Library,  have 
the  use  of  the  Library  luider  the  regulations  that  apply  to  Members." 

The  Clerk  disburses  the  pay  of  half  of  the  Capitol  Police.'- 

The  Clerk  is  required  to  make  contracts  with  the  lowest  bidder  for  packing 
boxes  for  use  of  the  House. '^ 

The  Clerk  gives  a  bond  of  820,000.'^ 

254.  The  custody  and  use  of  the  seal  is  with  the  Clerk,  under  direc- 
tion of  the  House. — On  July  18,  1892,'"  Mr.  Benton  McMillin.  of  Tennessee,  pre- 
sented the  follow-ing  order,  which  was  agreed  to  by  the  House: 

Ordered,  That  the  Clerk  of  the  House  of  Representatives  be,  and  he  is  hereby,  authorized  and 
directed  to  affix  the  seal  of  the  House  of  Representatives  to  the  document  entitled  "The  administration 
of  the  United  States  Government  at  the  beginning  of  the  four  hundredth  anniversary'  of  the  discoverj- 
of  America." 

At  the  same  time  the  House  passed  a  joint  resolution  allowing  the  Secretary' 
of  State  to  affix  the  seal  of  the  United  States  to  the  document,  and  also  a  concxir- 
rent  resolution  authorizing  the  President  to  accept  the  document  for  preservation 
among  the  archives. 

■  Re\'i8ed  Statutes,  section  71. 

-  Re^-ised  Statutes,  section  3789. 

=  Revised  Statutes,  section  4837;  28  Stat.  L.,  p.  159. 

^Re\-ised  Statutes,  section  60. 

*  Revised  Statutes,  section  61. 

*  Re^-ised  Statutes,  section  63. 
^  Revised  Statutes,  section  70. 

*  Revised  Statutes,  section  72. 
'Revised  Statutes,  section  62. 

'"Revised  Statutes,  sections  66-69;  Laws,  second  session  Forty-third  Congress,  p.  316. 

"  Revised  Statutes,  section  94. 

'=31  Stat.  L.,  p.  963. 

'^31  Stat.  L.,  p.  967. 

'*  Revised  .Statutes,  sections  58  and  59. 

"First  session  Fifty-second  Congress,  Record,  p.  6342. 


144  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   255 

255.  On  January  19,  1886.'  the  Committee  on  Rules  of  the  Senate  reported 
on  the  subject  of  the  seal  of  the  Senate.  They  found  nothing  in  the  Journals  or 
archives  of  the  Senate  to  throw  any  light  on  the  lustory  of  the  seal,  although  from 
private  letters  recently  published  it  had  been  learned  when  and  by  whom  it  was 
made.  The  committee  found  that  there  was  no  authority  on  the  subject  of  its  use, 
and  recommended  the  adoption  of  the  following  rule: 

Resolved,  That  the  Secretary  shall  have  the  ciistody  of  the  great  seal,  and  shall  use  the  same  for 
the  authentication  of  process,  transcripts,  copies,  and  certificates  whenever  directed  by  the  Senate. 

256.  The  seal  of  the  House  is  in  the  control  of  the  House  rather  than 
of  the  Speaker. — On  January  17,  1901,-,  the  Speaker  laid  before  the  House  a  let- 
ter from  the  Acting  Secretary  of  State  requesting  that  an  impression  of  the  seal  of 
the  House  of  Representatives  be  furnished  for  the  files  of  the  State  Department 
for  purposes  of  reference  for  authentication. 

The  letter  having  been  read,  the  Speaker  ^  said : 

The  Chair  thinks  that  this  is  a  matter  which  should  properly  be  done  by  order  of  the  House,  and 
therefore  submits  the  draft  of  an  order  to  be  adopted  by  the  House,  in  pursuance  of  the  request  of  the 
State  Department. 

The  order  was  then  submitted  by  unanimous  consent  and  agreed  to,  as  follows: 

Ordered,  That  the  Clerk  be  directed  to  furnish  to  the  Department  of  State,  in  accordance  with  the 
request  transmitted  to  the  House  from  that  Department,  an  impression  of  the  seal  of  the  House  of 
Representatives. 

257.  The  Sergeant-at-Arms  attends  the  sittings  and  under  direction 
of  the  Speaker  or  Chairman  of  the  Committee  of  the  Whole  maintains 
order. 

By  a  rule,  which  is  not  adopted  usually  until  a  Speaker  is  elected, 
the  Sergeant-at-Arms  is  directed  to  preserve  order  under  the  direction  of 
the  Clerk  pending  the  election   of   a   Speaker  or   Speaker  pro  tempore. 

The  Sergeant-at-Arms  executes  the  commands  of  the  House  and  all 
of  its  processes  directed  to  him  by  the  Speaker. 

The  Sergeant-at-Arms  disburses  the  pay  and  mileage  of  Members 
and  Delegates. 

Present  form  and  history  of  section  1  of  Rule  IV. 

Section  1  of  Rule  IV  provides: 

It  shall  be  the  duty  of  the  Sergeant-at-Arms  to  attend  the  House  and  the  Committee  of  the  Whole, 
during  their  sittings,  to  maintain  order  under  the  direction  of  the  Speaker  or  Chairman,  and,  pending 
the  election  of  a  Speaker  or  Speaker  pro  tempore,  under  the  direction  of  the  Clerk,  execute  the  com- 
mands of  the  House,  and  all  processes  issued  by  authority  thereof,  directed  to  him  by  the  Speaker, 
keep  the  accounts  for  the  pay  and  mileage  of  Members  and  Delegates,  and  pay  them  as  provided  by  law. 

In  the  First  Congress,  on  April  14,  1789,''  this  rule  was  adopted: 

A  Sergeant-at-Arms  shall  be  appointed  to  hold  office  during  the  pleasure  of  the  House,  whose  duty 
it  shall  be  to  attend  the  House  during  its  sitting,  to  execute  the  commands  of  the  House  from  time  to 

'  Senate  Report,  first  session  Forty-ninth  Congress,  No.  48. 
^  Second  session  Fifty-sixth  Congress,  Record,  p.  1134. 
'David  B.  Henderson,  of  Iowa,  Speaker. 
'  First  session  First  Congress,  Joiu-nal.  p.  14. 


§   258  THE    OFB1CERS    OF    THE    HOUSE    AND    THEIR   ELECTION.  145 

time,  and  all  such  process,  issued  by  authority  thereof,  as  shall  be  directed  to  him  by  the  Speaker.  A 
proper  symbol  of  office  shall  be  provided  for  the  Sergeant-at-Arms,  of  such  form  and  device  as  the 
Speaker  shall  direct,  which  shall  be  borne  by  the  Sergeant  when  in  the  execution  of  his  office. 

On  April  4,  1838/  a  rule  was  adopted  providing  that  the  Sergeant-at-Arms 
should  keep  the  accounts  of  the  pay  and  mileage  and  pay  over  the  same  to  Members. 

On  March  3,  1877,^  in  order  to  meet  difficulties  that  might  occur  at  the  organi- 
zation of  the  House,  a  rule  was  adopted  providing  that  the  Sergeant-at-Arms  should 
maintain  order  under  direction  of  the  Clerk  when  the  latter  should  be  presiding. 
There  was  much  debate  over  this  rule,  Mr.  James  A.  Garfield  urging  that  the  exist- 
ing House  might  not  make  a  rule  binding  on  the  next  House;  but  at  that  time  the 
House,  by  continuing  an  old  rule  of  1860,  was  perpetuating  the  theory  that  the 
rules  of  one  House  might  bind  the  next.^  At  the  time  of  the  organization  of  a 
House  this  rule  has  not  been  adopted,  and  therefore  its  effect  at  that  time  is 
extremely  doubtful.* 

In  the  revision  of  1880  ^  the  substance  of  the  rule  was  retained,  in  somewhat 
different  form.  Only  one  change  has  been  made  since  1880.  In  the  revision  of 
1890 '  the  new  provision  was  added  that  the  Sergeant-at-Arms  should  attend  the 
Committee  of  the  Whole  also,  and  maintain  order  under  direction  of  the  Chairman. 
This  was  stricken  out  in  the  Fifty-second  and  Fifty-third  Congresses,  but  restored 
in  the  Fifty-fourth  and  has  continued  since  as  part  of  the  rule. 

258.  The  statutes  as  well  as  the  rule  define  the  duties  of  the  Ser- 
geant-at-Arms, especially  with  reference  to  the  disbursements  made  by 
him. 

The  statutes  place  on  the  Sergeants-at-Arms  of  the  two  Houses  the 
duty  of  preserving  the  peace  and  security  of  the  Capitol  and  the  appoint- 
ment and  control  of  the  Capitol  police. 

The  act  of  October  1,  1890,^  after  enacting  the  provisions  of  House  Rule  TV  in 
relation  to  the  Sergeant-at-Arms,  provides  that  the  pay  and  mileage  of  Members 
and  Delegates  shall  be  paid  at  the  Treasiuy  on  requisitions  dra^\^l  by  the  Sergeant- 
at-Arms,  and  shall  be  disbursed  by  him;  that  he  shall  give  bond  to  the  United 
States  in  the  sum  of  850,000,  no  Member  of  Congress  to  be  a  surety  on  this  bond; 
that  he  shall  continue  in  office  imtil  his  successor  is  elected  and  qualified;  that  at 
the  commencement  of  each  regular  session  he  shall  submit  a  statement  of  the  sums 
drawn  and  disbursed  by  him;  that  there  shall  be  employed  by  him  in  liis  office  a 
deputy,  a  cashier,  a  paying  teller,  a  bookkeeper,  a  messenger,  a  page,  and  a  laborer, 
at  certain  fixed  salaries;  and  that  in  the  adjustment  of  his  accounts  the  fiscal  year 
shall  extend  to  and  include  July  3. 

'  Second  session  Twenty-fifth  Congress,  Globe,  pp.  278,  281. 

^Second  session  Forty-fourth  Congress,  Journal,  pp.  635,  669;  Record,  pp.  2133,  2232-2235. 

2  This  theory  was  finally  abandoned  in  1890.     (See  sec.  6743-6745  of  Vol.  V  of  this  work.) 

*  See  section  81  of  this  work. 

'Second  session  Forty-sixth  Congress,  Record,  p.  204. 

*  House  Report  No.  23,  first  session  Fifty-first  Congress. 
'26  Stat.  L.,  pp.  645,  646. 

5994— VOL  1—07 10 


146  PRECEDENTS   OF   THE    HOUSE   OF   EEPRESENTATIVES.  §   259 

On  the  first  da}'  of  each  regular  session,  and  at  the  expiration  of  his  term,  he 
makes  out  a  full  and  complete  account  of  the  Government  property  in  his  possession.' 

In  addition  to  liis  regular  salary  he  receives  no  fees-  or  other  emolument. 

In  case  of  a  vacancy  in  the  office  of  the  Clerk,  or  absence  or  disability  of  the 
Clerk,  the  duties  of  that  official  in  connection  with  the  organization  of  a  new  House 
devolve  on  the  Sergeant-at-Arms.^ 

In  conjunction  with  the  Sergeant-at-Arms  of  the  Senate  he  makes  regulations 
to  preserve  the  peace  and  security  of  the  Capitol  from  defacement  and  to  protect 
the  public  property  therein,  and  in  connection  with  this  authority  is  vested  the 
power  of  arrest.* 

With  the  Sergeant-at-Arms  of  the  Senate  he  attends  to  the  uniforming  and 
equipping  of  the  Capitol  police.^ 

The  captain  and  lieutenants  of  the  Capitol  police  are  selected  jointly  by  the 
Sergeants-at-Arms  of  the  two  Houses,  and  privates  and  watchmen  are  selected  one- 
half  by  each  of  the  two  officials.     The  Clerk  of  the  House  disburses  paj'  of  one-half." 

259.  The  Sergeant-at-Arms  receives  no  fees;  and  the  Clerk  receives 
them  only  for  certified  extracts  of  the  Journal. — The  statutes  provide  that  the 
Sergeant-at-Arms  shall  receive  no  fees  or  other  emoluments  in  addition  to  his 
regular  salary.'  The  Clerk  receives  for  certified  extracts  from  the  Journal  10  cents 
for  each  sheet  containing  100  words.* 

260.  The  Doorkeeper  is  required  to  enforce  strictly  the  rules  relating 
to  the  privileges  of  the  Hall,  and  is  responsible  for  the  ofl&cial  conduct  of 
his  employees. 

Present  form  and  history  of  section  1  of  Rule  V. 
Section  1  of  Rule  V  provides : 

The  Doorkeeper  shall  enforce  strictly  the  rules  relating  to  the  privileges  of  the  Hall,  and  be  respon- 
sible to  the  House  for  the  official  conduct  of  his  employees. 

This  is  the  exact  form  of  the  revision  of  1880.'  It  was  adopted  from  a  portion 
of  old  rule  No.  27,  which  was  adopted  at  the  suggestion  of  Mr.  Abraham  Rencher, 
of  North  Carolina,  on  March  1,  1838." 

261.  The  Doorkeeper  has  the  custody  of  all  the  furniture,  books,  and 
public  property  in  the  committee  and  other  rooms  under  his  charge. 

At  the  commencement  and  close  of  each  session  of  Congress  the  Door- 
keeper is  required  to  make  and  submit  to  the  House  for  examination  by 
the  Committee  on  Accounts  an  inventory  of  furniture,  books,  etc. 

Present  form  and  history  of  section  2  of  Rule  V. 

'  Revised  Statutes,  section  72. 

-Revised  Statutes,  section  53;  first  session  Forty-third  Congress,  Session  haws,  p.  87. 

'  Revised  Statutes,  section  32. 

*  Revised  Statutes,  section  1820. 

'  Revised  Statutes,  sections  1821, 1823, 1824, 1825.     (As  to  pay  of  suspended  members  of  police  see 
18  Stat.  L.,  p.  345.) 

6  31  Stat.  L.,  p.  963. 

'  Revised  Statutes,  section  53. 

*  Revised  Statutes,  section  71. 

^Second  session  Forty-sixth  Congress,  Record,  p.  204. 
'"Second  session  Twenty-fifth  Congress,  Globe,  p.  203. 


§   262  THE    OFFICERS    OF   THE    HOUSE    AND   THEIR   ELECTION.  147 

Section  2  of  Rule  Y  provides: 

At  the  commencement  and  close  of  each  session  of  Congress  he  shall  take  an  inventorj'  of  all  the  fur- 
niture, books,  and  other  public  property  in  the  several  committee  and  other  rooms  under  his  charge,  and 
report  the  same  to  the  House,  which  report  shall  be  referred  to  the  Committee  on  Accounts  to  ascertain 
and  determine  the  amount  for  which  he  shall  be  held  liable  for  missing  articles. 

This  is  the  form  of  rule  adopted  on  January  27,  1880/  on  the  suggestion  of  Mr. 
Joseph  R.  Hawley,  of  Connecticut.  The  Committee  on  Rules  had  presented  a 
slightly  different  form,  derived  from  former  Rule  27,  which  dated  from  March  2, 
1865.=' 

On  December  13,  1841,^  ilr.  Greorge  X.  Briggs,  of  Massachusetts,  offered  this 
resolution,  which  was  agreed  to  by  the  House: 

Resolved,  That  the  office  of  Assistant  Doorkeeper  is  not  necessary  for  the  service  of  this  House,  and 
that  the  same  is  hereby  abolished. 

262.  Tlie  statutes  impose  on  the  Doorkeeper  various  duties  in  addi- 
tion to  those  prescribed  by  the  rules. 

The  Doorkeeper  is  required  at  stated  times  to  return  inventories  of 
the  Government  property  in  his  possession. 

The  Doorkeeper  appoints  superintendents  to  have  charge  of  the  fold- 
ing and  document  rooms. 

The  Doorkeeper  has  general  charge  during  the  recess  of  the  apart- 
ments occupied  by  the  House. 

The  Doorkeeper  has  control  of  the  messengers  on  the  soldiers'  roll. 

On  the  first  day  of  each  regular  session  of  Congress,  and  at  the  expiration  of 
his  term  of  service,  the  Doorkeeper  makes  out  and  returns  to  Congress  a  full  account 
of  all  Government  property  in  his  possession.*  During  the  recess  he  takes  care, 
imder  the  direction  of  the  Clerk,  of  the  apartments  occupied  by  the  House,  and  pro- 
vides fuel  and  other  acconamodations  for  the  coming  session.^  He  also  prevents 
the  occupation  of  the  rooms  hj  unauthorized  persons  dining  the  recess.'  He  sells 
waste  paper,  useless  documents,  and  condemned  fumitvire,  covering  the  proceeds 
into  the  Treasur}'.' 

In  case  of  a  vacancy  in  the  offices  of  Clerk  and  Sergeant-at-Arms,  or  disability 
or  absence  of  both  of  those  officials,*  the  Doorkeeper  performs  the  duties  of  the  Clerk 
in  relation  to  making  up  the  roll  of  Members.' 

'  Second  session  Forty-sixth  Congress,  Record,  p.  557. 

^Second  session  Thirty-eighth  Congress,  Globe,  p.  1317;  Journal,  p.  387. 

'Second  session  Twenty-seventh  Congress,  Journal,  p.  40;  Globe,  p.  14. 

*  Revised  Statutes,  section  72. 

*  Revised  Statutes,  section  73. 

'Second  session  Forty-second  Congress,  Journal,  p.  1056. 

'22  Stat.  L.,  p.  337. 

'Revised  Statutes,  section  33. 

'  The  Doorkeeper  (with  the  aid  of  his  appointees,  viz,  the  superintendents  of  the  "folding  room" 
and  "document  room,"  messengers,  pages,  folders,  and  laborers)  discharges  various  duties  which  are  not 
enumerated  in  the  rules  or  laws,  viz,  he  announces  at  the  door  of  the  House  all  messages  from  the  Presi- 
dent, etc.;  keeps  the  doors  of  the  House;  folds  and  distributes  extra  documents;  furnishes  Members 
with  printed  copies  of  bills,  reports,  and  other  documents;  conveys  messages  from  Members;  keeps  the 
Hall,  galleries,  and  committee  rooms  in  order,  etc. 


148  PRECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §   263 

There  is  a  folding  room  of  the  House  iinder  charge  of  a  superintendent  appointed 
by  the  Doorkeeper,  and  each  Member  is  notified  once  in  every  sixty  days  of  the 
number  and  character  of  publications  on  hand  assigned  to  him.' 

The  Doorkeeper  may  assign  one  folder  to  do  clerical  work  imder  the  direction 
of  the  foreman  of  the  folding  room.^ 

The  House  document  room  is  in  charge  of  a  superintendent  appointed  by  the 
Doorkeeper,  who  also  appoints  the  assistant.' 

Janitors  of  committees  are  under  direction  of  the  Doorkeeper.* 

The  statutes  provide  for  fourteen  messengers  on  the  soldiers'  roll,  ^  \mder  the 
control  of  the  Doorkeeper,  at  $1,200  salary  each,  and  such  soldiers  are  not  subject 
to  removal  except  for  cause,  with  the  approval  of  the  House." 

On  March  2,  1872,  after  a  discussion  as  to  disabled  soldiers  on  the  roll  of  the 
House,  a  resolution  was  adopted,  on  motion  of  Mr.  Benjamin  F.  Butler,  of  Massa- 
chusetts, advising  the  officers  of  the  House  to  retain  disabled  soldiers  in  preference 
to  civilians.' 

On  June  29,  1870,  the  House  instructed  the  Doorkeeper  to  retain  in  service 
during  recess  the  crippled  soldiers  carried  on  the  roll.* 

Mr.  William  S.  Holman,  of  Indiana,  related  the  history  of  the  soldiers'  roll,  it 
having  been  organized  by  resolution  in  1867  and  made  permanent  by  law  in  the 
Forty-fourth  Congress.' 

263.  The  House  having  decided  to  postpone  the  election  of  a  Door- 
keeper, the  Doorkeeper  of  the  former  House  was  held  to  continue  in  the 
office  until  his  successor  should  be  elected. 

The  House  having  postponed  the  election  of  an  officer  until  a  day- 
certain,  a  resolution  to  proceed  to  the  election  was  held  not  in  order  before 
that  date. 

A  question  as  to  whether  or  not  a  resolution  placing  the  duties  of 
one  officer  of  the  House  on  another  involves  a  question  of  privilege. — 
Speaker  overruled. 

On  January  19,  1850,'"  before  a  Doorkeeper  had  been  elected,  the  House  post- 
poned until  the  1st  day  of  March,  1851,  the  further  execution  of  the  order  of  the 
House  providing  for  the  election  of  officers. 

Thereupon  Mr.  John  H.  Savage,  of  Tennessee,  rising  to  a  question  of  privilege, 
made  the  point  that  Robert  E.  Horner,  Doorkeeper  of  the  last  House,  who  continued 
to  act  in  that  capacity,  was  not  Doorkeeper,  and  objected  to  his  continuing  in  that 
capacity. 

'  28  Stat.  L.,  p.  612. 
=  31  Stat.  L.,  p.  968. 
3  28Stat.  L.,  p.  610. 
"34  Stat.  L.,  p.  394. 

^  See  Record,  second  session  Forty-eighth  Congress,  p.  1697,  for  a  brief  debate  relative  to  the  law  as 
to  the  soldiers'  roU. 

"23  Stat.  L.,  pp.  164,  393;  second  session  Forty-second  Congress,  Journal,  p.  952. 

'First  session  Forty-third  Congress,  Journal,  p.  545;  Record,  pp.  1905-1907. 

*  Second  session  Forty-first  Congress,  Journal,  p.  1110. 

'See  Debate,  second  session  Forty-eighth  Congress,  Record,  p.  1698. 

'"First  session  Thirty-first  Congress,  Journal,  pp.  374-377;  Globe,  pp.  188-194. 


§  264  THE    OFFICERS    OF   THE    HOUSE    AND   THEIR   ELECTION.  149 

The  Speaker  '  said : 

The  Chair  has  hitherto  declined  to  give  any  opinion  in  relation  to  the  effect  of  the  motion  to  post- 
pone the  election  of  officers,  and  has  referred  the  House  to  its  own  previous  practice.  During  preceding 
sessions  of  Congress,  when  the  elections  have  not  been  postponed  to  so  late  a  day  as  at  the  present,  and 
during  the  present  session,  the  duties  of  Clerk,  Sergeant-at-^\jms,  and  Doorkeeper,  have  been  performed 
by  the  old  officers  and  the  House  has  acquiesced.  It  is  not  for  the  Chair  peremptorily  to  decide  that 
these  individuals  are  not  officers  of  the  House ;  it  is  a  question  for  the  decision  of  the  House  itself. 

On  the  succeeding  legislative  day,  January  21,  ilr.  Armistead  Burt,  of  South 
Carolina,  claiming  the  floor  for  a  question  of  privilege,  offered  this  resolution : 

Resolved,  That  this  House,  having  postponed  until  the  1st  day  of  March,  1851,  the  election  of  Door- 
keeper, the  Sergeant-at-Arms  of  this  House  shall  perform  the  duties  of  Doorkeeper  until  the  Doorkeeper 
shall  be  elected. 

Mr.  George  Ashmxui,  of  Massachusetts,  objected  to  this  resolution,  on  the 
ground  that  the  gentleman  from  South  Carolina  was  not  entitled  to  the  floor  to 
offer  the  resolution,  and  also  that  it  contemplated  a  change  in  the  rules  of  the  House 
relating  to  the  duties  of  the  officers. 

The  Speaker  said : 

The  House,  by  a  vote  on  Saturday  last,  postponed  the  further  execution  of  the  order  of  the  House 
in  relation  to  the  election  of  officers  until  the  1st  of  March,  1851.  Until  that  time  has  arrived,  in  the 
opinion  of  the  Chair,  as  expressed  several  times,  it  will  not  be  in  order  to  proceed  to  the  election  of 
officers;  but  it  will  be  in  order  for  the  House  to  appoint  temporary  officers  or  persons  who  shall  discharge 
the  duties  of  those  officers.  The  position  occupied  by  the  Doorkeeper  and  Postmaster  is,  in  the  opinion 
of  the  Chair,  this:  They  were  elected  by  the  House  of  Representatives  of  the  last  Congress.  Under 
the  practice  of  former  Congresses,  from  the  First  Congress  down  to  the  present  time,  the  old  officers 
of  the  previous  Congress  have  continued  to  discharge  the  duties  of  the  respective  offices  until  their 
successors  should  have  been  elected.  And  the  Chair  thinks  that  the  officers  of  the  last  House  can 
continue  to  discharge  the  duties  of  these  offices  in  the  present  House  until  their  successors  shall  have 
been  elected,  holding  their  offices  in  the  interval  by  the  sufferance  of  the  House.^  But  the  House 
can  at  any  time  provide  other  persons  to  discharge  these  duties.  They  are  not  the  regularly  elected 
officers  of  this  House  and  they  hold  their  offices  at  the  sufferance  and  by  the  will  of  the  House.  This 
being  the  state  of  the  case,  and  the  question  being  one  affecting  the  organization  of  the  House,  the 
Chair  decides  that  it  is  a  question  of  privilege. 

Mr.  Ashmun  having  appealed,  the  appeal  was  debated  at  length,  and  the 
decision  of  the  Chair  was  finalh'  reversed,  yeas  101,  nays  102.  So  the  resolution 
proposed  by  Mr.  Burt  was  not  received. 

Mr.  Homer  continued  to  act  as  Doorkeeper. 

264.  An  officer  of  the  House  having  resigned,  the  House  voted  to 
proceed  to  the  election  of  his  successor. — On  December  7,  1868,'  the  Speaker 
laid  before  the  House  a  letter  from  C.  E.  Lippincott,  resigning  his  position  as 
Doorkeeper  of  the  House,  said  resignation  to  take  effect  this  day. 

The  letter  having  been  read,  Mr.  William  H.  Kelsey,  of  New  York,  offered  as 
a  question  of  privilege  the  follo^ving: 

Resolved,  That  this  House  now  proceed  to  the  election  of  a  Doorkeeper  in  place  of  Charles  E. 
Lippincott,  resigned. 

'  Howell  Cobb,  of  Georgia,  Speaker. 

^  Again,  on  Januarj'  24,  1850,  the  Speaker  reaffirmed  this  ruling.     (See  Globe,  p.  224.) 

^  Third  session  Fortieth  Congress,  Journal,  p.  14;  Globe,  p.  12. 


150  PKECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  265 

The  resolution  was  agreed  to,  and  the  House  proceeded  to  vote  viva  voce. 

265.  On  December  4,  1832/  the  House— 

Resolved,  That  this  House  will,  on  Thursday  next,  at  12.30  o'clock,  proceed  to  the  election  of  a 
Sergeant-at-Arms  to  fill  the  vacancy  occasioned  by  the  resignation  of  John  O.  Dunn. 

On  the  appointed  day  four  ballots  were  taken  without  an  election  and  the 
House  adjourned  to  December  10.  On  that  day  the  balloting  was  resumed  with- 
out a  vote  so  to  do,  and  after  five  ballotings  Thomas  B.  Randolph,  of  Virginia, 
was  elected. 

The  oath  was  administered  to  him  by  the  Speaker  and  he  assumed  the  duties 
of  the  office. 

266.  The  death  of  the  Doorkeeper  being  announced,  the  House  voted 
to  proceed  to  the  election  of  his  successor  at  a  future  day. 

In  1838  the  House  adjourned  to  attend  the  funeral  of  its  Doorkeeper. 
On  March  22,  1838,^  the  Speaker  laid  before  the  House  the  following  com- 
munication : 

March  22,  1838. 
Sir:  It  becomes  my  duty  to  communicate  to  you,  and  through  you  to  the  House  of  Representatives, 
that  a  vacancy  has  occurred  in  the  office  of  Doorkeeper  of  the  House  by  the  decease  of  Overton  Carr, 
esq.,  which  took  place  on  Tuesday  night,  the  20th  of  March,  1838. 

Your  obedient  servant,  J.  W.  Hunter, 

Assistant  Doorkeeper. 
Hon.  James  K.  Polk, 

Speaker  of  the  House  of  Representatives. 

The  communication  having  been  read,  on  motion  of  Mr.  Charles  F.  Mercer, 

of  Virginia,  it  was — 

Resolved,  That  the  House  will  adjourn  at  4  o'clock  this  afternoon  to  attend  the  funeral  of  their 
deceased  Doorkeeper,  Overton  Carr;  that  the  expenses  thereof  be  defrayed  out  of  Ihe  contingent  fund 
and  that  his  widow  be  paid  the  salary  of  the  deceased  for  the  present  session  of  Congress. 

On  March  23,  Mr.  Thomas  M.  T.  McKennan,  of  Pennsylvania,  by  leave,  sub- 
mitted this  resolution: 

Resolved,  That  this  House  will  proceed,  on  Monday  next,  at  2  o'clock,  to  the  election  of  a  principal 
Doorkeeper  to  supply  the  vacancy  occasioned  by  the  death  of  Mr.  Overton  Carr. 

After  debate,  tliis  resolution  was  postponed  until  April  1,  in  order  that  the 
Committee  on  Accounts  might  have  time  to  make  a  report  on  a  subject  already 
committed  to  them  relating  to  the  Doorkeeper's  office. 

On  April  5  the  resolution  came  up  for  consideration,  and  the  House  proceeded 
to  the  election  of  a  Doorkeeper. 

267.  The  vacancy  caused  by  the  death  of  the  Doorkeeper  was,  after 
several  days,  filled  by  the  House  by  election.— On  March  18,  1902,^  Mr. 
Joseph  G.  Cannon,  of  Illinois,  offered  the  following  resolution,  which  was  agreed 
to  by  the  House: 

Resolved,  That  Frank  B.  Lyon,  of  the  State  of  New  York,  be,  and  he  is  hereby,  chosen  Doorkeeper 
of  the  House  of  Representatives,  to  fill  the  vacancy  caused  by  the  death  of  the  late  Hon.  W.  J.  Glenn. 

'  Second  session  Twenty-second  Congress,  Journal,  pp.  8,  25,  26;  Debates,  pp.  819,  821,  822. 
2  Second  session  Twenty-fifth  Congress,  Journal,  pp.  045,  646,  706;  Globe,  p.  253. 
' First  session  Fifty-seventh  Congress,  Journal,  p.  489;  Record,  p.  2964. 


§   268  THE    OFFICERS    OF   THE    HOUSE    AND    THEIR    ELECTION.  151 

The  death  of  Mr.  Glenn  had  been  announced  to  the  House  on  March  12.^  No 
temporary  appomtment  was  made,  nor  was  any  provision  made  for  temporary 
discharge  of  the  duties  in  the  interim. 

268.  The  Sergeant-at-Arms  having  resigned,  the  House  instructed 
the  Doorkeeper  to  perform  the  duties  of  the  office  until  the  beginning  of 
the  next  session  of  Congress. — On  June  2G,  1832."  the  Speaker  laid  before  the 
House  a  letter  from  J.  O.  Dunn,  Sergeant-at-Arms,  resigning  the  office,  and  sur- 
rendering his  books  and  papers. 

The  letter,  which  appears  in  full  in  the  Journal,  was  read  and  referred  to  the 
Committee  on  Accounts. 

The  House  then  voted  that  the  Doorkeeper  perform  the  duties  of  Sergeant-at- 
Arms  until  the  beginning  of  the  next  session  of  Congress. 

269.  Creation  of  the  office  of  Postmaster. — On  April  5,  1838,''  it  was — 
Resolved,  That  William  J.  McCormick  be  appointed  Postmaster  to  this  House. 

270.  The  Postmaster  superintends  the  post-office  in  the  Capitol  and  is 
responsible  for  the  prompt  and  safe  delivery  of  mail. 

Present  form  and  history  of  Rule  VI. 

Rule  VI  provides: 

The  Postmaster  shall  superintend  the  post-office  kept  in  the  Capitol  for  the  accommodation  of 
Representatives,  Delegates,  and  officers  of  the  House,  and  be  held  responsible  for  the  prompt  and  safe 
delivery  of  their  mail. 

This  is  the  form  adopted  in  the  revision  of  1880.*  It  is  similar  to  the  old  rule 
No.  28,  which  dated  from  April  4,  1838.^  Immediately  after  the  organization  of 
the  Government  a  room  was  set  apart  in  the  Capitol  for  the  reception  and  distribu- 
tion of  letters  and  packets,  without  an  order  for  that  purpose,  and  was  called  a 
post-office."  It  was  superintended  by  the  Doorkeeper  and  his  assistants.  On 
April  9,  1814,  the  Doorkeeper  was  authorized  to  appoint  a  Postmaster,  and  an 
allowance  was  made  to  meet  the  expenses  of  the  office.''  This  arrangement  con- 
tmued  until  the  rule  of  1838.' 

'  Record,  p.  2706. 

-  First  session  Twenty-second  Congress,  Journal,  pp.  859,  860;  Debates,  p.  3783. 

^  Second  session  Twenty-fifth  Congress,  Journal,  p.  704;  Globe,  p.  281. 

*  Second  session  Forty-sixth  Congress,  Record,  p.  205. 

*  Second  session  Twenty-fifth  Congress,  Globe,  pp.  278,  281. 

^  On  April  30,  1802  (first  session  Seventh  Congress,  Journal,  p.  229;  Annals,  p.  1253),  the  House 
requested  the  Postmaster-General  to  establish  a  post-office  at  or  near  the  Capitol. 

'  Constitution,  Manual,  Rules,  edition  of  1859.  Second  session  Thirteenth  Congress,  Journal,  p.  398; 
third  session  Twenty-seventh  Congress,  Journal,  p.  738. 

*  On  April  4,  1838  (second  session  Twenty-fifth  Congress,  Journal,  p.  703;  Globe,  pp.  278,  281), 
the  House  agreed  to  a  series  of  resolutions  reported  from  the  Committee  on  Accounts.  One  of  these 
resolutions  related  to  the  conduct  of  the  post-office  of  the  House,  as  follows: 

"  10.  Resolved,  That  the  Doorkeeper  shall  hire,  at  the  lowest  price  for  which  it  can  be  had,  a  suitable 
number  of  horses  for  the  transportation  and  distribution  of  the  mail  of  the  House  to  and  from  the  post- 
office,  and  to  the  lodgings  of  the  Members,  and  for  such  other  necessary  business  as  may  be  from  time  to 
time  required;  and  he  shall  superintend  the  faithful  performance  of  the  duties  of  the  messengers 
employed  in  this  service,  and  shall  report  to  the  Clerk  of  the  House  a  statement  of  the  persons  employed, 
and  the  terms  of  the  contract,  which  shall  be  reported  to  the  Committee  of  .\ccounts;  and  the  Door- 
keeper, or  other  officer  of  the  House,  shall  not  be  directly  or  indirectly  interested  in  any  such  contract 
or  undertaking." 


152 


PRECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES. 


§271 


271.  The  Postmaster  accounts  for  the  Government  property  in  his 
possession. — The  statutes  make  it  the  duty  of  the  Postmaster  to  make  out  a  full 
and  complete  account  of  all  the  property  of  the  Government  in  his  possession  on  the 
first  day  of  each  regular  session  and  at  the  expiration  of  his  term  of  service.* 

273.   The  Chaplain  opens  each   day's  sitting  with  prayer. 

Present  form  and  history  of  Rule  VII. 

Rule  VII  provides: 

The  Chaplain  shall  attend  at  the  commencement  of  each  day's  sitting  of  the  House  and  open  the 
same  with  prayer.^ 

This  rule  dates  from  the  revision  of  1S80,'  although  there  had  been  a  Chaplain 
from  the  very  first  years  of  Congress,  and  before  in  the  Continental  Congress  also.^ 

273.  Although  in  earlier  years  the  Chaplain  was  not  strictly  an  oflB^- 
cer  of  the  House,  his  election  was  held  to  constitute  a  question  of  privi- 
lege.— On  March  5,  1860,^  Mr.  John  S.  Millson,  of  Virginia,  having  proposed  to 
submit,  as  a  question  of  privilege,  the  following  resolution: 

Resolved,  That  the  House  will  proceed  to-morrow,  at  1  o'clock  p.  m.,  to  elect  a  Chaplain,  who  shall 
officiate,  during  the  present  Congress,  alternately  with  the  Chaplain  already  elected  by  the  Senate. 

Mr.  George  S.  Houston,  of  Alabama,  made  the  point  of  order  that  the  resolution 
did  not  present  a  question  of  privilege,  as  the  Chaplain  was  not  an  officer  of  the 
House,  the  Thirty-fifth  Congress  having  been  organized  without  one,  and  that 
neither  the  law  nor  the  Constitution  required  the  election  of  such  an  officer. 

The  Speaker,"  in  rendering  his  decision,  said  that  he  had  looked  into  the  prece- 
dents, and  found  that  they  were  in  favor  of  the  question  being  considered  pri^^leged. 
Therefore  he  overruled  the  point  of  order. 

Mr.  Houston  having  appealed,  the  appeal  was  laid  on  the  table.' 

274.  The  practice  of  electing  a  Chaplain  was  suspended  during  the 
Thirty-fifth  Congress. — On  December  10,  1857,^  after  a  parliamentary  struggle 
of  considerable  intensit}',  the  following  preamble  and  resolutions,  submitted  by  Mr. 
James  F.  Dowdell,  of  Alabama,  were  agreed  to: 

^Vhereas  the  people  of  these  United  States,  from  their  earliest  history  to  the  present  time,  have 
been  led  by  the  hand  of  a  kind  Providence  and  are  indebted  for  the  countless  blessings  of  the  past  and 
the  present  and  dependent  for  continued  prosperity  in  the  future  upon  Almighty  God;  and  whereas  the 
great  vital  and  conservative  element  in  our  system  is  the  belief  of  our  people  in  the  pure  doctrines  and 
divine  truths  of  the  Gospel  of  Jesus  Christ,  it  eminently  becomes  the  representatives  of  a  people  so 
highly  favored  to  acknowledge  in  the  most  public  manner  their  reverence  for  God:  Therefore, 

Be  it  resolved,  That  the  daily  sessions  of  this  body  be  opened  with  prayer. 

'  Revised  Statutes,  sec.  72. 

^  The  Chaplain  sometimes  invites  another  clergyman  to  officiate;  sometimes  one  from  another 
country.     (Second  session  Fifty-fifth  Congress,  Record,  p.  9.) 

'  Second  session  Forty-sixth  Congress,  Record,  pp.  199,  205. 

*  Journal  of  Continental  Congress,  September  6,  1774. 

'  First  session  Thirty-sixth  Congress,  Journal,  pp.  442,  443;  Globe,  p.  992. 
^  William  Pennington,  of  New  Jersey,  Speaker. 

^On  May  26,  1876  (first  session  Forty-fourth  Congress,  Journal,  p,  1521),  a  resolution  providing 
for  the  election  of  a  Doorkeeper  was  offered  and  received  as  a  question  of  privilege. 

*  First  session  Thirty-fifth  Congress,  Journal,  p.  58;  Globe,  pp.  25,  26. 


§  275  THE    OFFICERS    OF    THE    HOUSE    AND   THEIE   T:LECTI0N.  153 

Resolved,  That  the  ministers  of  the  Gospel  in  this  city  are  hereby  requested  to  attend  and  alternately 
perform  this  solemn  duty.' 

275.  The  Chaplain  was  not  originally  an  officer  of  the  House;  but 
has  been  such  for  many  years. — December  4,  1817,  the  House  concurred  in 
Senate  resolution  for  appointing  two  chaplains  of  Congress,  one  by  each  House, 
who  should  interchange  weekly.     This  was  in  accordance  with  the  old  custom.^ 

276.  On  December  10,  1845.^  a  question  was  raised  as  to  the  practice  which 
had  prevailed  for  many  years  of  the  House  and  Senate  by  concurrent  action  pro- 
viding for  the  election  of  two  different  chaplains  of  two  different  denominations 
to  officiate,  one  over  the  Senate  and  the  other  over  the  House.  The  usual  resolu- 
tion was  agreed  to,  however. 

277.  On  December  6,  1853,*  a  change  was  made  in  the  practice  of  electing 
chaplains  for  a  single  session,  and  the  House  sent  to  the  Senate  a  concurrent 
resolution  providing  for  their  election  for  the  Congress.  The  nature  of  the  office 
was  not  changed  other\vise,  the  practice  of  authorizing  two  chaplains,  of  different 
denominations,  one  to  be  elected  by  the  House  and  the  other  by  the  Senate,  con- 
tinuing.    This  authorization  was  by  a  concurrent  resolution. 

Resolved  {the  Senate  concurring),  That  two  chaplains  be  elected,  one  by  the  Senate  and  the  other 
by  the  House  of  Representatives;  and  that  they  officiate  alternately  during  the  present  Congress. 

278.  On  February  5,  1856.^  in  accordance  with  the  custom  of  Congress  from 
very  early  times,  the  Senate  passed  the  usual  concurrent  resolution  providing 
for  two  chaplains  of  different  denominations,  one  to  be  elected  by  each  House. 
The  House,  which  had  not  completed  its  organization,  did  not  act  on  this  resolution 
at  this  time;  but  on  February  21  it  elected  a  Chaplain  of  its  own  for  the  session. 
On  April  24  the  concurrent  resolution  of  the  Senate  was  laid  on  the  table. 

279.  On  December  22.  18.56,"  the  House  proceeded  to  tlie  election  of  a  Chap- 
lain on  its  own  account  without  reference  to  the  usual  concurrent  resolution  from 
the  Senate. 

280.  At  first  the  Chaplain  did  not  take  the  oath  prescribed  for  the 
officers  of  the  House. — On  July  5,  1861,'  the  House  elected  its  Chaplain  with- 
out reference  to  the  Senate,  but  the  Chaplain  evidently  did  not  take  the  oath 
taken  by  the  regularly  constituted  officers  of  the  House. 

'  In  this  Congress  a  considerable  number  of  remonstrances  had  been  received  from  citizens  who 
objected  to  the  employment  of  chaplains  by  the  Government,  either  in  the  Army,  the  'Sa.vy,  or  Congress, 
on  the  ground  that  such  employment  conflicted  with  the  spirit  of  the  Constitution  and  tended  to  promote 
a  union  of  church  and  state.  The  debate  indicates  that  this  method,  while  a  departure  from  the  usage 
of  the  House  from  the  First  Congress,  had  probably  been  suggested  by  the  way  in  which  the  Washington 
clergy  had  officiated  during  the  prolonged  struggle  over  the  organization  of  the  previous  House.  In 
1854  (Report  No.  124,  first  session,  Thirty-third  Congress),  a  committee  of  the  House  examined  generally 
the  standing  of  chaplains  in  Government  positions. 

-  First  session  Fifteenth  Congress,  Annals,  p.  405. 

^  First  session  Twenty-ninth  Congress,  Globe,  pp.  40,  41. 

*  First  session  Thirty-third  Congress,  Journal,  p.  40;  Globe,  pp.  8,  16,  18. 

*  First  session  Thirty-fourth  Congress,  Journal,  pp.  458,  500,  582,  886;  Globe,  p.  410. 
^  Third  session  Thirty-fourth  Congress,  Journal,  p.  143;  Globe,  pp.  177,  178. 

'  First  session  Thirty-seventh  Congress,  Journal,  p.  22;  Globe,  p.  12. 


154  PRECEDENTS   OF   THE    HOUSE   OF   KEPKESENTATIVES.  §   281 

281.  On  Decembei-  17,  184G/  after  the  election  of  a  Chaplain  on  the  part  of 
the  House,  Mr.  John  Pettit,  of  Indiana,  moved  that  the  oath  to  support  the  Consti- 
tution of  the  United  States  be  administered  to  the  Chaplain  as  to  all  other  officers 
of  the  House.     This  motion  was  decided  in  the  negative. 

282.  On  December  15,  1863,-  the  Chaplain  appears  to  have  been  sworn  for 
the  first  time.  He  then  took  the  new  "test  oath,"  so  called,  provided  for  by  the 
act  of  July  2,  1862. 

283.  The  statutes  provide  for  the  defense  of  any  person  against 
whom  an  action  is  brought  for  acts  done  while  an  officer  of  either  House 
in  the  discharge  of  his  duty. — In  cases  of  action  brought  against  any  per- 
son for  acts  done  by  him  while  an  officer  of  either  House  in  the  discharge  of  his 
official  duty  the  district  attorney  for  the  district  within  which  the  action  is  brought 
shall  enter  appearance,  and  the  defense  shall  be  conducted  under  the  direction 
of  the  Attorney-General.^ 

'  Second  session  Twenty-ninth  Congress,  Journal,  p.  66;  Globe,  p.  53. 
^  First  session  Thirty-eighth  Congress,  Journal,  p.  39. 
'  18  Stat.  L.,  p.  401. 


Chapter  VII* 

REMOVAL  OF  OFFICERS  OF  THE  HOUSE. 


1.  A  proposition  to  remove  an  officer  a  question  of  privilege.     Sections  284-285.' 

2.  Instances  of  removal,  arraignment,  and  investigation.     Sections  286-296. 


284.  A  proposition  to  remove  an  officer  of  the  House  for  miscon- 
duct is  a  question  of  privilege. — On  August  3,  1854,-  Mr.  Theodore  G.  Hunt, 
of  Louisiana,  submitted,  as  a  question  of  privilege,  the  following  resolution: 

Resolved,  That  John  W.  Forney,  the  Clerk  of  this  House,  by  directing  and  causing  to  be  made  the 
alteration  of  the  House  bill  No.  342,  entitled  "An  act  to  aid  the  construction  of  a  railroad  to  the  Terri- 
torj-  of  Minnesota,"  and  mentioned  in  the  report  of  the  special  committee  of  this  House,  has  falsified  a 
record  of  this  House  in  violation  of  the  parliamentary  law  and  of  his  sworn  duty,  and  that  the  said 
J.  W.  Forney,  Clerk  of  the  House  of  Representatives,  should  be,  and  is  hereby,  removed  from  the 
office  of  Clerk  of  this  House. 

Mr.  David  T.  Disney,  of  Ohio,  made  the  point  of  order  that  this  resolution  was 
not  privileged. 

The  Speaker  ^  said : 

The  Chair  overrules  the  question  of  order  which  has  been  raised  by  the  gentleman  from  Ohio.  In 
the  opinion  of  the  Chair  the  question  of  the  gentleman  from  Louisiana  is  a  question  of  privilege. 

The  question  being  taken  on  the  resolution,  it  was  disagreed  to — yeas,  18; 
nays,  1.54. 

285.  On  April  18,  1850,*  Mr.  Albert  G.  Brown,  of  Mississippi,  presented  this 
resolution : 

Resolved,  That  Ilobert  E.  Homer,  acting  Doorkeeper  of  the  House  of  Representatives,  be,  and  he 
is  hereby,  discharged. 

The  Speaker '  decided  that  this  resolution  presented  the  precise  question  which 
was  decided  by  the  House  on  a  former  occasion  not  to  be  a  privileged  question,  or  a 
question  of  privilege;  and,  in  conformity  with  that  decision,  he  ruled  it  out  of  order. 

*  See  Volume  VI,  Chapter  CLIV. 

'  Charges  against  officers  of  the  House  are  questions  of  privilege.     (Sees.  2644-2047  of  Vol.  III.) 

2  First  session  Thirty-third  Congress,  Journal,  pp.  1275,  1276;  Globe,  pp.  2101-2103. 

3  Linn  Boyd,  of  Kentucky,  Speaker. 

*  First  session  Thirty-first  Congress,  Journal  p.  806:  Globe,  p.  765,  766. 
'  Howell  Cobb,  of  Georgia,  Speaker. 

155 


156  PRECEDENTS   OF   THE   HOUSE   OF   KEPBESENTATIVES.  §   286 

Mr.  Brown  having  appealed,  Mr.  Orin  Fowler,  of  Massachusetts,  moved  to  lay 
the  appeal  on  the  table. 

On  this  motion  there  were  yeas  80,  nays  85.  So  the  House  declined  to  lay  the 
appeal  on  the  table. 

The  appeal  being  open  to  debate,  Mr.  Robert  Toombs,  of  Georgia,  commented 
on  the  fact  that  the  House,  by  declining  to  lay  the  appeal  on  the  table,  had  indicated 
a  purpose  to  overrule  the  Chair.  But  at  the  conclusion  of  Mr.  Toombs's  remarks 
Mr.  Brown  withdrew  the  appeal  and  the  resolution  in  order  to  present  the  subject 
to  the  House  in  a  different  form. 

286.  It  being  alleged  that  the  Clerk  was  guilty  of  oiflcial  misconduct, 
a  resolution  removing  him  from  oflB.ce  was  presented  and  entertained. — 
On  January  21,  1815,'  Mr.  James  Clarke,  of  Kentucky,  offered  this  resolution: 

Resolved,  That  Patrick  Magruder,  Clerk  to  the  House  of  Representatives,  be  removed  from  office; 
that  this  House  will,  on  Monday  next,  proceed  to  the  election  of  a  Clerk. 

On  January  23  the  resolution  was  considered,  the  objections  to  the  Clerk  relat- 
ing to  liis  alleged  neglect  of  proper  administration  of  the  contingent  fimd  at  the 
time  of  the  destruction  of  the  Capitol. 

On  a  motion  to  postpone  the  further  consideration  of  the  resolution  one  week 
there  were  ayes  71,  noes  71,  whereupon  the  Speaker  voted  Anth  the  ayes. 

On  January  28,  the  Clerk  resigned. 

287.  The  House  by  resolution  dismissed  its  Clerk,  who  had  been  found 
guilty  of  misappropriation  of  public  funds. 

The  House  has  requested  the  executive  authority  to  prosecute  one  of 
the  oflacers  of  the  House. 

For  misappropriation  of  funds  the  House  arrested  its  Clerk  and 
arraigned  him  at  the  bar. 

The  Clerk  being  arraigned  to  answer  charges,  leave  was  given  him  to 
address  the  House. 

The  Clerk  being  arraigned,  and  addressing  the  House  in  his  defense, 
the  Journal  merely  records  the  fact. 

Pending  examina,tion  of  the  Clerk  on  a  charge  of  misappropriation 
of  funds,  he  was  suspended  from  the  exercise  of  his  functions. 

The  Clerk  being  incapacitated,  the  House  authorized  the  Chief 
Assistant  Clerk  to  attest  a  warrant  and  exercise  the  other  functions  of  the 
Clerk. 

The  Speaker  has  authority  to  issue  a  warrant  of  arrest  only  by  order 
of  the  House. 

On  Januaiy  17,  1845,^  Mr.  Wilham  Taylor,  of  Virginia,  from  the  Committee  on 
Accounts,  made  a  report,  showing  a  misappropriation  of  the  fimds  of  the  House  by 
the  Clerk,  and  recommending  the  following: 

Resolved,  That  Caleb  J.  McNulty  be,  and  he  is  hereby,  dismissed  from  the  office  of  Clerk  of  tliis 
House. 

'  Third  session  Thirteenth  Congress,  Journal,  pp.  682,  684  (Gale.s  and  Seaton  ed.) ;  annals,  pp.  1085, 
1100. 

2  Second  session  Twenty-eighth  Congress,  Journal,  pp.  22.3-227,  230-233;  Globe,  pp.  147-149. 
152-154. 


§  287  REMOVAL  OF  OFFICERS  OF  THE  HOUSE.  157 

Resolved,  That  the  Secretary  of  the  Treasurj-  be  directed  to  institute  forthwith  the  necessary  legal 
proceedings  to  ascertain  and  secure  the  balance  of  the  public  moneys  due  from  Caleb  J.  McNulty,  as 
Clerk  of  the  House  of  Representatives. 

Resolved,  That  the  President  of  the  United  States  be  requested  to  cause  criminal  prosecutions  to 
be  commenced  against  Caleb  J.  McNulty,  late  Clerk  of  this  House,  for  an  embezzlement  of  the  public 
money,  and  all  persons  advising  or  knowingly  and  willingly  participating  in  such  embezzlement, 
according  to  the  provisions  of  the  act  of  Congress  approved  August  13,  1S41. 

It  was  objected  that  the  action  proposed  by  the  committee  was  too  summary, 
and  Mr.  Cave  Johnson,  of  Tennessee,  offered  this  resolution: 

Resolved,  That  the  Sergeant-at-Arms  be  directed  forthwith  to  arrest  Caleb  3.  McNulty,  Clerk  of 
this  House,  and  Ijring  him  before  the  House. 

Mr.  John  Quincy  Adams,  of  Massachusetts,  expressing  doubts  as  to  the  power 
of  the  House  to  arrest  for  a  criminal  offense,  proposed  an  amendment  to  provide 
for  summoning  the  Clerk  before  the  House. 

After  debate  this  amendment  was  disagreed  to,  and  the  resolution  was  agreed 
to  as  offered  by  Mr.  Johnson. 

Mr.  Adams  then  made  the  point  that  a  warrant  was  necessary-,  and  the  Speaker  ' 
said  he  considered  that  the  Chair  had  no  authority  to  issue  the  warrant  except  by  the 
order  of  the  House.  The  point  was  also  made  that  the  ndes  required  a  warrant  to 
be  attested  by  the  Clerk.  Accordingl}',  bj-  suspension  of  the  ndes,  the  follo\ving 
was  adopted: 

Resolved,  That  the  Speaker  of  this  House  issue  his  warrant  for  the  arrest  of  Caleb  J.  McNulty,  in 
accordance  with  the  resolution  of  this  day;  and  that  the  Chief  Assistant  Clerk  attest  the  warrant  under 
the  seal  of  this  House. 

The  Sergeant-at-Arms  was  then  furnished  with  the  Speaker's  warrant  in 
accordance  wth  the  foregoing  resolution  and  proceeded  to  execute  the  order  of 
the  House. 

On  the  same  day  the  Sergeant-at-Arms  came  in  -with  Caleb  J.  McNulty,  Clerk 
of  the  House  of  Representatives,  in  his  custody,  when  the  House  proceeded  to  the 
consideration  of  the  report  and  resolutions  from  the  Committee  on  Accounts. 

On  motion  of  Mr.  George  C.  Dromgoole,  of  Virginia,  leave  was  given  Caleb  J. 
McNulty  to  address  the  House  in  his  own  defense. 

The  Speaker  addressed  Mr.  McNulty  as  follows: 

By  the  order  of  the  House  1  am  directed  to  state  to  you  that  you  are  required  to  appear  before  the 
House  on  sundry  charges  contained  in  a  report  made  by  the  Committee  on  Accounts  this  morning, 
and  the  House  will  now  hear  what  you  have  to  say  in  defense  against  these  charges.  In  order  that  you 
may  be  correctly  informed  of  the  charges  reported  by  the  conunittee,  they  wiU  now  be  read  to  you. 

The  report  and  resolutions  were  read  accordingly. 

Mr.  ^IcNulty  then  addressed  the  House,'  denying  that  he  had  misappropriated 
any  funds  of  the  House  as  charged  in  the  report. 

Mr.  Cave  Johnson  then  proposed  the  follo\\ing: 

Resolved,  That  the  report  of  the  Committee  on  Accounts,  in  regard  to  Caleb  J.  McNulty,  Clerk  of 
the  House,  be  postponed  until  to-morrow,  at  2  o'clock  p.  m.;  and  that  the  Sergeant-at-Arms  hold  said 
C.  J.  McNulty  in  custody  until  the  further  order  of  this  House. 

'  John  W.  Jones,  of  Virginia,  Speaker. 

^  The  Journal  gives  only  the  statement  of  this  fact  and  does  not  give  his  defense. 


158  PRECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §   288 

Mr.  David  L.  Seymour,  of  New  York,  moved  that  the  resolution  be  amended 
by  striking  out  all  thereof  which  directed  the  Sergeant-at-Arms  to  hold  Mr.  McNulty 
in  custody. 

This  amendment  was  agreed  to,  yeas  99,  nays  76. 

Mr.  Armistead  Burt,  of  South  Carolina,  then  moved  the  following  amendment: 

And  that  in  the  meantime  the  exercise  of  his  functions  as  Clerk  of  this  House  be,  and  they  hereby 
are,  suspended,  and  that  they  be  performed  by  B.  B.  French,  the  Chief  Clerk. 

This  amendment  having  been  acquiesced  in  by  the  House,  the  resolution  as 
amended  was  agreed  to. 

On  January  18  the  consideration  of  the  report  of  the  Committee  on  Accounts 
was  considered,  and  the  three  resolutions  were  severally  agreed  to,  by  the  following 
votes:  196  to  0;  affirmatively  \vithout  call  of  the  roll;  173  to  4. 

Then,  the  rules  requiring  viva  voce  election  being  suspended,  the  following 
resolution  was  agreed  to: 

Resolved,  That  Benjamin  B.  French  be,  and  he  is  hereby,  appointed  Clerk  of  this  House. 

Mr.  French  thereupon  appeared,  and  the  Speaker  administered  to  him  the 
oaths  of  his  office. 

288.  Because  of  the  misconduct  of  the  incumbent,  the  office  of  Door- 
keeper has  been  declared  vacant,  and  the  duties  have  devolved  upon  the 
Sergeant-at-Arms. 

A  matter  affecting  the  character  of  an  officer  of  the  House  involves  a 
question  of  privilege. 

On  May  22,  1876,^  Mr.  Samuel  S.  Cox,  of  New  York,  from  the  Committee  on 
Rules,  to  which  was  referred  the  resolutions  of  the  House  of  the  13th  and  16th 
instant,  m  relation  to  the  Doorkeeper  and  the  consolidation  of  the  offices  of  Sergeant- 
at-Arms  and  Doorkeeper,  submitted  a  report  thereon  in  writing,  accompanied  by 
the  following  resolutions: 

1.  That  the  office  t)f  Doorkeeper  be  vacated  by  its  present  incumbent. 

2.  That  the  duties  of  Doorkeeper  be,  and  the  same  are  hereby,  devolved  upon  the  Sergeant-at- 
Arms  until  otherwise  ordered. 

The  resolutions  were  severally  agreed  to.^ 

289.  On  February  1,  1878,''  Mr.  John  H.  Baker,  of  Indiana,  rising  to  a  ques- 
tion of  privilege,  made  certain  charges  against  J.  W.  Polk,  the  Doorkeeper  of  the 
House,  and  moved  a  preamble  reciting  the  charges,  which  were  of  corruption  in 
office,  and  the  following  resolution : 

Resolved,  That  the  Committee  on  Reform  in  the  Civil  Service  be,  and  it  is  hereby,  directed  to 
inquire  into  the  several  matters  and  things  so  as  aforesaid  alleged  against  said  Doorkeeper,  and  to  report 
at  any  time  to  this  House  whether  said  Doorkeeper  is  guilty  of  any  of  said  alleged  acts;  and  the  com- 
mittee is  authorized  to  send  for  persons  and  papers. 

'  First  session  Forty-fourth  Congress,  Journal,  p.  998;  Record,  pp.  3251-3253. 

-  This  action  was  the  result  of  a  resolution  presented  to  the  House  on  May  13,  as  a  question  of 
privilege,  charges  against  the  Doorkeeper  having  appeared  in  a  newspaper.  The  Speaker  pro  tempore 
[Mr.  Cox]  held  that  the  resolution,  affecting  the  character  of  an  officer  of  the  House,  was  a  question  of 
privilege.     (Journal,  p.  948;  Record,  p.  3066.) 

3  Second  session  Forty-fifth  Congress,  Journal,  pp.  339,  358,  783,  792-796;  Record,  pp.  707,  744,  2209, 
2285-2287. 


§  290  REMOVAL  OF  OFFICERS  OF  THE  HOUSE.  159 

On  February 4 Mr. Charles  C.Ellsworth,  of  Michigan,  claiming  the  floor  for  a 
question  of  privilege,  wliich  seems  to  have  been  admitted  as  such,  presented  the 
statement  of  the  Doorkeeper  in  reference  to  the  charges,  and  the  same  was  referred 
to  the  committee  having  the  matter  in  charge. 

On  April  2  the  House  proceeded  to  consider  the  report  of  the  committee,  which 
recommended  the  follownng: 

Resolved,  That  the  position  of  Doorkeeper  of  the  House  of  Representatives  be,  and  hereby  is, 
declared  vacant;  and 

Further  resolved,  That  until  the  appointment  of  a  new  Doorkeeper,  the  duties  of  the  ofBce  be, 
and  hereby  are,  devolved  upon  the  Sergeant-at-Arms. 

On  April  4  the  first  resolution  was  agreed  to — yeas  139,  nays  80.  Then  the 
second  resolution  was  agreed  to — yeas  122,  nays  114. 

290.  A  report  from  the  Committee  on  Accounts  having  impeached  the 
integrity  of  the  Doorkeeper,  the  House  removed  him. 

A  motion  to  proceed  to  the  election  of  an  officer  is  privileged;  but  it 
is  not  so  with  a  resolution  naming  a  certain  person  to  fill  the  office. 

On  May  17,  18.58,'  the  House  considered  a  report  from  the  Committee  on 
Accotmts,  charging  the  Doorkeeper  of  the  House  with  irregularities  in  his  office,  and 
offering  to  the  House  the  following  resolution: 

Resolved,  That  R.  B.  Hackney,  the  Doorkeeper  of  the  present  House  of  Representatives  be,  and 
he  is  hereby,  dismissed  forthwith  from  that  office. 

After  debate,  this  resolution  was  agreed  to — yeas  141,  nays  34. 
Mr.  John  B.  Haskins,  of  New  York,  then  proposed,  as  a  r[uestion  of  privilege, 
the  following  resolution : 

Resolved,  That  Darius  Truesdell,  of  New  York,  be,  and  he  is  hereby,  appointed  Doorkeeper  of 
the  House  of  Representatives,  for  the  Thirty-fifth  Congress. 

Mr.  Thomas  S.  Babcock,  of  Virginia,  made  the  point  of  order  that  it  was  not  a 
question  of  privilege  to  move  to  appoint  a  particular  person  Doorkeeper,  but  that 
it  would  be  in  order  to  move  to  proceed  to  the  election  of  Doorkeeper. 

The  Speaker  ^  sustained  the  point  of  order. 

The  House  thereupon  voted  that  on  the  succeeding  day  it  would  proceed  to  the 
election  of  a  Doorkeeper,  and  that  until  an  election  should  be  effected  the  Sergeant- 
at-Arms  should  take  charge  of  the  property  in  the  office  of  the  Doorkeeper. 

291.  For  permitting  a  Member  under  arrest  to  escape,  the  Door- 
keeper was  arraigned  at  the  bar  of  the  House. 

An  officer  of  the  House  being  arraigned  for  neglect  of  duty,  it  was 
voted  that  he  might  answer  orally. 

The  Journal  recorded  the  substance  of  the  oral  answer  of  an  officer 
of  the  House  arraigned  at  the  bar  for  neglect  of  duty. 

On  June  6, 1860,^  during  proceedings  to  obtain  the  attendance  of  absent  Mem- 
bers, under  a  call  of  the  House,  the  arrest  of  absent  Members  was  ordered,  and  the 
doors  were  closed. 

'  First  session  Thirty-fifth  Congress,  Journal,  pp.  833,  835;  Globe,  pp.  2187,  2195. 

-  James  L.  Orr,  of  South  Carolina,  Speaker. 

'  First  session  Thirty-sixth  Congress,  Journal,  p.  1025;  Globe,  p.  2710. 


160  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    292 

Pending  these  proceedings,  Mr.  John  Hickman,  of  Pennsylvania,  offered  the 
following  resolution: 

Resolved,  That  the  Doorkeeper  bo  called  before  the  bar  of  the  House  to  answer  for  the  escape  of 
Mr.  Stanton,  of  Ohio,  from  the  floor  of  the  House  after  he  was  brought  before  the  House  underits  warrant. 

Mr.  Hickman  having  stated  that  Mr.  Stanton  had  escaped,  the  resolution  was 
agreed  to. 

The  Doorkeeper  thereupon  appeared  at  the  bar  of  the  House,  when  a  question 
was  raised  by  Mr.  Horace  Maynard,  of  Tennessee,  as  to  the  mode  of  response.  He 
held  that  under  immemorial  custom  the  Doorkeeper  had  no  right  to  address  the 
House,  but  must  present  his  answer  in  writing.  He  was  brought  before  the  House 
in  contempt  of  the  House,  like  a  witness. 

The  question  was  put  to  the  House,  and  the  House  voted  that  the  Doorkeeper 
should  answer  orally.     The  Journal  has  this  entry: 

The  Doorkeeper  appeared  at  the  bar  of  the  House,  and  the  question  having  been  submitted  to  the 
House,  "Will  the  House  receive  a  verbal  answer?"  and  decided  in  the  affirmative,  he  stated  "that  Mr. 
Stanton  had  passed  out  at  one  of  the  side  doors,  which  was  in  charge  of  one  of  the  messengers,  in  company 
with  certain  Members  who  had  temporary  leave  of  absence,  and  that  he  had  censured  the  messenger  for 
permitting  Mr.  Stanton  to  pass  without  leave." 

292.  Charges  against  the  Postmaster  being  sustained,  his  ofl&ce  was 
declared  vacant  and  his  assistant  was  directed  to  perform  the  duties 
temporarily. 

The  resignation  of  the  Postmaster  was  laid  before  the  House  while  a 
resolution  of  dismissal  was  pending,  and  was  disregarded. 

On  September  25,  1890,'  the  House  agreed  to  a  resolution  directing  the  Com- 
mittee on  Accounts  to  investigate  the  conduct  of  the  Postmaster  of  the  House. 

On  October  1  that  committee  reported  at  length,  recommending  the  adoption 
of  the  following  resolution : 

Resolved,  That  the  office  of  Postmaster  of  the  House  of  Kepresentatives  be,  and  the  same  is  hereby, 
declared  vacant;  and  that  the  Assistant  Postmaster  of  the  House  be,  and  he  is  hereby,  directed  to 
perform  the  duties  of  Postmaster  until  a  Postmaster  shall  be  elected  and  duly  qualified. 

This  resolution  was  agreed  to.^ 

The  report  of  the  committee,  but  not  the  testimony,  appears  in  full  in  the 
Journal,  apparently  without  any  special  order. 

293.  The  late  Sergeant-at-Arms  having  announced  a  deficit  in  his 
office,  the  House  authorized  investigation  by  a  select  committee. — On 
December  9,  1889,''  the  Speaker  laid  before  the  House  a  letter  from  J.  P.  Leedom, 
late  Sergeant-at-Arms,  announcing  that  the  late  cashier  of  the  office  had  departed 
without  settling  his  accounts,  and  that  there  was  a  deficit  in  the  cash. 

'  First  session  Fifty-first  Congress,  Journal,  pp.  1083,  1118;  Record,  p.  10786. 

-  Shortly  before  the  action  of  the  House  on  this  resolution  the  resignation  of  the  Postmaster  was  laid 
before  the  House  and  read.  No  action  was  taken  on  it.  (Record,  p.  10785.)  A  Postmaster  was  elected 
December  10,  1890  (second  session  Fifty-first  Congress,  Journal,  p.  42),  the  election  being  effected  by  the 
adoption  of  a  resolution,  which  was  presented  as  privileged. 

'First  session  Fifty-first  Congress,  Journal,  p.  14;  Record,  p.  115. 


§   294:  REMOVAL    OF    OFFICERS    OF   THE    HOUSE.  161 

Thereupon  the  House  by  resolution  directed  the  appointment  of  a  select  com- 
mittee to  examine  the  accounts  of  the  office. 

294.  Certain  charges  being  made  against  an  officer  of  the  House,  he 
petitioned  for  an  investigation. — On  August  2G,  1789/  a  petition  was  pre- 
sented from  Joseph  Wlieaton,  Sergeant-at-Arms  of  the  House,  praying  that  an 
inquiry  might  be  made  into  certain  charges  exhibited  against  him  in  an  anonymous 
letter  addressed  to  the  Speaker. 

The  petition  was  ordered  to  lie  on  the  table.^ 

295.  A  newspaper  charge  against  the  Clerk  was,  at  the  request  of  that 
officer,  investigated  by  the  House. 

The  report  of  an  investigating  committee  exonerating  the  Clerk  was 
printed  in  full  in  the  Journal. 

On  May  18,  1876,^  the  Clerk  of  the  House  asked  the  House  by  a  letter  laid  before 
the  House  by  the  Speaker  to  order  an  investigation  into  a  charge  made  by  a  news- 
paper that  he  had  corruptly  used  his  power  in  appointing  subordinates  in  his  depart- 
ment. The  House  ordered  the  investigation.  The  report^  exonerating  the  Clerk 
was  submitted  on  Jime  27  and  was  printed  in  full  in  the  Journal,  apparently  without 
special  order  of  the  House. 

296.  A  candidate  for  the  office  of  Secretary  of  the  Senate  was  allowed 
to  address  the  Senate  in  explanation  of  certain  charges. 

On  December  19,  1831,'  as  the  Senate  was  about  to  reelect  its  Secretary,  Walter 
Lowrie,  a  charge  was  made  that  Mr.  Lowrie  had  betrayed  executive  secrets  of  the 
Senate.  Thereupon,  by  unanimous  consent,  Mr.  Lowrie  was  permitted  to  address 
the  Senate  in  his  own  defense. 

'  First  session  First  Congress,  Journal,  p.  90  (Gales  and  Seaton  ed.). 

-On  March  31,  1876,  the  House,  on  application  of  the  Chief  Clerk,  ordered  an  investigation  into 
certain  charges  against  that  official.  These  charges  had  been  made  by  a  Member  on  the  floor.  (First 
session  Forty-fourth  Congress,  Journal,  p.  714;  Record,  p.  2136.) 

^  First  session  Forty-fourth  Congress,  Journal,  pp.  975,  1108. 

^  Journal,  p.  1168. 

*  First  session  Twenty-second  Congress,  Debates,  pp.  8.  9. 

5994— VOL  1—07 11 


Chapter  VIIi: 


THE  ELECTORS  AND  APPORTIONMENT. 


1.  Constitution  and  laws  relating^  to  electors.     Sections  297-300. ' 

2.  Constitution  and  laws  relating  to  apportionment.     Sections  301-304. 

3.  Bills  relating  to  census  and  apportionment,  privileged.     Sections  305-308. 

4.  Failure  of  States  to  apportion.     Sections  309,  310. ' 

6.  Filling  of  vacancies  in  rearranged  districts.     Sections  311,  312. 

6.  Right  of  the  State  to  change  districts.     Section  313. 

7.  Claims  of  States  to  representation  in  excess  of  apportionment.     Sections  314-319. 

297.  The  electors  choosing  Members  of  the  House  must  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch  of  the 
State  legislature. 

The  House  is  composed  of  Members  chosen  every  second  year  by  the 
people  of  the  several  States. 

Section  2  of  Article  I  of  the  Constitution  provides : 

The  House  of  Representatives  shall  be  composed  of  Members  chosen  every  second  year  by  the 
people  of  the  several  States,  and  the  electors  in  each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State  legislature. 

298.  All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside. — Section  1  of  Article  XIV  of  the  Constitution 
provides : 

All  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property  without  due  process  of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

*  See  Volume  VI,  Chapter  CLV. 

'  Rare  instances  of  rejection  of  votes  of  persons  qualified  under  the  suffrage  laws  of  the  State.  (Sec. 
451  of  this  volume  and  86.5  of  Vol.  II.)  Refusal  of  the  House  to  follow  this  precedent.  (Sec.  879  of 
Vol.  II.) 

2  As  to  techincal  defects  in  establishment  of  a  district.     (Sec.  911  of  Vol.  II.) 
162 


§  299  THE    ELECTORS    AND    APPORTIONMENT.  163 

299.  The  rights  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  on  account  of  race,  color,  or  previous  condition  of 
servitude. — The  fifteenth  amendment  to  the  Constitution  provides : 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or  abridged  by 
the  United  States  or  by  any  State  on  account  of  race,  color,  or  previous  condition  of  servitude. 
Section  2.  The  Congress  shall  have  power  to  enforce  this  article  by  appropriate  legislation.' 

300.  The  right  of  soldiers,  sailors,  and  marines  to  exercise  the  privi- 
lege of  suffrage  is  not  abridged  by  Federal  law. — Section  5532  of  the 
Revised  Statutes,  dating  from  February  25,  1865,  provides: 

Every  person  convicted  of  any  of  the  offenses  specified  in  the  five  preceding  sections  [of  the  Revised 
Statutes]  shall,  in  addition  to  the  punishments  therein  severally  prescribed,  be  disqualified  from  hold- 
ing any  office  of  honor,  profit,  or  trust  under  the  United  States;  but  nothing  in  those  sections  shall  be 
construed  to  prevent  any  ofiicer,  soldier,  sailor,  or  marine  fi'om  exercising  the  right  of  suffrage  in  any 
election  district  to  which  he  may  belong,  if  otherwise  qualified  according  to  the  laws  of  the  State  in 
which  he  offers  to  vote. 

301.  The  Constitution  provides  that  Representatives  shall  be  appor- 
tioned among  the  several  States  according  to  their  respective  numbers, 
excluding  Indians  not  taxed. 

The  reduction  of  its  representation  is  the  penalty  for  a  denial  of  the 
right  to  vote  by  a  State. 

No  penalty  is  fixed  for  a  denial  of  the  right  of  suffrage  because  of 
rebellion  or  other  crimes. 

The  enumeration  to  fix  the  basis  of  representation  is  to  be  made  once 
in  every  ten  years. 

The  number  of  Representatives  may  not  exceed  one  for  every  thirty 
thousand  inhabitants,  but  each  State  shall  have  at  least  one  Represent- 
ative. 

'  On  February  24,  1881  (third  session  Forty-sixth  Congress,  Record,  pp.  2020-2023),  in  the  House 
Nathaniel  J.  Hammond,  of  Georgia,  discussed  suffrage  with  reference  to  the  fourteenth  and  fifteenth 
amendments,  and  with  references  to  the  decisions  in  the  cases  of  Minor  v.  Happeraett  (21  Wallace,  R.) 
and  United  States  v.  Reese  (92  U.  S.,  214)  and  Cole's  case. 

The  subjects  of  the  thirteenth,  fourteenth,  and  fifteenth  amendments  to  the  Constitution  were 
discussed  elaborately  in  the  Senate  in  1879  on  a  resolution  introduced  by  Mr.  George  F.  Edmunds,  of 
Vermont.     (Third  session  Forty-fifth  Congress.) 

On  January  30,  1879,  Mr.  Morgan,  of  Alabama,  discussed  with  Mr.  Edmunds  the  question  of  citi- 
zenship under  the  Constitution.  (Record,  p.  847.)  Also  question  of  suffrage  (Record,  pp.  847-957) 
and  the  power  of  Congress  over  voting  at  State  elections  (p.  848)  and  to  punish  in  cases  where  right 
to  vote  is  denied  on  account  of  race,  color,  etc.  (p.  885);  on  Federal  election  laws  to  protect  suffrage 
and  the  respect  in  which  they  had  failed  (pp.  958,  959)  through  rulings  of  the  Supreme  Court;  as  to 
qualifications  of  voters  and  fixing  the  times,  places,  and  manner  (pp.  960,  961,  997);  times,  places, 
and  manner  (pp.  997,  998,  999);  Messrs.  Edmunds  and  Wliyte  discussed  the  power  of  Congress  to  pro- 
vide penalties  for  violation  of  laws  as  to  time,  place,  and  manner  (p.  999).  Mr.  Whyte's  history  of 
of  Congress's  interference  as  to  time,  place,  and  manner,  beginning  with  1842  (p.  999).  Discussion 
by  Messrs.  Edmunds  and  Whyte  as  to  the  constitutionality  of  the  act  of  July  14,  1870,  by  which  super- 
visors of  election  were  appointed  (p.  1000).  Resolutions  of  Messrs.  Edmunds  and  Morgan  as  to  voters 
of  the  States  and  voters  of  the  United  States  (pp.  342,  567). 

The  Supreme  Court  has  also  discussed  the  fifteenth  amendment  in  several  decisions. 


164 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§301 


The  first  apportionment  was  fixed  by  the  Constitution. 
References  to  discussions  of  questions  relating  to  apportionment. 
The  distribution  of  representation  under  the  several  apportionments. 
Section  2  of  Article  XIV  of  the  Constitution  provides — 

Representatives  shall  be  apportioned  among  the  several  States  according  to  their  respective  num- 
bers,' counting  the  whole  number  of  persons^  in  each  State,  excluding  Indians  not  taxed. ^  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  executive  and  judicial  officers  of  a  State,  or  the  members  of 
the  legislature  thereof,  is  denied  to  any  of  the  male  inhaljitants  of  such  State,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  participation  in  rebellion, 
or  other  crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion  which  the  number 
of  such  male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such 
State. 


'  The  various  apportionments,  including  the  first  one  made  in  the  Constitution  itself,  have  been  as 


follows: 


States. 

1787. 

1790. 

1800. 

1810. 

1820. 

1830. 

1840. 

1850. 

1860. 

1870. 

1880. 

1890. 

1900. 

Maine 

7 
6 

13 
2 
6 
5 

34 
6 

26 
1 
9 

22 

13 
9 
7 

12 
9 

14 
3 
3 
1 
1 
2 
1 

8 
5 
12 

2 

6 
5 
40 
fi 
28 
1 
8 
21 
13 
9 
9 
13 
13 
19 
3 
7 
2 
3 
5 
2 

7 
4 

10 
2 
4 
4 

34 
5 

24 
1 
6 

15 
9 
7 
8 

10 

11 

21 
4 

10 
4 
7 
7 
5 
1 
3 

6 
3 

11 
2 
4 
3 

33 
5 

25 
1 
6 

13 
8 
6 
8 

10 

10 

21 

iJ 

5 
9 
7 
7 
2 
4 
1 
2 
2 
3 
2 

5 
2 

10 
2 
4 
3 

31 
5 

24 
1 
5 

11 
7 
4 
7 
9 
8 

19 
5 

11 
5 

14 
fi 
9 
3 
6 
1 
K 
4 
6 
3 
2 

1 
1 
3 
1 
1 

5 
3 

11 
2 
4 
3 

.33 
7 

27 
1 
6 
9 
8 
5 
9 

10 

10 

20 
6 

13 
6 

19 
8 

13 
4 
9 
2 
9 
6 
8 
4 
3 
1 
3 
3 
1 
1 
1 

4 
2 

12 
2 

\ 
34 

7 
28 
1 
6 
10 
9 
7 
10 
11 
10 
21 
6 

13 
7 

20 

8 

14 

6 

U 

2 

11 

11 

9 

6 

5 

1 

7 

4 

1 

3 

1 

4 

2 

13 

2 

5 

2 

34 

8 

30 

1 

6 

10 

9 

7 

11 

11 

10 

21 

6 

IS 

7 

22 

9 

15 

6 

12 
2 
11 
13 
10 
7 
7 

8 
4 
1 
6 
2 
2 
1 
1 
2 
1 
1 
1 

4 

New  Hampshire   .     .            .             .... 

3 

S 
1 
5 

4 

14 

2 

7 

2 

10 

5 

13 

1 

8 

19 

10 

6 

2 

2 

5 
17 
2 
7 
4 
17 
0 
18 
1 
9 
22 
12 
8 
4 
6 
3 

6 

20 

2 

7 

6 

27 

6 

23 

2 

9 

23 

13 

9 

ti 

10 

fi 

f) 

2 

Massachusetts 

14 

■7 

5 

o 

b 

4 
8 
1 
6 
10 
5 
5 
3 

37 

10 

32 

1 

6 

Virginia.             

10 

10 

South  Carolina              .               

7 

Georgia 

11 

11 

Tennessee                       

10 

Ohio         

21 

■ 

7 

15 

8 

25 

9 

16 

Michigan             

12 

3 

11 

Texas               

16 

n 

California                      

8 

9 

o 

8 

I 

Neb  raska  

6 

3 

o 

2 

1 

3 

1 

Wyoming            .           .                  .   .          . 

1 

U  tah 

1 

5 

C3 

105 

141 

181 

212 

240 

223 

234 

241 

293 

32.5 

357 

391 

o  Oklahoma  has  since  been  admitted  with  five  Representatives.    (34  Stat.  L.,  p.  271.) 

-  The  Constitution  also  provides  for  ascertaining  this  number  of  persons  by  a  census  every  ten 
years.     The  last  census  was  taken  in  1900. 


§  302  THE    ELECTORS    AND    APPORTIONMENT.  165 

302.  The  apportionment  of  Representatives  to  the  several  States 
under  the  act  of  1901. 

From  March  3,  1903,  the  membership  of  the  House  was  fixed  at  386. 

The  representation  of  a  newly  admitted  State  is  in  addition  to  the 
total  number  of  Representatives  fixed  by  the  act  of  1901. 

The  act  of  January  16,  1901,'  made  the  following  provisions  as  to  apportion- 
ment: 

That  after  the  third  day  of  March,  nineteen  hundred  and  three,  the  House  of  Representatives  shall 
be  composed  of  three  hundred  and  eighty-six  members,  to  be  apportioned  among  the  several  States  as 
follows:  Alabama,  nine;  Arkansas,  seven;  California,  eight:  Colorado,  three;  Connecticut,  five;  Dela- 
ware, one;  Florida,  three;  Georgia,  eleven;  Idaho,  one;  Illinois,  twenty-five;  Indiana,  thirteen;  Iowa, 
eleven;  Kansas,  eight;  Kentucky,  eleven;  Louisiana,  seven;  Maine,  four;  Maryland,  six;  Massachu- 
setts, fourteen;  Michigan,  twelve;  Minnesota,  nine;  Mississippi,  eight;  Missouri,  sixteen;  Montana, 
one;  Nebraska,  six;  Nevada,  one;  New  Hampshire,  two;  New  Jersey,  ten;  New  York,  thirty-seven; 
North  Carolina,  ten;  North  Dakota,  two;  Ohio,  twenty-one;  Oregon,  two;  Pennsylvania,  thirty-two; 
Rhode  Island,  two;  South  Carolina,  seven;  South  Dakota,  two;  Tennessee,  ten;  Texas,  sixteen;  Utah, 
one;  Vermont,  two;  Virginia,  ten;  Washington,  three;  West  Virginia,  five;  Wisconsin,  eleven;  and 
Wyoming,  one. 

Sec.  2.  That  whenever  a  new  State  is  admitted  to  the  Union  the  Representative  or  Representa- 
tives assigned  to  it  shall  be  in  addition  to  the  number  three  hundred  and  eighty-six.^ 

303.  The  apportionment  act  provides  that  Representatives  shall  be 
elected  in  districts  composed  of  contiguous  and  compact  territory  and 
containing  as  nearly  as  practicable  an  equal  number  of  inhabitants. 

The  districts  in  a  State  shall  be  equal  to  the  number  of  its  Represent- 
atives, no  one  district  electing  more  than  one  Representative. 

The  act  of  January  16,  1901,'  in  providing  for  the  apportionment,  has  the 
following: 

Sec  3.  That  in  each  State  entitled  under  this  apportionment,  the  number  to  which  such  State  may 
be  entitled  in  the  Fifty-eighth  and  each  subsequent  Congress  shall  be  elected  by  districts  composed  of 

^Section  2  of  Article  I  of  the  Constitution  provided  originally  for  the  apportionment,  but  a  por- 
tion of  it  has  been  superseded  liy  section  2  of  Article  XIV.  Section  2  of  Article  I  is  as  follows,  with 
the  portion  which  has  been  superseded  indicated  by  brackets: 

[Representatives  and  direct  taxes  shall  be  apportioned  among  the  several  States  which  may  be 
included  within  this  Union,  according  to  their  respective  numbers,  which  shall  be  determined  by 
adding  to  the  whole  number  of  free  persons,  including  those  Ijound  to  service  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three-fifths  of  all  other  persons.]  The  actual  enumeration  shall  be  made 
within  three  years  after  the  first  meeting  of  the  Congress  of  the  United  States,  and  within  every  subse- 
quent term  of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The  number  of  Representatives 
shall  not  exceed  one  for  every  thirty  thousand,  but  each  State  shall  have  at  least  one  Representative; 
and  until  such  enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled  to  chuse 
three,  Massachusetts  eight,  Rhode-Island  and  Providence  Plantations  one,  Connecticut  five.  New- York 
six,  New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maiyland  six,  Virginia  ten,  North  Carolina 
five.  South  Carolina  five,  and  Georgia  three. 

On  May  3,  1832  ((irst  session  Twenty-second  Congress,  Report  No.  463),  the  conferees  made  a  report 
of  disagreement  between  the  Hotise  and  Senate  as  to  an  apportionment  bill,  which  reviewed  at  length 
the  proceedings  as  to  prior  apportionments.  Later  reports  have  also  made  reviews  of  this  nature, 
notably  House  Report  No.  2130,  second  session  Fifty-sixth  Congress. 

'31  Stat.  L.,  pp.  733,  734. 

^  Thus,  Oklahoma  has  been  admitted  by  act  of  June  10,  1906,  with  five  Members  additional  to 
the  number  provided  in  this  act.  , 


166 


PKECEDENTS    OF    THE    HOUSE    OP    REPRESENTATIVES. 


§304 


contiguous  and  compact  territory  and  containing  as  nearly  as  practicable  an  equal  number  of  inhabit- 
ants. The  said  districts  shall  be  equal  to  the  number  of  the  Representatives  to  which  such  State  may 
be  entitled  in  Congress,  no  one  district  electing  more  than  one  Representative. 

Provisions  similar,  but  not  identical,  are  found  in  previous  apportionment  acts. 

304.  The  apportionment  of  1901  provided  for  the  election  of  Repre- 
sentatives in  old  districts  and  at  large  until  the  respective  States  should 
have  rearranged  the  districts. — The  act  of  January  16,  1901,'  in  providing  for 
the  apportionment,  has  the  following: 

Sec  4.  That  in  case  of  an  increase  in  the  number  of  Representatives  which  may  be  given  to  any 
State  under  this  apportionment  such  additional  Representative  or  Representatives  shall  be  elected 
by  the  State  at  large,  and  the  other  Representatives  by  the  districts  now  prescribed  by  law  until  the 
legislature  of  such  State,  in  the  manner  herein  prescribed,  shall  rcdistrict  such  State;  and  if  there  be 
no  increase  in  the  number  of  Representatives  from  a  State  the  Representatives  thereof  shall  be  elected 
from  the  districts  now  prescribed  by  law  until  such  State  be  redistricted  as  herein  prescribed  by  the 
legislature  of  said  State;  and  if  the  number  hereby  provided  for  shall  in  any  State  be  less  than  it  was 
before  the  change  hereby  made,  then  the  whole  number  to  such  State  hereby  provided  for  shall  be 
elected  at  large,  unless  the  legislatures  of  said  Slates  have  provided  or  shall  otherwise  provide  before  the 
time  fixed  by  law  for  the  next  election  of  Representatives  therein. 

Provisions  similar,  but  not  identical,  are  found  in  previous  apportionment  acts. 

305.  A  legislative  proposition,  presented  in  obedience  to  a  mandatory 
provision  of  the  Constitution,  was  held  to  involve  a  question  of  privi- 
lege.— On  January  3,  1901,-  Mr.  Marlin  E.  Olnistead,  of  Pennsylvania,  presented, 
as  involving  a  question  of  privilege,  the  following  resolution : 

Whereas  the  continued  enjoyment  of  full  representation  in  this  House  by  any  State  which  has,  for 
reasons  other  than  participation  in  rebellion  or  other  crime,  denied  to  any  of  the  male  inhabitants  thereof 
being  21  years  of  age  and  citizens  of  the  United  States  the  right  to  vote  for  Representatives  in  Congress, 
Presidential  electors,  and  other  specified  officers  is  in  direct  violation  of  the  fourteenth  amendment  to 
the  Constitution  of  the  United  States,  which  declares  that  in  such  case  ' '  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  such  male  citizens  bear  to  the  whole  number  of  male  citizens 
21  years  of  age  in  such  State,"  and  is  an  invasion  of  the  rights  and  dignity  of  this  House  and  of  its 
Members  and  an  infringement  upon  the  rights  and  privileges  in  this  House  of  other  States  and  their 
Representatives;  and 

Whereas  since  the  last  apportionment  the  States  of  Mississippi,  South  Carolina,  and  Louisiana  have, 
by  changes  in  the  constitutions  and  statutes  of  said  States,  and  for  reasons  other  than  participation  in 
rebellion  or  other  crime,  denied  the  right  of  suffrage  to  male  inhabitants  21  years  of  age,  citizens  of  the 
United  States,  and  such  denial  in  each  of  said  States  extends  to  more  than  one-half  of  those  who,  prior 
thereto,  were  entitled  to  vote,  as  appears  from  the  following  statistics,  published  in  the  Congressional 
Directories  of  the  Fifty-second  and  Fifty-sixth  Congresses,  viz: 

In  the  seven  districts  of  Mississippi  the  total  vote  cast  for  all  Congressional  candidates  in  1890  was 
62,652;  in  1898,  27,045.  In  the  seven  districts  of  South  Carolina  the  total  vote  in  1890  was  73,522,  and 
28,831  in  1898.     In  the  six  districts  of  Louisiana  74,.542  in  1890,  and  33,161  in  1898. 

One  Member  of  the  present  House,  representing  ten  counties  in  Mississippi,  with  a  population  in 
1890  of  184,297,  received  only  2,068  votes.  One  Member  of  the  present  House,  representing  six  counties 
in  South  Carolina,  with  a  population  in  1890  of  158,851,  received  only  1,765  votes,  and  one  Member  rep- 
resenting thirteen  counties  in  Louisiana,  with  a  population  of  208,802,  received  only  2,494  votes;  and 

Whereas  it  is  a  matter  of  common  rumor  that  other  States  have,  for  reasons  other  than  those  specified 
in  the  Constitution  of  the  United  States,  denied  to  some  of  their  male  inhabitants  21  years  old  and  citizens 
of  the  United  States  the  right  to  vote  for  Members  of  Congress  and  Presidential  electors,  as  well  as  executive 


'31  Stat.  L.,  pp.  733,  734. 

'Second  session  Fifty-sixth  Congress,  Journal,  pp.  80,  81;  Record,  pp. 


520-.522. 


§  306  THE    ELECTORS    AND    APPORTIONMENT.  167 

and  judicial  officers  of  said  States  and  members  of  the  legislature  thereof,  and  no  reduction  has  been  made 
in  the  representation  of  any  State  in  this  House  because  of  such  denial;  and 

Whereas  the  President  of  the  United  States  has,  by  message,  recommended  "that  the  Congress,  at 
its  present  session,  apportion  the  representation  among  the  several  States  as  provided  by  the  Constitu- 
tion:" Therefore, 

Resolved,  Section  1.  That  the  Committee  on  Census  shall  be,  and  is,  authorized  and  directed, 
either  by  full  committee  or  such  subcommittee  or  subcommittees  as  may  be  appointed  by  the  chairman 
thereof,  to  inquire,  examine,  and  report  in  what  States  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice-President  of  the  United  States,  Representatives  in  Congress,  the  execu- 
tive and  judicial  officers  of  a  State,  or  the  members  of  the  legislatures  thereof  is  denied  to  any  of  the 
male  inhabitants  of  such  States  21  years  of  age  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion  or  other  crimes,  and  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens  21  years  of  age  in  each  such  State. 

Mr.  James  D.  Richardson,  of  Tennessee,  made  the  point  of  order  that  the  reso- 
lution was  not  privileged. 

After  debate  the  Speaker'  held  as  follows: 

The  matter  seems  to  the  Chair  clearly  settled  by  Article  XFV,  section  2,  of  the  Constitution. 

The  Clerk  having  read  the  section  referred  to,  the  Speaker  continued : 

This  is  a  most  important  section,  and  gravely  touches  the  very  vitals  of  the  Republic  as  such,  and 
makes  mandatory  upon  Congress  certain  things  that  shall  be  done  by  Congress  if  certain  conditions  exist. 
This  resolution  alleges  that  certain  things  exist,  expressly  provided  for  by  the  section  just  read  by  the 
Clerk.  The  resolution  and  the  preamble  must  be  considered  together.  WTiat  is  the  object  of  the  reso- 
lution providing  for  the  investigation  to  be  made  by  the  Committee  on  the  Census?  It  is  to  ascertain 
the  truth  of  these  facts  and  lay  them  before  Congress  so  that  proper  action  may  be  taken  by  this  body. 

The  resolution  is — 

"That  the  Committee  on  Census  shall  be,  and  is,  authorized  and  directed,  either  by  full  committee 
or  such  subcommittee  or  subcommittees  as  may  be  appointed  by  the  chairman  thereof,  to  inquire, 
examine,  and  report  in  what  States  the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice-President  of  the  United  States,  Representatives  in  Congress,  the  executive  and  judicial  offi- 
cers of  a  State,  or  the  members  of  the  legislatures  thereof  is  denied  to  any  of  the  male  inhabitants  of 
such  States  21  years  of  age  and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  partici- 
pation in  rebellion  or  other  crimes,  and  the  proportion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  21  years  of  age  in  each  such  State." 

Can  any  wiser  course  be  suggested  for  carrying  out  the  clear  mandates  of  the  Constitution  than  liy 
the  provision  of  this  preamble  and  the  resolution?  The  grave  charges  are  made,  and  the  resolution  to 
carry  out  the  proper  investigation  and  treatment  is  before  us.  The  whole  matter,  waiving  all  discussion 
of  the  rules  of  this  House,  comes  under  the  higher  rule  than  our  rule,  the  constitutional  rule  which  is 
here  absolutely  mandatory,  and  the  Chair  is  unable  to  sec  why  we  should  wander  even  among  the  pre- 
cedents, which  the  Chair  has  looked  over  to  some  extent  and  which  are  all  one  way,  when  we  have  the 
plain  language  of  the  Constitution  before  us.  The  resolution  is  evidently  carefully  drawn  in  pursuance 
of  the  language  of  the  Constitution.  The  Chair  only  hopes  that  he  will  never  have  occasion  to  settle  a 
more  difficult  question  than  this,  which  seems  to  him  so  simple.  The  Chair  therefore  overrules  the 
point  of  order. 

306.  A  bill  relating  to  the  taking  of  the  census  was  held  to  be  priv- 
ileged because  of  the  Constitutional  requirement. — On  January  IG,  1900,= 
Mr.  aVlbert  J.  Hopkins,  of  Illinois,  from  the  Select  Committee  on  the  Twelfth  Census, 
reported  as  privileged  the  bill  (S.  2179)  "relating  to  the  Twelfth  and  subsequent 

'  David  B.  Henderson,  of  Iowa,  Speaker. 

^  First  session  Fifty-sixth  Congress,  Record,  p.  884;  Journal,  p.  166. 


168  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   306 

censuses,  and  c^rivino;  to  the  Director  thereof  additional  power  and  authority  in 
certain  cases,  and  for  other  purposes." 

Mr.  Charles  A.  Russell,  of  Connecticut,  made  the  point  of  order  that  the  report 
was  not  privileged. 

After  debate  the  Speaker '  held — 

The  question  arises  by  the  gentleman  from  Illinois  [Mr.  Hopkins],  chairman  of  the  Special  Com- 
mittee on  the  Twelfth  Census,  bringing  in  his  report. 

Were  this  an  original  question  that  had  not  been  passed  upon,  the  Chair  might  rule  differently 
than  he  feels  constrained  to  rule  at  this  time. 

The  Constitution  of  the  United  States  makes  it  mandatory  upon  Congress  to  take  a  census  of  the 
people  every  ten  years.  It  also  requires  the  Congress  to  make  an  apportionment  of  the  Members  of 
Congress  for  each  State.     The  Constitution  also  authorizes  the  Congress  to  adopt  rules  for  its  procedure. 

If  this  were  an  original  question,  the  Chair  would  be  inclined  to  hold  that  if  the  House  adopts  rules 
of  procedure  and  leaves  out  any  committee  from  the  list  of  committees  whose  reports  are  privileged 
that  that  committee  would  be  remitted  to  those  rules  of  procedure  adopted  by  the  House  for  its  guidance. 
But  the  Chair  finds  that  a  question  which  the  Chair  thinks  is  identical  in  every  particular  was  ruled 
upon  in  the  Fifty-first  Congress.     I  quote: 

"A  bill  making  an  apportionment  of  Representatives  presents  a  privileged  question.  On  Decem- 
ber 16,  1890,  Mr.  Mark  H.  Bunnell,  of  Minnesota,  as  a  privileged  question,  moved  that  the  House  pro- 
ceed to  the  consideration  of  the  bill  of  the  House  (H.  R.  8500)  making  an  apportionment  of  Representar 
fives  in  Congress  among  the  several  States  under  the  Eleventh  Census.  The  bill  having  been  read  at 
length,  Mr.  James  H.  Blount,  of  Georgia,  made  the  point  of  order  that  under  the  rule  the  Committee 
on  the  Eleventh  Census  was  not  included  among  those  having  the  right  to  report  at  any  time  such  busi- 
ness as  would  properly  come  before  said  committee,  and  that,  therefore,  the  consideration  of  the  bill  at 
this  time  was  not  a  privileged  question." 

The  House  will  see  that  it  could  not  be  more  fairly  and  squarely  stated  than  Mr.  Blount  stated  it: 

"The  Speaker,  Mr.  Reed,  being  in  the  Chair,  overruled  the  point  of  order,  on  the  ground  that  a  bill 
making  an  apportionment  is  a  privileged  question,  and  it  being  a  constitutional  duty  imposed  on  Con- 
gress, the  consideration  of  the  bill  was  clearly  a  privileged  question." 

At  that  time  the  Fifty-first  Congress  had  its  Committee  on  Rules,  and  probably  there  never  was  one 
more  active  than  the  Committee  on  Rules  of  that  Congress.  It  was  equipped  with  all  the  rules  of  pro- 
cedure, and  yet  the  Committee  on  the  Eleventh  Census  was  not  clothed  with  the  power  to  report  at  any 
time.  Now,  the  Chair  is  unable  to  see  any  distinction  in  principle  between  an  apportionment  bill  and 
a  bill  for  taking  the  Tw(>lfth  Census.  The  Chair  has  examined  this  bill.  It  is  amendatory  of  the  act 
which  we  passed  in  the  last  Congress  for  taking  the  Twelfth  Census.  It  is  supplemental  to  that  act. 
It  contains  simply  provisions  for  taking  the  Twelfth  Census,  all  in  the  same  line,  and  all  required  by 
the  Constitution. 

If  the  decision  made  in  regard  to  the  consideration  of  the  apportiormient  bill  was  sound  law,  it 
seems  to  the  Chair  clear  that  it  ought  to  be  a  sound  ruling  that  this  is  pri\'ileged.  The  Chair  thinks 
gentlemen  cif  the  House  will  all  agree  that  when  decisions  are  made  it  is  well,  unless  they  are  clearly 
in  abuse  of  the  rules  of  the  House,  that  these  precedents  should  be  followed.  It  is  a  guide  to  all  Members 
and  will  aid  them  in  their  work. 

Now,  when  the  bill  for  the  Twelfth  Census  was  first  brought  up  the  gentleman  in  charge  of  the 
bill,  the  same  gentleman  as  now  presents  this,  offered  it  as  a  privileged  report.  Tlie  Speaker  did  not 
rule  upon  it.  The  gentleman  from  Texas  [Mr.  Bailey]  reserved  all  rights  against  the  bill,  saying  that 
he  was  not  clear  that  it  was  a  privileged  bill  at  all,  and  with  that  reservation  the  bill  was  considered 
as  introduced  in  the  House,  to  be  printed  for  the  information  of  the  House,  and  the  chairman  of  the 
committee,  the  gentleman  from  Illinois,  gave  notice  that  he  would  call  it  up  the  following  Monday. 

That  being  suspension  day,  it  was  passed  under  suspension  of  the  rules,  and  the  suggested  ques- 
tions of  the  week  before,  or  some  days  before,  were  not  passed  on.     But  the  Chair  is  clearly  of  the 

'  David  B.  Henderson,  of  Iowa,  Speaker. 


§  307  THE  ELECTORS  AND  APPORTIONMENT.  169 

opinion  that  the  decision  made  in  the  Fifty-first  Congress  is  sufficient  warrant  for  holding  this  to  be  a 
privileged  question. 

ilr.  Joseph  W.  Bailey,  of  Texas,  appealed  from  this  decision  of  the  Chair,  and 
during  the  debate  the  Speaker  said: 

The  Chair  desires  to  say  *  *  *  that  the  point  made  is  clearly  well  made;  but  there  is  not  an 
element  in  this  bill  but  that  might  have  properly  been  in  the  original  bill.  \STiat  the  judgment  of  the 
House  may  be  as  to  the  elements  of  this  bill  is  another  question,  but  it  is  all  germane  and  pertinent 
to  the  enumeration  of  the  Twelfth  Census.  The  Members  of  the  House  may  differ  as  to  the  propriety 
of  some  of  these  provisions,  but  whether  they  do  or  not,  they  are  all  in  line  with  the  demands  of  the 
Constitution  which  require  this  body  to  take  the  census  every  ten  years  and  to  pro%ade  the  manner 
for  doing  the  same.     *    *     * 

The  language  of  the  Constitution  is  this: 

"The  actual  enumeration  shall  be  made  within  three  years  after  the  first  meeting  of  the  Congress 
of  the  United  States,  and  within  every  subsequent  term  of  ten  years,  in  such  manner  as  they  shall 
by  law  direct." 

Now,  taking  the  census  is  the  basis  of  apportionment,  and  the  apportionment  follows.  Both  are 
absolutely  and  explicitly  commanded  by  the  Constitution.  If  the  decision  about  the  apportionment 
was  a  correct  decision,  there  can  be  no  escape  from  the  Chair's  holding  that  the  provision  of  law  for 
taking  the  census  is  also  within  the  constitutional  provision. 

On  the  succeeding  day,  January  17,  the  decision  of  the  Chair  was  sustained, 
the  appeal  being  laid  on  the  table  by  a  vote  of  j'eas  165,  nays  138. 

307.  A  bill  making  an  apportionment  of  Representatives  presents  a 
question  of  constitutional  privilege. — On  December  16,  1890,'  Mr.  Mark  II. 
Dunnell,  of  Minnesota,  as  a  privileged  question,  moved  that  the  House  proceed  to 
the  consideration  of  the  bill  of  the  House  (H.  R.  12500)  making  an  apportionment 
of  Representatives  in  Congress  among  the  several  States  under  the  Eleventh  Census. 

The  bill  ha\'ing  been  read  at  length,  Mr.  James  H.  Bloimt,  of  Georgia,  made 
tlie  point  of  order  that  imder  the  rules  the  Committee  on  the  Eleventh  Census  was 
not  included  among  those  having  the  right  to  report  at  any  time  on  such  business 
as  would  properly  come  before  said  conunittee,  and  that  therefore  the  consideration 
of  the  bill  at  this  time  was  not  a  privileged  question. 

The  Speaker  ^  overruled  the  point  of  order  on  the  ground  that  a  bill  making 
an  apportionment  is  a  privileged  cjuestion,  and  it  being  a  constitutional  duty  imposed 
upon  Congress,  the  consideration  of  the  bill  was  clearly  a  privileged  question. 

308.  On  February  7.  1882,^  Mr.  Cyrus  D.  Prescott,  of  New  York,  as  a  priv- 
ileged question,  moved  that  the  House  proceed  to  the  consideration  of  the  bill 
(H.  R.  3550)  making  an  apportionment  of  Representatives  in  Congress  among  the 
several  States  under  the  Tenth  Census. 

Mr.  John  A.  Anderson,  of  Kansas,  made  the  point  of  order  that  the  motion 
was  not  one  of  privilege. 

After  debate  the  Speaker*  said: 

The  Chair  will  state  briefly  that  it  is  of  opinion  that  the  rules  of  the  House  are  always  subject  to 
any  constitutional  provision  that  may  be  found.     It  may  be  true  that  under  the  rules,  strictly  speaking, 

'  Second  session  Fifty-first  Congress,  Journal,  p.  59;  Record,  p.  530. 
-Thomas  B.  Reed,  of  Maine,  Speaker. 

'First  session  Forty-seventh  Congress,  Journal,  p.  519;  Record,  pp.  9G0-963. 
■*  J.  Warren  Keifer,  of  Ohio,  Speaker. 


170  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §  309 

this  bill  may  not  be  in  order.  The  Chair  is,  however,  of  opinion  that  the  consideration  of  an  apportion- 
ment bill  by  this  Congi-oss,  fixing  the  representation  in  the  next  Congress  under  the  last  census,  is  one 
of  high  constitutional  privilege.  The  duty  of  Congress  to  make  an  apportionment  after  each  census  is 
made  imperative  by  the  first  clause  of  the  second  section  of  the  fourteenth  article  of  the  amendments 
to  the  Constitution  of  the  United  States,  which  reads  as  follows: 

"Representatives  shall  be  apportioned  among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each  State,  excluding  Indians  not  taxed." 

It  is  a  fact  of  which  we  must  take  notice,  that  this  Congre.«s  must  pass  an  apportionment  bill,  fixing 
the  numlier  of  Representatives  in  the  next  Congress,  or  serious  consequences  must  follow.  The  con- 
sideration of  this  question  is  analogous,  perhaps,  to  no  other  question  that  is  made  imperative  by  the 
Constitution  upon  Congress.  The  state  of  the  census;  the  fact  that  this  Congress  alone  must  act,  and 
that  apportionment  under  the  last  census  can  not  go  over  to  the  next  Congress;  the  necessary  legislation 
that  must  take  place  in  the  different  States  at  an  early  time,  must  all  be  taken  into  account. 

In  view,  therefore,  of  the  character  and  scope  of  this  measure,  and  its  constitutional  character, 
the  Chair  feels  bound  to  hold  that  it  is  a  question  of  high  constitutional  privilege.  The  Chair  desires 
also  to  state  in  this  connection  that  it  is  informed  that  this  has  been  treated  as  a  question  of  privilege 
at  various  times  in  the  past  history  of  Congressional  legislation. 

309.  The  election  cases  of  the  New  Hampshire,  Georgia,  Mississippi, 
and  Missouri  Members  in  the  Twenty-eighth  Congress. 

The  House  gave  prima  facie  effect  to  the  credentials  of  certain  Mem- 
bers, although  the  legality  of  the  manner  of  their  elections  was  ques- 
tioned. 

On  December  4,  1843,^  at  the  time  of  the  organization  of  the  House,  Mr.  D.  D. 
Barnard,  of  New  York,  objected  that  the  gentlemen  presenting  themselves  with 
credentials  from  the  States  of  New  Hampshire,  Georgia,  Mississippi,  and  Missouri 
had  been  elected  on  general  tickets  and  not  by  districts,  as  prescribed  by  the  law 
of  Congress.  The  Clerk,  having  declined  to  entertain  a  motion,  the  gentlemen  in 
question  were  sworn  in  and  participated  in  the  election  of  Speaker. 

On  December  13  ^  Mr.  Garrett  Davis,  of  Kentucky,  brought  the  subject  to  the 
attention  of  the  House,  and  on  December  20,'  by  a  vote  of  yeas  148,  nays  32,  it  was — 

Resolved,  That  the  Committee  of  Elections  be  directed  to  examine  and  report  upon  the  certificates 
of  election,  or  the  credentials  of  the  Members  returned  to  serve  in  this  House;  and  that  they  inquire 
and  report  whether  the  several  Members  of  this  House  have  been  elected  in  conformity  with  the  Consti- 
tution and  law. 

310.  The  election  cases  of  the  New  Hampshire,  Georgia,  Mississippi, 
and  Missouri  Members  continued. 

The  House,  in  1842,  declared  entitled  to  seats  Members  elected  at 
large  in  several  States,  although  the  law  of  Congress  required  election 
by  districts. 

Discussion  of  the  respective  powers  of  Congress  and  the  States  in 
establishing  Congressional  districts. 

Is  the  establishing  of  districts  an  exercise  of  the  power  of  regulating 
the  times,  places,  and  manner  of  elections? 

'  First  session  Twenty-eighth  Congress,  Globe,  pp.  2,  10. 
^Journal,  p.  50;  Globe,  p.  33. 

«   T 1  n-i  ^11  -. 


-journal,  p.  uu;  <jioue,  p.  aA. 
'Journal,  p.  81;  Globe,  p.  54. 


§   310  THE    ELECTORS    AND    APPORTIONMENT.  l7l 

On  March  15,  1844/  Mr.  Stephen  A.  Douglas,  of  Illinois,  from  the  Committee 
of  Elections,  submitted  the  report,  recommending  the  following  resolutions: 

Resolved,  That  the  second  section  of  "An  act  for  the  apportionment  of  Representatives  among  the 
several  States,  according  to  the  Sixth  Census,"  approved  June  25,  1842,  is  not  a  law  made  in  pursuance 
of  the  Constitution  of  the  United  States,  and  valid,  operative,  and  binding  upon  the  States. 

Resolved,  That  all  the  Members  of  this  House  (excepting  the  two  contested  cases  from  Virginia, 
upon  which  no  opinion  is  hereby  expressed)  have  been  elected  in  conformity  with  the  Constitution  and 
laws  and  are  entitled  to  their  seats  in  this  House. 

The  second  section  of  the  apportionment  act  provided  as  follows: 

That,  in  each  case  where  a  State  is  entitled  to  more  than  one  Representative,  the  number  to  which 
each  State  shall  be  entitled,  under  this  apportionment,  shall  be  elected  by  dL«tricts  composed  of  contig- 
uous territon,-,  equal  in  number  to  the  number  of  Representatives  to  which  said  State  shall  be  entitled, 
no  one  district  electing  more  than  one  Representative.^ 

The  four  States  whose  delegations  were  questioned  had  long  had  laws  providing 
for  election  by  general  ticket,  and  had  not  changed  them  to  conform  to  the  law  of 
Congress.  Indeed,  some  of  these  States  could  not  have  done  so  without  calling  a 
special  session  of  the  legislature.  There  was  therefore  a  conflict  of  law  and  sov- 
ereignty between  those  States  and  the  United  States,  and  it  was  important  to  know 
whether  or  not  the  law  of  the  United  States  was  in  accordance  with  the  provision  of 
the  Constitution — 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives  shall  be  pre- 
scribed in  each  State  by  the  legislature  thereof;  but  the  Congress  may,  at  any  time,  by  law,  make  or 
alter  such  regulations,  except  as  to  the  place  of  choosing  Senators. 

The  report,  after  examining  the  text  and  historj'  of  this  clause,  concludes — 

that  the  convention  which  formed  and  the  people  who  ratified  that  great  charter  of  our  liberties  intended 
that  the  regulation  of  the  times,  places,  and  manner  of  holding  the  elections  should  be  left  exclusively  to 
the  legislatures  of  the  several  States,  subject  to  the  condition,  only,  that  Congress  might  alter  the  State 
regulations,  or  make  new  ones,  in  the  event  that  the  States  should  refuse  to  act  in  the  premises,  or  should 
legislate  in  such  a  manner  as  would  subvert  the  rights  of  the  people  to  a  free  and  fair  representation. 

The  report  goes  on  to  say  that  even  if  the  power  of  Congress  under  the  para- 
graph should  be  considered  plenary  and  supreme  as  to  prescription  of  time,  place, 
and  manner,  yet  the  section  of  law  in  question  did  not  constitute  an  exercise  of  the 
power  in  the  manner  prescribed  by  the  Constitution.  The  law  was  inoperative  and 
nugatorv-  without  State  legislation.  It  merely  presumed  to  dictate  to  the  State 
legislatures  how  they  should  perform  their  duties  under  this  clause  of  the  Constitu- 
tion. But  there  was  no  authority  in  the  Constitution  permitting  Congress  to  compel 
State  legislatures  to  change  laws  or  make  new  ones.  The  laws  of  Congress  might 
supersede  or  alter  those  of  the  States,  but  Congress  might  not  direct  the  form  of 
State  legislation,  or  require  enactments  to  be  made  in  obedience  to  certain  pre- 
scribed forms.  The  attempt  to  exercise  such  impracticable  power  was  the  e\41  of 
the  old  Confederation.  Hence  followed  the  conclusion  that  Congress  should  either 
designate  the  time,  specify  the  places,  and  prescribe  the  manner  by  law,  or  leave  it  to 
the  wisdom  and  discretion  of  the  several  State  legislatures. 

'  1  Bartlett,  p.  47;  House  report  No.  60. 

'  For  debates  at  the  enactment  of  this  law  see  second  session  Twenty-seventh  Congress,  Globe,  pp. 
445,  446,  463,  469,  496,  555,  561,  571,  576,  583,  588,  595,  601,  608. 


172  PKECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   310 

In  debating  the  question,  on  February  14,'  Mr.  Douglas  took  the  further  position 
that  Congress  had  no  power  to  district  the  States,  for  that  would  be  to  prescribe  the 
qualification  of  voters  as  to  residence — a  power  expressly  reserved  to  the  States.  The 
word  "manner"  in  the  Constitution  did  not  include  so  broad  exercise  of  power. 

The  minority  views,  presented  by  Mr.  Garrett  Davis,  of  Kentucky,  and  con- 
curred in  by  Messrs.  Willoughby  Newton,  of  Virginia,  and  Kobert  C.  Schenck,  of 
Ohio,  contended  that  the  Members  whose  seats  were  in  question  were  not  elected  in 
pursuance  of  the  Constitution  and  law,  and  that  the  seats  should  be  declared  vacant. 

The  minority  quote  that  clause  of  the  Constitution  providing  that  "this  Con- 
stitution and  the  laws  of  the  United  States  which  shall  be  made  in  pursuance  thereof" 
shall  be  "the  supreme  law  of  the  land,"  anything  in  the  "laws  of  any  State  to  the 
contrary,"  and  declare  that  the  elections  in  the  four  States  must  be  void  imless  the 
law  in  question  should  be  found  unconstitutional  or  inoperative.  The  State 
legislatures,  in  providing  the  times,  places,  and  manner  of  holding  elections,  acted 
as  Federal  agencies,  and  in  testing  the  validity  of  their  laws  the  Federal  Constitution 
was  the  only  guide.  And  the  Constitution  evidently,  fiom  its  text  and  historj', 
sanctioned  the  adoption  of  the  district  system  by  the  States.  The  idea  that  the 
general  ticket  was  the  only  constitutional  method  was  newborn  and  fallacious. 
The  States  had  been  using  the  district  system  since  the  beginning  of  the  Government. 

If  the  clause  relating  to  prescribing  the  times,  places,  and  manner  of  elections 
did  not  give  the  power  to  Congress  to  determine  whether  Representatives  should 
be  chosen  by  general  ticket  in  districts,  then  the  State  legislatures  had  not  that 
power  which  they  had  been  exercising  so  long.  The  States  certainly  had  no  implied 
power  to  conduct  this  or  any  other  operation  of  the  General  Government.  If 
the  constitutional  clause  did  not  give,  both  to  the  legislatures  and  the  Congress, 
the  power  to  direct  that  Members  of  the  House  should  be  elected  by  districts  or 
general  ticket,  then  the  regulation  belonged  to  Congress  exclusively  as  an  implied 
power. 

The  minority  proceeded  to  discuss  the  power  of  Congress  to  "alter"  the  regula- 
tions of  States  on  this  subject,  holding  that  it  gives  to  Congress  plenary  power  to 
alter  any  regulations  that  the  State  may  make  on  the  subject. 

Congress  being  able  to  exercise  the  undoubted  power  to  provide  for  the  whole 
manner  of  holding  such  elections,  it  could  hardly  be  held  that  a  partial  exercise 
of  that  power  was  not  constitutional.  The  objection,  therefore,  was  not  that  Con- 
gress had  exercised  an  unconstitutional  power,  but  that  it  had  defectively  exer- 
cised a  constitutional  power.  The  question,  therefore,  was  not  whether  the  law 
was  unconstitutional,  but  whether  it  could  be  considered  a  nullity.  But  because 
the  regulation,  standing  alone,  could  not  be  executed  did  not  prove  it  a  nullity. 
The  Constitution  itself  required  legislation  to  make  operative  its  provisions  in 
respect  to  this  subject.  But  the  law  of  Congress  made  in  pursuance  of  the  Con- 
stitution was  the  supreme  law  of  the  land,  and  State  legislatures  were  therefore 
bound  to  conform  to  it. 

The  minority  views  conclude  with  a  paragraph  deprecating  an  assault  by  the 
House  of  Representatives  on  a  law  of  Congress. 

'  Globe,  p.  277. 


I   311  THK    ELECTORS    AXD    APPORTIUNMENT.  173 

From  Februan'  6  to  February  14 '  the  report  was  debated  in  the  House.  On 
February  13  in  the  House  Mr.  George  C.  Dromgoole,  of  Virginia,  offered  an  amend- 
ment to  the  resolutions  of  the  majority  of  the  committee.  This  amendment,  in  the 
nature  of  a  substitute,  omitted  all  reference  to  the  apportionment  law,  but  declared 
all  the  Members  of  the  House  (except  the  two  Virginia  contested  cases)  from  the 
unchallenged  States  elected  and  entitled  to  their  seats.  The  amendment  further 
declared  the  Members  from  New  Hampshire,  Georgia,  Mississippi,  and  Missouri 
iadividually  entitled  to  their  seats,  having  been  "duly  elected." 

On  February  14  Mr.  Dromgoole's  amendment  was  agreed  to — yeas  126,  nays  57. 

Then  the  question  being  on  agreeing  to  the  resolution  as  amended  by  the 
substitute,  a  division  of  the  question  was  allowed,  so  that  a  separate  vote  was  taken 
on  each  individual,  and  they  were  severally  declared  duly  elected  and  entitled  to 
their  seats  bj^  votes  not  varying  greatly  from  that  by  which  the  substitute  was 
agreed  to. 

311.  The  New  Hampshire  election  case  of  Perkins  v.  Morrison  in  the 
Thirty-first  Congress. 

The  New  Hampshire  districts  being  changed  after  Representatives 
to  the  Thirty-first  Congress  were  elected,  an  election  to  fill  a  vacancy  was 
called  in  the  new  district,  and  the  election  was  sustained. 

Discussion  of  the  powers  of  Congress  and  the  States  as  to  fixing  the 
times,  places,  and  manner  of  elections. 

On  December  16,  1850,^  the  Committee  on  Elections  reported  on  the  contested 
election  of  Perkins  v.  Morrison,  from  New  Hampshire.  The  whole  case  turned  on 
the  apportionment  act  of  the  State  legislature  of  July  11,  1850.  This  act,  in  estab- 
lishing the  Third  district,  included  in  it  four  towns  which  were  in  the  Second  district 
under  the  former  apportionment,  enacted  by  the  law  of  July  2,  1846.  The  act  of 
July  11,  1850,  repealed  all  acts  inconsistent  with  it  and  contained  a  provision  that 
it  should  go  into  effect  from  its  passage. 

On  September  9,  1850,  Mr.  James  Wilson,  who  had  been  elected  for  the  old 
Third  district,  resigned,  and  by  precept  of  the  governor  a  special  election  was  held 
in  the  new  Third  district  on  October  8,  1850.  At  this  election  George  W.  Morrison 
received  a  majority  of  63  votes  over  Jared  Perkins.  But  Mr.  Perkins  showed  that 
if  the  election  had  been  held  within  the  limits  of  the  old  district  only  he  would  have 
been  elected,  since  Mr.  Morrison's  majority  came  entirely  from  the  four  towns 
included  by  the  law  of  July  11,  1850. 

The  majority  of  the  committee  found: 

By  the  Constitution  of  the  United  States,  the  right  to  prescribe  the  times,  places,  and  manner  of 
holding  elections  for  Representatives  in  each  State  is  declared  to  be  in  the  legislature  thereof,  subject  to 
the  superior  power  of  Congress  to  make  or  alter  such  regulations  by  law.  That  power,  however.  Congress 
has  never  exercised,  unless  it  was  partially  exerted  by  the  second  section  of  the  act  of  June  25,  18-42,  to 
which  reference  has  already  been  made.  Limited  only,  therefore,  by  the  provisions  of  that  section,  the 
l^islature  of  New  Hampshire  had  plenary  power  to  prescribe  by  what  districts  the  election.s  should  be 
made,  and  to  change  the  boundaries  of  those  districts  at  its  pleasure  and  at  any  time.  No  constitutional 
provision,  no  law  of  Congress,  restrains  this  right  originally  to  form,  or  subsequently  to  alter,  the  limits  of 

'  Journal,  pp.  353,  356,  359,  362,  365,  367.379;  Globe,  pp.  236,  241,  248.  252,  255,  264,  276. 
'Second  session  Thirty-first  Congress,  1  Bartlett.p.  142;  Rowell's  Digest,  p.  135;  House  Report  No.  3. 


"174  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   ^H 

Congressional  districts,  at  the  discretion  of  the  State  legislature.  It  is  conceded  that  Congress  could  liy 
law  have  exclusively  determined  the  extent  of  each  district,  and  enacted  that  it  should  remain  unchanged 
under  the  apportionment  during  the  entire  period  of  ten  years.  But  this  has  not  been  done.  The  act 
of  June  25,  1842,  only  enacted  that  the  elections  (alike  general  and  special)  should  be  by  districts  of 
contiguous  territory;  and,  under  the  law,  the  limits  of  each  district  must  be  as  they  were  before  its 
passage — such  as  the  legislature  of  the  State  may  from  time  to  time  prescribe.  The  act  of  Congress  is 
merely  commendatory.  It  was  not  possible  to  delegate  to  the  State  legislature  the  legislative  power 
vested  by  the  Constitution  in  Congress.  It  follows,  of  course,  that  the  districting  acts  are  the  untram- 
meled  action  of  the  legislative  assembly  of  New  Hampshire,  and  consequently  that  the  power  to  change 
the  boundaries  of  a  district  remains  unlimited  in  the  same  legislature.  Your  committee  are  not  informed 
that  this  position  has  hitherto  ever  been  seriously  controverted.  Such  appears  to  have  been  the  common 
understanding.  The  legislatures  of  several  of  the  States,  after  having  formed  Congressional  districts  in 
conformity  with  the  recommendation  of  the  act  of  Congress  of  June  25,  1842,  have  subsequently  redis- 
tricted  the  States,  or  made  changes  in  the  boimdaries  of  the  districts  previously  formed.  North  Carolina, 
Georgia,  Ohio,  and  Pennsylvania  are  among  the  number.  Representatives  elected  from  the  districts 
thus  reorganized  have  been  admitted  to  seats  in  the  House  without  objection.  More  than  twenty  Repre- 
sentatives elected  by  these  remodeled  districts  sit  unchallenged  in  the  present  Congress. 

But  it  is  urged,  on  behalf  of  the  contestant,  that  if  the  power  be  conceded  to  the  legislature  of  New 
Hampshire  to  redistrict  the  State,  the  districting  act  of  July  II,  1850,  does  not  extend  to  an  election  to 
fill  vacancies  in  the  Thirty-first  Congress.  In  terms,  however,  it  unquestionably  does.  It  took  effect 
from  its  passage.  It  repealed  so  much  of  the  former  act  as  was  inconsistent  with  its  provisions.  Immedi- 
ately on  its  passage,  therefore,  there  were  no  Congressional  districts  in  New  Hampshire  other  than  those 
limited  by  this  later  act.  An  election  to  fill  the  vacancy  occasioned  by  the  resignation  of  Mr.  Wilson 
could  therefore  have  been  held  in  no  other  manner  than  that  in  which  the  sitting  Member  was  elected. 
The  Third  district,  by  which  Mr.  WiLson  was  elected,  was  a  creature  of  the  act  of  July  2,  1846;  it  was 
sustained  by  it  and  ceased  with  it.  ^^'hen,  therefore,  an  election  was  ordered  to  be  held  on  the  8th  of 
October,  1850,  no  political  division,  no  Congressional  district,  embracing  exclusively  the  counties  of 
Hillsborough  and  Cheshire,  had  any  legal  existence.  It  had  given  place  to  the  Third  district,  as  limited 
by  the  Second  districting  act.  The  governor  of  the  State  could  issue  his  precept  to  none  other  than  an 
existing  district. 

The  committee  also  found  no  difficulty  in  the  fact  that  the  legislature  had 
extended  the  provisions  of  the  act  to  vacancies  occurring  in  the  Thirty-first  Con- 
gress. Wliile  it  might  be  bad  policy  to  change  districts  once  made,  yet  the  legis- 
lature undoubtedly  had  that  power.  Nor  were  the  committee  impressed  with  the 
argument  that  the  voters  of  the  four  towns,  having  voted  both  in  the  Second  and 
Third  districts,  enjoyed  double  representation.  Tliis  they  conceived  to  be  foimded 
on  an  erroneous  view  of  the  theory  of  constitutional  representation.  The  division 
of  a  State  into  districts  was  a  regulation  of  the  manner  of  elections,  not  of  the 
extent  of  representation.  The  argument  that  a  legislature  might  so  change  dis- 
tricts that  the  governor  could  not  tell  in  which  to  call  an  election  in  case  of  vacancy 
did  not  weigh  with  the  committee,  since  it  did  not  seem  reasonable  to  argue  that 
a  power  did  not  exist  simply  because  it  might  be  abused. 

Therefore  the  majority  of  the  committee  reported  a  resolution  declaring  Mr. 
Morrison  entitled  to  the  seat. 

The  minority  took  the  groimd  that  the  act  of  1850  was  not  intended  to  apply 
to  elections  to  this  Congress,  and  that  if  it  were  so  intended  it  was  a  law  that  the 
legislature  had  no  authority  to  make.  Therefore  the  minority  reported  a  resolu- 
tion declaring  Mr.  Perkins  entitled  to  the  seat. 

The  case  was  debated  fully  in  the  House  on  January  7,  8,  9,  and  10,  1851.' 

'Journal,  pp.  119,  124,  126-130;  Globe,  pp.  183,  193,  204. 


11 


§  312  THE    ELECTORS    AND    APPORTIONMENT.  175 

On  a  motion  to  substitute  the  minority  for  the  majority  proposition,  the  yeas  were 
84,  nays  103. 

On  agreeing  to  the  resohition  of  the  committee  that  Mr.  Morrison  was  entitled 
to  the  seat,  there  were  98  yeas  and  90  nays.  So  the  sitting  Member  was  confirmed 
in  his  seat,  Mr.  Morrison  having  taken  his  seat  on  his  credentials  at  the  beginning 
of  the  session. 

312.  The  North  Carolina  election  case  of  Pool  v.  Skinner  in  the  Forty- 
eighth  Congress. 

The  North  Carolina  districts  being  changed  after  Representatives  to 
the  Forty-eighth  Congress  were  elected,  the  House  did  not  disturb  the 
Member  chosen  in  a  new  district  to  fill  a  vacancy  in  an  old  district. 

Discussion  as  to  the  functions  of  a  governor  in  calling  an  election  to 
fill  a  vacancy  in  the  Congressional  representation. 

On  March  S,  1SS4,'  Mr.  Henry  G.  Turner,  of  Georgia,  from  the  Committee  on 
Elections,  submitted  the  report  of  the  majority  of  the  committee  in  the  North 
Carolina  case  of  Charles  C.  Pool  v.  Thomas  G.  Skinner. 

On  November  7,  1882,  at  the  regular  election  for  Members  of  the  Fortj'-eighth 
Congress,  Walter  F.  Pool  was  chosen  a  Representative  from  the  First  district  of 
the  State. 

On  March  6,  1883,  the  State  was  redistricted  by  the  legislature,  and  the  First 
Congressional  district  was  changed  by  taking  away  from  it  Bertie  Count}-  and 
adding  Carteret  County.  This  act,  b}-  its  terms,  was  in  force  ' '  from  and  after  its 
ratification." 

On  August  23,  1883,  Mr.  Walter  F.  Pool  died. 

The  majority  thus  treats  the  question  arising: 

Subsequently  the  executive  authority  of  the  State  issued  a  writ  of  election  directing  an  election 
to  be  held  on  the  20th  day  of  November,  1883,  in  the  counties  of  the  First  district,  as  defined  by  the 
act  of  March,  1883,  to  fill  the  vacancy  caused  by  the  death  of  Mr.  Pool.  At  this  latter  election  Thomas 
G.  Skinner  and  Charles  C.  Pool  were  opposing  candidates,  and  Mr.  Skinner  was,  by  the  proper  author- 
ity, declared  to  have  been  elected. 

It  is  proper  here  to  add  that  Mr.  Charles  C.  Pool  has  served  upon  Mr.  Skinner  notice  of  contest, 
to  which  Mr.  Skinner  has  filed  his  answer,  and  from  the  attorneys  for  the  parties  we  have  obtained  the 
facts  on  which  the  foregoing  statement  is  founded: 

The  Constitution,  article  1,  section  4,  clause  1,  provides  that — 

"The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives  shall  be 
prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress  may  at  any  time,  by  law,  make 
or  alter  such  regulations,  except  as  to  the  place  of  choosing  Senators. " 

Section  2,  clause  4,  of  the  same  article  of  the  Constitution  provides  that — 

"When  vacancies  occur  in  the  representation  from  any  State,  the  executive  authority  thereof 
shall  issue  writs  of  election  to  fill  such  vacancies. " 

The  question  is  whether,  after  a  Representative  is  elected  by  the  people  of  a  district  before  a  change 
of  its  boundaries,  a  vacancy  caused  by  his  death  can  be  filled  by  the  people  of  the  district  after  its 
boundaries  are  changed. 

The  Constitution  seems  to  treat  Members  of  the  House  as  Representatives  of  the  States,  and  not  of 
districts  merely;  and  the  States  have  the  right  to  determine  what  portion  of  their  people  shall  choose 
these  Representatives,  subject  only  to  the  last  apportionment  act  of  Congress.     The  State  of  North 

'  First  session  Forty-eighth  Congress,  House  Report  No.  727;  Mobley,  p.  65. 


176  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   312 

Carolina,  by  the  act  ratified  on  the  6th  of  last  March,  has  provided  "that  for  the  purpose  of  selecting 
Representatives  to  the  Congress  of  the  United  States,  the  State  shall  be  divided  into  nine  districts." 
This  language  might  well  be  said  to  cover  and  include  all  elections,  general  as  well  as  special ;  nor  does 
it  exclude  any  Congress.  But  this  view  is  greatly  reenforced  by  the  second  section  of  the  act,  which 
provides  that  it  "shall  take  effect  from  and  after  its  ratification.  "  The  old  arrangement  of  the  counties 
into  eight  districts  was  therefore  abolished.  The  governor  disregarded  the  old  law,  which  had  been 
superseded  without  any  reservation,  and  followed  as  well  as  he  could  the  law  which  was  of  force  at  the 
time  of  Mr.  Walter  F.  Pool's  death,  and  at  the  date  of  the  writ  of  election. 

There  is  no  provision  in  the  statutes  of  North  Carolina  which  prescribes  the  place  of  the  election 
made  necessary  under  the  special  circumstances  of  this  case,  and  the  effort  seems  to  have  been  made 
to  approximate  in  the  location  of  the  election,  as  nearly  as  possible  under  the  existing  distribution  of 
the  counties  into  districts,  to  the  territory  the  people  of  which  chose  Mr.  Pool  as  their  Representative. 

The  practice  in  the  States  in  cases  similar  has  been  variant,  the  election  in  some  cases  having  been 
ordered  in  the  new  district,  in  others  in  the  old  district.  The  practice  in  the  House  has  been  uniformly 
to  acquiesce  in  the  action  of  the  State  authority;  and,  following  this  line  of  consistency,  if  the  governor 
of  North  Carolina  had  ordered  the  election  to  fill  this  vacancy  in  the  old  district,  we  would  not  have 
felt  it  our  duty  to  recommend  that  the  election  should  be  vacated.  By  the  Constitution  of  the  United 
States,  before  cited,  the  governor  is  constituted  the  tribunal  to  determine  when  and  where  to  order  an 
election  to  fill  a  vacancy,  and  where  the  laws  by  which  he  is  to  be  guided  are  doubtful  his  decision 
ought  to  be  followed  by  Congress.  This  course  is  founded  upon  precedent,  upon  the  respect  due  to 
State  authority,  and  upon  that  public  policy  which  requires  full  representation  of  the  States. 

It  has  been  contended  that  the  code  of  North  Carolina  (section  2722)  in  reference  to  vacancies 
furnishes  the  rule  for  a  case  like  this,  but,  in  our  opinion,  that  section  only  requires  that  the  governor 
shall  issue  his  writ  of  election,  and  by  proclamation  require  the  voters  in  the  different  townships  in 
their  respective  counties,  at  such  time  as  he  may  appoint,  and  at  the  places  established  by  law,  then 
and  there  to  vote  for  a  Representative  in  Congress  to  fill  the  vacancy.  Such  is  the  language  of  the 
section,  and  it  does  not  militate  against  the  course  which  the  governor  pursued  in  this  case. 

Some  stress  has  been  laid  upon  section  3868  of  the  code  of  North  Carolina,  which  is  as  follows: 

"The  repeal  of  the  statutes  mentioned  in  the  preceding  section  shall  not  affect  any  act  done,  or 
right  accruingor  accrued,  or  established,  or  any  suit  or  proceeding  had  or  commenced  in  any  case  before 
the  time  when  such  appeal  shall  take  effect;  but  the  proceedings  in  every  such  case  shall  be  conformed 
when  necessary  to  the  provisions  of  this  code." 

The  previous  section  repeals  all  public  and  general  statutes  of  the  State  with  the  exceptions  and 
limitations  just  enumerated.  But  it  must  be  borne  in  mind  that  this  code  containing  this  provision 
did  not  take  effect  until  the  1st  day  of  November,  1883,  while  the  new  districting  act,  which  was  also 
included  in  this  code,  took  effect  from  and  after  March  6, 1883,  andcontained  no  such  provision.  Besides, 
we  think  that  this  section  of  the  North  Carolina  code  relates  only  to  private  vested  rights,  such  as  could 
be  asserted  in  the  courts. 

Much  has  been  said  about  absurd  consequences  which  may  follow  under  the  view  taken  in 
this  report;  but  we  think  that  such  an  argument  would  be  more  fitly  addressed  to  the  legislatures  of 
the  States.  And  we  do  not  hesitate  to  say  that  we  would  be  glad  to  see  such  a  regulation  provided  by  the 
States  as  would  obviate  these  absurd  consequences.  Perhaps  Congress  might  effectuate  this  end  in  the 
apportionment  act  made  necessary  after  every  census. 

As  the  result  of  this  report,  we  submit  the  following  resolution,  and  recommend  its  adoption: 

Resolved,  That  Thomas  G.  Skinner  retain  his  seat  without  prejudice  to  the  ultimate  right  to  the  seat 
involved  in  the  contested-election  case  of  Charles  C.  Pool  v.  Thomas  G.  Skinner. 

Mr.  J.  C.  Cook,  of  Iowa,  while  concurring  in  the  conclusions  of  the  majority, 
dissented  from  the  doctrine  therein  set  forth: 

Representation  of  the  States  in  Congress  by  districts  has  so  long  been  the  universal  rule  that  any 
doubt  of  the  power  of  Congress  to  require  the  subdividing  of  States  must  be  regarded  as  set  aside.  When 
a  State  has  been  divided  and  Representatives  elected  for  a  certain  Congress,  each  district  must  be 
regarded  as  an  existing  fact  for  and  through  that  entire  Congress,  and  as  the  person  elected  from  a  par- 
ticular district  has  the  right  to  hold  the  office  during  the  legal  term  of  that  Congress,  so  his  office  must 


§   312  THE    ELECTORS    AND    APPOKTTONMENT.  177 

be  held  to  exist  in  law  and  in  fact  for  the  entire  term  of  the  Congress  of  which  he  is  a  Member.  As  the 
State  legislature  can  not  legislate  him  out  of  office,  so  it  can  not  destroy  the  office  which  he  fills;  no  more 
can  it  destroy  the  district  upon  which  the  office  rests. 

I  am  clearlyof  the  opinion  that  the  only  people  who  had  a  right  to  participate  in  the  election  to 
fill  the  vacancy  were  those  of  the  old  district,  and  that  all  votes  cast  outside  of  this  district  were  void. 
The  governor's  duty  was  ministerial.  He  could  do  no  more  than  fix  the  day  for  the  election.  The 
fact  that  he  invited  the  people  of  Carteret  County  to  participate  in  the  election  did  not  authorize  them 
to  vote,  neither  do  I  think  that  his  failure  to  invite  the  people  of  Bertie  deprived  them  of  their  fixed 
right  to  vote.  The  only  material  thing  he  was  authorized  to  do  was  to  fix  the  time  for  the  election. 
Suppose  he  simply  called  the  election  with  sufficient  definiteness  to  indicate  the  officer  to  be  voted  for 
or  the  vacancy  to  be  filled  and  set  the  time,  but  had  not  mentioned  the  counties  in  which  the  election 
should  be  held,  would  there  be  any  question  as  to  the  validity  of  an  election  held  in  the  old  district? 
As  he  had  no  power  to  determine  or  change  the  district,  what  he  attempted  in  that  direction  was  mere 
surplusage  in  his  proclamation.  From  this  it  seems  to  me  the  people  of  Bertie  County  had  a  right  to 
participate  in  the  election;  certainly  if  they  had,  their  votes  would  here  be  counted. 

It  is  universally  held  when  notice  of  an  election  is  required  by  law  and  is  not  given  that  this 
is  not  fatal.  This  being  a  special  election  can  not  change  the  rule.  The  only  difference  is  that  in  the 
one  the  time  is  fixed  by  law,  while  in  the  other  this  is  fixed  by  the  proclamation  of  the  governor.  Mr. 
Skinner  received  a  majority  of  the  votes  cast  in  the  old  district.  The  fact  that  the  people  of  Bertie 
County  did  not  vote  can  not  invalidate  the  act  of  those  who  did  vote.  It  will  not  do  to  say  no  opportu- 
nity was  given  them.  They  could  have  asserted  their  rights  given  them  by  law.  If  no  officers  appeared 
to  open  the  polls  they  could  organize  and  hold  the  election  at  the  places  fixed  liy  law.  ■S\  hen  we  concede, 
as  we  must,  that  had  they  done  this  their  votes  would  be  made  effective  here  at  least,  it  must  follow 
that  ha^•ing  failed  to  do  so  they  can  not  complain. 

But  if  there  is  doubt  on  the  foregoing  proposition,  there  can  be  none  on  the  following: 

Mr.  Skinner  is  here  duly  returned  as  a  Representative  from  his  State.  No  fraud  is  charged  in  his 
election,  no  misconduct  on  the  part  of  any  one;  nothing  more  than  a  mistake  on  the  part  of  the  governor 
in  calling  the  election.  Keither  the  people  of  Bertie  County  nor  any  one  of  them  complains.  The 
State  acquiesces,  the  district  is  satisfied,  and  no  complaint  is  made  by  any  one  in  Bertie  County. 

In  view  of  all  this,  bearing  in  mind  the  fact  that  there  was  no  intentional  wrong,  no  fraud  upon  the 
ballot,  or  affirmative  interference  with  the  right  of  the  citizens,  considerations  of  ''respect  due  to  State 
authority,  and  that  public  policy  which  requires  full  representation  of  the  States"  would  dictate  that 
the  House  should  not,  of  its  own  motion,  declare  a  vacancy  and  require  another  election. 

The  minority  views,  filed  by  Mr.  A.  A.  Ranney,  of  Massachusetts,  hold — 

that  the  right  of  representation  for  the  full  term  of  the  Forty-eighth  Congress  inhered  in  the  people  of 
the  old  district  as  an  accrued  or  an  established  right,  and  that  they  alone  had  the  right  to  fill  the  existing 
vacancy. 

The  minority  continue: 

This  right  was  secured  to  them  on  a  fundamental  principle  of  our  representative  Government  and 
by  positive  law,  both  Federal  and  State.  We  hold  these  principles  and  these  propositions  to  be  radical 
and  fundamental  in  our  Government:  (1)  No  portion  of  the  people  or  territory  of  a  State  can  be  rightfully 
deprived  of  a  representation  in  Congress;  (2)  no  portion  of  the  people  or  territory  are  rightfiilly  entitled 
to  a  double  district  representation  in  Congress. 

If  the  present  election  is  sustained,  both  of  these  propositions  are  violated.  The  people  and  terri- 
tory of  Bertie  County,  with  a  population  of  16,392  and  2,588  voters,  are  deprived  entirely  of  all  district 
representation  in  the  Forty-eighth  Congress,  and  Carteret  Coimty,  with  a  population  of  9,756  and  1,600 
voters,  is  allowed  a  double  representation. 

It  also  appears  that  by  means  of  calling  and  holding  the  election  in  the  new  district  instead  of  the 
old  the  political  complexion  of  the  representation  has  been  reversed.  Bertie  County  casts  a  Republican 
majority  of  about  800,  Carteret  County  a  Democratic  majority  of  about  400,  and  contestee  was  returned 
as  elected  by  a  majority  of  about  700. 

599i— VOL  1—07 12 


178  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESEJSTTATIVES.  §  312 

The  election  was  called  by  the  lieutenant-governor  in  the  absence  of  the  chief  executive.  The 
essential  facts  are  not  in  dispute. 

A  construction  of  the  law  which  works  such  an  infraction  of  important  political  rights  and  results  in 
a  wrong  so  palpable  and  gross  will  not  be  readily  accepted  as  designed  by  the  enactors  thereof.  We 
believe  the  true  rule  to  be  as  enunciated  by  Judge  McCrary  (sec.  179),  "That  a  district  once  created, 
and  having  elected  a  Representative  in  Congress,  should  be  allowed  to  continue  intact  for  the  purpose 
of  filling  any  vacancy  which  may  occur  until  the  end  of  the  Congress  in  which  it  is  represented."  It 
will  be  seen,  we  think,  that  the  existing  legislation  not  only  admits  of  the  application  of  this  rule  in  this 
case  but  allows  of  no  other  reasonable  construction. 

Having  examined  the  question  of  fact  as  to  what  the  laws  of  Congress  and 
the  State  actually  provided,  and  having  become  satisfied  that  the  state  of  the 
law  was  such  as  to  require  the  election  to  have  been  held  in  the  old  district,  the 
minority  continue: 

The  majority  report  cites  that  clause  of  the  Constitution  which  reads  as  follows  (Art.  I,  sec.  4, 
clause  1): 

"The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives  shall  be 
prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress  may  at  any  time,  by  law,  make 
or  alter  such  regulations,  except  as  to  the  place  of  choosing  Senators." 

But  we  can  not  see  how  this  gives  any  support  to  the  action  of  the  executive. 

The  governor  had  no  right,  and  was  not  empowered  by  law,  to  determine  in  what  district  the  election 
should  be  held  to  fdl  a  vacancy.  The  power  is  given  to  the  legislature  of  the  State  to  prescribe  the  time, 
place,  and  manner  of  holding  elections,  with  a  power  reserved  to  Congress  to  alter  the  regulations  made 
or  to  make  them  itself.  It  does  not  rest  with  the  governor  to  do  it.  The  general  assembly  has  made 
regulations  in  North  Carolina,  giving  the  governor  power  to  fix  the  time  for  holding  special  elections, 
and  making  his  duty  to  issue  a  writ  of  election,  and  by  proclamation  to  require  the  votera  of  the  town- 
ships in  the  counties  composing  a  district  to  fill  a  vacancy  in  case  it  occurs.  In  general  elections  the 
time  is  fixed  by  statute  (Code,  sec.  2721).  Except  as  to  the  time  everything  is  fixed  and  regulated  by 
legislative  action,  and  when  the  governor  has  fixed  the  time  and  issued  the  writ,  the  election  is  to  be  held 
in  every  respect  as  established  by  law  (sec.  2722  of  Code).  An  attempt  seems  to  be  made  in  the 
majority  report  to  prove  that  the  governor  has  legislative  power,  so  he  may  determine  what  district 
the  election  shall  be  held  in.  If  this  were  so  he  might  have  ordered  an  election  at  large,  or  in  anyone 
of  the  old  eight,  or  either  of  the  nine  new,  districts,  which  would  be  absurd.  Districts  are  estalilished 
by  law,  and  that  law  binds  the  governor  as  much  as  any  other  citizen.  The  governor  has  no  authority 
beyond  what  is  conferred  upon  him  by  law,  and  when  he  assumes  any  other  he  usurps  it. 

If  it  is  meant  to  be  claimed  that  the  governor's  interpretation  of  the  law  is  binding,  we  have  only 
to  call  the  attention  of  the  House  to  the  well-recognized  law  that  the  governor  is  not  a  judicial  oflicer, 
but  his  functions  are  purely  executive  in  their  character.  Decisions  of  State  courts  in  interpreting 
local  statutes  are  heeded  in  the  Federal  courts.  It  is  not  so  with  the  interpretations  put  upon  the 
law  by  an  executive  officer. 

The  minority  then  cite  the  Tennessee  cases  of  1871,  and  the  Iowa  case  in  the 
Forty-sixth  Congress,  and  after  commenting  thereon,  says: 

It  is  vain  and  a  mistake  to  treat  a  Congressional  district  as  a  corporation,  with  officei-s  and  election 
machinery,  for  as  such  it  has  none.  They  exist  in  the  townships  and  the  counties  exclusively.  No 
powers  were  needed,  therefore,  to  be  reserved  to  the  districts  in  analogy  to  dissolved  corporations. 
A  Congressional  district  has  no  corporate  existence  whatever.  Defining  its  boundaries  is  only  naming 
the  counties,  the  voters  in  which  are  to  vote  for  a  Representative  to  Congress.  Numbering  them  is 
purely  arbitrary,  and  correspondence  in  numbers  does  not  determine  the  identity  of  the  district  as  to 
counties  composing  the  same.  In  the  new  nine,  number  one  may  not  have  contained  a  single  foot 
of  territory  which  was  embraced  in  the  old  number  one. 

We  have  treated  the  case  thus  far  under  the  particular  legislation  of  North  Carolina.  The  dis- 
tinguishing elements  existing  take  this  case  out  of  the  operation  of  the  rule  and  doctrine  followed  in 


.1 


§  312  THE  ELECTORS  AND  APPORTIONMENT.  179 

Perkins  v.  Morrison  (1  Bart.,  142), and  which  gave  rise  to  the  conflict  of  precedents  in  this  House,  con- 
sidered by  McCrary  in  his  work  (sees.  179,  180).  The  doctrine  of  that  case  was  reversed  by  case 
of  Hunt  V.  Menard  (2  Bart.,  477),  although  the  latter  was  complicated  somewhat  by  another  question 
of  fraud.  In  both  of  those  cases,  and  in  the  case  of  Mr.  Taylor,  of  Ohio,  in  the  Forty-sixth  Congress, 
and  of  Doctor  McLean,  in  the  Forty-seventh  Congress,  the  original  election  was  not  held  under  an  act  of 
Congress.  The  old  districting  acts  had  been  absolutely  repealed,  and  there  was  no  State  law  providing 
for  filling  vacancies.  Hence  all  the  trouble  in  those  cases.  No  such  state  of  law  exists  in  the  present 
case. 

The  importance  of  these  distinctions  in  two  respects  will  be  appreciated  and  shown  by  referring 
to  the  report  of  the  committee  in  Hunt  i.  Menard,  section  180  of  the  work  of  Judge  McCrary.  We 
quote  a  portion  of  the  same: 

"The  act  of  the  legislature  of  Louisiana  of  August  22,  1868,  making  a  new  division  of  the  State 
into  its  five  Congressional  districts,  by  its  terms  purports  to  repeal  all  laws  and  parts  of  laws  in  con- 
flict with  said  act,  but  is  silent  on  the  subject  of  vacancies  that  might  occur  in  the  districts  as  then 
existing. 

''The  language  of  the  minority  report  in  the  case  of  Perkins,  on  the  New  Hampshii-e  statute,  is 
appropriate  on  this  point  as  well  as  on  this  case  generally,  and  we  quote  from  it  as  follows: 

•  'It  does  not  purport  to  provide  for  any  method  of  filling  vacancies  that  might  occur  in  the 
future,  and  beyond  all  question  it  was  understood  as  providing  only  for  the  election  of  Members  to 
future  Congresses.  Such  are  the  terms  of  the  act,  and  such  must  also  be  its  spirit.  A  vacancy  in  the 
House  of  Representatives  is  the  occurrence  of  an  event  by  which  a  portion  of  the  people  are  left 
unrepresented,  and  the  filling  of  that  vacancy  is  directed  by  the  Constitution  in  such  explicit  language 
as  requires  no  aid  from  State  enactments  to  perfect  the  right.' 

"  The  second  section  of  the  first  article  of  the  Constitution  reads:  '  When  vacancies  occur  in  the 
representation  from  any  State,  the  executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies.'     This  is  the  only  provision  of  law  on  the  subject  of  vacancies,  and  it  is  ample  and  sufficient." 

Concluding,  the  minority  say : 

We  are  of  opinion  that  the  election  should  be  declared  invalid.  It  is  not  a  case  of  mere  irregularity 
in  nonessential  particulars  or  one  where  no  substantial  injury  has  been  done.  The  whole  foimdation 
of  the  election  is  illegal  and  the  infirmity  is  deep  and  fatal.  Over  16,000  people  have  been  deprived  of 
all  district  representation  and  some  10,000  have  got  a  double  representation,  and  the  political  complexion 
of  the  representation  has  been  reversed.  That  end  may  have  been  the  guiding  consideration  which 
led  to  the  action  of  the  executive.  If  not  so  in  this  case,  such  may  be  the  case  hereafter  under  like 
circumstances,  and  the  other  party  suffer  at  that  time.  Other  cases  are  likely  to  arise  this  term  of 
Congress.  One  has  already  arisen,  and  the  vacancy  has  been  filled  in  the  old  district,  and  the  question 
may  come  up  again  soon. 

Assuming  that  the  executive  could  have  called  the  election  either  in  the  old  or  the  new  district, 
and  had  it  legal,  as  found  by  the  majority  report,  the  conduct  of  the  lieutenant-governor,  acting  as  chief 
in  the  temporary  absence  of  the  governor,  in  disregarding  the  three  last  precedents  of  this  House  and  the 
doctrine  approved  in  the  standard  authority  in  Congress,  can  not  easily  Ije  reconciled  with  the  afisumption 
of  good  faith. 

The  contention  that  there  has  been  something  done  by  which  the  rights  of  the  aggrieved  parties 
have  been  lost  does  not  seem  to  us  to  be  entitled  to  much  consideration.  They  are  before  the  House  by 
the  contestant,  who  is  authorized  by  an  act  of  C'ongress  to  represent  them  in  conducting  the  contest. 
No  memorial  was  necessary.  There  has  been  no  such  thing  as  what  is  called  in  law  acquiescence. 
Enforced  submission  to  executive  authority  is  not  acquiescence  as  known  to  the  law.  No  appeal  to  the 
courts  would  have  been  of  any  avail,  as  they  had  no  jurisdiction.  An  appeal  here  was  the  only  means 
of  redress  allowed  by  law.  This  is  a  public  inquiry,  and  not  altogether  personal,  and  the  House  has  a 
duty  to  perform  under  the  Constitution,  which  requires  it  to  determine  the  validity  of  the  election,  and 
does  not  allow  it  to  elect  Representatives  nor  to  admit  to  seats  persons  not  duly  elected. 

The  people  of  Bertie  County  had  no  official  notice  of  the  election,  and  if  they  had  heard  of  it 
otherwise  any  effort  to  vote  would  have  been  in  vain,  as,  presumably,  no  polls  were  opened  and  no 


180  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  313 

election  machinery  set  in  motion  in  that  county.  It  waa  a  special  election,  and  the  law  did  not  fix 
the  time. 

Besides  this,  the  question  of  acquiescence  is  a  question  of  fact,  and  the  conunittee  had  no 
authority  to  hear  or  take  evidence  upon  it,  and  have  not  done  so.  We  do  not  know  but  that  voters  in 
Bertie  County  did  try  to  vote.  Acquiescence  is  not  nonaction  alone.  There  must  be  failure  to  act 
where  action  would  have  availed. 

We  recommend  the  passage  of  the  following  resolutions: 

Resolved,  That  the  old  First  Congressional  district  of  North  Carolina,  in  which  A\'alter  F.  Pool  was 
chosen  as  Representative  to  the  Forty-eighth  Congress,  was  the  only  proper  district  in  which  to  call  and 
hold  an  election  to  fill  the  vacancy  caused  by  his  death. 

Resolved,  That  Thomas  G.  Skinner  is  not  entitled  to  retain  longer  his  seat  in  this  House  as  Rep- 
resentative from  the  First  Congressional  district  of  North  Carolina  to  the  Forty-eighth  Congress. 

This  report  was  called  up  in  the  House  both  on  June  12  and  27,  1884,'  but 
on  each  occasion  the  House  voted  not  to  consider  it.  On  July  5,  1884,^  it  was 
postponed  to  the  second  Monday  of  December. 

Again  on  February  27,  1885,^  it  was  again  called  up,  but  the  House  declined  a 
third  time  to  consider  it.  And  Mr.  Skinner  retained  the  seat  until  the  end  of  the 
Congress. 

313.  The  Kentucky  election  case  of  Davidson  /'.  Gilbert  in  the  Fifty- 
sixth  Congress. 

The  House  declined  to  interfere  with  the  act  of  a  State  in  changing 
the  boundaries  of  a  Congressional  district. 

Discussion  of  the  respective  powers  of  Congress  and  the  States  in 
fixing  the  times,  places,  and  manner  of  elections. 

On  March  1,  1901,"  Mr.  R.  W.  Tayler,  of  Ohio,  from  the  Committee  on  Elections 
No.  1,  submitted  a  report  in  the  case  of  Davidson  v.  Gilbert,  from  Kentucky.  This 
contest  arose  chiefly  from  the  fact  that  on  March  11,  1898,  an  act  was  passed  by 
the  legislature  changing  the  boundaries  of  the  Eighth  and  Eleventh  Congressional 
districts  of  Kentucky,  whereby  the  county  of  Jackson  was  taken  from  the  Eighth 
district  and  added  to  the  Eleventh.  Jackson  County  having  a  large  Republican 
majority,  the  effect  of  its  transfer  to  the  Eleventh  was  to  change  the  Eighth  from  a 
district  which  had  immediately  previously  been  Republican  into  a  Democratic 
district. 

The  claims  of  the  contestant  that  the  act  was  contrary  to  the  State  constitution, 
and  that  it  had  never  properly  passed  the  legislature,  are  dismissed  by  the  com- 
mittee without  discussion  as  having  no  foundation. 

The  third  objection  was  that  this  act  contravened  an  act  of  Congress,  and 
this  the  committee  considered  at  length  in  the  light  of  Article  I,  section  4,  of  the 
Constitution — 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives  shall  be 
prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress  may  at  any  time  by  law  make  or 
alter  such  regulations,  except  as  to  the  places  of  choosing  Senators. 

'  Journal,  pp.  1432,  1569. 

-  Journal,  p.  1701. 

^  Second  session  Forty-eighth  Congress,  Journal,  p.  709. 

■•  Second  session  Fifty-sixth  Congress,  House  report  No.  3000;  Rowell's  Digest,  p.  603. 


§  313  THE  ELECTORS  AND  APPORTIONMENT.  181 

The  report  goes  on  to  say  that  this  is  the  first  time  that  Congress  has  been 
asked  to  undo  the  work  of  a  State  which  had  divided  itself  into  a  proper  number  of 
Congressional  districts.     Reviewing  the  history  of  apportionments,  the  report  says : 

For  nearly  forty  years  the  States  proceeded  to  elect  Representatives,  some  at  large  and  some  by 
districts.  In  1S40  the  policy  of  electing  by  districts  was  generally  approved  and  adopted,  but  several 
of  the  States  continued  to  elect  their  Representatives  by  the  vote  of  the  entire  State.  The  first  legisla- 
tion on  the  subject  going  beyond  the  mere  apportionment  of  the  States  was  enacted  in  1842.  In  the 
apportionment  act  of  that  year  an  amendment  was  added  in  the  House  providing  for  the  division  of 
the  several  States  into  districts,  composed  of  contiguous  territory,  equal  in  number  to  the  number  of 
Representatives  to  which  the  State  was  entitled,  and  each  district  to  elect  one  Representative,  and 
no  more. 

The  amendment  provoked  considerable  discussion,  but  was  finally  adopted. 

The  apportionment  act,  based  upon  the  census  of  1850,  made  no  provision  for  the  division  of  States 
into  districts,  nor  did  the  act  of  1862.  The  act  of  February  2,  1872,  provided  that  Representatives 
should  be  elected  by  districts  composed  of  contiguous  territory,  and  added  the  provision  "containing, 
as  nearly  as  practicable,  an  equal  number  of  inhabitants."  The  same  provision  appea,rs  in  the  appor- 
tionment acts  of  1882  and  1891. 

So  far  as  legislative  declaration  is  concerned,  it  is  apparent  that  Congress  has  expressed  an  opinion 
in  favor  of  its  power  to  require  that  the  States  shall  be  di\'ided  into  districts  composed  of  contiguous 
territory  and  of  as  nearly  equal  population  as  practicable,  ^\'hether  it  has  the  constitutional  right  to 
enact  such  legislation  is  a  verj'  serious  question,  and  the  uniform  current  of  opinion  is  that  if  it  has 
such  power  under  the  Constitution  that  power  ought  never  to  be  exercised  to  the  extent  of  declaring  a 
right  to  divide  the  State  into  Congressional  districts  or  to  super\-ise  or  change  any  districting  which  the 
State  may  provide. 

The  best  opinion  seems  to  be  that  the  Constitution  does  not  mean  that  under  all  circumstances 
Congress  shall  have  power  to  divide  the  States  into  districts,  but  only  that  the  constitutional  pro\'ision 
was  inserted  for  the  purpose  of  gi^^ng  Congress  the  power  to  provide  the  means  whereby  a  State  should 
be  represented  in  Congress  when  the  State  itself,  for  some  reason,  has  failed  or  refused  to  make  such 
provision  itself. 

In  support  of  this  view  the  report  goes  on  to  quote  the  views  of  Justice  Story, 
Alexander  Hamilton,  James  Madison,  Chancellor  Kent,  Daniel  Webster  (as  pre- 
sented in  a  report  made  in  the  Twenty-second  Congress),  and  Nathan  Clifford 
(presented  in  a  speech  in  the  Twenty-seventh  Congress),  and  concludes  with  this 
opinion : 

Your  committee  are  therefore  of  opinion  that  a  proper  construction  of  the  Constitution  does  not 
warrant  the  conclusion  that  by  that  instniment  Congress  is  clothed  with  power  to  determine  the 
boundaries  of  Congressional  districts  or  to  re\Tse  the  acts  of  a  State  legislature  in  fixing  such  bound- 
aries, and  your  committee  is  further  of  opinion  that  even  if  such  power  is  to  be  implied  from  the 
language  of  the  Constitution  it  would  be  in  the  last  degree  unwise  and  intolerable  that  it  should 
exercise  it.  To  do  so,  would  be  to  put  into  the  hands  of  Congress  the  ability  to  disfranchise,  in  effect, 
a  large  body  of  the  electors.  It  would  give  Congress  the  power  to  apply  to  all  the  States,  in  favor  of 
one  party,  a  general  system  of  gerrymandering.  It  is  true  that  the  same  method  is  to  a  large  degree 
resorted  to  by  the  several  States,  l>ut  the  di\Tsion  of  political  power  is  so  general  and  diverse  that, 
notwithstanding  the  inherent  vice  of  the  system  of  gerrymandering,  some  kind  of  equality  of  distri- 
bution results. 

Therefore  the  committee  reported  a  resolution  confirming  Mr.  Gilbert's  title  to 
his  seat. 

The  report  was  not  acted  on  by  the  House,  Mr.  Gilbert  of  course  retaining  the 
seat. 


182  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  314 

314.  The  California  election  case  of  F.  F.  Lowe  in  the  Thirty-seventh 
Congress. 

A  State  having  elected  on  a  general  ticket  three  Representatives 
when  it  was  entitled  to  but  two,  the  House  denied  a  seat  to  the  one 
receiving  the  fewest  votes. 

A  State  sending  three  Representatives  when  it  was  entitled  to  but 
two,  the  House  gave  prima  facie  effect  to  only  two  credentials. 

Discussion  of  the  census  and  apportionment  law  of  1850,  which 
applied  to  succeeding  censuses  and  apportionments. 

California  having  in  good  faith  elected  one  Member  in  excess  of  her 
apportionment,  Congress  by  law  provided  for  his  admission. 

On  December  2,  1861/  at  the  beginning  of  the  second  or  regular  long  session  of 
the  Congress,  two  Members  from  Cahfornia,  Messrs.  Aaron  A.  Sargent  and  T.  G. 
Phelps,  appeared,  presented  their  credentials,  and  were  sworn  in  without  objection. 

On  the  same  day  Mr.  Phelps  presented  the  credentials  of  Mr.  F.  F.  Lowe  as  a 
third  Member  from  California;'^  but  no  motion  or  request  was  made  that  he  be 
sworn  in,  and  without  debate  his  credentials  were  referred  to  the  Committee  on 
Elections. 

On  April  14,  1862,'  the  committee  reported,  setting  forth  the  following  state 
of  facts: 

By  (he  apportionment  under  the  Eighth  Census  [of  1860]  California  is  entitled  to  three  Representa- 
tives, and  it  is  claimed  by  the  memorialist  that  that  apportionment  applies  to  the  present  or  Thirty- 
seventh  Congress.  By  special  provision  of  statute,  enacted  July  30,  1852,  it  was  provided  that  Cali- 
fornia should  have  two  Representatives  till  a  new  apportionment  should  take  effect.  But  that  State, 
believing  that  the  apportionment  based  on  the  Eighth  Census  had  already  taken  effect,  did,  at  its 
general  election  held  on  the  first  Wednesday  of  September  last,  elect  by  general  ticket  three  persons 
to  represent  her  in  the  present  Congress. 

The  Constitution  provides  that  Representatives  "shall  be  apportioned  among  the  several  States 
which  shall  be  included  within  this  Union  according  to  their  respective  numbers;"  and  that  "the 
actual  enumeration  shall  be  made  within  three  years  after  the  first  meeting  of  Congress,  and  within 
every  subsequent  ten  years  in  such  manner  as  they  shall  by  law  direct."  The  census  and  apportion- 
ment thus  connected  together  in  the  Constitution  have  been  connected  together  in  all  subsequent 
legislation  by  Congress.  It  has  been  the  course  of  legislation,  up  to  the  year  1850  and  the  taking  of  the 
Seventh  Census,  to  provide  for  the  taking  of  each  census  by  special  act,  andj  immediately  upon  its 
completion  by  a  like  special  act  to  determine  the  number  of  Representatives,  and  apportion  the  same 
among  the  several  States  according  to  such  census.  But  in  providing  for  the  taking  of  the  Seventh 
Census  in  1850  Congress  undertook  to  establish  a  permanent  system  both  for  the  taking  of  all  fuliu-e 
censuses  and  for  all  future  apportionments.  (Stat.  L.,  vol.  9,  p.  428.)  That  statute  requires  that 
the  census  shall  be  taken  and  returned  to  the  Secretary  of  the  Interior  on  or  before  the  1st  day  of 
November  next  ensuing  the  23d  day  of  May,  1850,  the  date  of  the  act.  The  statute  then  provides, 
section  23,  "If  no  other  law  shall  be  passed  providing  for  the  taking  of  the  Eighth  or  any  subsequent 
census  of  the  United  States  on  or  before  the  1st  day  of  January  of  any  year,  when,  by  the  Constitution 
of  the  United  States,  any  future  enumeration  of  the  inhabitants  thereof  is  required  to  be  taken,  such 
census  shall  in  all  things  be  taken  and  completed  according  to  the  provisions  of  this  act."  No  other 
provision  for  the  Eighth  Census  has  been  made. 


'  Second  session  Thirty -seventh  Congress,  Journal,  pp.  6,  7;  Globe,  pp.  2,  4. 

^  The  three  were  elected  on  a  general  ticket,  and  it  appears  that  Mr.  Lowe  received  the  smallest 
vote  of  the  three. 

^  House  report  No.  79. 


I  314  THE    ELECTORS    AND    APPORTIONMENT.  183 

The  statute  then  proceeds  to  provide,  before  the  census  is  taken,  for  the  then  next  apportionment 
to  be  based  upon  the  census  not  yet  taken,  and  for  all  further  apportionments,  as  follows' 

"Sec.  25.  From  and  after  the  3d  day  of  March,  1853,  the  House  of  Representatives  shall  be  com- 
posed of  233  Members,  to  be  apportioned  among  the  several  States  in  the  manner  directed  in  the  next 
section  of  this  act. 

"Sec  26.  So  soon  as  the  next  and  each  subsequent  enumeration  of  the  inhabitants  of  the  several 
States,  directed  by  the  Constitution  of  the  United  States  to  be  taken,  shall  be  completed  and  returned 
to  the  office  of  the  Department  of  the  Interior,  it  shall  be  the  duty  of  the  Secretary  of  the  Interior  to 
ascertain  the  aggregate  representative  population  of  the  United  States,  by  adding  to  the  whole  number 
of  free  persons  in  all  the  States,  including  those  bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  tliree-fifths  of  all  other  persons;  which  aggregate  population  he  shall  divide  by  the 
number  233,  and  the  product  of  such  division,  rejecting  any  fraction  of  a  unit,  if  any  such  happen  to 
remain,  shall  be  the  ratio  or  nde  of  apportionment  of  Representatives  among  the  several  States  under 
such  enumeration;  and  the  said  Secretary  of  the  Department  of  the  Interior  shall  then  proceed  in  the 
same  manner  to  ascertain  the  representative  population  of  each  State,  and  to  divide  the  whole  number 
of  the  representative  population  of  each  State  by  the  ratio  already  determined  by  him  as  above  directed; 
and  the  product  of  this  last  division  shall  be  the  number  of  Representatives  apportioned  to  such  State 
imder  the  then  last  enumeration." 

The  law  further  directed  the  Secretary  of  the  Interior,  "without  delay"  to 
make  out  and  transmit  to  the  executive  of  each  State  a  certificate  of  the  number 
of  Representatives  the  State  would  be  entitled  to.  And  the  Secretary  of  the  Inte- 
rior notified  the  governor  of  California  that  he  had  apportioned  three  Representa- 
tives to  the  State  for  the  Thirty-eighth  Congress.  The  State,  however,  concluded 
that  they  were  entitled  to  them  for  the  Tliirty-seventh  Congress  under  the  law. 

The  majority  of  the  committee  held  that  the  claim  was  based  upon  too  strict 
and  narrow  a  construction  of  the  law  of  1850.  That  law,  as  a  whole,  was  intended 
to  provide  "that  each  subsequent  census  and  apportionment  should  be  made  pre- 
cisely as  was  provided  in  that  statute  for  those  then  about  to  be  made."  And  the 
law  of  1850,  therefore,  should  be  held  to  mean  that  the  time  of  future  apportion- 
ments should  correspond  to  that  therein  provided,  the  apportionment  taking  effect 
March  3,  185.3.  So  the  next  apportionment  should  take  effect  March  3,  1863.  The 
committee  felt  that  every  reasonable  rule  of  construction  suggested  this  conclusion. 
The  committee  say: 

So  far  as  the  committee  have  been  able  to  ascertain  from  the  cotemporaneous  history,  or  the  discus- 
sions in  either  House  on  its  passage,  or  any  subsequent  criticism  of  it,  till  the  present  case  has  arisen,  the 
idea  never  occurred  to  anyone  that  it  provided,  in  this  regard,  one  rule  for  the  census  of  1850  and  conse- 
quent apportionment  and  a  different  one  for  any  subsequent  census  and  apportionment.  On  (he  other 
hand,  there  is  much  reason,  if  not  constitutional  obligation,  tliat  the  rule  should  be  the  same  for  all,  and 
that  the  last  apportionment  having  been  fixed  to  take  effect  "from  and  after  the  3d  day  of  March,  1853," 
the  next  should  not  take  effect  till  ten  years  thereafter,  or  from  and  after  the  3d  day  of  March,  1863. 
The  apportionment  must  follow  and  be  based  upon  the  census.  The  Constitution  says  Representatives 
shall  be  apportioned  among  the  several  States  "according  to  their  respective  numbers;"  and  to  ascer- 
tain these  numbers  the  same  section  provides  that  "the  actual  enumeration  shall  be  made  within  three 
years  after  the  fhst  meeting  of  the  Congress  of  the  United  States,  and  within  every  subsequent  term  of 
ten  years,  in  such  manner  as  they  shall  by  law  direct."  The  Constitution  evidently  contemplated  a 
census  only  once  in  ten  years,  and  consequently  a  new  apportionment  based  upon  such  census  only  once 
in  ten  years.  The  time  when  the  First  Census  should  be  taken  was  not  fixed,  only  it  must  be  "within 
three  years  after  the  first  meeting  of  the  Congress  of  the  United  States."  Now,  Congress  did  provide  for 
taking  the  First  Census  in  1790,  the  next  in  1800,  and  in  1810,  and  in  1820,  1830,  1840,  and  1850.  So 
Congress  has  also  provided  by  legislation,  once  in  every  ten  years,  that  the  apportionment,  based  upon 


184  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  314 

each  one  of  these  enumerations,  respectively,  shall  take  effect  "from  and  after  the  3d  day  of  March, 
1793,"  "from  and  after  the  3d  day  of  March.  1803,"  and  from  and  after  the  same  day  in  1813,  1823,  1833, 
1843,  and  1853.  In  the  absence  of  express  enactment  to  the  contrary,  the  committee  can  not  doubt  that 
it  was  likewise  the  intention  of  Congress,  in  providing  for  the  Eighth  Census,  to  provide  that  it  shall  be 
taken  in  1860,  and  that  the  apportionment  based  upon  it,  like  all  that  had  preceded  it,  should  take 
effect  in  the  corresponding  year,  viz,  from  and  after  the  3d  of  March,  18G3.  If  it  be  held  that  apportion- 
ments of  Representatives  can  not  be  made  oftener  than  a  Federal  census  is  taken,  and  that  the  Constitu- 
tion requires  that  that  shall  be  taken  only  once  in  ten  years,  then  it  follows  that  the  apportionment  based 
upon  the  census  of  1860  can  not  take  effect  till  the  4th  of  March,  1863;  else  the  period  between  the  last 
two  apportionments  would  be  eight  instead  of  ten  years,  while  the  period  between  all  the  rest  would  be 
ten  years. 

All  construction  of  the  constitutional  obligation  upon  Congress  to  provide  by  law  for  the  several 
"enumerations,"  and  the  apportionments  based  upon  them,  is  uniform,  and  the  course  of  legislation  is 
without  any  conflict,  all  uniting  in  forcing  upon  the  committee  the  construction  they  put  upon  this 
statute,  that  its  intendment  is  that  the  apportionment  based  upon  the  census  of  1860  shall  take  effect 
from  and  after  the  3d  of  March,  1863. 

The  committee  then  discussed  the  inconveniences  of  any  other  construction 
were  the  same  rule  contended  for  by  CaUfomia  appUed  to  other  States. 
The  committee  say  further : 

But  this  Congress  has,  by  positive  enactment,  declared  when,  in  its  opinion,  the  apportionment 
based  upon  the  census  of  1860  shall  take  effect.  In  an  act  passed  only  the  last  month,  to  modify  that 
apportionment  and  give  to  several  States  therein  named  a  greater  number  of  Representatives  than  the 
apportionment  under  the  statute  of  1850  had  given  them.  Congress  has  expressly  enacted  that  the  act 
shall  take  effect  from  and  after  the  3d  day  of  March,  1863. 

The  minority  of  the  committee,  laying  stress  on  the  mandate  that  the  ^Secretary 
of  the  Interior  transmit  "without  delay"  to  the  States  certificates  of  the  numbers 
of  Representatives  they  were  entitled  to,  and  upon  their  inability  to  find  any  pro- 
vision of  the  statute  to  prevent  the  apportionment  taking  effect  immediately,  con- 
tended that  the  apportionment  applied  to  the  Thirty-seventh  Congress.  Moreover, 
an  act  of  July  30,  1852,  provided  that  California  should  retain  the  number  of  Rep- 
resentatives provided  by  the  act  of  admission  to  the  Union  ' '  until  a  new  apportion- 
ment." Congress  also  had  apportioned  a  direct  tax  to  California  on  the  basis  of  the 
census  of  1860.  Could  she,  under  the  Constitution,  be  deprived  of  the  Representa- 
tives allowed  by  that  census? 

Either  California  was  entitled  to  three  Representatives  or  none  by  virtue  of  the 
last  election.  All  were  elected  on  a  general  ticket,  and  the  minority  could  not  see 
how  Messrs.  Phelps  or  Sargent  could  retain  their  seats  if  Mr.  Low  be  excluded.  It 
was  a  well-settled  rule  of  the  House  "that  if  any  State  return  more  Members  than 
she  is  entitled  [to],  the  election  is  void,  and  all  must  be  excluded." 

As  to  another  argument  of  the  majority,  the  minority  urged  that  States,  like 
individuals,  could  not  be  deprived  of  their  legal  rights  because  others  failed  to  ask 
for  theirs. 

The  report  was  debated  on  May  6,' and  on  the  same  day  the  question  was  taken 
on  a  substitute  proposition  declaring  Mr.  Low  entitled  to  the  seat.  This  was 
disagreed  to — yeas  49,  nays  69. 

1  Globe,  pp.  1967-1971. 


§  315  THE  ELECTORS  AND  APPORTIONMENT.  185 

Then  the  resolution  of  the  committee  declaring  Mr.  Low  not  entitled  to  the 
seat  was  agreed  to  without  division.* 

On  June  2,  1862,  an  act  of  Congress^  was  approved,  reciting  the  fact  that  Cali- 
fornia had  population  sufficient  for  three  Representatives,  that  three  had  been 
duly  elected,  as  appeared  by  the  governor's  certificate,  and  that  direct  taxes  had 
been  apportioned  on  a  basis  to  justify  three  Representatives;  and  therefore  increas- 
ing the  representation  of  the  State  to  three  Members  for  the  Thirty-seventh  Congress. 

On  June  3,  in  accordance  with  this  act,  Mr.  Low  appeared  and  took  the  oath.^ 

315.  The  Tennessee  election  case  of  Thomas  A.  Hamilton  in  the 
Fortieth  Congress. 

The  House  did  not  give  prima  facie  effect  to  credentials  regular  in 
form  but  borne  by  a  person  in  addition  to  the  number  of  Representa- 
tives allowed  the  State. 

Instance  wherein  the  House  denied  the  privileges  of  the  floor  to  a 
claimant  for  a  seat. 

On  December  7,  1868,''  Mr.  Horace  Maynard,  of  Tennessee,  presented  the  creden- 
tials of  Thomas  A.  Hamilton  as  a  Member-elect  from  the  State  of  Tennessee  at  larse. 
It  was  explained  that  Tennessee  thought  herself  entitled  to  this  additional  Repre- 
sentative because  of  the  large  number  of  colored  people  she  had  voluntarily  admitted 
to  citizenship.  It  was  admitted  that  this  Representative  would  be  in  addition  to 
the  number  allowed  Tennessee  by  the  law  of  Congress. 

No  proposition  was  made  to  administer  the  oath  to  Mr.  Hamilton,  although  his 
credentials  were  regular  in  form;  and  they  were  referred  to  the  Committee  of  Elec- 
tions without  division. 

Mr.  Maynard  moved,  however,  that  he  be  allowed  the  privileges  of  the  floor 
pending  the  decision  of  his  claim.  After  debate  as  to  the  precedents,  this  motion 
was  decided  in  the  negative — ayes  45,  noes  85. 

316.  The  Tennessee  election  case  of  Thomas  A.  Hamilton,  continued. 
The  House  denied  the  claim  of  a  State  to  representation  greater  than 

the  apportionment  had  given  to  her  when  the  reasons  for  such  claim 
applied  to  many  other  States. 

Discussion  of  the  constitutional  questions  relating  to  apportionment. 

Review  of  the  acts  of  Congress  giving  increased  representation  in 
special  cases. 

On  February  18,  1869,°  Mr.  Samuel  Shellabarger,  of  Ohio,  submitted  the  report 
of  the  committee,  who  were  imanimously  of  the  opinion  that  in  the  absence  of  an 
act  of  Congress  increasiag  the  representation  of  the  State  the  claimant  could  not  be 
admitted. 

'  Journal,  pp.  647,  648. 

■  12  Stat.  L.,  p.  411. 

'Journal,  p.  787;  Globe,  p.  2532. 

*  Third  session  Fortieth  Congress,  Journal,  pp.  8,  9;  Globe,  pp.  8,  9. 

«  House  Report  No.  28;  2  Bartlett,  p.  499;  Rowell's  Digest,  p.  228;  Globe,  pp.  1329, 1330. 


186  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  316 

As  to  the  advisability  of  passing  an  act  the  committee  divided.  The  majority 
held  that  such  a  law  should  not  be  passed.     They  said : 

Mr.  Hamilton  rests  his  claim  to  a  seat,  and  his  demand  that  a  law  shall  be  passed,  upon  substantially 
the  following  facts  and  considerations: 

That  in  1865  the  people  of  Tennessee  voluntarily  emancipated  their  slaves,  and  thereby  added 
two-fifths  of  these,  being  by  the  census  of  18G0  110,287,  to  the  representative  population  of  that  State 
and  making  the  entire  representative  population  of  the  State  now  1,009,801,  assuming  that  it  is  the  same 
as  shown  by  that  census;  that  this  entitles  the  State  to  9  Representatives,  retaining  the  same  ratio  of 
representation  (127,000)  as  that  upon  which  the  apportionment  was  made  in  1861. 

It  is  urged  that  this  being  done  when  it  was,  and  voluntarily  by  act  of  the  people,  and  being  accom- 
panied by  enfranchisement  of  the  colored  race,  distinguishes  the  claim  of  Tennessee  for  the  represen- 
tation of  her  freed  people  from  the  States  where  the  enfranchisement  was  subsequent  and  the  result  of 
Federal  coercion.  It  is  also  claimed  that  the  second  article  of  the  fourteenth  amendment,  making  the 
rights  of  representation  to  be  in  proportion  to  the  numbers  of  the  voting  races,  sustains  this  claim.  It  is 
further  urged  that  the  refusal  of  it  would  dishearten  the  freedmen  of  Tennessee,  who  are  alleged  to  regard 
the  claimant  as  especially  their  representative,  and  would  be  disastrous  to  their  interests  as  a  race,  now 
in  especial  need  of  the  recognition  and  protection  of  their  Government. 

Upon  substantially  these  considerations,  as  is  alleged ,  the  general  assembly  of  Tennessee,  on  the  12th 
of  March,  1868,  adopted  a  joint  resolution  requiring  the  governor  "  to  issue  a  writ  of  election,  to  the  State 
at  large,  for  the  purpose  of  electing  one  additional  Member  to  the  Congress;"  and  the  claimant  presents 
the  certificate  of  the  governor  showing  that  on  the  first  Tuesday  of  November,  1868,  the  claimant  waa 
elected  by  the  people  of  the  State  at  large  a  Representative  of  the  State  of  Tennessee  in  the  Fortieth 
Congress. 

After  citing  the  clause  of  the  Constitution  relating  to  apportionment  the  report 

says: 

What,  then,  is  the  legislation  of  the  Constitution  upon  this  subject,  and  what  the  rule  by  which  it 
has  bound  the  powers  and  discretions  of  this  House  and  of  the  Congress?  These  are  plain,  unambiguous, 
and  complete.     Those  requirements  of  this  rule  which  are  material  to  be  here  considered  are — 

First.  That  the  apportionment  must  be  made  to  each  of  the  several  States.  The  Congress,  by  other 
provisions  of  the  Constitution,  has  the  power  to  determine  when  a  Territory  or  people  are  such  in  numbers 
or  in  organization  or  in  attachment  to  the  Government  of  the  United  States  as  to  be  fit  or  entitled  to  be 
admitted  as  one  of  "the  several  States  included  in  the  Union."  But  being  so  admitted  and  recognized 
by  Congress  as  such  State,  the  Congress  has  no  discretion  as  to  the  apportionment  to  such  State  of  repre- 
sentation, but  must  accord  representation  to  each  State  so  admitted  and  recognized  by  Congress. 

Second.  This  apportionment  must  be  based  on  the  "  numbers"  of  the  Federal  populations.  Whether 
it  should  be  based  on  numbers  only,  and  if  so,  who  should  be  counted  in  the  enumeration,  was  a  matter 
of  the  most  profound  concern  in  the  convention  which  framed  the  Constitution,  and  one  which  came 
near  defeating  its  formation.  It  was  only  after  such  a  struggle  as  this  that  "numbers "  was  adopted  as 
the  basis  of  representation,  and  its  importance  and  the  duty  of  having  strict  regard  to  it  is  indicated 
by  the  history  of  its  adoption. 

Third.  In  making  the  apportionment  on  this  basis  of  "numbers,"  there  must  be  apportioned  to  each 
one  of  the  several  States  that  proportion  or  part  of  the  aggregate  membership  of  the  House  of  Represent- 
atives which  that  State  has  of  the  aggregate  representative  population  of  the  United  States. 

Fourth.  The  enumeration  upon  which  the  apportionment  is  based  must  be  the  one  required  to 
be  taken  within  every  term  of  ten  years  in  such  manner  as  the  Congress  shall  by  law  direct. 

The  committee  proceed: 

Having  regard,  then,  to  these  controlling  requirements  of  the  Constitution,  the  majority  of  your 
committee  finds  it  difficult  to  discover  any  authority  by  which  Congress  shall  assign  to  one  of  the  several 
States  an  increase  of  representation  on  account  of  its  increased  numbers  of  representative  population, 
and  yet  withhold  it  from  other  States  shown  to  the  same  Congress,  at  the  same  time,  and  by  the  same 
known  and  historic  events,  to  have  had  a  similar  or  greater  increase  of  Federal  numbers.  Indeed,  this 
would  be  so  plainly  a  disregard  of  the  evident  requirements  of  the  Constitution  and  of  the  rules  of  equality 


§  316  THE    ELECTORS    AND    APPORTIONMENT.  187 

of  representation  secured  by  it  to  the  several  States,  that  it  need  not  be  considered  by  the  committee; 
and  so  plain  that  this  was  not,  in  terms,  demanded  by  the  claimant  or  bj'  the  Representative  from  Tennes- 
see before  the  committee.  And  hence  it  is  that  the  claim  of  Tennessee  in  this  case  is  vindicated  and 
pressed  upon  tlie  favor  of  the  House  upon  the  ground,  mainly,  that  the  claim  of  Tennessee  is  distin- 
guishable from  what  could  be  demanded  by  tlie  other  late  slave  States.  This  distinction  is  rested,  as 
we  have  already  stated,  upon  the  alleged  fact  that  in  1865,  during  the  recent  rebellion,  and  in  aid  of 
its  suppression,  the  slaves  of  that  State  were,  by  the  voluntary  act  of  the  people,  emancipated, 
enfranchised,  and  added  to  the  representative  numbers  within  such  State,  while  in  all  the  other 
States  the  emancipation  and  enfranchisement  and  addition  to  Federal  pojjulation  was,  on  the  part  of 
the  people,  involuntary  and  by  the  coercions  of  the  war.  Something  is  also  claimed  by  Tennessee  in 
virtue  of  the  fourteentli  constitutional  amendment,  as  we  have  above  stated. 

In  regard  to  this  last  claim,  based  upon  the  second  section  of  the  fourteenth  amendment,  it  is  suffi- 
cient for  the  purposes  of  the  present  inquiry  to  say  that  it  can  have  no  possible  effect  upon  the  conclu- 
sions reached  in  this  case  unless  it  be  the  effect  of  leading  to  a  reapportionment  of  Representatives  to 
each  of  the  several  States  in  the  Union. 

Neither  in  the  fourteenth  amendment  nor  in  the  voluntary  emancipation  of 
the  slaves  does  the  committee  find  justification  for  special  action  in  the  case 
of  Tennessee. 

As  to  the  precedents,  the  majority  say: 

It  is,  of  course,  not  only  impossible  to  find  a  precedent  in  former  legislation  for  a  case  like  this, 
but  it  is  equally  impossible  to  resist  the  conclusion  that  if  this  addition  to  the  representative  population 
of  the  States  is  to  be  recognized  as  entitling  one  State  to  increased  representation  now,  then  the  magni- 
tude of  the  accession  to  the  Federal  population  is  so  great  as  to  compel  a  reapportionment  of  the  entire 
representation  in  the  House  if  any  respect  is  to  be  paid  to  the  rule  that  Representatives  are  to  be  appor- 
tioned to  each  State  according  to  "numbers."  In  dealing  with  this  addition  to  representative  popula- 
tion the  Congress  is  not  dealing  with  mere  fractions  of  a  representative  population,  but  with  a  population 
entitled  to  elect  more  than  one-twentieth  part  of  the  entire  membership  of  this  House.  In  dealing  with 
such  a  large  and  often  controlling  proportion  of  the  vote  of  this  House,  it  can  not  be  that  the  Constitution 
permits  Congress  to  exercise  any  discretions  such  as  must  be  by  necessity  exercised  in  disposing  of  a 
mere  fraction  of  a  representative  population  in  a  State.  And  this  is  in  accordance  with  all  legislative 
precedents  upon  this  subject.     These  precedents  involve  and  sustain  the  following  propositions,  namely: 

1.  That  "the  Constitution  evidently  contemplated  a  census  only  once  in  ten  years,  and  consequently 
a  new  apportionment,  based  upon  such  census,  only  once  in  ten  years."  (See  Low's  case,  1862,  Con- 
tested Elections,  421,  approved  by  the  House  without  division.) 

2.  "The  census  and  apportionment  thus  connected  together  in  the  Constitution,  have  been  con- 
nected together  in  all  subsequent  legislation  of  Congress." 

3.  "There  can  be  no  such  thing  as  one  State  represented  according  to  one  apportionment  and  under 
one  census,  and  another  State  according  to  some  other  apportionment  biised  on  another  census.  The 
whole  number  of  Representatives  and  the  numlier  for  each  State  are  both  fixed  by  law,  and  by  the  same 
law.     There  can  not  be  one  law  for  one  State  and  another  law  for  another."     (See  same  case,  p.  423.) 

4.  All  former  special  acts  of  apportionment  have  been  passed,  at  least  professedly,  to  supplement 
the  acts  of  general  apportionment  and  to  complete  the  equality  of  that  apportionment  to  and  among 
each  and  every  one  of  the  several  States;  and  no  act  was  ever  passed  which  contemplated  or  recognized 
any  other  State  as  being  left  without  its  just  proportion  of  representation  as  contrasted  with  what  was 
accorded,  by  the  special  and  the  general  law,  to  every  other  State.  On  the  other  hand,  the  proposed  act 
in  favor  of  Tennessee  does  propose  to  accord  to  Tennessee  alone  increase  of  representation  upon  a  principle 
and  on  behalf  of  a  population  which  would  equally  entitle  other  States  to  a  like  or  greater  increase,  and 
yet  it  denies  the  increase  to  the  other  States. 

After  reviewing  the  precedents,  especially  the  California  case,  the  majority 
conclude : 

It  will  be  seen  that  each  of  them,  instead  of  being  a  precedent  for  allowing  a  State  increased  repre- 
sentation upon  a  claim  which  applied  with  equal  force  in  favor  of  other  Slates,  and  which  other  States  the 
special  act  left  unprovided  for,  are  cases  where  the  act  assumed  that  all  the  other  States  were  alreadv 


188  PRECEDENTS   OF   THE    HOUSE    OF   REPRESENTATIVES.  §  316 

more  fully  represented  than  the  States  provided  for  in  the  special  act,  and  that  such  act  was  required  to 
complete  the  equality  of  representation  as  between  each  one  and  all  of  the  several  States. 

Of  course,  the  numerous  acts  admitting  new  States,  and  giving  them  the  representation  their  "num- 
bers" entitle  them  to,  are  in  no  sense  analogous  to  this  proposed  bill,  because  these  acts  did  not  leave 
any  other  States  not  equally  represented  with  the  new  State.  What  is  deemed  by  the  committee  the 
fatal  objection  to  the  proposed  bill  is  that  it  gives  Tennessee  an  additional  Member  on  the  ground  of 
the  addition  of  110,287  to  her  representative  numbers  by  the  abolition  of  slavery,  while  it  passes  by, 
neglects,  and  refuses  to  give,  and  thereby  denies,  additional  Members  to  the  other  States  now  represented 
in  this  House,  who  have  added  nearly  ten  times  that  number  to  their  numbers  by  the  very  same  event 
and  fact  which  added  them  in  Tennessee.  It  can  not  be  successfully  claimed  that  acts  admitting  new 
States  and  giving  them  their  due  representation,  when  every  other  State  was  fully  represented,  and 
represented  equally  with  the  newly  admitted  State,  can  furnish  the  slightest  authority  or  a  precedent 
for  such  a  wrong  as  this  one  done  by  the  proposed  bill. 

The  conunittee  also  refer  to  the  fact  that  the  applicant  was  elected  from  the 
State  at  large,  and  criticise  it  as  in  violation  of  a  law  of  Congress. 

The  minority  of  the  committee  '  contended  that  the  law  asked  for  might  with 
propriety  be  passed.  After  discussing  the  general  laws  on  the  subject  of  apportion- 
ment, they  enumerate  the  special  acts : 

The  act  of  February  25,  1791,  chapter  9,  gave  2  Representatives  each  to  Kentucky  and  Vermont, 
until  there  should  be  "an  actual  enumeration  of  the  inhabitants  of  the  United  States."  By  the  act  of 
June  1,  1796,  chapter  47,  Tennessee  was  admitted  to  the  Union,  with  1  Representative  "until  the  next 
general  census."  The  act  of  April  30,  1802,  chapter  40,  enabled  Ohio  to  form  a  State,  and  gives  her  1 
Representative  "until  the  next  general  census." 

The  act  of  April  8,  1812,  chapter  50,  admitting  Louisiana,  gives  her  1  Representative  "until  the 
next  general  census."  The  act  of  April  19,  1816,  chapter  57,  enables  Indiana  to  form  a  State  govern- 
ment, and  until  the  next  general  census  entitles  her  to  1  Representative.  She  was  admitted  to  the 
Union  by  joint  resolution  December  11,  1816.  A  similar  act  was  passed  for  Mississippi  March  1,  1817, 
chapter  33,  and  a  similar  joint  resolution  December  10,  1817;  also  for  Illinois,  April  18,  1818,  chapter 
67,  and  December  3,  1818;  and  for  Alabama,  March  2,  1819,  chapter  47,  and  December  14,  1819. 

The  act  of  April  7,  1820,  chapter  39,  reduced  the  number  of  Representatives  in  the  Seventeenth 
Congress  from  the  State  of  Massachusetts  to  13,  and  gave  the  remaining  7  to  the  recently  formed  State 
of  Maine. 

The  general  apportionment  act  of  March  7,  1822,  gave  to  Alabama  2  Representatives.  The  fol- 
lowing year  a  special  act,  January  14,  1823,  chapter  2,  gave  her  an  additional  Member  upon  fuller  infor- 
mation as  to  the  number  of  her  inhabitants.  The  act  of  March  6,  1820,  chapter  22,  enables  Missouri 
to  form  a  State  government,  with  1  Representative  until  the  "next  general  census."  She  was  admitted 
to  the  Union  by  joint  resolution  March  2,  1821. 

The  act  of  June  15, 1836,  chapter  100,  admitted  Arkansas  to  the  Union,  with  1  Representative  "until 
the  next  general  census." 

The  legislation  by  which  Michigan  was  admitted  to  the  Union  was  attended  with  much  difficulty. 
It  will  be  found  in  the  acts  of  June  15,  183G,  chapter  99,  of  June  23,  1836,  chapter  121,  and  of  January 
26,  1837,  chapter  6,  and  its  difficulties  are  illustrated  by  the  debates  of  the  two  Houses.  In  the  present 
purpose  it  is  deemed  sufficient  to  refer  to  section  3  of  the  act  of  June  15,  1836,  which  provides  that  as 
soon  as  the  people  of  Michigan  should  have  complied  with  certain  fundamental  conditions  the  Prcsi. 
dent  should  announce  the  same  by  proclamation;  and  thereupon,  without  further  action  of  Congress, 
"the  Senators  and  Representatives  who  have  been  elected  by  said  State"  should  be  entitled  to 
take  their  seats  without  further  delay,  nothing  appearing  Ln  the  statutes  to  indicate  the  number  of 
Representatives. 

The  act  of  March  3,  1845,  chapter  48,  for  the  admission  to  the  Union  of  Iowa  and  Florida,  provides 
that  "until  the  next  census  and  apportionment"  each  State  be  entitled  to  1  Representative.     Iowa 

'  Those  concurring  in  the  minority  view  were  Messrs.  David  Heaton,  of  North  Carolina,  H.  I,. 
Dawes,  of  Massachusetts,  John  H.  Stover,  of  Missouri,  and  S.  Newton  Pettis,  of  Pennsylvania. 


§  316  THE    ELECTORS    AND    APPORTIONMENT.  189 

was  not,  in  fact,  admitted  under  this  act  and  not  until  near  the  close  of  the  following  year,  act  of  Decem- 
ber 28,  1846,  chapter  1;  but  no  further  provision  was  made  for  her  representation. 

The  joint  resolution  of  December  29,  1845,  chapter  1,  admits  Texas  to  the  Union,  with  2  Repre- 
sentatives until  the  next  apportionment. 

The  act  of  August  6,  1846,  chapter  89,  enables  the  people  of  Wisconsin  to  form  a  State  government, 
with  2  Representatives  "until  another  census"  and  apportionment. 

The  act  of  September  9,  18.50,  chapter  50,  admits  California  to  the  Union,  with  2  Representatives 
until  the  next  apportionment.  Before  that  time  the  Seventh  census  was  taken  pursuant  to  the  act  of 
May  23,  1850,  and  California  declares,  by  virtue  of  her  ascertained  numbers,  to  be  still  entitled  to  2 
and  only  2  Representatives;  and  yet  Congress  thought  proper,  by  act  of  June  2,  1862,  chapter  91,  for 
reasons  appearing  in  the  body  of  the  act,  to  accord  to  her  1  additional  Representative  in  the  Thirty- 
seventh  Congress. 

The  act  of  February  26, 1857,  chapter  60,  enables  the  people  of  Minnesota  to  form  a  State  government , 
and  provides  for  the  taking  of  a  census  in  the  Territory  with  a  view  to  ascertain  the  number  of  Represent- 
atives to  which,  as  a  State,  she  would  be  entitled.  The  act  of  May  11,  1858,  chapter  31,  admits  her  to 
the  Union,  with  2  Representatives  "  until  the  next  apportionment." 

The  act  of  February  14,  1859,  chapter  33,  admits  Oregon  to  the  Union,  with  1  Representative  "until 
the  next  census  and  apportionment." 

The  act  of  May  4,  1858,  chapter  26,  providing  for  the  admission  to  the  Union  of  Kansas,  under  the 
Lecompton  constitution,  and  that  of  January  29,  1861,  chapter  20,  admitting  her  under  the  Wyandotte 
constitiition,  both  declare  her  entitled  to  1  Representative  "until  the  next  general  apportionment." 

The  act  of  December  31,  1862,  chapter  6,  erects  a  portion  of  the  State  of  Virginia  into  the  new  State 
of  West  Virginia,  with  3  Representatives,  leaving  unchanged  the  number  to  which  Virginia  is  entitled. 

The  act  of  March  21,  1864,  chapter  36,  enables  the  people  of  Nevada  to  form  a  State  government, 
with  1  Representative  "until  the  next  general  census;"  and,  on  the  19th  of  April,  1864,  an  act  similar 
in  all  respects  was  passed  by  the  people  of  Nebraska,  under  which  acts  both  States  have  been  admitted 
to  the  Union,  completing  the  present  number,  37. 

These  various  acts  have  been  collated  at  some  pains,  to  show  how  completely  the  number  of  Repre- 
sentatives in  the  House  has  been  contested,  at  the  discretion  of  Congress,  a  discretion  scarcely  less  abso- 
lute than  that  of  each  House  over  "the  elections,  returns,  and  qualifications  of  its  own  Members." 

This  is  illustrated  by  the  arbitrary,  nay,  artificial  numbers,  at  which  the  ratio  was  successively  fixed, 
by  allowing  Representatives  for  the  fractions  of  the  ratio,  by  the  admission  of  new  States  with  1,  2, 
3,  or  more  Representatives  according  to  their  estimated  populations,  by  reducing  the  representation 
of  a  State  whose  population  had  been  reduced  by  the  excision  of  part  of  her  territory,  by  increasing  the 
representation  of  States,  as  in  the  case  of  Alabama  and  California,  when  it  was  manifested  that  their 
population  had  been  under  estimated,  and  by  determining  the  aggregate  number  of  the  House  and  requir- 
ing our  executive  officer  to  make  the  apportionment  among  the  several  States. 

It  is  illustrated  even  more  forcibly,  if  possible,  by  the  act  of  March  4,  1862,  chapter  36,  which 
increases  the  number  of  Representatives  from  233,  the  number  established  by  the  general  law  of  May  23, 
1850,  to  241,  giving  to  Pennsylvania,  Ohio,  Kentucky,  Illinois,  Iowa,  Minnesota,  Vermont,  and  Rhode 
Island,  each  1  additional  Member,  to  which  they  were  not  entitled  under  the  general  law. 

In  a  word,  these  acts  establish  the  general  proposition  that  Congress  has  complete  jurisdiction  to 
adjust  the  representative  numbers  of  the  House,  and  has  repeatedly  and  constantly  exercised  it  at 
discretion,  according  to  the  varied  equity  of  each  particular  case. 

In  conclusion  the  minority  say: 

The  precedents  cited  as  bearing  upon  the  case  are  as  weighty  and  significant  as  they  are  singularly 
numerous.  It  is  believed  they  have  not  been  or  can  not  be  successfully  met  or  explained  away.  These 
pointed  examples  of  the  unreserved  exercise  of  legislative  authority  are  in  themselves  a  powerful 
warrant  for  the  course  which  has  been  pursued  by  Tennessee.  The  vital  point  in  the  matter,  however, 
is  that  Tennessee  has  not  only  followed  "the  line  of  safe  precedent,"  but  has  conformed  strictly  to  the 
true  intent  and  meaning  of  the  fourteenth  article  of  the  Constitution. 

The  fact  that  Tennessee  happens  to  be  the  first  State  to  claim  the  practical  application  of  the  inesti- 
mable rights  conferred  in  said  article  should  not  be  regarded  as  anomalous  or  involving  a  precedent  of 
doubtful  or  "dangerous  policy." 


190  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  '^17 

Objections  founded  upon  any  such  reasoning  are  altogether  likely  to  he  speculative  and  fallacious, 
and  lead  to  great  injustice  and  wrong. 

To  admit  the  correctness  of  the  somewhat  sweeping  statement  that  the  admission  of  the  claimant 
would  be  "a  most  dangerous  precedent,"  would  certainly  be  a  most  severe  commentary  upon  many  of 
the  deliberate  acts  of  the  Congresses  preceding  the  present. 

In  the  present  instance  Tennessee  claims  no  right  or  privilege  she  would  not  willingly  concede  to 
any  other  State  having  a  similar  record. 

If,  upon  a  fair  investigation  of  the  grounds  upon  which  she  bases  her  right  to  an  additional  Repre- 
sentative, it  is  found  her  cause  rests  upon  merit  and  justice,  and  is  sustained  by  unquestionable  authority, 
her  demand  should  receive  a  prompt  and  favorable  response.  To  deny  to  her  a  manifest  constitutional 
right  upon  the  questionable  and  untenable  objection  that  some  other  State  may  set  up  a  similar  claim, 
would  surely  afford  abundant  grounds  for  criticism,  and  come  in  direct  antagonism  with  the  policy  here- 
tofore maintained  and  pursued  by  Congress. 

The  report  was  not  acted  on  by  the  House. 

317.  The  Tennessee  election,  case  of  John  B.  Rodgers  in  the  Forty- 
first  Congress. 

The  House  denied  the  claim  of  a  State  to  representation  greater  than 
the  apportionment  had  given  to  her  when  the  reasons  for  such  claims 
applied  to  many  other  States. 

The  Clerk  declined  to  enroll  a  person,  bearing  regular  credentials,  but 
claiming  to  be  a  Representative  in  addition  to  the  number  apportioned  to 
his  State. 

The  House  did  not  give  prima  facie  effect  to  regular  credentials  borne 
by  a  person  claiming  a  seat  in  addition  to  those  assigned  to  a  State  by 
law. 

On  the  organization  of  the  House  on  March  4,  1869,'  Mr.  John  B.  Rodgers,  of 
Tennessee,  appeared  with  credentials  showing  him  to  have  been  elected  as  Repre- 
sentative-at-large  in  Tennessee.  The  Clerk  did  not  put  him  on  the  roll  of  Members- 
elect,  nor  did  the  House  subsequently  order  the  oath  to  be  administered  to  him, 
the  law  apportioning  Members  not  allowing  a  place  for  him  in  the  Tennessee  dele- 
gation. His  credentials,  however,  were  referred  to  the  Committee  on  Elections, 
and  on  April  7  '  Mr.  David  Heaton,  of  North  Carolina,  presented  the  report  of  the 
majority  of  the  committee.  After  citing  the  precedents  in  relation  to  apportion- 
ment, the  report  says: 

The  case  of  Tennessee  is  this;  According  to  the  census  of  1860,  the  inhabitants  of  the  United  States, 
reckoning  all  free  persons  and  three-fifths  of  all  others,  numbered  29,553,273.  Divide  by  241,  the 
number  of  Members  now  composing  the  House,  it  gives  122,627  as  the  present  representative  ratio. 
Tennessee  had  834,082  free  inhabitants,  white  and  colored,  and  275,719  slaves,  a  total  of  1,109,801. 
Three-fifths  of  her  slaves,  however,  added  to  her  free  population,  on  the  principle  of  the  representative 
enumeration,  made  999,514,  by  virtue  whereof  she  has  now  8  Representatives. 

In  February,  1865,  she,  by  voluntary  act,  a  popular  vote,  manumitted  and  emancipated  her  275,719 
slaves,  nearly  one-fourth  of  her  population.  Two-fifths  of  this  number,  110,288,  are  thereby  added  to 
those  already  entitled  to  representation.  This,  with  a  previous  representative  fraction,  leaves  128,785 
for  which  the  State  has  no  Representative,  counting  only  the  population  as  it  was  in  1860.  This  excess 
of  popular  numbers  over  the  number  of  her  present  Representatives  is  not  the  result  of  growth  or  natural 
increase,  in  which  the  several  parts  of  the  countrj'  are  presumed  to  keep  pace,  at  least  until  the  contrary 
is  demonstrated  by  the  census,  but  of  a  great  political  act  as  conspicuous  and  distinctive  as  would  be 

'  First  session  Forty-first  Congress,  Journal,  p.  5;  Globe,  pp.  38,  100. 
2  House  Report  No.  12;  2  Bartlett,  p.  941; 


§317 


THE    ELECTOKS    AND    APPORTIONMENT.  191 


the  annexation  of  a  foreign  territory  containing  so  many  people.  For  the  purpose  of  this  inquiry  it  is  as 
if  the  boundaries  of  Maine  were  by  treaty  extended  to  embrace  Nova  Scotia,  with  110,288  inhal^itants. 
Is  it  equitable  and  just  that  they  should  be  denied  a  Representative?    The  undersigned  think  not. 

Since  the  voluntary  action  of  Tennessee  in  emancipating  her  slaves  Congress  has  taken  not  only 
an  important  step  toward  settling  the  status  of  American  citizenship,  but  also  indicating  a  further  proper 
basis  of  representation.  On  the  16th  of  June,  186(5,  what  is  known  as  Article  XIV  was  submitted  to  the 
legislatures  of  the  different  States.  On  July  20,  1868,  this  article  was  formally  proclaimed  as  a  part  of 
the  Constitution  of  the  United  States  by  the  Secretary  of  State.  The  second  section  of  said  article,  to 
which  particular  attention  is  invited,  reads  as  follows: 

"Sec  2.  Representatives  shall  be  apportioned  among  the  several  States  according  to  their  respective 
ntmibers,  counting  the  whole  number  of  persons  in  each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  executive  and  judicial  officers  of  a  State,  or  the  members  of  the 
legislature  thereof  is  denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years  of  age, 
and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such  State." 

This  section,  though  general  in  its  terms,  was  adopted  with  particular  reference  to  the  recently 
emancipated  colored  population,  and  is  a  declaration  to  the  several  States  in  which  this  population  is 
found  that  if  they  are  enfranchised  the  State  shall  be  represented  accordingly;  if  not,  representation  shall 
be  diminished.     It  either  means  this  or  is  a  mockery  and  means  nothing. 

As  soon  as  possible  after  the  promulgation  of  the  proposed  amendment — on  the  16th  of  June,  1866 — 
Tennessee  convened  her  legislature  and  ratified  it.  She  then  changed  her  franchise  laws  to  conform  to 
the  spirit  of  this  amendment  by  removing  from  all  colored  people  within  her  boundaries  all  civil  and 
political  disabilities  and  conferring  upon  them  the  right  to  elect  and  to  be  elected  to  every  office  from 
the  highest  to  the  lowest.  Having  done  this,  and  the  fourteenth  article  having  become  valid  as  a  part  of 
the  Constitution,  what  was  before  a  claim  for  full  and  complete  representation,  resting  in  the  discretion  of 
Congress,  became  now  an  absolute  constitutional  right.  For  it  must  be  borne  in  mind  always  that  this 
action  of  Tennessee  has  been  her  own,  independent  and  in  advance  of  executive  proclamations,  constitu- 
tional amendments,  and  reconstruction  acts.  She  has  met  all  the  conditions  of  the  Constitution  in  a 
spirit  of  the  most  cheerful  loyalty,  and  has  created  in  her  favor  an  obligation  which  can  not  be  canceled 
by  being  denied. 

Her  legislature,  viewing  the  matter  in  this  obvious  light,  has  by  appropriate  action  provided  for  the 
election  of  an  additional  Representative.  On  the  3d  day  of  November,  1868 — the  day  of  the  late  Presi- 
dential election,  and  the  day  designated  by  law  for  the  election  of  Members  of  Congress  in  Tennessee — 
the  people  of  that  State,  fully  impressed  that  they  were  fairly  entitled  to  an  additional  Representative, 
proceeded  to  elect,  and  did  elect,  the  Hon.  John  B.  Rodgers  to  the  Forty-first  Congress. 

It  was  a  matter  of  general  notoriety  in  Tennessee,  some  time  before  it  occiured,  that  such  an  election 
would  be  held.  The  people  of  the  State  were  duly  advertised  of  the  fact  by  the  act  of  the  legislature  and 
executive  proclamations.  The  friends  of  the  present  applicant  for  a  seat  brought  him  forward  as  a  candi- 
date at  a  popular  convention,  unusually  largely  attended,  at  the  capital  of  the  State.  The  popular  will 
was  fully  reflected  at  the  polls  in  the  fact  that  the  applicant  received  nearly  as  many  votes  as  were  cast  in 
that  State  on  the  same  day  for  the  prevailing  Presidential  electoral  ticket.  The  places  for  voting  in  this 
case  were  the  same  as  those  at  which  votes  were  given  by  persons  of  different  political  proclivities  for  dif- 
ferent candidates  for  Congress  and  candidates  for  electors  for  President  and  Vice-President.  Retiu-ns  of 
the  result  in  different  counties  were  made  in  due  form  to  the  secretary  of  state,  as  appears  in  official 
documents  duly  certified  to.     On  these  returns  credentials  in  due  form  were  issued. 

The  report  urges  that  Tennessee  has  conformed  to  the  requirements  of  the 
fourteenth  amendment,  and  because  she  was  the  first  State  so  to  do  should  not 
count  agamst  her. 

Therefore,  the  majority  recommended  the  enactment  of  a  law  to  increase  the 
representation  of  Tennessee  by  one. 

The  minority  of  the  committee  call  attention  to  the  fact  that  the  additional 


192  PRECEDENTS    OF   THE   HOUSE   OF   KEPRESENTATIVES.  §  317 

seat  may  be  claimed  on  the  authority  of  no  existing  law,  and  deny  that  the  facts  and 
precedents  justify  the  passing  of  such  a  law: 

The  provision  of  the  Constitution  of  the  United  States  which  regulates  representation  is  as  follows: 

"Representation  and  direct  taxes  shall  be  apportioned  among  the  several  States  which  maybe 
included  within  the  Union  according  to  their  respective  numbers,  which  shall  be  determined  by  adding 
to  the  whole  number  of  free  persons,  including  those  bound  to  serv  ce  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  three-fifths  of  all  other  persons.  The  actual  enumeration  shall  be  made  within  three 
years  after  the  first  meeting  of  the  Congress  oi  the  United  States,  and  within  every  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct.  The  number  of  Representatives  shall  not  exceed  one 
for  every  thirty  thousand,  but  each  State  shall  have  at  least  one  Representative." 

The  second  section  of  the  fourteenth  article  of  amendments  to  the  Constitution  relates  to  the  same 
subject,  and  modifies,  to  some  extent,  so  much  of  the  above  as  relates  to  representation,  and  is  as  follows: 

"Sec.  2.  Representatives  shall  be  apportioned  among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  executive  and  judicial  officers  of  a  State,  or  the  members  of  the 
legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years  of  age, 
and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such  State." 

While  these  provisions  differ  as  to  the  manner  in  which  the  representative  numbers  in  the  States 
shall  be  ascertained,  they  agree  in  providing  that  Representatives  shall  be  apportioned  among  the  States 
according  to  these  numbers,  and  we  have  thus  a  definite  and  absolute  rule  established,  according  to  which 
apportionment  shall  be  made,  and  which  forbids  any  assignment  of  Representatives  to  any  State  for  any 
other  reason,  and  which  requires  that  if  representation  be  given  to  one  State  equal  proportionate  repre- 
sentation shall  be  given  to  any  other  State  similarly  situated  in  respect  of  its  representative  numbers  or 
population. 

The  provision  of  the  Constitution  first  above  quoted  also  provides  the  means  for  making  the  appor- 
tionment so  required,  by  requiring  that  once  in  ten  years  an  actual  enumeration  shall  be  made;  and  it 
would  follow,  by  fair  implication,  that  a  reapportionment  should  only  be  made  after  such  enumeration 
had  shown  its  necessity.  The  practice  of  the  Government  has  been  unifonnly  in  accordance  with  this 
view  since  the  adoption  of  the  Federal  Constitution. 

After  each  decennial  census,  and  at  no  other  time,  a  new  apportionment  of  Representatives  has  been 
made  among  the  States,  and  to  each  State  according  to  its  Representative  population  as  fixed  by  the 
Constitution  and  ascertained  by  the  census. 

The  legislation  of  Congress  admitting  new  States  forms  no  exception  to  this  rule,  since  under  the 
Constitution  they  may  be  admitted  at  any  time,  and  by  the  provision  above  quoted  each  must  have 
at  least  1  Representative;  but,  subject  to  this  last  provision,  the  number  of  Representatives  allowed 
to  each  new  State  has  always  been  the  number  to  which  it  was  supposed  to  be  entitled  by  its  represent- 
ative population,  upon  the  ratio  of  the  last  preceding  apportionment.  The  act  of  March  4,  1862,  by 
which  the  aggregate  membership  of  the  House  was  increased  from  233  to  241,  and  1  additional  member 
was  given  to  each  of  the  States  of  Ohio,  Pennsylvania,  Kentuclcy,  Illinois,  Iowa,  Minnesota,  Vermont, 
and  Rhode  Island,  and  also  the  acts  of  January  14,  1823,  and  of  June  2,  1862,  by  which  Alabama  and 
California  were  each  allowed  a  member  in  addition  to  the  number  previously  apportioned  to  them 
also,  are  not  exceptions,  since  the  first  was  passed  to  give  representation  to  large  fractions  of  represent- 
ative population  which  would  otherwise  be  unrepresented,  and  the  last  two  were  intended  to  correct 
errors  arising  from  insufficient  census  returns  in  the  apportionment  previously  made  to  those  States. 

We  have  no  right,  therefore,  under  the  Constitution  and  the  uniform  practice  of  our  legislative 
history,  to  give  representation  to  the  110,287  slaves  in  Tennessee,  as  shown  by  the  census  of  1860,  who 
were  excluded  from  making  a  part  of  the  representative  population  of  that  State  under  the  Constitution 
as  it  stood  in  1860,  but  who,  as  freemen,  if  now  living  in  that  State,  would,  under  the  same  Constitu- 
tion, be  a  part  of  such  representative  number,  without  at  the  same  time  providing  for  equal  representa- 
tion to  the  1,469,92.5  persons  in  other  States,  who,  slaves  then,  have  since  become  free.  The  fact  that 
the  slaves  of  Tennessee  became  freemen  by  the  voluntary  act  of  the  people  of  the  State,  while  those 


§  318  THE  ELECTORS  AND  APPOKTIONMENT.  193 

of  other  States  were  made  such  without  the  assent  and  against  the  will  of  the  people  of  those  States, 
can  not  affect  the  question,  since  it  is  the  fact  of  their  freedom,  and  not  the  manner  in  which  they 
became  free,  which  alone  has  any  legal  significance  in  the  case. 

It  is  no  answer  to  this  objection  that  no  other  State  than  Tennessee  asks  for  this  additional  repre- 
sentation. It  is  the  duty  of  Congress  to  apportion  Representatives  among  the  States  according  to  their 
respective  numbers,  and  this  whether  the  States  ask  for  it  or  not;  and  to  give  additional  representation 
to  Tennessee,  while  withholding  it  from  States  equally  entitled  to  it,  and  upon  facts  equally  within 
our  knowledge,  would  be  a  violation  of  this  duty. 

The  passage  of  such  a  general  law  at  this  time  would  not  be  proper,  since  the  adoption  of  the  four- 
teenth amendment  has  given  a  new  rule  for  ascertaining  representative  numbers,  and  Representatives 
are  required  to  be  apportioned  among  the  several  States  according  to  those  numbers.  No  enumeration 
heretofore  made  of  the  people  of  the  United  States  would  enable  us  to  ascertain  the  present  represent- 
ative numbers  of  the  several  States.  Such  an  enumeration,  however,  must  be  made  under  the  Con- 
stitution before  the  close  of  the  next  year.  Then,  and  not  till  then,  can  an  apoortionment  be  made  such 
as  the  Constitution  now  requires. 

There  is  another  consideration  to  which  the  minority  deem  it  proper  to  call  attention,  and  which 
seems  to  answer  fully  the  equitable  ground  for  this  claim,  urged  on  the  part  of  the  State  of  Tennessee. 

The  next  census  will  undoubtedly  show  a  very  large  increase  of  the  population  of  the  United  States. 
This  increase  has  been  added,  almost  entirely,  to  the  population  of  the  States  which  were  loyal  during 
the  war,  and  were  not  slave-holding  States  at  its  commencement.  During  the  war  the  immigration 
to  this  coimtry  was  excluded  from  the  Southern  States  by  the  blockade,  and  by  the  presence  of  our 
armies,  and  since  has  been  almost  equally  excluded  by  the  distracted  condition  of  those  States. 

The  loss  of  life  and  the  check  to  the  increase  of  population  from  other  causes  is  also  believed  to 
have  been  much  greater  in  the  States  which  were  the  immediate  seat  of  hostile  operations.  We  do 
not  believe  that  anyone  will  seriously  question  that  the  apportionment  of  1862,  based  upon  the  census 
of  1860,  gives  to  each  of  the  lately  slave-holding  States  a  larger  proportionate  representation  than  they 
would  be  entitled  to  upon  an  enumeration  made  at  the  present  time,  and  according  to  the  rule  by 
which  such  representation  must  now  be  made.  To  yield  the  claim  of  Tennessee  would  increase  this 
disproportion,  and  would  be  unjust  to  the  States  which  were  faithful  to  the  Union  through  all  its  trials 
and  who  by  their  fidelity  saved  the  Republic. 

Therefore  the  minority  recommend  that  the  question  be  deferred  until  after  the  next  census. 

The  report  in  this  case  was  never  acted  on,  but  on  March  1,  1871/  the  House 
discharged  the  committee  from  furtlier  consideration  of  the  subject  and  agreed  to 
a  resohition  compensating  Mr.  Rodgers  for  his  expenditures  in  presenting  his  case. 

318.  The  Virginia  election  case  of  Joseph  Segar  in  the  Forty-first 
Congress. 

After  the  division  of  Virginia  the  House  recognized  a  division  of  the 
old  representation  bet^ween  the  t^vo  States,  without  specific  provisions  of 
law. 

The  House  declined  to  give  prima  facie  effect  to  credentials  regular  in 
form,  relating  to  a  seat,  in  addition  to  those  to  which  the  State  was 
entitled. 

After  reconstruction  the  credentials  of  all  the  Virginia  delegation 
were  referred  before  the  bearers  were  admitted. 

At  the  second  session  of  the  Forty-first  Congress  the  Members-elect  of  the 
Virginia  delegation  were  not  permitted  to  take  the  oath  imtil  their  credentials  were 
examined  by  the  Committee  on  Elections.     Then  all  were  sworn  in  except  Mr. 

'  Third  session,  Journal,  p.  449;  Globe,  p.  1801. 
5994— VOL  1—07 13 


194  PRECEDENTS   OF  THE   HOUSE   OF   EEPEESENTATIVES.  §   318 

Joseph  Segar,  who  had  been  elected  for  the  State  at  large,  as  was  made  plain  by  his 
credentials : 

To  all  whom  it.  may  corxcern: 

This  is  to  certify  that  at  an  election  held  in  and  for  the  State  of  Virginia  by  the  voters  registered 
under  the  act  of  Congress  of  March  2,  1867,  entitled  "An  act  to  provide  for  the  more  efficient  govern- 
ment of  the  rebel  States,"  and  the  act  supplementary  thereto  and  amendatory  thereof,  upon  the  ques- 
tion of  ratifying  or  rejecting  the  constitution  framed  by  the  convention  called  under  the  authority  of 
said  laws,  and  at  which  election  it  was  provided  by  the  2d  section  of  the  law  of  April  10,  1869,  that 
the  voters  of  said  State  may  vote  for  and  elect  members  of  the  general  assembly  of  said  State,  and  all 
the  officers  of  said  State  provided  for  by  the  said  constitution,  and  Members  of  Congress,  Joseph  Segar 
was  duly  elected  at  large  as  a  Representative  to  the  Congress  of  the  United  States. 

Given  under  my  hand,  at  Richmond,  Virginia,  this  9th  day  of  September,  1869. 

Ed.  R.  S.  Canby, 
Brevet  Major-General,  U.  S.  A.,  Commanding  First  Military  District. 

On  March  29,  1870,'  Mr.  Halbert  E.  Paine,  of  Wisconsin,  from  the  Committee 
on  Elections,  to  whom  Mr.  Segar's  credentials  had  been  referred,  submitted  their 
report. 

Mr.  Segar,  as  one  of  his  claims,  had  insisted  that  the  certificate  ought  to  be 
conclusive  as  to  his  right  to  the  seat  ' '  imless  in  case  of  contest  or  of  the  allegation 
of  fraud  or  of  palpable  clerical  mistake."     The  report  says: 

This  assumes,  of  course,  that  the  seat  itself  is  provided  for  by  law.  But  that  is  the  very  question, 
and  the  only  question  in  this  case,  and  to  that  question  the  committee  are  constrained  to  give  a  negative 
answer. 

Eight  Representatives  from  Virginia  had  already  been  seated,  and  Mr.  Segar 
would,  if  seated,  make  the  ninth.  The  report  of  the  majority  of  the  committee 
thus  sets  forth  the  case: 

The  census  act  of  May  23,  1850,  contains  the  following  provision: 

"Sec  24.  And  be  it  further  enacted,  That  from  and  after  the  third  day  of  March,  one  thousand  eight 
hundred  and  fifty-three,  the  House  of  Representatives  shall  be  composed  of  two  hundred  and  thirty, 
three  members,  to  be  apportioned  among  the  several  States  in  the  manner  directed  in  the  next  section 
of  this  act." 

And  by  the  twenty-fifth  and  twenty-sixth  sections  of  the  same  act  it  is  provided  that,  upon  the 
completion  of  each  enumeration  of  the  inhabitants  of  the  United  States,  the  Secretary  of  the  Interior, 
after  ascertaining  from  the  census  returns  the  representative  population  of  the  United  States,  and  of 
the  several  States,  shall  apportion  the  Representatives  among  the  several  States,  and  "shall,  as  soon  as 
practicable,  make  out  and  transmit,  under  the  seal  of  his  office,  to  the  House  of  Representatives,  a 
certificate  of  the  number  of  Members  apportioned  to  each  State  under  the  then  last  enumeration." 
Under  this  act  the  census  of  1860  was  taken,  and  the  Secretary  of  the  Interior  transmitted  his  certificate 
to  the  House. 

Under  this  apportionment  the  Secretary  of  the  Interior  allotted  to  Virginia  1 1 
Representatives . 

The  report  continues: 

On  the  31st  day  of  December,  1862,  an  act  was  passed  providing  for  the  admission  of  the  new  State 
of  West  Virginia,  to  consist  of  48  counties  of  Virginia,  and  to  have,  until  the  next  general  census,  3 
Representatives  in  the  House  of  Representatives  of  the  United  States,  which  act  was,  by  its  own  terms, 
to  take  effect  at  the  expiration  of  sixty  days  from  the  date  of  a  proclamation  of  the  President  therein 
provided  for. 

'Second  session  Forty-first  Congress,  House  Report  No.  51;  2  Bartlett,  p.  810;  Rowell's  Digest 
p.  253. 


§  318  THE    ELECTORS    AND    APPORTIONMENT.  195 

Subsequently  the  following  joint  resolution  was  adopted: 

"Be  it  resolved  by  the  Senate  and  House  of  Representatives  of  the  United  States  of  America  in  Congress 
assembkd.  That  Congress  hereby  recognizes  the  transfer  of  the  counties  of  Berkeley  and  Jefferson  from 
the  State  of  Virginia  to  West  Virginia,  and  consents  thereto. 

'•Approved  March  10,  1866." 

The  returns  of  the  census  of  1860  show  that  the  representative  population  of  the  present  State  of 
Virginia  was  a  little  less  than  eight-elevenths  of  the  entire  representative  population  of  the  old  State, 
including  the  counties  now  constituting  West  Virginia.  While,  however,  the  representative  population 
of  the  counties  constituting  the  present  State  of  Virginia  was  not  quite  sufficient  to  entitle  the  State  to 
8  of  the  11  Representatives  apportioned  to  the  old  State,  it  was  considerably  more  than  sufficient  to 
entitle  it  to  7  of  them,  so  that  the  assignment  of  8  to  Virginia  and  3  to  West  Virginia  was  the  nearest 
practicable  approach  to  an  absolutely  just  distribution  of  the  representation. 

In  no  case  have  the  acts  providing  for  the  readmission  of  the  rebel  States  to  the  Union  embraced 
any  legislation  changing  or  fixing  the  number  of  Representatives  of  the  readmitted  State.  In  every 
case  the  State  has  been  readmitted  with  the  number  of  Representatives  fixed  by  the  certificate  of  the 
Secretary  of  the   Interior  transmitted  to  the  House  under  date  of  July  5,  1861. 

The  number  of  Representatives  assigned  to  the  old  State  of  Virginia  by  the  apportionment  of  1861 
was,  as  has  been  already  stated,  11.  The  number  assigned  to  West  Virginia  by  the  act  of  admission 
was  3.  In  the  opinion  of  the  committee,  the  persent  State  of  Virginia  is  by  law  entitled  to  only  8  Rep- 
resentatives, and  the  law  requires  that  those  shall  be  chosen  by  single  districts. 

The  minority  ^•iews  were  presented  by  Mr.  Job  E.  Stevenson,  of  Ohio,  the  com- 
mittee having  been  nearl}'  evenly  divided.     The  minority  say — 

Under  the  apportionment  of  Representatives  in  Congress,  on  the  census  of  1860,  the  State  of  Virginia 
was  entitled  to  11  Members.  No  law  has  been  enacted  affecting  this  apportionment,  unless  the  recon- 
struction acts  relative  to  that  State  can  be  so  constructed. 

The  acts  and  proceedings  creating  and  admitting  the  new  State  of  West  Virginia  are  silent  on  this 
question.  They  fix  the  number  of  Representatives  from  the  new  State,  but  do  not  touch  the  topic  of 
representation  from  Virginia. 

It  seems  to  be  assumed  that  because  the  new  State  was  formed  from  the  side  of  the  old.  therefore 
the  act  of  Congress  gi^^ng  West  Virginia  the  right  to  3  Representatives  reduced  the  quota  of  Virginia 
from  11  to  8;  but  we  respectfully  submit  that  no  such  important  conclusion  can  be  properly  or  safely 
implied  from  laws  containing  neither  sylla!;le  nor  letter  to  support  it;  and  that  such  latitude  of  construc- 
tion would  overthrow  all  rights  founded  upon  statutes. 

If  the  apportionment  on  the  census  of  1860  applies  at  all,  it  must  be  accepted  in  its  terms,  and 
entitles  the  State  of  Virginia  to  her  full  quota  of  11  Representatives,  instead  of  9  elected  or  8  admitted. 

A  technical  objection  may  be  based  upon  the  provision  of  the  act  of  June  25,  1842,  reenacted 
in  subsequent  acts: 

"That  in  each  State  entitled  in  the  next  and  any  succeeding  Congress  to  more  than  one  Representa- 
tive, the  number  to  which  such  State  is  or  may  be  hereafter  entitled  shall  be  elected  by  districts  com- 
posed of  contiguous  territory,  equal  in  number  to  the  number  of  Representatives  to  which  said  State 
may  be  entitled  in  the  Congress  for  which  said  election  is  held,  no  one  district  electing  more  than  one 
Representative." 

If  this  provision  were  deemed  applicable,  we  might  answer  the  objection  by  showing  that  it  has 
never  been  observed,  and  is  not  now  observed  by  this  House. 

In  the  Twenty-eighth  Congress,  the  first  after  this  pro\-ision  was  enacted,  the  House  admitted  20 
Members  at  large  from  the  States  of  New  Hampshire,  Georgia,  Mississippi,  and  Missouri,  respectively, 
and  voted  that  they  had  a  right  to  their  seats.     (See  Con.  Elect.  Cases,  2,  p.  47.) 

In  the  Thirty-fifth  Congress,  in  1858,  the  House  decided  "That  the  election  of  members  by  general 
ticket  instead  of  by  district  is  not  a  bar  to  admission  to  seats  in  the  House."  (See  case  of  Phelps  and 
Cavanaugh,  Con.  Elect.  Cases,  2,  p.  248.) 

That  case  was  from  a  newly  admitted  State,  and  therefore  analogous  to  this  of  the  readmission  of  a 
reconstructed  State  with  changed  boundaries.  But  the  most  striking  case  is  that  of  the  State  of  Illinois, 
which  has  been,  ever  since  the  Thirty-eighth  Congress,  and  is  now,  represented  in   this    House  by 


196  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    318 

Member  at  large  notwithstanding  this  provision,  the  proviso  allowing  her  a  Representative  at  large 
having  expired  with  the  Thirty-eighth  Congress.     See  act  of  July  14,  1862,  which  contains  the  following: 

"And  provided  further,  That  in  the  election  of  Representatives  to  the  Thirty-eighth  Congress  from 
the  State  of  Illinois,  the  additional  Representative  allowed  to  said  State  by  an  act  entitled  'An  act 
fixing  the  number  of  the  House  of  Representatives  from  and  after  the  third  day  of  March,  eighteen 
hundred  and  sixty-three,'  approved  March  fourth,  eighteen  hundred  and  sixty-two,  may  be  elected  by 
the  State  at  large,  and  the  other  thirteen  Representatives  to  which  the  State  is  entitled  by  the  districts, 
aa  now  prescribed  by  law  in  said  State,  unless  the  legislature  of  said  State  should  otherwise  provide 
before  the  time  fixed  by  law  for  the  election  of  Representatives  therein." 

But  it  is  not  deemed  necessary  to  dwell  upon  this  point,  because  it  seems  obvious  that  the  general 
act  is  not  applicable  to  a  reconstructed  State  when  a  change  of  circumstances  calls  for  special  action. 

The  claimant  further  urged  that  he  was  entitled  to  admission  because  of 
providons  of  the  law  of  Congress  taken  in  connection  with  certain  ordinances  of  the 
constitutional  convention  of  Virginia.  These  ordinances  districted  the  State  and 
provided  for  a  ninth  Representative  at  large.  Unlike  the  constitution  itself  the 
ordinances  were  not  ratified  by  the  people. 

Claimant  urged  that  the  Congress  by  approving  generally  the  proceedings  of 
reconstruction  in  Virginia,  of  which  the  ordinances  were  a  part,  had  approved 
the  Representative  at  large.  The  majority  of  the  committee  denied  this,  holding 
that  the  chain  of  law  was  not  perfect. 

Another  point  was  answered  as  follows: 

3.  The  claimant  cites  the  following  provision  of  the  act  which  took  effect  on  the  11th  day  of  March, 
1868: 

"Sec.  2.  And  be  it  further  enacted,  That  the  constitutional  convention  of  any  of  the  States  mentioned 
in  the  acts  to  which  this  is  amendatory  may  provide  that,  at  the  time  of  voting  upon  the  ratification  of 
the  constitution,  the  registered  voters  may  vote  also  for  Members  of  the  House  of  Representatives  of  the 
United  States,  and  for  all  elective  officers  provided  for  by  the  said  constitution;  and  the  same  election 
officers  who  sliall  make  the  return  of  the  votes  cast  on  the  ratification  or  rejection  of  the  constitution  shall 
enumerate  and  certify  the  votes  cast  for  Members  of  Congress. 

And  he  insists  that  the  authority  conferred  by  this  act  carries  with  it  the  power,  first,  to  district  the 
State,  and,  secondly,  to  fix  the  numtier  of  its  Representatives;  and  that  these  two  powers  stand  on  the 
same  footing.  But  the  power  to  district  a  State,  in  accordance  with  the  Federal  apportionment,  is,  by 
section  4  of  Article  I  of  the  Constitution  of  the  United  States,  confened  upon  the  State,  subject  to  the 
control  of  Congress,  whereas  the  ])ower  to  fix  or  alter  the  number  of  Members  of  the  House  of  Representa- 
tives of  the  United  States  is  vested  exclusively  in  the  Federal  Government,  and  even  if  there  is  doubt 
whether  a  State  can  exorcise  the  power  to  district  its  territory  for  the  election  of  Representatives  other- 
wise than  through  its  ordinary  legislature,  there  is  no  doubt  that  a  State  can  not  exercise  the  power  to  fix 
the  size  of  the  Federal  House  of  Representatives,  whether  through  its  ordinary  legislature,  or  its  consti- 
tutional convention,  or  in  any  other  way. 

As  to  the  argument  that  Virginia  was  entitled  to  additional  representation 
because  she  had  many  thousands  of  newly  enfranchised  citizens,  the  majority 
of  the  committee  denied  that  this  fact  entitled  Virginia  to  representation  at  once, 
since  the  same  theory  would  give  immediately  increased  representation  to  the  other 
reconstructed  States. 

The  majority  reported  the  following  resolution: 

Resolved,  That  Joseph  Segar  is  not  entitled  to  a  seat  aa  a  Representatives  of  the  State  of  Virginia 
at  large  in  the  Forty-first  Congress  of  the  United  States. 


§  319  THE    ELECTORS    AND    APPORTIONMENT.  197 

On  July  IP  the  report  was  considered  in  the  House.  After  debate  a  propo- 
sition was  offered  by  the  minority  declaring  Mr.  Segar  entitled  to  the  seat.  This 
was  disagreed  to — ayes  31,  noes  85. 

The  resolution  of  the  majority  declaring  Mr.  Segar  not  entitled  to  the  seat  was 
then  agreed  to  without  division. 

319.  Reference  to  the  claim  of  Nebraska  for  additional  representation. — 
On  February  24,  1SS3,-  the  House  finally  disposed  of  the  claim  of  Nebraska  for 
additional  representation  on  accoimt  of  alleged  defects  in  the  census  on  which  the 
apportionment  was  based.  The  House  found  that  its  committee  had  been  imposed 
on  and  took  action  to  bring  the  authors  of  the  imposition  to  the  attention  of  the 
authorities. 

'Journal,  p.  1216;  Globe,  pp.  5450-5455. 

^Second  session  Forty-seventh  Congress,  Record,  pp.  3247-3252. 


Chapter  IX. 
ELECTORATES  INCAPACITATED  GENERALLY. 


1.  Effect  of  informalities  in  the  election.     Sections  320-323.' 

2.  Intimidation  and  its  effects.     Sections  324-341.- 

3.  Principles  involved  in  Senate  decisions  as  to  competency  of  legislatures.     Sections 

342-360. 

320.  The  North  Carolina  election  case  of  McFarland  c  Purviance,  in 
the  Eighth  Congress. 

The  invalidity  of  an  election  in  one  county  out  of  three  did  not  jus- 
tify declaring  the  seat  vacant. 

On  February  29,  1804,^  the  Committee  on  Elections  reported  on  the  North  Caro- 
hna  contested  election  case  of  McFarland  v.  Purviance.  The  committee  found  that 
in  one  county  of  the  district  the  inspectors  and  clerks  refused  to  take  the  oath  pre- 
scribed by  the  State  law  that  they  should  act  with  justice  and  impartiahty.  There- 
fore the  committee  conceived  that  for  this  reason  the  election  in  the  county  should 
be  set  aside. 

The  committee  did  not  find  the  result  in  the  remainder  of  the  district  success- 
fully attacked,  and  therefore  concluded  that  there  was  not  sufficient  legal  testimonj' 
to  vacate  the  seat  of  Samuel  D.  Purviance,  although  the  result  in  one  county  had 
been  set  aside. 

The  House  did  not  act  on  tliis  report. 

321.  The  North  Carolina  election  case  of  McFarland  v.  Culpepper,  in 
the  Tenth  Congress. 

An  election  being  found  invalid  in  three  out  of  five  counties  in  the 
district,  the  House  declared  the  seat  vacant,  declining  to  seat  the  con- 
testant. 

Early  instance  of  rejection  of  the  returns  because  election  officers  did 
not  take  the  required  oath. 

The  Committee  on  Elections  rejects  testimony  taken  ex  parte. 

'  See  also  McDuffie  v.  Davidson,  section  1007  of  Volume  II. 

-  See  also  cases  of  Bruce  i'.  Ijoan  (section  377  of  this  volume),  case  of  Hoge,  Reed,  and  others  (section 
622  of  this  volume),  and  case  of  Switzler  v.  Anderson  (section  8GS  of  Volume  II). 

'  First  session  Eighth  Congress,  contested  elections  in  Congress,  from  1789  to  1834,  page  131. 
198 


§  322  ELECTORATES    INCAPACITATED    GENEKALLY.  199 

In  the  Xorth  Carolina  election  case  of  McFarland  v.  Culpepper,  in  1808/  the  Com- 
mittee of  Elections,  after  setting  forth  the  law  of  the  State  and  the  testimony,  give 
in  their  report  the  following  statement,  which  covers  very  well  the  principles  on 
which  the  case  was  decided: 

No  full  official  lists  of  the  polls,  or  number  of  votes  given  to  the  parties  contesting,  were  laid 
before  the  committee,  but  both  parties  agree  that  the  sitting  Member  had  2,750,  and  that  Duncan 
McFarland  had  2,701:  that  consequently  John  Culpepper  had  a  majority  of  49  votes. 

From  the  above  recited  testimony,  admitted  by  the  conmiittee,  it  appears  that  the  inspectors  and 
clerks  officially  employed  in  conducting  the  elections  in  Richmond,  Anson,  and  Montgomerj^  counties  do 
not  appear  to  have  been  sworn  as  the  law  of  North  Carolina  expressly  directs,  and  that  the  votes  given 
in  some  of  these  counties,  and  at  some  elections  in  other  counties,  not  being  received  by  officers  legally 
qualified,  ought  to  be  rejected.-  On  rejecting  the  returns  of  Richmond,  Anson,  and  Montgomery  coimties, 
in  which  it  appears,  by  the  list  of  voters  and  testimony  admitted,  that  John  Culpepper  had  a  majority 
of  1,578  votes,  gives  to  Duncan  McFarland  a  large  majority  of  votes  in  these  counties.  Some  depositions 
were  taken  before  the  committee  respecting  the  elections  in  Moore  County,  taken  at  the  instance  of  a 
friend  of  John  Culpepper,  in  his  absence;  but  though  they  go  to  prove  that  the  elections  in  Moore  County 
were  not  conducted  agreeably  to  law,  yet,  being  taken  ex  parte,  they  were  not  admitted. 

From  the  testimony  admitted  it  appears  that  John  Culpepper  is  not  entitled  to  a  seat  in  the  House, 
he  not  having  a  majority  of  votes  legally  taken;  but  though  Duncan  McFarland  appears  to  have  a  large 
majority  of  votes  taken  agreeably  to  law,  yet  the  committee  are  of  opinion  that  the  truth  of  this  is  doubt- 
ful: they  are  the  more  confirmed  in  this  opinion  from  the  sitting  Member  having  expressed  his  opinion 
that  if  he  had  time  allowed  him  to  make  a  scrutiny  he  would  prove  the  elections  held  in  the  other 
counties  were  also  conducted  contrarj-  to  law. 

The  committee,  however,  believing  that  the  great  object  for  which  the  power  of  judging  the  elections 
of  Members  was  vested  in  Congress,  was  to  secure  to  the  people  a  representation  of  the  majority  of  the 
citizens,  the  elections  of  Richmond,  Anson,  and  Montgomery  being  rejected,  give  a  majority  of  the 
votes  given  in  Moore  and  Cimiberland  counties  to  Duncan  McFarland,  viz,  a  majority  of  two  counties 
out  of  five,  which  comprise  the  Congressional  district,  and  the  votes  of  three  counties  are  lost. 

The  committee  are  of  opinion  that,  even  presuming  the  votes  in  Moore  and  Cumberland  to  have 
been  legally  taken,  it  would  be  improper  to  deprive  the  other  three  counties  of  a  representation  for  the 
fault  of  their  election  officers,  etc.,  therefore  think  it  most  proper  to  give  the  citizens  of  that  district  an 
opportunity  to  have  another  election,  and  for  this  purpose  submit  the  following  resolution: 

"Resolved,  That  from  the  testimony  laid  before  and  admitted  by  the  committee  it  appears  that 
John  Culpepper  is  not  entitled  to  a  seat  in  this  House." 

The  House  having  concurred  in  this  resolution,  the  governor  of  Xorth  Carolina 
was  notified  of  a  vacancy  in  the  House  from  that  district. 

322.  The  Kentucky  election  case  of  Blakey  /■.  Golladay,  in  the  For- 
tieth Congress. 

Although  the  claimant  for  a  seat  presented  unimpeachable  creden- 
tials, the  House  declined  to  seat  him  until  it  had  determined  that  the 
seat  was  actually  vacant. 

Instance  of  an  election  case  initiated  by  memorial  from  the  person 
claiming-  the  seat. 

In  an  election  case  not  provided  for  by  statute  the  House  by  resolution 
determined  the  conditions  of  its  prosecution. 

The  House  by  resolution  made  certified  transcripts  of  records  evi- 
dence in  an  election  case. 


'  First  session  Tenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  page  221. 
^See  also  Section  320  for  another  early  instance  of  rejection  of  the  returns  in  a  case  wherein  the 
election  officers  did  not  take  the  required  oath. 


200  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   322 

A  resolution  providing  for  the  prosecution  of  an  election  case  is  pre- 
sented as  a  question  of  privilege. 

On  July  5,  1867/  Mr.  William  D.  Kelley,  of  Pennsylvania,  presented  the 
memorial  of  George  D.  Blakey,  praying  to  be  admitted  as  a  Member  from  Kentucky. 
The  memorial  was  referred  to  the  Committee  on  Elections. 

On  July  11,  1867,^  Mr.  Halbert  E.  Paine,  of  Wisconsin,  offered,  as  a  question  of 
privilege,  the  following: 

^\^lereas  George  D.  Blakey  asks  for  admission  to  this  House  as  a  Representative  from  the  Third 
district  of  Kentucky,  and  his  competitor,  Elijah  Hise,  having  died  before  the  votes  were  canvassed, 
and  no  other  person  claiming  a  seat  in  this  House  as  a  Representative  of  said  district,  this  case  is  not 
provided  for  by  any  statute  of  the  United  States,  but  is  subject  to  the  provisions  of  the  Constitution: 
Therefore, 

Resolved,  That  in  this  case  transcripts  of  official  records  and  fOes,  and  of  extracts  therefrom  and 
abstracts  thereof,  duly  certified  under  seal  by  the  clerks  of  the  several  county  courts  in  said  district, 
shall  be  competent  evidence  before  the  Committee  of  Elections  and  before  this  House  of  the  facts  therein 
shown. 

The  question  of  order  being  raised  that  this  resolution  did  not  involve  a  ques- 
tion of  privilege,  the  Speaker^  said: 

Everything  affecting  the  right  of  a  Member  to  a  seat  is  a  question  of  privilege. 

Thereupon  the  resolution  was  agreed  to;  yeas  92,  nays  34. 

On  November  21,  1867,*  papers  in  the  case  of  Mr.  Blakey,  as  contestant,  were 
presented  in  the  House  and  referred. 

On  November  25,  1867,'  the  Speaker  laid  before  the  House  a  certificate  in 
regular  fonn  from  the  governor  of  Kentucky,  setting  forth  that  at  an  election  held 
in  the  Third  Congressional  district  of  that  State  on  August  5,  1867,  J.  S.  Golladay 
received  a  majority  of  the  votes  cast  and  was  duly  elected  Representative  in  the 
Fortieth  Congress. 

Mr.  Henry  L.  Dawes,  of  Massachusetts,  moved  that  the  credentials  be  referred 
to  the  Committee  of  Elections,  and  that  the  said  Golladay  be  not  sworn  in  pending 
the  investigation  of  the  same. 

It  was  explained  that  the  Committee  of  Elections  were  not  considering  the 
claim  of  Mr.  Blakey  that  he  should  be  seated  on  the  groimd  that  he  had  received 
a  majority  of  the  legal  votes,  although  a  majority  of  the  votes  actually  cast  were 
fotmd  to  be  for  the  late  Mr.  Hise.  The  governor  of  Kentucky  had  assumed  that 
there  was  a  vacancy  and  had  ordered  an  election;  but  the  House  was  now  investi- 
gating whether  or  not  there  was  a  vacancy.  If  Mr.  Golladay  should  now  be  sworn 
in,  and  the  House  should  later  find  that  Mr.  Blakey  had  been  elected,  the  House 
would  have  two  men  in  the  same  seat  or  Mr.  Golladay  would  be  unseated  without 
having  had  the  opportunity  to  present  his  case.  On  the  other  hand,  it  was  urged 
that  Mr.  Golladay  had  the  only  prima  facie  evidence,  and  that  he  was  entitled  to 
take  the  seat  pending  the  examination  of  final  right;  but  the  House  agreed  to  the 
motion  of  Mr.  Dawes;  yeas  105,  nays  38. 

'First  session  Fortieth  Congress,  Journal,  p.  187;  Globe,  p.  591. 

^  First  session  Fortieth  Congress,  Journal,  p.  165. 

^Schuyler  Colfax,  of  Indiana,  Speaker. 

■•Journal,  p.  255. 

'Journal,  p.  257;  Globe,  pp.  782-784. 


§  323  ELECTORATES    INCAPACITATED    GENEEALLY.  201 

323.   The  Kentucky  election  case  of  Blakey  v.  Golladay,  continued. 

An  election  invalid  in  11  out  of  12  counties,  leaving  only  737  valid 
votes  out  of  8,941,  should  cause  the   seat  to   be  declared  vacant. 

The  exclusion  of  a  disloyal  Member-elect  wo\ild  not  allow  a  minor- 
ity candidate  to  take  the  seat. 

The  death  of  the  person  elected  creates  a  vacancy,  although  no  cer- 
tificate may  have  been  a.warded. 

The  person  elected  dying  before  credentials  are  issued,  the  minority 
candidate  may  not  receive  the  credentials. 

On  December  2,  1867,'  ilr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Com- 
mittee on  Elections  submitted  a  report,  which  stated  the  case  as  follows: 

The  right  of  these  two  claimants  to  the  same  seat  depends  upon  the  validity  of  elections  held  at 
difierent  times,  and  it  therefore  becomes  necessary  to  determine  in  the  first  instance  upon  the  legality 
of  the  election  first  held,  for  if  the  one  which  is  first  in  point  of  time  be  valid  the  other  can  not  be. 

The  claim  of  Mr.  Blakey  that  he  was  duly  elected  such  Representative  rests  upon  the  following 
facts: 

An  election  for  Representatives  to  the  present  Congi-ess  was  ordered  by  the  governor  of  Kentucky 
to  be  held  on  said  4th  day  of  May  last.  The  claimant,  Mr.  Blakey,  and  the  Hon.  Elijah  Hise  were 
candidates  for  Representatives  in  the  Third  district,  and  were  voted  for  at  that  election.  On  the  27th 
of  the  same  month  the  governor,  attorney-general,  and  State  auditor,  who  constitute  by  law  a  board  of 
canvassers  for  counting  the  votes,  met  in  pursuance  of  law  for  that  piupose  and  certified  the  result  of 
the  vote  on  the  4th  to  be,  m  this  district:  For  Elijah  Hise,  7,740;  for  G.  D.  Blakey,  1,201. 

After  the  election  and  before  this  canvass,  to  wit,  on  the  8th  day  of  said  May,  the  said  Elijah  Hise 
died,  and  Mr.  Blakey  claimed  before  the  board  of  canvassers,  and  renews  his  claim  before  the  House, 
that  he  was  entitled  to  the  certificate  of  election  and  to  retain  the  seat  as  such  Repre.sentative. 

First,  because  at  the  tune  of  said  canvass,  he,  the  said  Blakey,  was  the  only  person  then  alive  for 
whom  votes  had  been  cast  for  such  Representative.  In  this  the  claimant  has,  in  the  opinion  of  the 
committee,  wholly  mistaken  the  function  of  the  board  of  canvassers.  The  sole  duty  of  the  board  is  to 
ascertain  the  result  when  the  polls  closed  on  the  day  of  election.  They  can  in  no  way  or  particular 
change  or  alter  that  result,  but  only  ascertain  and  make  it  known.  If  the  claimant  had  not,  when  the 
polls  closed,  a  majority  of  the  votes  legally  cast,  nothins:  transpiring  subsequently  could  give  htm  that 
majority.  If  Elijah  Hise  had  that  majority  when  the  polls  closed,  that  fact  is  unalterably  fixed.  It 
is  sometimes  quite  difficult  to  ascertain  who  actually  had  such  majority  at  the  close  of  the  polls,  but 
the  determining  of  that  fact  determines  all  else  pertaining  to  the  election.  A  vacancy  occasioned  by 
the  death  of  one  who  has  received  a  majority  of  the  legal  votes  can  not  depend  upon  whether  he  had 
or  had  not  received  a  certificate  of  his  election  before  his  decease.  The  certificate  is  not  his  title  to 
his  seat,  but  simply  one  form  of  evidence  thereof. 

Second,  he  further  claims  the  seat  because,  "by  the  laws  of  Kentucky  governing  elections,  the 
judges  and  other  officers  of  the  county  courts  in  said  State,  in  the  appointment  of  officers  to  hold  and 
conduct  elections  in  said  State,  are  required  to  appoint  officers  representing  the  two  political  parties 
in  the  State,  and  that  each  political  party  should  be  represented  in  the  officers  of  every  election  pre- 
cinct. "  This  provision  of  law,  he  claims,  was  almost  totally  disregarded  in  11  out  of  the  12  counties 
composing  this  district,  thereby  rendering  illegal  the  election  in  those  counties,  and  that  in  the  other 
coimty,  where  this  provision  was  complied  with,  he  received  a  majority  of  the  votes  cast. 

After  quoting  the  provisions  of  law  relating  to  the  appointment  of  election 
officers,  the  report  considers  the  evidence  adduced  to  sustain  this  second  objection. 
Contestant  showed  by  the  poll  books  that  but  23  of  the  election  officers  voted  for 
him,  while  210  voted  for  Mr.  Hise,  and  57  did  not  vote  at  all.  The  conunittee  say 
that  obviously  the  poll  books  of  this  election  could  not  have  been  consulted  by  the 


'  Second  session  Fortieth  Congress,  House  Report  No.  1;  2  Bartlett,  p.  417;  Rowell's  Digest,  p.  221. 


202  PEECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   324 

county  courts,  for  the  appointments  were  made  lono;  before  this  election.  No  evi- 
dence was  offered  to  show  how  these  officers  voted  at  the  election  next  preceding 
their  appointment.  In  fact,  there  was  no  evidence  sufficient  to  show  that  the  pro- 
visions of  the  law  were  disregarded.  But  it  was  really  not  necessary  for  the  com- 
mittee to  determine  this,  for  assuming  that  contestant's  contention  was  right  as  to 
the  11  counties,  yet — - 

In  the  remaining  county,  where  it  is  claimed  the  law  was  complied  with,  and  the  election  therefore 
valid,  there  were  cast  only  737  out  of  8,941  votes;  and  of  these  737,  Mr.  Blakey  received  378,  to  359  for  Mr. 
Hise,  leaving  only  a  majority  in  this  county  for  Mr.  Blakey  of  19.  Of  the  whole  vote  in  the  district,  as 
has  been  already  stated,  he  received  only  1,201.  If,  therefore,  the  election  was  invalid  in  1 1  out  of  the  12 
counties,  rendering  it  impossible  to  count  but  737  votes  out  of  8,941,  no  other  alternative  would  be  left 
but  to  set  aside  altogether  such  an  election,  and  remand  the  case  back  again  to  the  people,  that  they 
might  have  an  opportunity  to  give  expression  to  their  choice  in  conformity  to  law.  There  is  no  precedent 
for  fixing  upon  the  district  representation  determined  by  378  votes  out  of  8,941,  and  the  committee  see 
no  reason  for  making  one. 

The  third  ground  of  contestant,  that  Mr.  Hise  was  disloyal,  was  not  sustained 
by  evidence;  and  furthermore,  the  committee  were  not  called  on  to  consider  the 
legal  effect  of  the  proposition  had  it  been  sustained,  since  the  exclusion  of  a  disloyal 
person  did  not  allow  a  minority  candidate  to  take  the  seat. 

The  committee  therefore  arrived  unanimously  at  the  following  conclusion: 

The  only  objection  to  the  administering  the  oath  of  olfice  and  admission  to  the  seat  of  Mr.  GoUaday, 
known  to  the  committee,  being  the  claim  of  the  memorialist  to  be  entitled  to  the  seat  by  virtue  of  a  prior 
election,  this  disposition  of  that  claim  removes  all  obstacle,  and,  in  the  opinion  of  the  committee,  Mr. 
Golladay  should  be  admitted  to  the  oath  of  office  and  to  the  seat. 

The  committee  recommend  the  adoption  of  the  following  resolutions: 

Resolved,  That  George  D.  Blakey  is  not  entitled  to  a  seat  in  this  House  as  a  Representative  from  the 
Third  Congressional  district  in  Kentucky. 

Resolved,  That  the  oath  of  office  be  now  administered  to  J.  L.  Golladay,  and  that  he  be  admitted  to 
a  seat  in  this  House  aa  a  Representative  from  the  Third  Congressional  district  in  Kentucky. 

The  report  was  debated  on  December  .5,  and  on  that  day  the  resolutions  of  the 
committee  were  agreed  to  without  division,  a  demand  for  the  yeas  and  nays  having 
been  refused.  A  proposition  to  recommit  with  instructions  to  examine  as  to  the 
loyalty  of  both  ^lessrs.  Hise  and  Golladay  had  been  prevented  by  the  previous  ques- 
tion, which  was  ordered  by  102  ayes  to  22  noes. 

324.  The  Maryland  election  case  of  Whyte  v.  Harris  in  the  Thirty- 
fifth  Congress. 

In  a  report  not  approved  by  the  House  the  Elections  Committee 
recommended  that  a  seat  be  vacated  because  of  intimidation  in  five-sixths 
of  the  district. 

In  a  case  not  sustained  by  the  House  a  question  of  the  degree  of  intim- 
idation sufficient  to  justify  rejection  of  the  poll  was  discussed. 

An  early  discussion  as  to  what  constituted  a  distinguishing  mark 
on  a  ballot. 

The  Elections  Committee  having  recommended  a  declaration  that  the 
seat  be  declared  vacant,  a  question  arose  as  to  contestant's  position. 

On  June  1,  1858,'  the  Committee  on  Elections  reported  in  the  case  of  Whyte  v. 

'  First  session  Thirty-fifth  Congress,  H.  Report  No.  538;  I  Bartlett,  p.  257;  Rowell's  Digest,  p.  156. 


§  324  ELECTORATES   INCAPACITATED    GENERALLY.  203 

Harris,  of  ilaiyland.  The  contestant  had  alleged  frauds,  intimidations,  and  irregu- 
larity. The  majority  of  the  committee  based  its  conclusions  chiefly  on  two 
features  of  the  case,  alleged  widespread  intimidation  in  Baltimore  City,  and 
distinguishing  marks  on  the  ballots  cast  for  sitting  Jlember,  whereby  intimida- 
tion of  liis  opponents  was  rendered  feasible. 

The  majority  of  the  committee  give  in  their  report  copious  extracts  of  testi- 
mony showing  this  intimidation.  The  minority  showed  that  Mr.  Harris  had  a 
majoritj"  of  3,243  votes  in  the  city  wards  and  of  75  in  the  districts  outside  the  city. 
They  contended  that  the  evidence  in  relation  to  intimidation  was  too  vague. 
Names  of  persons  alleged  to  have  been  intimidated  were  given,  but  it  was  nowhere 
shown  that  they  would  have  voted  for  the  sitting  Member.  Moreover,  much  of 
the  evidence  as  to  persons  intimidated  was  inadmissible  because  hearsay  in  its 
nature. 

The  majority  of  the  committee,  after  stating  that  a  case  of  riot  and  intimidation 
was  new  in  election  cases  before  Congress,  quotes  Enghsh  precedents  to  show  that 
violence  and  tumult  were  sufficient  reasons  for  declaring  an  election  void.  In  the 
American  cases  of  Trigg  v.  Precsott  and  Biddle  and  Richard  ik  Wing  notliing  like 
a  riot  or  obstruction  was  shown  at  the  polls.     The  majority  of  the  committee  say: 

Having,  then,  no  case  heretofore  presented  to  this  House  involving  a  decision  as  to  what  extent 
violence,  intimidation,  and  riot  may  prevaO  at  elections  to  -n-arrant  a  vacation  of  a  seat,  we  can  only 
refer  to  the  numerous  precedents  which  we  find  settled  by  other  elective  bodies,  and  to  the  plain 
teachings  which  we  derive  from  our  Constitution  and  theory  of  government. 

In  the  judgment  of  the  Committee  of  Elections,  these  require  the  return  in  this  case  to  be  set  aside 
and  the  seat  vacated.  It  can  not  be  considered  the  return  of  an  election  made  by  the  legal  voters  of 
the  Third  Congressional  district  of  Marjdand.  An  election  is  the  free  choice  by  those  who  have  the 
right  to  make  it,  and  who  desire  and  seek  to  make  it,  uncompelled,  unawed,  and  unintimidated.  The 
return  here  was  based  upon  votes  alleged  to  have  been  cast  in  that  Congressional  district.  The  proofs 
show  that  at  the  first  eight  wards  in  the  city  of  Baltimore,  and  at  the  twelfth  election  district  of  Balti- 
more County  (comprising  about  five-sixths  of  the  returned  votes),  in  some  to  a  much  greater  extent 
than  others,  but  in  all  to  a  most  culpable  extent,  violence,  tumult,  riot,  and  general  lawlessness  pre- 
vailed. That,  as  a  consequence,  the  reception  of  illegal  votes  and  the  rejection  of  legal  votes,  the 
acts  of  disturbance  and  assault  committed  on  peaceable  citizens,  and  the  intimidation  of  voters  so 
predominated  as  to  destroy  all  confidence  in  the  election  as  being  the  expression  of  the  free  voice  of 
the  people  of  that  Congressional  district. 

The  committee  are  not  unmindful  of  the  magnitude  of  the  question  they  present  to  the  considera- 
tion of  the  House.  On  the  one  hand  it  involves  the  vacation,  temporarily,  of  a  seat  in  the  House  of 
Representatives;  on  the  other,  it  requires  an  acquiescence  in,  if  not  approval  of,  a  wanton  and  unjusti- 
fiable interference  with  the  most  sacred  of  aU  political  rights  to  a  free  people. 

The  minority  did  not  admit  that  there  had  been  serious  riot  or  intimidation, 
and  contended  that  it  would  be  a  dangerous  precedent  to  overrule  the  expressed 
will  of  the  people  becau.se  of  violence  at  the  polls. 

The  majority  of  the  committee  further  state  that  the  tickets  used  by  the  party 
of  the  sitting  Member  (the  American)  were  distinguished  by  a  number  of  red  per- 
pendicular stripes  across  them.  The  majority  conceived  that  this  was  a  violation 
of  the  spirit  of  the  law  providing  for  a  ballot  system,  one  of  the  great  objects  of 
which  was  to  allow  the  elector  to  make  his  choice  by  a  secret  vote.  Such  was  the 
intent  of  the  Maryland  law.  While  it  might  be  going  too  far  to  reject  such  ballots, 
unless  so  provided  by  law,  yet  their  use  was  neither  creditable  nor  just,  since  it 
permitted  intimidation. 


204  PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   325 

The  minority  say  on  tliis  point: 

The  constitution  of  the  State  of  Marj'land,  article  1,  section  2,  provides  that  ' '  the  vote  shall  be  by 
ballot;"  and  the  act  of  assembly  regulating  elections,  1805,  chapter  97,  section  12,  provides  "that 
upon  the  ballot  shall  be  written  or  printed  the  name  or  names  of  the  persons  voted  for,  and  the  purpose 
for  which  the  vote  is  given,  plainly  designated."  It  is  not  pretended  that  this  was  not  done,  and  we 
can  not  for  a  moment  admit  that  the  marks  on  the  ticket,  or  the  color  of  the  paper  on  which  the  name 
and  office  are  thus  pjlainly  designated,  have  anything  to  do  with  the  legality  of  the  vote  cast,  or  are  to 
be  held  as  infringing  the  law  of  the  State. 

The  majority  of  the  committee,  in  view  of  the  considerations  given  above, 
recommended  the  following: 

Resolved,  That  it  appears  to  this  House  that  there  was  such  tumult,  disorder,  riot,  intimidation, 
and  inj\istice,  in  the  election  of  a  Representative  to  Congress  from  the  Third  Congressional  district  of 
the  State  of  Maryland,  on  the  3d  day  of  November  last,  in  contempt  of  law  and  in  violation  of  the 
freedom  of  elections,  that  the  said  election  is  void,  the  seat  from  the  said  district  is  hereby  declared 
vacant,  and  the  Speaker  of  this  House  be  and  is  directed  to  notify  the  governor  of  said  State  thereof. 

The  minority  arrived  at  the  conclusion  that  the  sitting  member  was  entitled 
to  the  seat. 

The  case  was  not  debated  in  the  House  on  its  merits.  On  July  11,'  near  the 
close  of  the  session,  the  case  was  postponed  until  the  next  session,  by  a  vote  of  96 
yeas  to  80  nays. 

At  the  next  session,  on  December  15  and  16,^  the  report  was  called  up. 

A  question  arose  over  the  reqiiest  of  Mr.  Wliyte  that  he  have  leave  to  occupy 
a  seat  on  the  floor  and  speak  on  the  merits  of  the  contest. 

It  was  objected  that  he  was  no  longer  a  contestant  and  not  entitled  to  the 
privilege  under  the  precedents;  and  it  appeared,  in  fact,  that  he  did  not  consider 
himself  a  contestant. 

The  House,  by  a  vote  of  yeas  108,  nays  90,  laid  on  the  table  a  resolution  giving 
to  Mr.  Whyte  the  privilege  asked. 

Then  the  report  of  the  conunittee  was,  without  debate  on  its  merits,  laid  on 
the  table  by  a  vote  of  106  yeas  and  97  nays. 

So  the  sitting  member  retained  his  seat. 

325.  Tlie  Maryland  election  case  of  Harrison  v.  Davis  in  the  Tliirty- 
sixth  Congress. 

Discussion  of  the  extent  of  intimidation  sufficient  to  invalidate  an 
election  and  justify  declaring  the  seat  vacant. 

On  January  31,  1861,^  the  Committee  on  Elections  reported  in  the  case  of 
Harrison  v.  Davis,  of  Maryland.  This  case  was  examined,  and  there  were  reports 
from  the  majority  and  minoritj^  of  the  comnxittee;  but  no  action  was  taken  by 
the  House  on  the  recommendation  of  the  majority,  which  was  in  favor  of  the  sitting 
Member. 

The  principal  objection  of  the  contestant  was  that  there  had  been  sufficient 
riot  and  intimidation  to  invalidate  the  whole  election. 

'Journal,  p.  1089;  Globe,  pp.  2961-2964. 

2  Second  session  Thirty-fifth  Congress,  Journal,  pp.  72,  77;  Glol)e,  pp.  102,  120. 
^  House  Report  No.  60,  second  session  Thirty-sixth  Congress,  1  Bartlett,  p.  341;  Rowell'a  Digest, 
p.  168. 


§   326  ELECTORATES    INCAPACITATED    GENERALLY.  205 

The  majority  of  the  committee  found  by  a  comparison  ^\-ith  previous  national 
and  State  elections  that  the  a^iregate  vote  of  the  district  at  this  election  of  1859 
was  12,932,  Avhile  in  1857  it  was  14,494,  and  in  1855  it  was  15,481.  The  conmiittee 
did  not  consider  the  decrease  sufficient  to  be  significant;  and  as  the  majority  of  the 
sitting  Member  was  returned  as  7,272,  it  seemed  evident  that  whatever  voters 
might  have  been  intimidated  would  not  have  been  sufficient  to  change  the  result. 
As  to  the  law  applicable,  the  majority  say: 

We  have  now  to  consider  the  question  whether  the  election  is  void  by  reason  of  riot  and  intimida- 
tion. The  specification  Ls,  that  in  all  the  wards  bands  of  men  conspired  to  exclude  and  obstruct  legal 
voters  who  intended  to  vote  for  the  contestant,  and  did,  in  fact,  assemble  at  and  near  the  voting  places 
armed,  and  by  threats  intimidated  and  by  A'iolence  obstructed  and  drove  away  thousands  of  legal  voters, 
and  deterred  many  from  approaching  the  polls. 

That  statement,  considered  as  an  allegation  of  facts  which,  if  proved,  avoid  the  election  in  point  of 
law,  is  wholly  insufficient. 

It  nowhere  makes  the  formal  allegation  that  the  law  requires:  Either  that  the  election  was  arrested 
and  broken  up  in  every  ward,  or  that  so  many  individuals  were  excluded  by  violence  and  intimidation 
as  would,  if  allowed  to  vote,  have  given  the  contestant  the  majority. 

Either  of  those  grounds,  if  stated  and  proved,  would  have  been,  in  law,  decisive  of  the  case;  but 
neither  is  stated  in  the  specification,  and  neither  is  proved  by  the  evidence. 

The  case  attempted  to  be  made  is  one  wholly  different  from  either,  and  wholly  unknown  in  the 
annals  of  election  law. 

It  assumes  that  an  election  is  necessarily  void  at  which  2,000  Aoters  are  prevented  by  violence 
or  threats  of  violence  from  voting — though  the  election  was  never  arrested,  and  though  20,000  may 
have  been  cast,  and  all  for  one  candidate,  which  is  absurd. 

The  minority  of  the  committee  opposed  this  view.  From  their  analysis  of  the 
testimony  they  concluded  that  riot  and  intimidation  were  general  throughout  the 
district,  and  say: 

But  the  law  obviates  the  necessity  of  inquiring  as  to  the  number  of  votes  affected  by  riot,  violence, 
and  intimidation,  holding  the  whole  election  dead  when  robbed  of  that  freedom  which  is  its  soul  and 
life.  If  there  was  "actual  force  or  violence,  or  a  display  of  numerical  strength,  accompanied  with  threats, 
and  the  conduct  of  the  parties  was  such  as  to  strike  terror  into  the  mind  of  a  man  of  ordinary  firmness, 
and  to  deter  him  from  proceeding  to  the  poll"  (Gushing,  sec.  183),  the  election  must  be  "declared  a 
nullity.  And  such  it  unquestionably  was  at  all  the  polls.  »  *  *  The  election  must,  therefore,  be 
declared  a  nullity. 

Other  questions  relating  to  disqualified  voters  and  the  conduct  of  election 
officers  were  discussed,  but  they  were  subordinate  to  the  main  issue. 

326.  The  Louisiana  election  cases  of  Jones  r.  Mann  and  Hunt  v. 
Menard  in  the  Fortieth  Congress. 

A  Member  whose  seat  was  contested  dying,  the  House  did  not  admit 
a  claimant  with  credentials  until  contestant's  claim  was  settled. 

The  disqualification  of  a  Member-elect  does  not  entitle  a  minority 
candidate  to  the  seat. 

Instance  of  returns  of  an  election  made  by  military  oflicers  under 
authority  of  reconstruction  acts. 

Testimony  taken  before  a  notary  public  in  disregard  of  the  provisions 
of  law  was  criticised  by  the  Elections  Committee,  but  given  weight. 

A  contestant  neglecting  to  prove  the  vote  of  the  district,  the  Elections 
Committee  had  recourse  to  such  oflacial  records  as  it  deemed  satisfactory. 


206  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   326 

On  July  18,  1868/  Mr.  James  Mann,  with  other  Members-elect  from  Louisiana, 
was  sworn  in  and  took  liis  seat.  He  died  about  the  I'itli  daj'  of  August.  Mr.  Simon 
Jones  had  served  notice  of  contest  on  Mr.  Mann,  allegmg  frauds,  irregularities,  and 
intimidation  in  the  wards  of  New  Orleans  lying  within  the  district.  While  the 
Committee  on  Elections  was  considering  this  contest,  on  December  18,  1868,  and 
January  5,  1869,"  the  credentials  of  J.  Willis  Menard,  showing  him  to  have  been 
elected  in  place  of  Mr.  Mann,  were  presented  to  the  House  and  referred  to  the  Com- 
mittee on  Elections.  No  effort  was  made  to  have  Mr.  Menard  sworn  in,  Mr.  Jones's 
title  to  fill  the  vacancy  not  being  settled. 

On  February  17, 1869,^  the  committee  reported  both  on  the  contest  of  Mr.  Jones, 
and  on  the  claim  of  Mr.  Menard,  whose  title  was  contested  by  Caleb  S.  Hunt. 

1.  As  to  the  contest  of  Mr.  Jones  several  questions  arose  for  the  decision  of 
the  committee: 

(a)  The  contestant  objected  that  all  the  testimony  taken  in  behalf  of  Mr.  Mann 
was  inadmissible  because  taken  before  a  notary  public,  an  officer  not  authorized ' 
by  the  act  of  Congress  to  take  testimony  in  such  cases.  This  objection  was  taken 
in  the  first  instance  and  returned  with  the  testimony,  and  the  committee  find  that 
it  is  good  under  a  strict  construction  of  the  law.  The  committee  say,  however, 
that  the  view  the  committee  have  taken  of  the  case  does  not  render  it  very  material 
whether  the  testimony  be  admitted  or  not,  and  as  Mr.  Mann  was  dead  and  some 
of  the  testimony  related  to  his  eligibility,  they  had  not  deemed  it  proper  to  exclude 
it,  but  would  submit  it  to  the  House. 

(b)  A  question  as  to  the  quahfications  of  Mr.  Mann  is  thus  disposed  of: 

But  the  contestant  and  his  counsel  further  insist  that  Mr.  Mann  was  constitutionally  ineligible  for 
the  reason  that  he  was  not  "  when  elected  "  an  inhabitant  of  the  State  of  Louisiana  (Constitution.  Art.  I, 
sec.  2,  cl.  2),  and  that  the  contestant,  if  he  only  received  the  next  highest  number  of  votes,  should  be 
declared  elected,  and  the  votes  cast  for  Mr.  Mann  should  be  disregarded.  In  support  of  this  position 
it  is  suggested  on  his  part  that,  in  the  absence  of  any  American  precedent  for  this  course,  the  faithful 
execution  of  the  fourteenth  amendment  requires  the  establishment  of  such  a  precedent,  and  that,  if 
voters  may  choose  disqualified  members,  representation  may  be  defeated  in  many  States. 

The  committee  does  not  consider  the  evidence  adduced  by  the  contestant  in  regard  to  Mr.  Mann's 
residence  or  domicile  (Mis.  Doc.  No.  13,  pp.  20,  29,  30)  sufficiently  clear  and  conclusive  to  justify  it  in 
declaring  Mr.  Mann  constitutionally  ineligible  at  the  time  of  his  election,  even  if  the  evidence  on  the  part 
of  Mr.  Mann  were  rejected;  but  it  is  not  necessary  to  decide  upon  this  question  of  ineligibility,  since, 
if  Mr.  Mann  were  admitted  to  have  been  ineligible  at  the  time  of  holding  the  election,  and  the  evidence 
of  this  held  to  be  satisfactory  and  conclusive,  it  would  not  aid  the  contestant  nor  entitle  him  to  the 
seat,  but  would  only  show  that  there  was  a  vacancy.  This  is  fully  shown  by  the  report  of  the  committee 
in  the  case  of  Smith  v.  Brown  (Report  No.  11,  second  session  Fortieth  Congress)  sustained  by  the  House, 
which,  after  declaring  Mr.  Brown  not  entitled  to  his  seat  by  reason  of  disloyalty  at  the  time  of  his  election, 
at  the  same  time  refused  to  Mr.  Smith  the  seat  on  the  ground  that  he  had  not  received  a  majority  of  the 
votes  cast  for  Representative  at  said  election  in  said  Congressional  district,  and  directed  the  Speaker 
to  notify  the  governor  of  Kentucky  that  a  vacancy  existed  in  the  representation  in  this  House  from 
the  said  Congressional  district  of  said  State. 

After  quoting  from  the  report  in  the  case  referred  to,  the  committee  go  on  to 
say  that  as  it  was  made  prior  to  the  adoption  of  the  fourteenth  amendment  they 

'  Second  session  Fortieth  Congress,  Journal,  p.  1102;  Globe,  pp.  4215,  4216. 
=  Third  session  Fortieth  Congress,  Journal,  pp.  93,  104;  Globe,  pp.  151,  182. 
^ Third  session  Fortieth  Congress,  House  Report  No.  27;  2  Bartlett,  p.  471;  Rowell's  Digest,  p.  226. 


§  326  ELECTOKATES    INCAPACITATED    GENERALLY.  207 

would,  in  quoting  the  report,  intimate  no  opinion  concerning  any  additional  powers 
that  might  have  been  conferred  upon  Congress  by  the  amendment.  The  committee 
also  state  that  no  statute  of  Louisiana  provided  for  a  minority  candidate  to  succeed 
a  disquahfied  majority  candidate. 

(c)  The  contestant  had  not  proven  the  vote  of  the  district,  either  in  the  aggre- 
gate or  by  precincts,  so  the  committee  had  recourse  to  the  certified  returns  of  the 
military  officers  in  command  in  the  district,  wliich  showed  a  phu-ality  of  1,150 
votes  for  Mr.  Mann.  The  contestant  thereupon  raised  a  question  which  went  to 
the  validity  of  the  returns  and  credentials.  The  committee  thus  set  forth  this 
question : 

The  ex  parte  and  unauthorized  testimony  of  Mr.  F.  Leon,  taken  before  a  justice  of  the  peace  in  this 
district  January  11,  1869,  since  the  death  of  Mr.  Mann,  is  the  only  other  evidence  as  to  the  votes  cast 
at  this  election  in  this  Congressional  district,  and  it  is  insisted  by  the  counsel  for  the  contestant  that  such 
sworn  statement  of  this  witness  is  better  evidence  than  the  return  of  General  Buchanan,  who,  as  con- 
testant claims,  '"had  no  jurisdiction  over  Congressional  elections,"  and  that  "the  sworn  proof  therefore 
stands  upon  higher  ground  than  the  voluntarj'  statements  of  General  Buchanan  about  a  matter  not  within 
his  jurisdiction." 

He  concede s.  however,  that  by  the  reconstruction  laws  it  is  made  the  duty  of  the  commanding 
general  to  receive  and  return  the  votes  upon  the  ratification  of  the  Constitution.  The  contestant  and 
his  counsel,  in  assuming  this  position  above  stated,  seem  to  have  overlooked  the  provisions  of  the  sup- 
plementary reconstruction  act  of  March  11,  1868,  subsequent  to  which  this  election  was  held,  which  act 
makes  provision  for  the  election  ()f  Members  of  Congress  at  the  same  time  that  the  vote  is  taken  on  the 
adoption  of  the  Constitution,  and  declares  that  "the  same  election  officers  who  shall  make  the  return  of 
the  votes  cast  on  the  ratification  or  rejection  of  the  Constitution  shall  enumerate  and  certify  the  votes 
cast  for  Members  of  Congress."  It  is  considered,  therefore,  that  the  commanding  general,  in  making 
and  certifying  the  returns  of  the  votes  cast  at  this  election  for  Members  of  Congress  was  acting  under 
the  authority  conferred  by  the  reconstruction  laws  aforesaid,  and  that  his  return  is  higher  evidence  than, 
or  at  least  not  inferior  to,  the  brief,  general,  and  somewhat  vague  and  indefinite  statement  of  Mr.  Leon, 
sworn  to  as  aforesaid. 

The  House  of  Representatives,  also,  in  admitting  Mr.  Mann  and  his  colleagues  from  Louisiana  to 
their  seats  on  the  certificate  of  said  commanding  general,  as  also  in  admitting  Members  from  Georgia 
and  South  Carolina  on  similar  certificates,  seems  to  have  recognized  this  construction  of  the  law  and  the 
jurisdiction  of  said  officers  in  the  matter  of  said  election  returns. 

(d)  Inasmuch  as  there  was  no  evidence  before  the  committee  showing  the 
returns  of  the  various  precincts,  they  could  not  proceed  to  apply  the  testimony  as 
to  frauds  and  intimidation — which  was,  moreover,  not  very  definite — in  any  way 
to  destroy  Mr.  Mann's  plurality.     They  conclude : 

The  most  favorable  construction  of  the  evidence  for  the  contestant  that  could  be  given  would  not 
identify  and  count  up  additional  votes  enough  in  his  favor  to  equal  one-half  of  the  majority  returned 
for  Mr.  Mann,  much  less  to  give  him  the  majority,  even  if  aU  the  votes  assumed  by  witnesses  to  have 
been  changed  in  the  ballot  boxes  or  fraudulently  put  in  were  charged  to  the  Democratic  vote,  deducted 
from  Mr.  Mann's  majority,  and  counted  for  the  contestant.  The  only  remedy  for  or  correction  of  the 
evils  complained  of,  under  the  state  of  the  case  as  presented,  would  be  to  set  aside  the  returns,  declare  a 
vacancy,  and  order  a  new  election,  as  it  is  impossible  from  the  evidence  to  purge  the  poll;  but  this  the 
contestant  does  not  desire  or  insist  should  be  done,  nor  do  the  committee  consider  the  evidence  suffi- 
cient to  justify  such  a  course. 

Therefore  the  committee  reported  a  resolution  declaring  that  Mr.  Jones,  the 
contestant,  not  having  received  a  majority  of  the  votes,  was  not  entitled  to  the 
seat  in  question. 


208  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  327 

On  February  27/  after  debate,  an  amendment  declaring  Mr.  Jones  entitled  to 
the  seat  was  rejected  without  division,  a  demand  for  the  yeas  and  nays  being  refused. 
Then  the  resolution  of  the  committee  was  agreed  to. 

327.  The  Louisiana  election  cases  of  Jones  r.  Mann  and  Hunt  ?•.  Men- 
ard, continued. 

The  House  declined  to  admit  a  claimant  on  the  vote  of  three  out  of 
seven  parishes,   19,078  out  of  27,019  votes  having  been  rejected. 

An  election  to  fill  a  vacancy  being  held  in  a  newly  apportioned  dis- 
trict, the  larger  portion  of  which  was  new,  both  as  to  territory  and  peo- 
ple, the  elections  committee  considered  the  election  invalid. 

A  question  as  to  whether  or  not  the  House,  from  historic  knowledge 
merely,  may  decide  that  the  result  of  an  election  has  been  invalidated  by 
intimidation. 

A  seat  having  been  adjudged  vacant,  the  House  yet  declined  to  admit 
a  claimant  whose  final  right  was  then  under  examination. 

Reference  to  historical  facts  in  determining  prima  facie  effect  of  reg- 
\ilar  credentials. 

The  law  governing  the  serving  of  notice  of  contest  may  be  departed 
from  in  a  case  where  its  observance  is  impracticable. 

2.  The  examination  of  the  contest  of  Hunt  r.  Menard  involved  several  ques- 
tions: 

(a)  In  the  first  place,  immediately  after  the  decision  of  the  House  that  Mr. 
Jones  was  not  entitled  to  the  vacancy  caused  b}^  the  death  of  Mr.  Mann,  a  demand 
was  made  that,  as  Mr.  Menard  had  presented  credentials  in  due  form,  he  should  be 
sworn  in  pending  the  decision  of  the  final  right.  The  Committee  on  Elections, 
who  had  reported  that  neither  Mr.  Menard  nor  Mr.  Hunt  was  entitled  to  the  seat, 
resisted  this  proposition,  it  being  stated  that  accompanying  Mr.  Menard's  credentials 
was  a  certified  statement  of  the  governor  and  secretary  of  state  giving  reasons 
which  induced  them  to  throw  out  certain  votes,  which  reasons  were  not  good, 
tending  to  show  that  Mr.  Menard  was  not  really  elected.  It  was  also  stated  that  in 
all  cases  from  the  reconstructed  States  the  bearers  of  certificates  had  not  been 
sworn  in  until  the  credentials  had  been  examined  by  the  committee.  The  question 
was  brought  to  a  vote  in  the  shape  of  an  amendment  directing  that  Mr.  Menard  be 
sworn  in  pending  the  decision  of  his  case.  This  amendment  was  disagreed  to,  yeas 
57,  nays  130.''  In  the  argument  it  was  admitted'  that  the  usual  rule  was  that  a 
person  having  a  certificate  in  proper  form  was  entitled  to  be  swoni  in  in  the  absence 
of  objection;  but  the  House  had  at  this  session  in  the  reconstructed  States  taken 
notice  of  historical  facts,  and  had  not  sworn  in  Members-elect  imtil  their  certificates 
had  been  examined. 

(b)  The  majority  of  the  committee  in  their  report  discuss  a  preliminary  question 
relating  to  notice  of  contest: 

It  is  objected,  however,  by  Mr.  Menard,  that  no  notice  of  contest  has  been  served  on  him  as  required 
by  law,  and  that  therefore  Mr.  Hunt  is  not  properly  here  to  contest  his  right  to  the  seat.     In  reply  to  this 

'  Journal,  p.  470;  Globe,  pp.  1679-1683. 
-Journal,  pp.  473,  474;  Globe,  pp.  1683-1696. 
=  Globe,  p.  1694. 


§  327  ELECTORATES   INCAPACITATED    GENERALLY.  209 

it  is  urged  by  Mr.  Hunt  and  his  counsel  that  the  certificate  of  Mr.  Menard  bears  date  November  25,  1868, 
and  about  the  time  when  the  final  decision  of  the  canvassers  was  made,  and  that  as  the  session  of  Con- 
gress was  to  commence  on  the  first  Monday  in  December  next  succeeding,  and  to  close  on  the  4th  of 
March  following,  to  wait  the  time  allowed  by  law  for  giving  notice  and  answer,  and  then  for  taking 
testimony,  would  be  to  permit  Mr.  Menard  to  take  and  hold  the  seat  during  the  whole  of  the  remaining 
official  term,  and  to  prevent  the  contest  from  ever  being  heard  by  this  Congress,  which  only  has  jurisdic- 
tion of  it.  He  also  suggests  that  as  no  other  evidence  was  needed  by  him  to  support  his  claim  than  the 
certified  copy  of  the  returns  and  the  reasons  given  for  their  rejection,  he  has,  by  filing  his  protest  with 
the  House,  addressed  to  the  Speaker,  stating  his  objections  to  Mr.  Menard's  claim  to  the  seat,  and  the 
grounds  on  which  he  claims  the  same,  with  the  evidence  by  which  it  is  supported,  given  Mr.  Menard 
sufficient  notice,  under  the  circumstances,  and  that  a  literal  compliance  with  the  terms  of  the  acts  of 
Congress  was  impossible  without  defeating  him  in  the  contest  by  putting  off  taking  the  evidence  and  the 
hearing  of  the  case  beyond  the  lifetime  of  the  Congress  to  which  it  relates. 

He  also  urges  that  the  statute  is  directory,  and  has  been  so  treated  in  some  cases  arising  under  it  in 
the  House,  and  that  under  the  Constitution  the  power  exists  in  this  Congress,  independent  of  the  statute, 
to  hear  and  determine  this  case  as  presented. 

Were  it  necessarj-  to  decide  this  question,  it  is  proper  to  say  that  Mr.  Hunt  presents  some  very  good 
reasons  in  justification  of  the  course  he  has  pursued  under  all  the  circumstances  of  the  case,  but  the 
view  the  committee  has  taken  of  the  election  itself  does  not,  in  its  judgment,  require  that  it  should  pass 
upon  this  objection  raised  by  Mr.  Menard,  and  also  since  it  is  the  right  of  any  of  the  legal  voters  of  the 
district  to  petition  Congress  and  to  call  in  question  the  right  of  any  person  claiming  the  seat. 

The  minority  in  their  views'  thus  discuss  Mr.  Menard's  objection: 

To  this  objection  Mr.  Hunt  answers,  that  the  notice  of  contest  which  he  laid  before  the  House  on  the 
18th  December.  1868  (within  the  thirty  days  required  by  law),  was,  at  the  time,  known  to  him  (Menard), 
he  being  present  in  the  House  at  the  time  to  present  his  credentials;  that  the  grounds  of  contest  were 
particularly  set  forth  in  said  notice;  that  the  contest  was  so  limited  in  its  range  of  inquirj-  and  investi- 
gation as  to  require  only  testimony  of  record  and  construction  of  law;  that  such  testimony  was  furnished 
along  with  the  notice,  and  therefore  Mr.  Hunt  submits  that  Mr.  Menard  had  notice  sufiicient  in  all  respects 
of  time  and  particularity  to  put  him  upon  his  defense. 

Since  the  passage  of  the  act  of  1851  regarding  contested  elections,  the  rulings  and  decisions  of  the 
Committee  of  Elections,  sustained  by  the  House,  in  respect  to  the  construction  and  application  of  its 
provisions  and  the  practice  thereunder,  have  been  most  liberal  in  regard  to  the  personal  rights  of  contest- 
ants and  the  constitutional  rights  of  constituencies,  and  the  rights  and  powers  of  the  House  as  involved 
more  or  less  in  every  case  of  contested  election. 

After  citing  the  cases  of  Wright  v.  Fuller,  Daily  v.  Eastabrook,  Williamson  v. 
Sickles,  Vallandigham  v.  Campbell,  and  Chapman  v.  Ferguson,  the  minority  conclude: 

In  the  judgment  of  the  undersigned,  in  view  of  the  facts  in  the  premises  and  in  the  spirit  of  such 
rulings  of  the  Committee  of  Elections,  the  notice  given  by  Mr.  Hunt  as  aforesaid  was,  for  all  the  pur- 
poses of  this  contest  and  protection  of  the  rights  of  Mr.  Menard,  legally  and  substantially  sufficient. 

(c)  The  conmiittee  found  that  Mr.  Menard^  was  not  elected: 

From  the  said  certified  statement  it  will  be  seen  that  the  whole  number  of  votes  cast  at  said  election 
to  fill  such  vacancy  in  said  district  was  27,019,  of  which  votes  so  retiuned  to  the  secretary  of  state  19,078 
were  rejected  by  the  committee  of  canvassers  and  the  returns  thrown  out,  being  a  large  majority  of  the 
entire  vote  of  the  district  as  returned,  and  the  certificate  was  given  to  Mr.  Menard  on  the  vote  of  but 
three  of  the  seven  parishes  of  the  district,  and  casting  in  the  aggregate  only  a  vote  of  7,941.  The  vote  of 
the  single  parish  of  Orleans,  one  of  those  rejected,  was  11,628,  being  nearly  four-ninths  of  the  entire  vote 
of  the  district,  and  3,687  votes  more  than  the  entire  vote  on  which  the  certificate  was  given  to  Mr.  Menard. 

The  reason  given  in  the  certified  statement  for  the  rejection  of  the  vote  of  the  parish  of  Orleans,  viz, 
"that  the  returns  were  made  by  the  boards  of  supervisors  of  registration,"  shows  that  in  this  respect  the 
returns  were  made  as  required  by  law,  and  that  the  objection  is  invalid. 

'  Signed  by  Messrs.  M.  C.  Kerr,  of  Indiana,  and  J.  W.  Chanler,  of  New  York. 
^Mr.  Menard  was  the  first  colored  man  to  present  himself  for  a  seat  in  the  House. 
5994— VOL  1—07 14 


210  PRECEDENTS   OF   THE   HOUSE   OF   KEPEESENTATIVES.  §  327 

By  the  provisions  of  section  25  of  act  No.  164,  Laws  of  Louisiana,  1868,  page  223,  it  is  expressly  made 
the  duty  of  said  supervisors  of  registration  in  each  parish  to  make  out  and  forward  said  returns  to  the  sec- 
retary of  state.  It  is  unnecessary  to  notice  further  the  objections  stated  to  the  returns  from  the  other 
parishes  rejected  (although  those  urged  against  Jefferson  and  Terrebonne  would  seem  to  be  frivolous), 
since,  if  any  valid  election  was  held  there,  the  parish  of  Orleans,  being  properly  returned,  should  be 
counted,  which  would  give  Mr.  Hunt  a  majority  over  Mr.  Menard  so  great  that  it  would  not  be  overcome 
by  the  vote  of  all  or  any  of  the  other  parishes,  if  they  were  counted,  and  in  no  event  can  Mr.  Menard  be 
shown  by  the  returns  to  have  received  a  majority  vote  in  the  district. 

(d)  Another  reason  for  denying  a  seat  to  Mr.  Menard  and  also  to  Mr.  Hunt 
appeared  in  the  fact  that  after  the  election  of  Mr.  Mann,  who  was  originally  chosen 
to  represent  the  district  in  question  (the  Second  district),  the  State  had  been  redis- 
tricted  by  the  act  of  August  22,  1868,  which  so  changed  the  boundaries  of  districts 
that  the  old  Second  district  could  not  be  recognized  in  the  new  Second.  The  largest 
portion  of  the  new  Second,  both  in  territory  and  numbers,  was  made  up  of  what 
was  the  old  Third  district,  a  district  represented  on  the  floor  by  a  Member  chosen 
at  the  time  Mr.  Mann  was  originally  chosen  to  represent  the  old  Second.  The  elec- 
tion at  which  Mr.  Menard  and  Mr.  Hunt  were  rival  candidates  was  held  after  the 
apportionment,  and  in  the  new  Second  district.     The  committee  say  of  this  situation: 

So  far  as  the  numbering  of  this  new  district  is  concerned  it  might  with  as  much  propriety  have 
been  called  the  Third  district  as  the  Second,  and  it  would  be  difficult  to  say  in  which  of  the  new  dis- 
tricts as  created  and  arranged  by  the  act  of  August  22,  18G8,  the  vacancy  had  occurred,  or  to  which  of 
the  new  districts  the  governor  of  the  State  should  have  issued  his  writ  of  election  to  fill  the  vacancy 
which  the  death  of  Mr.  Mann  had  caused  if  the  election  to  fill  (he  vacancy  was  compelled  to  be  holden 
under  the  law  of  1868  creating  the  new  districts.  The  only  case  to  which  the  attention  of  the  com- 
mittee has  been  called  as  a  precedent  is  that  of  Perkins  v.  Morrison  (Bartlett's  Election  Case,  p.  142), 
which  is  against  this  objection  raised  by  Mr.  Hunt,  but  in  that  case  there  was  a  minority  report  signed 
by  four  of  the  Committee  of  Elections,  and  the  report  of  the  majority  was  sustained  in  the  House  by  the 
close  vote  of  only  98  to  90,  and,  in  the  opinion  of  your  committee,  the  soundest  reasoning  is  contained 
in  the  report  of  the  minority  in  that  case,  and  sustains  the  objection  raised  here  against  the  validity  of 
this  election. 

The  very  objection  which  was  urged  in  that  case  and  which  the  majority  in  the  concluding  part 
of  their  report  were  compelled  to  admit,  as  a  consequence  of  their  position,  is  exemplified  in  the  case 
now  under  consideration,  and  it  is  thus  stated  in  their  report: 

"It  was,  that  if  the  legislature  of  New  Hampshire  could  change  the  boundaries  of  the  district,  they 
might  have  so  divided  it  as  to  render  it  impossible  to  determine  to  which  district  the  governor's  precept 
should  have  been  sent." 

The  act  of  the  legislature  of  Louisiana  of  August  22, 1868,  making  a  new  division  of  the  State  into 
its  five  Congressional  districts,  by  its  terms,  purports  to  repeal  all  laws  and  parts  of  laws  in  conflict 
with  said  act,  but  is  silent  on  the  subject  of  vacancies  that  might  occur  in  the  districts  as  then  existing. 

The  committee  then  quotes  the  minority  views  in  the  case  of  Perkins  v.  Mor- 
rison, which  dwells  vipon  the  impropriety  of  a  decision  which  would  allow  a  portion 
of  the  people  to  have  two  Representatives,  while  another  should  have  none  in  whose 
choice  they  had  participated.     They  then  conclude: 

This  reasoning,  which  your  committee  consider  as  sound  and  pertinent,  applied  to  the  case  under 
consideration  seems  to  be  conclusive  against  this  election;  and  it  may  also  be  added  that,  whatever 
power  a  State  legislature  may  have  in  the  matter,  it  is  absurd  to  say  that  a  district  when  once  estab- 
lished and  a  Representative  chosen  therein  is  not  to  continue  for  the  whole  Congress  for  which  the 
election  has  once  been  operative.  No  election  to  fill  the  vacancy  caused  by  the  death  of  Mr.  Mann 
appears  to  have  been  notified  or  held  in  the  whole  of  said  district  as  represented  by  him. 

The  returns  on  which  Mr.  Menard  predicates  his  claim  to  the  seat  are  from  parishes  wholly  outside 
of  said  district,  and  comprised  in  the  district  which  Hon.  J.  P.  Newsham  was  chosen  to  represent  and 


§  327  ELECTORATES    INCAPACITATED    GENEKALLY.  211 

is  now  representing  in  this  House  (act  No.  54,  Laws  of  Louisiana,  1864-65,  p.  144),  and  which  parishes, 
in  the  judgment  of  your  committee,  had  no  lawful  right  to  participate  in  the  election  to  fill  the  vacancy 
in  another  district,  caused  by  the  death  of  Mr.  Mann. 

But  while  the  objection  is  thus  fatal  to  Mr.  Menard's  claim  to  the  seat,  it  is  equally  fatal  to  the 
claim  of  Mr.  Himt. 


The  minority'  quote  the  New  Hampshire  case  and  says: 


The  reasoning  of  the  majority  of  the  committee  in  that  case  seems  clear,  forcible,  and  conclusive 
The  regulation  of  the  districts  is  under  the  exclusive  control  of  the  States  until,  by  act  of  Congress,  it 
is  taken  from  them.  This  jurisdiction  has  never  yet  been  asserted  by  Congress.  The  State,  therefore, 
had  full  power  to  create  the  new  district.  It  did  so,  and  then  repealed  all  preexisting  laws  on  the  sub- 
ject. The  vacancy  could  not  have  been  filled  by  an  election  held  otherwise  than  under  the  provisions 
of  the  last  law.     It  was  therefore  so  held,  in  fact,  and  by  order  of  the  governor  of  the  State. 

But  as  we  proceed  to  make  it  clear  that  if  the  entire  vote  cast  in  the  election  precincts  now  included 
in  the  Second  district  which  were  not  in  the  old  district  be  rejected,  it  will  not  materially  change  the 
result,  or  in  any  just  sense  sustain  the  decision  of  the  majority  in  this  case.  The  decision  of  the  majority 
amounts  to  a  denial  of  representation.     This  ought  never  to  be  done  where  it  is  possible  to  avoid  it. 

It  is  argued  by  the  majority  of  the  committee  that  the  electors  of  the  Second  district  who  originally 
voted  at  the  election  of  Mr.  Mann,  to  serve  during  the  Fortieth  Congress,  could  alone  legally  elect  a 
successor  to  fill  his  vacancy  for  the  same  Congress,  and  therefore  that  the  recent  election,  November 
3,  1868,  to  fill  such  vacancy,  was  invalid  by  reason  of  the  participation  therein  of  the  electors  of  the 
several  parishes  and  the  ward  which  had  been  added  to  the  district  since  Mann's  election.  If  this 
argument  be  sound,  it  can  fairly  and  legally  apply  only  in  such  cases  where  the  legitimate  vote  can 
not  be  separated  nor  sufficiently  ascertainable  from  the  illegitimate. 

(e)  The  majority  of  the  committe  state  these  racts  in  support  of  a  contention 
that  there  had  been  intimidation: 

When  Mr.  Mann  was  elected,  the  Second  district,  as  then  constituted  by  the  act  of  April  4,  1865, 
was  wholly  within  the  parish  of  Orleans,  though  not  comprising  the  whole  of  said  parish,  and  his  aggre- 
gate vote  was  in  April,  1868,  6,874,  and  the  vote  for  Mr.  Jones,  as  retimied,  was  5,634,  besides  349  scat- 
tering votes  given  for  other  Republican  candidates,  making  the  aggregate  vote  opposed  to  Mr.  Mann 
5,983.  At  the  late  election  in  November,  only  a  little  over  six  months  after,  when  under  the  act  of 
August  22,  1868,  other  parishes  were  included  in  this  district  and  a  portion  of  the  parish  of  Orleans, 
this  portion  of  the  parish  of  Orleans  now  in  the  district  returns  11,535  votes  for  Mr.  Hunt  for  l)oth  the 
Fortieth  and  Forty-first  Congresses,  and  but  93  votes  for  Mr.  Menard  for  the  Fortieth  Congress  and 
115  for  Mr.  Sheldon  for  the  Forty-first  Congress.  The  smallness  and  wonderful  decrease  of  the  Repub- 
lican vote,  the  vastness  and  wonderful  increase  of  the  Democratic  vote,  and  its  exact  coincidence  for 
both  Congresses,  are  all  somewhat  strange  and  not  easily  susceptible  of  satisfactory  explanation  on  the 
theory  of  a  fair  and  honest  election. 

The  committee  then  go  on  to  cite  other  things  of  which  the  House  might  take 
notice,  the  fact  that  "for  some  weeks  immediately  preceding  this  election  civil 
disturbance,  disorder,  and  crime  prevailed  to  such  extent  by  reason  of  the  law- 
lessness of  the  disloyal  element  prevalent  there  that  the  civil  authorities  were 
unable  to  put  it  down."  The  committee  cite  the  fact  that  the  State  legislature 
called  ineffectually  on  the  National  Executive  for  troops,  and  quotes  from  letters 
of  the  governor.  It  was  unsafe  for  loyal  citizens  to  speak  their  sentiments  freely, 
to  participate  in  political  meetings,  or  vote  at  the  election.  The  majority  there- 
fore conclude: 

'  On  this  branch  of  the  question  the  minority  were  reenforced  during  the  debate  by  Mr.  Luke  P. 
Poland,  of  Vermont.     Globe,  p.  1692. 


212  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   328 

Sufficient  of  these  matters  exist  cjf  which  notice  may  be  taken  in  connection  with  the  facts  in  evi- 
dence in  the  case  to  justify  the  conclusion,  in  the  opinion  of  your  committee,  that  no  valid  election 
has  been  held  to  fill  the  vacancy  in  the  said  Second  Congressional  district. 

The  minority  assailed  vigorously  this  position  of  the  committee  in  regard  to 
intimidation.  They  denied  the  facts  by  implication,  if  not  directly,  and  questioned 
the  law.  It  was  urged'  in  the  debate  that  there  was  no  allegation  as  to  intimida- 
tion before  the  committee  and  that  there  was  no  proof  of  it.  An  election  case, 
like  a  suit  at  law,  should  be  decided  on  things  asserted  and  proven.  The  letter 
of  the  governor  did  not  amount  even  to  ex  parte  evidence.  Further  in  the  debate 
the  fact  that  the  committee  had  proved  nothing  definite  as  to  votes  prevented  by 
the  alleged  intimidation  was  tirged. 

The  report  was  debated  at  length  on  February  27,'  the  question  presented  being 
this  resolution  presented  by  the  majority  of  the  committee: 

Resolved,  That  neither  J.  Willis  Menard  nor  Caleb  S.  Hunt  is  entitled  to  a  seat  in  this  House  as 
a  Representative  from  the  Second  Congressional  district  of  Louisiana,  to  fill  the  vacancy  caused  by  the 
death  of  James  Mann. 

Mr.  Luke  P.  Poland  moved  to  amend  bj^  striking  out  all  after  the  word  "re- 
solved" and  inserting  a  provision  that  the  report  be  recommitted,  with  instruc- 
tions to  take  testimony  in  reference  to  "any  improper  or  unlawful  means  used  to 
prevent  a  free  and  fair  election." 

Mr.  Halbert  E.  Paine,  of  Wisconsin,  moved  to  amend  the  amendment  by  add- 
ing a  provision  that  Mr.  Menard  be  admitted  on  his  prima  facie  right  pending  con- 
sideration of  the  case. 

Mr.  Michael  C.  Kerr,  of  Indiana,  by  unanimous  consent,  submitted  a  substi- 
tute declaring  Mr.  Hunt,  the  contestant,  entitled  to  the  seat. 

The  question  being  first  taken  on  the  amendment  of  Mr.  Kerr,  it  was  decided 
in  the  negative,  yeas  41,  naj^s  137. 

On  the  amendment  of  Mr.  Paine  there  were  yeas  57,  nays  130,  and  it  was 
rejected. 

Then,  on  motion  of  Mr.  Henry  L.  Dawes,  of  Massachusetts,  the  whole  sub- 
ject was  laid  on  the  table. ^ 

328.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  Kennedy  and  Moray  v.  McCranie,  Newsham  v.  Ryan,  and  Darrall 
V.  Bailey  in  the  Forty-first  Congress. 

While  the  Clerk  may  not  give  prima  facie  effect  to  credentials  not 
explicitly  showing  the  bearers  to  be  duly  elected,  the  House  has  done 
so  after  exanaining  the  returns. 

The  House  assigned  prima  facie  title  to  a  claimant,  although  papers 
accompanying  the  credentials  raised  a  question  as  to  the  final  right. 

The  House  declined  to  consider,  in  the  assignment  of  prima  facie  title, 
a  question  of  law  as  to  rejection  of  votes  by  canvassing  ofl&cers. 

1  By  Mr.  Poland,  Globe,  p.  1692. 

2  Globe,  pp.  1683-1096. 
'Journal,  pp.  473^75. 


§  328  ELECTORATES    INCAPACITATED    GENERALLY.  213 

The  House  has  examined  validity  of  elections  and  qualifications  of  a 
claimant  when  determining  prima  facie  title,  leaving  final  right  for  later 
inquiry. 

The  House  adjudged  valid  for  prima  facie  title  an  election  wherein 
parishes  casting  14,346  out  of  27,055  votes  in  the  district  were  rejected. 

A  resolution  for  the  investigation  of  the  right  of  a  claimant  to  a 
seat  presents  a  question  of  privilege. 

On  March  4,  1S69/  at  the  organization  of  the  House,  the  names  of  the  Mem- 
bers-elect from  the  State  of  Louisiana  were  not  found  on  the  Clerk's  roll,  particularly 
the  name  of  Lionel  A.  Sheldon.  These  Members-elect  bore  certificates  as  follows 
in  form: 

State  of  Louisiana,  Executive  Department, 

New  Orleans,  November  25,  1868. 
To  all  to  whom,  these  presents  may  come: 

Kqow  ye  that,  in  accordance  with  the  laws  of  the  State  of  Louisiana,  an  election  was  held  by  the 
qualified  electors  of  this  State  on  the  3d  day  of  November,  A.  D.  1868,  for  five  Members  of  Congress,  to 
represent  the  First,  Second,  Third,  Fourth,  and  Fifth  Congressional  districts  of  the  State  of  Louisiana 
in  the  Forty-first  Congress  of  the  L^nited  States,  and  for  one  Member  of  Congress  from  the  Second  Con- 
gressional district  to  the  Fortieth  Congress,  to  fill  the  vacanc"  occasioned  by  the  death  of  the  Hon. 
James  Mann. 

And  whereas  the  returns  of  said  election  made  to  the  secretary  of  state,  as  required  by  law,  have 
been  carefully  examined,  compared,  and  attested  by  the  oroper  officers  whose  duty  it  was  to  examine 
the  same; 

And  whereas  it  has  been  ascertained  from  said  returns  that  Lionel  AUen  Sheldon  received  5,108 
votes,  and  Caleb  S.  Hunt  2,833  votes,  cast  at  said  election: 

Now,  therefore,  I,  Henry  C.  Warmoth,  governor  of  the  State  of  Louisiana,  do  hereby  certify  that 
Lionel  Allen  Sheldon  received  a  majority  of  the  votes  cast  for  Representative  to  the  Forty-first  Congress 
from  the  Second  Congressional  district  of  the  State  of  Louisiana. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  State  to  be  affixed 

this  5th  day  of  November,  in  the  year  of  our  Lord  1868,  and  of  the  independence  of  the  United  States 

the  ninety  third. 

[seal.]  H.  C.  Warmoth, 

Governor  of  the  State  of  Louisiana. 
Geo.  E.  Bovee,  Secretary  of  State. 

The  Clerk  had  declined  to  put  the  names  of  the  Members-elect  on  the  roll 
because  the  words  "duly  elected"  did  not  appear  in  the  credentials.^  The  law  of 
Louisiana  had  provided  that  the  proper  officials  "shall  proceed  to  ascertain  from 
the  said  retirms  the  person  duly  elected,  a  certificate  of  which  shall  be  *  *  * 
signed  by  the  governor,"  etc.  In  1865  the  credentials  given  In^  the  governor,  in 
the  ancient  form  of  the  State,  had  certified  that  the  bearer  "was  duly  elected  a 
Member  of  the  Thirty-ninth  Congress." 

The  Clerk  having  declined  to  place  the  names  on  the  roll,  the  House  agreed  to 
the  following  resolution: 

Resolved,  That,  inasmuch  as  the  names  of  Louis  St.  Martin,  Lionel  A.  Sheldon,  and  George  W. 
McCranie,  claiming  severally  to  be  elected  Representatives  from  the  State  of  Louisiana  in  the  Forty-first 
Congress,  have  been  omitted  by  the  Clerk  from  the  roll  of  Members  because,  as  is  alleged,  their  several 
credentials  or  certificates  of  election  do  not  show  that  they  were  regularly  elected  in  accordance  with 

'  First  session  Forty-first  Congress,  Journal,  p.  12;  Globe,  pp.  11-13. 

^  See  statements  of  Messrs.  Garfield  and  Stevenson  in  debate,  Globe,  pp.  11,  637,  642. 


214  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   328 

the  laws  of  said  State  or  of  the  United  States,  the  credentials  of  the  said  severally  named  pereons  be 
referred  to  the  Committee  of  Elections,  when  appointed,  for  inquiry  and  examination  into  the  right  of 
said  persons,  respectively,  to  be  admitted  on  their  said  certificates  to  take  the  seats  which  they  claim, 
with  the  instructions  to  said  committee  to  report  at  as  early  a  day  as  practicable. 

On  March  9  '  Mr.  Horace  Maynard,  of  Tennessee,  as  a  question  of  privilege, 
presented  a  preamble  and  resolution,  the  former  referring  to  an  official  declaration 
of  the  governor  of  Louisiana  and  a  legislative  report  of  that  State  as  authority 
for  statements  that  riot  and  intimidation  had  prevailed,  and  the  latter  providing 
that  the  committee  on  elections,  in  addition  to  examining  the  credentials, 

shall  inquire  into  the  validity  of  the  election  *  *  *  and  ascertain  in  which  of  said  districts,  if  any, 
a  valid  election  was  held,  and  shall  also  inquire  whether  the  persons  claiming  to  have  been  elected 
in  such  districts  are  qualified  under  the  Constitution  and  laws  to  take  seats  as  Members  of  this  House. 

A  question  of  order  being  raised  that  this  resolution  did  not  involve  a  question 
of  privilege,  the  Speaker  ^  said : 

Anything  which  goes  to  vindicate  the  rightof  aMember  to  a  seat,  whether  an  investigation  or  any- 
thing else,  is  within  the  pri\'ilege  of  the  House. 

This  resolution  was  agreed  to,  yeas  117,  nays  46. 

On  March  31,'  Mr.  Job  E.  Stevenson,  of  Oliio,  submitted  the  report  of  the 
majority  of  the  committee.  This  report,  after  citing  the  facts  as  to  the  certificates, 
says: 

If  the  case  rested  upon  the  certificate  alone,  the  right  of  the  holder  to  a  seat  might  be  questioned; 
but  upon  this  point,  which  is  involved  in  other  cases  not  yet  considered,  the  committee  do  not  deem 
it  necessarj'  now  to  pass.  By  the  official  returns,  as  examined  and  certified  according  to  law,  it  appears 
that  Lionel  Allen  Sheldon  received  5,108  votes  and  Caleb  S.  Hunt  2,833  votes.  This  official  statement, 
which  was  before  the  committee,  also  showed  that  the  following  votes  were  rejected:  For  Lionel  A. 
Sheldon  3,606,  for  Caleb  S.  Hunt  15,508.     The  statement  gave  the  reasons  for  the  rejection  of  these  votes. 

The  committee  proceed  to  say: 

Whatever  might  be  the  result  of  a  contest  involvingthe  validity  of  these  returns,  and  the  sufficiency 
of  the  reasons  ass^ned  for  rejecting  the  parishes  which  were  rejected,  the  returns  are  to  he  received 
as  prima  facie  evidence  of  the  result  of  the  election,  and  upon  them  Mr.  Sheldon  is  entitled  to  take 
the  seat,  subject  to  any  contest  which  may  be  lawfully  made,  unless  he  is  disqualified  or  the  election 
was  void. 

The  report  then  states  that  Mr.  Sheldon  was  not  disqualified. 

In  the  debate  it  was  asserted^  that  the  credentials  were  sufficient  prima  facie 
evidence  for  the  House  to  seat  Mr.  Sheldon.  The  statute  required  that  the  Clerk 
in  making  up  the  roll  should  not  put  on  the  names  of  those  not  explicitly  shown 
to  be  duly  elected.     The  House  Avas  not  governed  by  such  strictness. 

The  minority  ^  also  contended  that  the  certificate  was  sufficient  in  this  respect, 
although  not  in  another: 

A  prima  facie  right  must  be  founded  upon  and  established  by  prima  facie  evidence,  and  prima  facie 
evidence  is  that  evidence  which  is  sufficient  to  establish  the  fact,  unless  rebutted.     Now  apply  this 

'  Journal,  pp.  19,  20;  Globe,  p.  36. 

'  James  G.  Blaine,  of  Maine,  Speaker. 

3  House  Report  No.  4;  2  Bartlett,  p.  530;  Rowell's  Digest,  p.  232. 

*  By  Messrs.  Garfield  and  Paine,  Globe,  pp.  642,  643. 

'  Minority  views  signed  by  Messrs.  A.  S.  Burr,  of  Illinois,  and  Samuel  J.  Randall,  of  Pennsylvania. 


§  329  ELECTORATES    INCAPACITATED    GENERALLY.  215 

definition  to  the  case  under  consideration.  Unless  rebutted,  the  certificate  which  Mr.  Sheldon  holds  is 
prima  facie  evidence:  (1)  That  an  election  was  held  at  the  time,  place,  and  for  the  purpose  therein 
expressed;  and  (2)  that  he  received  the  highest  number  of  votes  cast  at  the  election,  which  necessarily 
constitutes  his  election,  and  thereby  establishes  prima  facie  his  right,  or,  in  other  phrase,  his  prima  facie 
right  to  be  admitted  to  the  seat.  But  his  certificate  of  prima  facie  evidence  is  rebutted  by  a  like  official 
and  authenticated  statement  of  equal  force,  and  showing  also  (1)  that  the  election  was  held  at  the  time, 
place,  and  for  the  purpose  therein  expressed;  and  (2)  that  Mr.  Hunt  received  the  highest  number  of 
votes  cast  at  the  election,  and  which  necessarily  constitutes  his  election,  and  thereby  establishes  prima 
facie  his  right  to  be  admitted  to  the  seat.  Now,  what  becomes  of  Mr.  Sheldon's  prima  facie  right?  It 
falls,  of  course,  unsustained  by  prima  facie  e\'idence;  and  thus  his  claim  is  of  no  higher  validity  than 
Mr.  Hunt's  in  a  prima  facie  sense,  and  upon  the  form  of  the  papers,  and  in  substantial  merits,  as  made 
manifest  on  the  face  of  the  certificates,  it  becomes  utterly  worthless  and  proves  nothing  to  the  advantage 
of  Mr.  Sheldon.  The  papers,  taken  together,  establish  the  \-ital  fact  that  Sheldon  is  not  elected,  and 
that  Hunt  is  elected  by  a  triumphant  majority  of  9,627  votes.  Or,  rejecting  the  parishes  of  Terrebonne, 
St.  John  the  Baptist,  and  Jefferson,  he  is  then  elected  by  a  majority  of  9,135.  This  conclusive  result  is 
shown  by  the  papers  and  the  law  alone,  without  any  resort  whatever  to  other  evidence  or  sources  of 
information. 

The  point  made  by  the  minority  is  elaborated  more  clearly  in  the  debate.' 
The  certificate  of  facts,  which  was  signed  by  the  governor  and  secretary  of  state 
under  seal,  gave  the  returned  vote  and  the  reasons  in  law  for  the  rejection  of  the 
returns  from  certain  parishes.  The  minority  contended  that  the  reference  to  the 
law  brought  that  law  within  the  view  of  the  committee,  and  that  the  question 
whether  or  not  the  returns  were  properly  rejected  should  be  settled  as  part  of  the 
prima  facie  case.  Comparing  this  certified  paper  with  the  credentials,  the  minority 
say: 

This  paper  springs  from  the  same  fountain;  is  based  upon  and  authorized  by  the  same  law;  is  exe- 
cuted by  the  same  officers;  relates  to  the  same  subject-matter,  and  declares  certain  facts  in  reference 
thereto,  from  which  arise,  by  ine\atable  and  logical  implication,  different  legal  results  and  conclusions 
from  those  promulgated  in  the  certificate  to  Mr.  Sheldon. 

In  all  matters  pertaining  to  the  settlement  or  adjudication  of  contested  elections,  the  House  acts 
judicially,  and  not  otherwise,  \yhenever  any  legal  or  official  papers,  executed  in  connection  with  such 
contests,  and  properly  brought  to  the  knowledge  of  the  House,  are  based  upon,  or  refer  to,  any  general 
laws.  State  or  Federal,  for  the  regulation  of  elections,  it  is  the  imperative  duty  of  the  House  to  take  notice 
of  all  such  laws.  It  is  the  conclusive  presumption  of  law  that  the  House  is  acquainted  with  them.  If 
any  action  in  connection  with  an  election  is  based  upon  provisions  or  constructions  of  law,  and  not  upon 
facts,  the  law  needs  not  to  be  set  out  in  the  official  paper  based  upon  it,  but  the  House  must  take  judicial 
notice  of  it,  and  must  be  its  own  exclusive  judge  as  to  its  interpretation.  These  rules  are  elementary 
and  important,  and  apply  with  great  propriety  and  force  to  this  case. 

To  this  the  majority  replied  that  the  tribunal  in  Louisiana  having  jurisdiction 
passed  on  the  question  of  law,  and  while  the  House  might  review  the  decision  in 
determining  the  final  right,  it  should  not  do  so  on  the  prima  facie  question.^ 

329.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  etc.,  continued. 

The  House,  going  outside  the  allegations  of  the  parties  and  ascertain- 
ing by  historic  knowledge  disturbances  causing  232  deaths,  declared  an 
election  invalid. 

'  Remarks  of  Mr.  Kerr,  Globe,  p.  639. 
^  Remarks  of  Mr.  Cessna,  Globe,  p.  642. 


216  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §   329 

The  committee  having  also  been  instructed  to  inquire  into  the  validity  of  the 
election,  the  majority  of  the  committee  arrived  at  the  following  conclusions  of  fact* 

In  the  city  of  New  Orleans  and  in  Jefferson  Parish,  which  adjoins  and  is  practically  part  of  the 
city,  there  was  for  about  one  week  prior  to  and  at  the  date  of  the  election  a  reign  of  terror  unsurpassed 
in  the  history  of  this  country.  The  disloyal  inhabitants,  stimulated  by  the  hope  of  reviving  rebellion 
and  regaining  the  lost  cause,  organized  and  armed,  overcame  the  feeble  resistance  of  the  civil  authorities, 
overawed  the  military  commanders,  and  ran  riot  through  the  city,  shooting  down  on  sight  and  murdering 
in  cold  blood  loyal  citizens,  white  and  colored,  without  offense  or  provocation,  save  those  of  loyalty  and 
color. 

By  the  official  reports  of  the  committee  of  the  legislature  of  Louisiana  appointed  to  investigate  the 
facts,  it  appears  that  in  these  two  parishes  232  Republicans  were  killed,  shot,  or  otherwise  maltreated — 69 
in  Jefferson  and  173  in  Orleans. 

This  violence  prevented  nearly  one-half  the  registered  electors  from  voting. 

Assuming  that  nearly  all  the  electors  thus  prevented  would  have  voted  under 
peaceable  conditions,  the  majority  conclude  that  the  election  should  be  invalidated 
in  part.     They  say: 

It  is  evident,  from  the  testimony  referred  to  the  committee,  that  in  the  parishes  of  Orleans  and 
Jefferson  there  was  no  valid  election,  and  the  question  arises  whether  this  should  invalidate  the 
election  in  the  other  parishes  of  the  district  and  set  aside  the  entire  returns. 

In  all  the  other  parishes  the  election  was  quiet  and  the  vote  was  as  full  as  that  usually  cast  in  loyal 
States;  and  it  would  seem  unrf-asonable  and  unjust  that  the  peaceable  electors  of  the  district  should  be 
denied  the  right  of  representation  because  their  violent  neighbors  attempted  and  failed  to  deprive  them 
of  that  right. 

The  better  rule  would  seem  to  be  that  indicated  by  the  legislature  of  Louisiana,  in  the  resolution 
referred  to  the  committee,  to  exclude  the  disorderly  and  count  the  peaceable  parishes,  thereby  defeating 
the  violent  and  protecting  the  peaceable  and  law-abiding  citizens  in  the  right  of  representation. 

The  minority  condemn  the  conclusion  of  the  majority  and  the  reasoning  on 
which  it  is  based,  saying: 

The  parties  to  this  contest  do  not  allege  invalidity  in  the  election  by  reason  of  the  existence  of 
violence,  intimidation,  terror,  or  anarchy.  They  specifically  and  emphatically  deny  all  such  charges. 
But  the  majority  of  the  committee  assume  the  existence  of  such  a  state  of  disorder  as  should  invalidate 
the  election  in  this  parish.  The  certificates  afford  no  support  or  countenance  to  this  assumption.  There 
is  no  legal  evidence  before  the  committee  to  establish  it.  But  the  majority  seem  to  have  borrowed  their 
faith  on  this  subject  from  a  report  made  to  the  legislature  of  Louisiana  by  a  committee  of  that  body. 
That  report  is  not  properly  or  legally  before  the  committee;  and  if  it  were,  it  does  not  contain  legal 
evidence  to  be  used  in  this  contest,  and  in  every  respect  it  is  intrinsically  and  notoriously  unfit  to  be 
received.  It  is  wholly  ex  parte  and  transparently  and  meanly  partisan,  and,  judged  by  itself,  it  is 
unworthy  of  respect  or  belief. 

But  the  majority,  byasingular  disregard  of  the  appropriate  limits  of  an  inquiry  into  alleged  prima 
facie  titles,  attempts,  by  a  process  of  argument  and  comparison  of  party  votes  and  strength  at  a  preceding 
election,  to  deduce  the  legal  conclusion  that  if  all  the  legal  votes  in  the  parish  of  Orleans  that  were  not 
cast  had  been  cast  at  the  Congressional  election  in  question,  they  would  in  fact  have  been  cast  for  Mr. 
Sheldon,  and  that  therefore  he  would  have  been  elected,  and  ought  now  to  be  allowed  to  be  sworn  in 
as  a  Member.  They  appear  to  have  no  doubt  but  that  every  man  who  did  not  vote  wanted  to  vote  for 
Mr.  Sheldon  and  that  the  House  should  now  declare  the  result  to  be  the  same  as  if  they  had  in  fact 
all  voted  for  Mr.  Sheldon. 

The  majority  reported  a  resolution  giving  the  seat  to  Mr.  Sheldon  on  his  prima 
facie  showing. 


§  330  ELECTOEATES   INCAPACITATED    GENERALLY.  217 

The  report  was  debated  in  the  House  on  April  8/  and  a  proposition  of  the 
minority  that  Mr.  Hunt  be  seated  was  decided  in  the  negative^yeas  44,  nays  101. 
Then  the  resolution  of  the  majority  seating  Mr.  Sheldon  was  agreed  to — ^yeas  85, 
nays  37. 

Mr.  Sheldon  accordingly  took  the  oath. 

330.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  etc.,  continued. 

Instance  wherein  the  House,  by  resolution,  removed  the  contested 
cases  of  a  State  from  operation  of  the  law  and  prescribed  a  different  pro- 
cedure. 

On  the  day  preceding  the  decision  to  seat  Mr.  Sheldon,  on  April  7,  1869,'  the 
House  agreed  to  the  following  resolution: 

Resolved,  That  each  of  the  persons  claiming  seats  in  the  Forty-first  Congress  as  Representatives  of 
the  several  Congressional  districts  of  the  State  of  Louisiana,  excepting  such  as  have  been,  or  before  the 
close  of  the  present  session  shall  be,  reported  by  the  Committee  of  Elections  to  this  House  as  unable  to 
take  the  oath  prescribed  in  the  act  entitled  '  'An  act  to  prescribe  an  oath  of  office,  and  for  other  purposes," 
approved  July  2,  1862,  shall,  on  or  before  the  15th  day  of  April,  1869,  file  with  the  Clerk  of  the  House  a 
statement  of  the  grounds  upon  which  he  claims  such  seat,  and  a  subcommittee  shall  be  appointed  by 
the  Committee  of  Elections  with  power  to  administer  oaths,  take  testimony,  and  send  for  persons  and 
papers  to  investigate  the  facts  connected  with  the  late  elections  for  Representatives  in  said  several 
districts  during  the  recess  of  Congress,  at  such  time  and  places  in  the  State  of  Louisiana  as  they  may 
determine:  and  upon  such  investigation  and  upon  the  evidence  heretofore  lawfully  taken  in  said  respec- 
tive cases  the  Committee  of  Elections  shall  at  the  next  session  of  Congress  report  to  the  House  whether 
the  elections  in  the  said  several  districts  were  lawful,  regular,  and  valid,  and  which  of  said  persons,  if 
any,  were  lawfully  elected  to  represent  said  districts,  respectively,  in  the  Forty-first  Congress,  and 
whether  said  claimants  are  able  to  take  the  oath  of  office  prescribed  in  the  act  of  July,  1862,  with  a  full 
statement  of  facts  in  each  case. 

Under  this  resolution  a  question  arose  which  was  thus  described  and  discussed 
when  the  committee  reported  on  the  final  right  to  Mr.  Sheldon's  seat  in  the  next 
session : 

The  sitting  Member  claims  that  as  the  resijlution  admitting  him  to  the  seat  was  subsequent  to  that 
of  April  7,  1869,  under  which  we  are  now  proceeding,  the  latter  does  not  apply  to  his  case,  and  he 
insists  that  his  case  is  to  be  further  considered,  if  at  all,  solely  under  the  act  regulating  contested  elections, 
by  which  it  is  provided  that  notice  of  contest  shall  be  given  within  thirty  days  after  the  result  of  the 
election  shall  have  been  declared.  Under  this  act  the  notice  should  have  been  given  within  thirty 
days  from  November  25,  1868,  but  no  notice  was  given  until  January  30,  1869;  consequently  the  notice 
was  not  sufficient  to  sustain  a  contest  "according  to  law,"  unless  the  objection  was  waived,  which  does 
not  appear,  the  contestee  having  made  and  maintained  the  objection  at  every  stage  of  the  case.  The 
committee  thought  proper,  notwithstanding  this  objection,  and  subject  to  protest,  to  proceed  in  the 
examination  of  witnesses  in  this  case;  and  while  upon  a  rigid  construction  of  the  resolutions  of  the  House 
under  the  technical  rules  of  law  it  might  be  difficult  to  escape  the  conclusion  claimed  by  the  contestee, 
we  submit  the  question  without  recommendation,  and  assume  that  the  House  in  its  discretion  may 
enter  into  the  consideration  of  the  case  upon  its  merits. 

The  minority  took  a  more  positive  view: 

In  respect  to  the  legal  technicality  urged  by  Mr.  Sheldon  and  presented  by  the  majority  of  the 
committee  as  one  of  the  grounds  of  his  right  to  the  seat,  viz,  that  as  he  was  admitted  to  the  seat  subject 

'Journal,  pp.  199,  202;  Globe,  pp.  637-646. 
-Journal,  p.  183;  Globe,  p.  588. 


218  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   331 

only  to  a  contest  according  to  law,  no  person  has  a  right  to  contest  the  seat,  because  he  has  never 
received  any  notice  of  contest  within  the  time  required  by  the  law  of  1851.  The  answer  to  such  special 
pleading  is,  that  Mr.  Hunt's  right  to  contest  the  seat  does  not  now  depend  upon  technical  conformity 
to  the  law  of  1851.  The  House  resolution  of  7th  April  not  only  authorizes  it,  but  from  the  moment  of  its 
passage  became  the  law  and  the  rule  under  which  the  contest  should  be  tried,  and  Mr.  Hunt  has  com- 
plied with  its  requirements,  and  therefore  is  contesting  according  to  law.  The  House  has  fallen  back 
upon  its  constitutional  prerogative  of  judging  of  the  election  and  qualification  of  its  own  Members,  and 
has  taken  the  contest  out  of  the  hands  of  the  parties,  and  commenced  the  case  de  novo.  Mr.  Sheldon 
has  admitted  the  new  status  of  the  contest  by  filing  his  statement  of  the  grounds  of  his  claim,  in  obedience 
to  the  requirements  of  the  resolution.  Under  that  resolution  he  was  admitted  on  prima  facie  right 
to  take  his  seat,  subject  to  any  contest  against  him  according  to  law;  and  Mr.  Hunt,  having  conformed 
to  the  requirements  of  the  House  resolution,  is  now  contesting  his  right  to  the  seat  in  accordance  with  law. 

331.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  etc.,  continued. 

The  House  has  decided  that  widespread  and  organized  intimidation 
might  invalidate  the  polls,  although  the  disorder  ceased  before  the  actual 
day  of  election,  when  the  polls  were  quiet. 

The  poll  of  a  district  in  a  prior  year  has  been  referred  to  in  deciding 
upon  the  effect  of  a  widespread  system  of  intimidation. 

The  report  as  to  the  final  right  was  submitted  on  March  16, 1870/  b}'  Mr.  Steven- 
son. As  this  case  was  tj'pical  of  the  other  Louisiana  cases  the  report  considers 
first  the  general  principle  underlying  the  contests  in  the  five  districts  from  the  State. 
The  majority  of  the  committee  found  it  established  by  ofiicial  records  as  follows  in 
regard  to  certain  disturbed  parishes  distributed  among  the  five  districts : 

The  number  of  electors  registered  in  those  parishes  under  the  reconstruction  acts  in  1867  was  74,106; 
31,413  white  and  42,693  colored ;  being  a  majority  of  11,280  of  colored  electors. 

The  Republican  vote,  at  the  election  in  1867  for  the  constitutional  convention,  was  38,335,  being  a 
majority  of  all  the  registered  electors. 

The  Democratic  vote  was  2,482,  the  mass  of  that  party  not  voting  because,  under  the  reconstruction 
acts,  a  majority  of  registered  electors  was  requisite  to  the  calling  of  a  convention. 

At  the  next  election,  held  in  April,  1868,  there  were  30,895  votes  cast  in  favor  of  the  Republican 
State,  parish,  legislative,  and  Congressional  ticket,  against  26,553,  cast  for  independent  candidates, 
adopted  by  the  Democracy. 

The  next  election  was  that  in  question,  being  the  Presidential  and  Congressional  election  of  1868, 
when  the  number  of  Republican  votes  cast  in  these  parishes  was  3,359,  of  which  number  eight  parishes 
cast  3,339.  Three  parishes  cast  two  Republican  votes  each.  Five  parishes  cast  one  Republican  vote 
each.     Seven  parishes  cast  no  Republican  votes. 

The  majority  find  it  established  by  testimony  that  previous  to  the  election  a 
condition  of  terrorism  was  inaugurated  in  the  parishes  in  question.  Oatli-bound 
bands  of  armed  men,  organized  in  a  secret  fraternity,  set  on  foot  organized  intimi- 
dation and  riot,  and  the  report  says  "it  is  estimated  by  those  best  informed  that  not 
less  than  2,000  Republicans  were  killed,  wounded  by  gunshots,  or  otherwise  seriously 
injured."  Tliis  caused  the  Republicans  generally  to  avoid  the  polls  on  election  day. 
The  majority  of  the  committee  therefore  propose  the  following  rule: 

If  it  be  said  that  there  might  not  have  been  any  violence,  the  answer  is  that  recent  events  had 
raised  a  reasonable  apprehension  of  danger,  sufficient  in  law  to  cause  a  man  of  ordinary  prudence  to  so 
act  as  to  avoid  the  probable  danger. 

'  Second  session  Forty-first  Congress,  House  Report  No.  38 ;  2  Bartlett,  p.  703;  Rowell's  Digest,  p.  241. 


§   331  ELECTOKATES    INCAPACITATED    GENERALLY.  219 

It  may  be  said  that  because  the  statutes  of  Louisiana  provide  that  actual  violence  at  the  polls  should 
void  the  election,  therefore  no  election  can  be  set  aside  for  violence  at  any  other  time  or  place,  however 
it  may  affect  the  minds  or  conduct  of  electors;  and  this  may  have  been  the  view  of  the  Democratic 
leaders  in  causing  or  permitting  cessation  of  violence  immediately  before  the  day  of  election,  and  in 
keeping  the  peace  among  themselves  at  the  polls.  They  may  have  supposed  that  they  could  violate 
the  spirit  of  the  State  statute  without  incurring  the  penalty  of  its  letter.  It  is  submitted  that  no  such 
views  of  law  should  be  allowed  to  prevail.  Such  a  ruling  would  overturn  established  principles,  and 
give  license  to  lawlessness.  The  rule  applicable  is  well  expressed  in  the  act  of  Congress  known  as  the 
first  reconstruction  act,  passed  March  2,  1867,  section  5,  where  it  is  provided  as  one  of  the  essentials  of 
valid  election  that  it  shall  appear  "that  all  the  registered  and  qualified  electors  had  an  opportunity  to 
vote  freely  and  without  restraint,  fear,  or  the  influence  of  fraud." 

This  act  was  passed  with  special  reference  to  the  circumstances  surrounding  the  freedmen  of  the 
late  rebellious  States,  and  it  is  well  adapted  to  test  the  fairness  and  validity  of  such  elections.  It  is 
declaratory  of  an  established  rule  of  contested  election  law,  and  is  at  present  our  only  available  means 
of  securing  fair  and  peaceable  elections  in  the  reconstructed  States.  It  should  be  strictly  and  impar- 
tially enforced  until  we  shall  be  prepared  to  protect  the  voter  in  the  exercise  of  his  rights,  or  to  punish 
those  who  violate  them;  and  it  may  be  that  experience  will  demonstrate  that  the  best  permanent  prac- 
ticable means  of  securing  fair  and  free  elections  in  the  reconstructed  States  will  be  such  an  application 
of  this  great  principle  as  will  teach  all  parties  that  they  have  nothing  to  gain  by  intimidation  and  violence. 
It  is  proposed  to  apply  this  rule  to  the  several  disputed  parishes  of  the  districts  of  the  State  of  Louisiana, 
and  under  its  operation  to  reject  the  returns  from  those  parishes,  if  any,  in  which  it  shall  clearly  appear 
from  the  testimony  that  the  electors  generally  had  not  an  opportunity  to  vote  "freely  and  without 
restraint,  fear,  or  influence  of  fraud." 

As  to  the  remaining  parishes  in  which  it  shall  appear  that  the  election  was  valid,  it  is  proposed  that 
the  returns  therefrom,  when  properly  authenticated  or  proved,  shall  be  counted,  and  the  result  in  each 
district  determined  from  such  returns. 

The  minority '  do  not  admit  either  the  facts  alleged  to  be  shown  by  the  testi- 
mony or  the  principle  of  law. 

The  anarchy,  violence,  and  public  distiu-bance  in  the  city  of  New  Orleans,  set  up  by  contestee  and 
the  majority  of  the  committee  as  a  proper  ground  for  rejecting  the  returns  of  the  election  in  the  said  five 
wards  thereof,  appears,  by  the  testimony  of  the  witnesses  testifying  on  that  point,  to  have  occurred  some- 
time prior  to  the  election,  and  therefore  could  not  necessarily  in  any  manner  interrupt  the  proceedings 
at  the  election,  nor  prevent  the  ascertainment  of  the  result. 

The  rule  of  law  is  well  settled  upon  the  question  of  riot  and  disturbance  of  the  public  peace  at 
elections,  and  has  governed  the  decisions  in  aU  analogous  cases  in  courts  and  legislative  bodies,  both  in 
England  and  this  countrj'.  It  is  laid  down  in  all  the  leading  authorities  on  the  law  of  elections,  under 
appropriate  titles,  viz,  Hayward  on  County  Elections;  Wordsworth's  Law  and  Practice  of  Elections; 
Curtis's  Law  and  Practice  of  Elections;  Rowe  on  Elections;  Sheppard  on  Elections;  4  Selden;  Cooley 
on  Const.  Limit.;  1  Peckwell,  etc.,  and  is  in  substance,  that  to  invalidate  or  make  void  an  election  on 
the  ground  of  riot  and  intimidation,  it  must  appear  that  the  proceedings  at  the  election  were  interrupted 
and  the  ascertainment  of  the  result  prevented  thereby.  This  rule  furnishes  the  ground  of  the  decisions 
by  the  Committee  of  Elections  in  the  several  cases  of  Harrison  v.  Davis,  Contested  Cases,  vol.  2,  p.  341; 
Preston  v.  Harris,  vol.  2,  p.  346;  Clements,  of  Tennessee,  vol.  2,  p.  369;  Bruce  v.  Loan,  vol.  2,  p.  519; 
Minority  Report  adopted  by  the  House. 

After  quoting  from  some  of  these  authorities,  the  minority  continue — 

It  will  be  observed  that  these  several  cases  were  founded  on  allegations  of  riot,  violence,  public 
disorder,  intimidation,  and  interference  with  voters  on  the  day  of  election  and  at  the  polls;  and  it  was 
sought  in  each  case  to  avoid  the  election  in  whole  or  in  part;  but  the  committee  and  the  House,  finding 
that  the  proceedings  at  the  election  were  not  interrupted,  and  the  result  had  been  duly  ascertained, 
declared  the  election  in  each  case  valid,  thus  sustaining  the  rule  aforesaid;  and  yet,  with  these  former 

'  This  Congress  the  Committee  of  Elections  worked  by  subcommittees.  Messrs.  Stephenson, 
Burdett,  and  Kerr  constituted  the  subcommittee  having  the  Louisiana  cases. 


220  PRECEDENTS    OF    THE    HOUSE    OF    EEPRESENTATIVES,  §    332 

decisions  by  the  committee  and  the  House  before  them,  and  directly  in  point  of  the  case  now  under 
consideration,  the  majority  of  the  committee  reports  that,  because  of  riot  and  disturbance  of  the  public 
peace,  not  on  the  day  of  election  and  at  the  polls,  but  several  days  before  the  election,  during  the  political 
campaign  in  the  city  oi  New  Orleans,  the  election  in  the  five  wards  aforesaid  should  bo  considered  void, 
and  that,  too,  not  because  the  proceedings  at  the  election  were  interrupted,  or  the  result  not  ascertainable, 
but  because  a  large  number  of  Republican  electors  pretended  that  they  could  not  vote  with  personal 
safety,  notwithstanding  on  the  day  of  the  election  no  violence,  threats,  nor  intimidation  operated  to  give 
even  color  to  such  pretense. 

Another  rule,  equally  well  established,  is  that  whenever  it  is  sought  to  set  aside  an  election,  in  part, 
on  the  ground  of  illegal  votes  or  riot  and  intimidation,  it  must  be  made  to  appear  that  if  such  illegal 
votes  had  not  been  received  or  if  such  riot  and  intimidation  had  not  prevailed  the  result  of  the  election 
would  have  been  different  in  the  whole  district;  for  otherwise  it  would  be  wholly  immaterial  whether 
the  election  was  void  or  not,  in  part.  On  this  point  reference  is  again  made  to  the  authorities  before  cited. 
This  rule  is  self-evident,  and  has  always  heretofore  lieen  the  guide  of  the  Committee  of  Elections  to  its 
conclusions,  and  governed  the  House  in  its  decisions,  and  is  directly  in  point  of  the  contest  now  under 
consideration. 

332.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  etc.,  continued. 

The  House  has  assigned  final  right  to  a  seat  from  a  district  wherein 
14,346  out  of  27,055  returned  votes  were  rejected  because  of  intimi- 
dation. 

The  majority  of  the  committee,  having  considered  the  general  issue,  proceed  to 
the  consideration  of  the  case  of  Hunt  r\  Sheldon.  It  appeared  that  in  the  entire 
district  there  were  cast  for  Mr.  Sheldon  8,714  votes  and  for  Mr.  Himt  18,341,  a 
majority  of  9,627  for  the  latter.  But  the  majority  of  the  committee  foimd  that 
violence  and  intimidation  had  prevailed  in  the  parishes  of  Orleans  and  Jefferson 
to  such  an  extent  as  to  bring  them  wathin  the  general  principles  set  forth  at  the 
outset.  The  votes  cast  in  these  two  parishes  were  for  Sheldon  787  and  for  Hunt 
13,559,  a  majority  of  12,772  for  the  latter.  The  rejection  of  these  two  parishes 
would  cast  out  14,346  out  of  the  27,055  votes  cast  in  the  district,  and  would  change 
the  result  from  a  majority  for  Mr.  Hunt  to  a  majority  for  Mr.  Sheldon. 

After  reviewing  the  lawlessness,  intimidation,  and  riot  in  these  two  parishes 
prior  to  election  day,  the  majority  of  the  committee  conclude: 

The  number  of  registered  electors  in  the  parishes  of  Orleans  and  Jefferson  in  1867  was  34,766,  of  whom 
18,697,  a  majority,  were  colored.  The  Republican  vote  cast  at  that  election  in  1867,  in  those  parishes, 
was  16,083 — a  large  majority  of  votes  cast.  The  regular  Republican  vote  of  those  parishes  in  April,  1868, 
was  17,106.  The  entire  Republican  vote  cast  in  those  two  parishes,  in  November,  1868,  was  1,814, 
being  a  falling  off,  in  about  six  months,  of  over  15,000  votes,  upon  a  largely  increased  registration. 

The  comparison  is  equally  striking  if  confined  to  the  vote  in  Jefferson  parish  alone  or  in  that  part, 
of  Orleans  comprised  within  this  Congressional  district.  The  Republican  vote  in  Jefferson  in  1867  was 
3,284;  in  April,  1868,  3,133;  in  November,  1868,  672— a  decrease  of  nearly  four-fifths.  The  testimony 
relative  to  the  elections  of  1867  and  April,  1868,  does  not  show  the  vote  of  the  wards  of  Orleans  separately, 
but  it  is  understood  that  the  population  of  the  parish  was  about  equally  divided  between  the  First  and 
Second  Congressional  districts.  The  registered  vote  of  the  part  of  the  parish  within  the  Second  district 
in  November,  1868,  was  21,314,  more  than  half  the  registered  vote  of  the  parish.  The  Republican  vote 
cast  at  the  November  election,  1868,  was  124 — probably  not  2  per  cent  of  the  Republican  vote. 

It  seems  clear  that  there  was  no  valid  election  in  either  of  these  two  parishes,  and  that  the  returns 
from  each  of  them  should  be  rejected,  and  that  the  result  should  be  deterimned  from  the  returns  of  the 
other  parishes  of  the  district. 


§   333  ELECTORATES    INCAPACITATED    GENERALLY.  221 

The  minoritT  opposed  this  view,  also  raising  a  question  of  fact  as  to  the  actual 
result  even  were  the  principles  of  the  majority  to  be  followed. 

The  report  was  debated  on  April  12/  and  on  April  13^  a  vote  was  taken  on  the 
proposition  of  the  minority  that  Mr.  Sheldon  was  not  elected  and  that  Mr.  Himt  was 
elected.     This  was  defeated,  yeas  49,  nays  123. 

Then  the  resolution  of  the  majority,  declaring  Mr.  Hunt  not  entitled  to  the 
seat,  was  agreed  to,  yeas  119,  nays  47.  The  second  resolution,  declaring  Mr.  Sheldon 
entitled  to  his  seat,  was  agreed  to,  yeas  114,  naj's  51. 

333.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  etc.,  continued. 

The  House  concluded  that  when  two-thirds  of  the  returned  vote  of  a 
district  had  been  rejected  for  intimidation  the  remainder  did  not  consti- 
tute a  valid  constituency. 

Instance  of  exclusion  of  a  Member-elect  found  unable  to  take  the  test 
oath  of  loyalty. 

Another  contested  case  from  Louisiana  was  that  of  Sypher  v.  St.  Martin. 
Louis  St.  Martin  had  presented  credentials  in  the  same  form  as  those  of  Mr.  Sheldon 
and  had  been  temporarily  excluded  \vith  the  other  Members  of  the  delegation. 
Under  the  resolution  of  April  7,  1869,  the  Committee  on  Elections  examined  the 
quahfications  of  Mr.  St.  Martin,  reporting^  as  follows: 

It  was  alleged,  in  writing,  before  the  committee,  by  said  Sypher,  that  said  St.  Martin  could  not 
take  the  oath  prescribed  in  the  act  entitled  "An  act  to  prescribe  an  oath  of  office,  and  for  other  pur- 
poses," approved  July  2,  1862.  The  committee  thereupon,  in  obedience  to  said  resolution,  inquired 
into  said  charge,  and  have  found  and  do  report  to  the  House  that  Louis  St.  Martin,  claiming  the  right 
to  represent  the  First  Congressional  district  of  the  State  of  Louisiana  in  this  House,  is  unable  to  take 
the  oath  of  office  prescribed  in  the  said  act  of  July  2,  1862. 

Although  the  House  tlid  not  act  on  this  report,  the  Committee  on  Elections 
considered  that  it  disposed  of  the  claim  of  Mr.  St.  Martin  to  the  seat,  and  did  not 
consider  him  as  a  party  except  in  so  far  as  his  action  negatived  the  claim  of  Mr. 
Sypher. 

The  report  in  the  case  of  Mr.  Sypher  was  submitted  on  April  18,  1870,^  bv 
Mr.  Stevenson.  Tliis  report  chd  not  give  the  official  returns  of  the  district,  but 
after  reviewing  the  acts  of  violence  and  intimidation  before  the  election,  wherein 
"over  300  leading  and  active  Repubhcans,  white  and  colored,  were  killed,  wounded, 
or  otherwise  cruelly  maltreated,"  and  after  reaffirming  the  principles  set  forth  in 
the  case  of  Hunt  v.  Sheldon,  proceeded  to  give  the  vote  in  the  peaceable  parish  as 
2,983  for  Sypher  and  2,627  for  St.  Martin.  Therefore  they  proposed  a  resolution 
declaring  J.  H.  S^'pher  entitled  to  the  seat. 

The  minority  filed  no  views,  but  in  the  debate  *  Mr.  Michael  C.  Kerr,  of  Indiana, 
after  taking  issue  with  the  facts  and  law  relied  on  by  the  majority  on  the  question 
of  intimidation,  presented  returns,  alleged  to  be  official,  showing  that  the  vote  of 
the  whole  district  was  for  Sypher  2,948  and  for  St.  Martin  12,514.     Mr.  Kerr  also 

'  Globe,  pp.  2618,  2649. 

^Journal,  pp.  608-613. 

'First  session  Forty-firet  Congress,  Journal,  p.  180;  Globe,  p.  562;  House  Report  No.  11. 

*  House  Report  No.  60,  second  session  Forty-first  Congress;  2Bartlett,p.  699;  Rowell's  Digest,  p.  241. 

=^  Globe,  p.  2791.     For  the  whole  debate,  Globe,  pp.  2788-2796. 


222  PRECEDENTS    OP    THE    HOUSE    OF    REPRESENTATIVES.  §   334 

claimed  that  the  investigation  had  shown  the  actual  vote  cast  in  the  entire  district 
to  have  been  3,150  for  Sypher  and  16,059  for  St.  Martin.  He  further  alleged  that 
the  registration  made  imder  the  auspices  of  the  State  administration,  which  was 
of  the  same  party  as  Mr.  Sypher,  reached  a  total  of  29,992.  Thus  he  claimed 
that  Mr.  St.  Martin  received  an  actual  majority  of  the  total  registered  vote.  Citing 
the  case  of  Smith  v.  Brown  and  the  Louisiana  State  case  of  Fish  v.  Collins,  he  claimed 
that  the  vote  from  the  so-called  peaceable  parishes  did  not  show  a  proper  constit- 
uency to  be  represented. 

In  the  progress  of  the  debate  Mr.  James  A.  Garfield,  of  Ohio,  said  that  in  the 
case  of  Hunt  v.  Sheldon  he  had  concluded  that  a  very  large  proportion  of  the  ter- 
ritory and  a  majority  of  the  population  had  been  represented  in  these  so-called 
peaceable  parishes.  He  then  asked  how  far  this  principle  would  apply  in  the  pending 
case. 

There  was  no  agreement  as  to  the  actual  vote,  but  it  was  admitted  that  St.  Martin 
had  received  as  high  as  12,504  of  the  registered  vote  of  29,922  and  that  Sypher  had 
not  received  over  3,150.  Mr.  Kerr  denied  that  either  this  case  or  the  Sheldon  case 
conformed  to  the  rule  stated  by  Mr.  Garfield. 

On  April  20  '  the  resolution  declaring  Mr.  Sypher  entitled  to  the  seat  was  agreed 
to — yeas  78,  nays  73;  but  very  soon,  after  a  motion  to  adjoiu-n  had  been  disagreed 
to,  a  motion  was  made  to  reconsider.  A  proposition  to  table  the  motion  to  recon- 
sider failed — yeas  79,  nays  83.  Then  the  House  decided  to  reconsider — yeas  86, 
nays  79.  Thereupon  the  question  recurred  on  the  resolution  declaring  Mr.  Sypher 
entitled  to  the  seat,  when  Mr.  Thomas  Fitch,  of  Nevada,  proposed  the  following 
substitute: 

That  there  was  no  valid  election  held  in  the  First  Congressional  district  of  the  State  of  Louisiana  on 
the  3d  day  of  November,  1868,  and  that  neither  J.  H.  Sypher  nor  L.  St.  Martin  is  entitled  to  a  seat  in 
the  Forty-first  Congress  as  Representative  from  the  First  Congressional  district  of  the  State  of  Louisiana. 

The  substitute  was  agreed  to— yeas  99,  nays  70.  Then  the  resolution  as  amended 
was  agreed  to — yeas  96,  naj's  68. 

334.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  etc.,  continued. 

The  House  declared  vacant  a  seat  in  a  case  wherein  over  half  of 
the  total  vote  of  a  district  had  been  rejected  for  intimidation. 

Mr.  George  W.  McCranie,  of  the  Fifth  district  of  Louisiana,  had  also  presented 
himself  with  a  certificate  from  the  governor  of  the  State  of  Louisiana,  but  had  not 
been  sworn  in.  Under  the  general  rule  adopted  the  Committee  on  Elections  reported' 
that  he  was  unable  to  take  the  oath,  having  been  engaged  in  rebellion. 

The  seat  being  claimed  by  Mr.  Frank  Morey,  the  Committee  on  Elections 
reported  as  to  the  final  right  on  April  27,  1870.'  It  appeared  that  the  actual  vote 
cast  in  the  district  was — for  McCranie,  13,716;  for  Morey,  3,424,  and  for  P.  J.  Ken- 
nedy, 3,076.  The  official  retiu-ns,  however,  had  rejected  two  parishes,  leaving  the 
corrected  vote — for  McCranie,  11,107;  for  ilorey,  3,423,  and  for  Kennedy,  3,076. 

The  grotinds  of  contest  were  thus  stated  in  the  report : 

'  Journal,  pp.  643-650;  Globe,  pp.  2849-2852. 

-  House  Report  No.  10,  first  session  Forty-first  Congress. 

^  House  Report  No.  62,  second  session  Forty-first  Congress;  2Bartlett,  p.  719;  Rowell's  Digest,  p.  243. 


§  334  ELECTORATES   INCAPACITATED    GENERALLY.  223 

Mr.  Morey  claims  the  seat,  and  alleges  that  "a  system  of  intimidation,  threats,  \'iolence,  and  lawless- 
ness prevailed  in  the  parishes  of  Jackson,  Franklin,  Claiborne,  Bienville,  Union,  Morehouse,  Caldwell, 
and  Catahoula  prior  to  the  election  in  November  last;  that  Republicans  were  deterred  and  prevented 
by  fear  from  voting  at  all,  or  were  compelled  by  threats  and  intimidation  to  vote  the  Democratic  ticket 
against  their  wishes,  and  that  the  election  in  the  above-named  parishes  was  a  farce,  a  nullity,  and  an 
outrage  of  the  rights  of  the  law-abiding  citizens  of  the  Fifth  Congressional  district  of  Louisiana." 

In  the  parishes  thus  impeached  the  vote  was — for  McCrame,ll,  145;  for  Morey, 
179;  for  Kennedy,  26.  The  committee  show  that  this  was  a  large  falling  off  as  com- 
pared vdth  previous  years,  and  explain  it  by  the  testimony  showing  iatimidation, 
which  prevented  some  from  voting  and  compelled  others  to  vote  against  their 
inclinations.  The  peaceful  parishes  showed  a  vote  of  2,571  for  McCranie,  3,438  for 
Morey,  and  3,050  for  Kennedy. 

The  committee,  Mr.  Stevenson  submitting  the  report,  conclude: 

The  House  has  heretofore,  in  the  case  of  Hunt  r.  Sheldon,  adopted  the  rule  that  where  it  appears 
that  certain  precincts  and  parishes  (or  counties)  of  a  district  have  been  carried  by  violence  or  intimi- 
dation the  returns  tnerefrom  shall  be  rejected,  and  the  result  derived  from  the  returns  from  the  peaceable 
precincts  and  parishes  for  counties). 

In  the  subsequent  case  of  Sypher  the  House  reftised  to  apply  this  rule  to  that  case;  and  your  com- 
mittee, submitting  to  the  judgment  of  the  House,  considers  it  a  duty  to  reconcile  these  two  cases  if 
possible. 

We  can  not  advise  the  House  to  abandon  the  principle  adopted  in  Hunt  v.  Sheldon,  which  seems 
of  inestimable  value  in  preventing  lawless  attempts  upon  the  ballot  box  in  the  late  rebellious  States, 
where  a  new  voting  population  is  peculiarly  exposed  to  violence  and  intimidation  by  the  former  master 
class,  prone  by  habit  and  inclination  to  domineer  over  their  former  slaves;  and  therefore  we  accept  the 
decision  of  the  House  in  Sj'pher's  case,  not  as  a  reversal  but  as  a  limitation  of  the  rule  adopted  in  Shel- 
don's case,  and  interpret  the  action  of  the  House  in  Sypher's  case  to  mean  that  the  rule  should  not  be 
so  far  extended  as  to  apply  to  such  a  case  where  less  than  one-fourth  of  the  legal  electors  of  the  district 
resided,  and  one-fifth  of  the  registered  vote  was  cast,  within  the  peaceable  parishes  and  precincts,  and 
the  claimant  received  but  a  small  majority  of  that  vote. 

In  the  present  case  the  five  peaceable  parishes  comprise  about  one-third  of  the  territory  of  the 
district  and  contain  less  than  one-half  the  population  and  registered  vote  and  return  a  minority  of  the 
vote  actually  polled. 

The  contestant  received  in  these  parishes  3,428.  The  registered  vote  of  the  district  was  23,103. 
The  registered  vote  of  the  five  peaceable  parishes  was  10,400.  The  contestant  received  about  one- 
seventh  of  the  registered  vote  of  the  district  and  about  one-third  of  the  vote  cast  in  the  peaceable 
parishes. 

Another  objection  to  the  claim  of  contestee  is  that  if  there  had  been  a  peaceable  election  in  every 
parish  and  precinct  of  the  district  the  contestant  could  not  have  received  a  majority  or  even  a  plurality 
of  the  votes  cast,  because  the  rejected  parishes  were  Democratic  at  best.  They  gave  a  small  Democratic 
majority  at  the  spring  election  in  1868,  and  would  have  increased  it  considerably  at  a  peaceable  elec- 
tion in  the  fall.  There  were  two  Republican  candidates,  who  divided  their  party  vote  about  equally, 
and  it  seems  probable  that  they  would  have  divided  it  in  everj^  parish  had  the  canvass  and  election 
been  peaceable,  so  that  the  contestant  must  have  been  defeated.  We  therefore  conclude  that  the  claim 
of  the  contestant  can  not  be  sustained . 

The  committee  also  find  that  if  they  should  consider  the  claim  of  Messrs. 
McCranie  and  Kennedy  thej'  would  fall  under  the  same  rule.  Therefore  the  fol- 
lowing resolution  was  recommended: 

Resolved,  That  there  was  no  lawful  election  in  the  Fifth  Congressional  district  of  the  State  of 
Louisiana  for  Representative  in  the  Forty-first  Congress,  and  neither  G.  W.  McCranie  nor  Frank  Morey 
nor  P.  J.  Kennedy  is  entitled  to  a  seat  as  Representative  in  the  Forty-first  Congress  from  the  Fifth 
Congressional  district  of  the  State  of  Louisiana. 


224  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   335 

The  report  was  considered  by  the  House  on  April  28.'  Although  there  had 
been  no  minority  views,  Mr.  Michael  C.  Kerr,  of  Indiana,  opposed  the  report  and 
proposed  to  the  resolution  an  amendment  declaring  Mr.  McCranie  elected.  This 
amendment  was  disagreed  to — yeas  53,  nays  104.  Then  the  resolution  recom- 
mended by  the  committee  was  agreed  to  without  division. 

335.  The  Louisiana  election  cases  of  Hunt  v.  Sheldon,  Sypher  v.  St. 
Martin,  etc.,  continued. 

The  House  considered  an  election  valid  although  in  five  of  ten  parishes 
the  vote,  which  was  less  than  half  the  vote  of  the  district,  was  rejected. 

An  examination  of  the  acts  necessary  to  justify  a  finding"  of  disloyalty 
against  a  Member-elect. 

A  Member-elect  may  not  take  the  oath  until  a  motion  to  reconsider 
the  vote  determining  his  title  is  disposed  of. 

From  the  Fourth  district  of  Louisiana  the  credentials  were  presented  by  Mr. 
Michael  Ryan.  He  was  not  admitted  on  the  prima  facie  showing,  and  on  April 
25,  1870,^  Mr.  Samuel  S.  Burdett,  of  Missouri,  from  the  Subcommittee  on  Elections, 
presented  a  report  dealing  both  with  the  qualifications  of  Mr.  Ryan  and  with  the 
claims  of  the  contestant,  J.  P.  Newsham. 

1.  As  to  the  loyalty  of  Mr.  Ryan,  the  report  says: 

The  question  of  the  ineligiliility  of  Mr.  Ryan  put  in  issue  by  the  contestant  is  first  to  be  determined. 
It  is  admitted  that  contostoe  comes  within  the  description  of  persons  set  out  in  the  third  section  of  the 
fourteenth  article  of  amendments  to  the  Constitution  by  having  previously  taken  an  oath  as  a  mem- 
ber of  the  legislature  of  the  State  of  Louisiana  to  support  the  Constitution  of  the  United  States.  That 
he  did  give  aid  and  comfort  to  the  enemies  of  the  United  States  is  confidently  asserted  by  contestant, 
and  much  evidence  has  ))een  produced  pro  and  con  to  meet  that  issue. 

The  substantive  proofs  adduced  to  sustain  the  charge  of  ineligibility  are,  that  Mr.  Ryan,  in  the 
early  part  of  the  year  1802,  made  a  speech  to  a  company  of  Confederate  soldiers,  encouraging  them  in 
their  fight  for  secession.  (See  testimony  of  Harry  Lott,  vol.  1,  p.  421;  of  Calhoun,  p.  421,  q.  8672;  of 
Barlow,  p.  587,  q.  115.S9.)  That  after  the  inauguration  of  the  rebellion  he  wore  in  public  on  several 
occasions  the  uniform  of  the  Confederate  military  service  and  was  an  officer  in  a  local  or  home  company 
of  troops. 

These  substantive  charges  are  not  seriously  disputed,  but  the  motive  and  circumstances  of  them 
are  put  in  issue  by  Mr.  Ryan.  For  him  it  is  contended  that  he  was,  notwithstanding  appearances,  at 
heart  a  Union  man.  The  proof  of  his  allegiance,  however,  is  only  to  be  found  in  political  associations 
and  sentiments  formed  and  uttered  before  actual  war  liegan,  and,  after  the  beginning  of  hostilities,  of 
declarations  against  the  policy  of  the  secessionists,  conversationally  made  in  the  hearing  of  known 
Union  men  and  personal  friends.  It  does  appear  generally  from  the  evidence  that  Mr.  Ryan  from 
the  first  seriously  doubted  the  ability  of  the  rebel  leaders  to  carry  their  designs  to  a  successful  issue, 
and  that  he  comprehended  and  deprecated  the  inevitable  waste  and  destruction  that  must  follow  such 
a  failure;  but  it  does  not  appear  that  he  ever,  after  the  beginning  of  actual  strife,  called  in  question  the 
right  of  secession  or  the  desirableness  of  success  to  the  Southern  arms,  provided  only  they  should  suc- 
ceed; much  less  is  there  anywhere  to  be  found  evidence  of  any  hearty  word  spoken  or  deed  performed 
favorable  to  the  Union  and  for  the  Union's  sake. 

That  the  rebel  military  authorities  were  impressed  with  full  confidence  in  his  fealty  to  their  cause 
is  evidenced  by  the  fact  that  he  remained  undisturbed  at  his  home  and  unquestioned  by  them,  while 
the  few  of  his  neighbors  who  were  Union  men  in  sentiment,  on  the  bare  announcement  of  that  fact  or 

1  Journal,  pp.  693,  694;  Globe,  pp.  3069-3074. 

^House  Report  No.  61,  second  session  Forty-first  Congress;  2  Bartlett,  p.  724;  Rowell's  Digest,  p.  244. 


I 


§   335  ELECTORATES    INCAPACITATED    GENERALLY.  225 

on  the  merest  suspicion  of  its  existence,  were  compelled  to  seek  safety  by  fliglit,  or,  remaining,  to  endure 
insult,  imprisonment,  or  death;  and  this,  too,  notwithstanding  that  by  birth,  social  standing,  long 
residence,  and  large  wealth  of  lands  and  slaves  they  were  as  fully  entitled  to  the  regard  and  considera- 
tion of  the  rebel  authorities  as  it  was  possible  for  Mr.  Ryan  to  be. 

The  minority  filed  no  views;  but  in  debate  Mr.  Kerr  denied  the  charges  of  dis- 
loyalty, contendino;  that  the  evidence  did  not  prove  them. 

2.  As  to  the  final  right — and  in  the  debate  the  majority  declared  that  the  deci- 
sion as  to  final  right  left  little  effect  to  the  disqualification — the  majority  found  Mr. 
Newsham  entitled  to  the  seat.  The  district  comprised  ten  parishes,  and  the  offi- 
cial returns  showed  a  vote  for  Ryan  of  10,385,  and  for  Newsham  of  5,606.  In  five 
of  these  parishes,  where  fraud  and  intimidation  were  charged,  the  returned  vote 
was,  for  Ryan,  7,342;  for  Newsham,  46.  The  committee  showed  that  in  former 
elections  in  these  five  parishes  there  had  been  no  such  disparity  of  parties,  and 
explained  it  by  fraud  and  intimidation,  which  they  considered  proven.  They 
conclude : 

We  assert  the  truth  to  be  that  in  the  contested  parishes  the  result  obtained  was  accompanied  and 
secured  by  the  use  of  unlawful  means,  and  by  the  practice  of  oppressions  and  barbarities  seldom  equaled 
in  any  age  or  country,  and  that  the  several  polls  in  all  of  said  parishes  ought  to  be  excluded  from  the 
count. 

Going  back  of  the  official  returns,  the  report  finds  the  wliole  number  of  votes 
cast  in  the  district  20,500,  the  registration  being  25,027.  In  the  peaceful  parishes 
they  found  a  total  vote  of  13,112,  of  which  Newsham  had  7,210  and  Ryan  5,902. 
The  report  concludes: 

The  committee  does  not  cite  the  vote  cast  in  the  peaceable  parishes  as  truly  representing  the  popu- 
lar will  in  those  parishes.  On  the  contrary,  there  were  disorders,  to  the  detriment  of  the  contestant,  in 
several  of  these  parishes.  Many  of  his  supporters  were  by  unlawful  means  kept  from  the  polls  and 
others  compelled  against  their  will  to  support  his  competitor. 

The  committee,  therefore,  recommends  that  the  returns  from  such  fif  the  parishes  of  the  Fourth 
district  as  are  shown  to  have  been  controlled  by  the  appliances  of  fraud  and  violence  be  excluded  from 
the  count. 

A  due  regard  for  the  rights  of  the  faithful  men  of  Louisiana,  whose  will  was  defeated,  demands  it, 
while  every  consideration  of  future  peace  for  them  and  of  safety  to  the  State  imperatively  requires  it. 

We  therefore  recommend  the  adoption  of  the  following  resolutions: 

Resolved,  That  Michael  Ryan  is  not  entitled  to  a  seat  as  a  Representative  in  the  Forty-first  Con- 
gress from  the  Fourth  district  of  Louisiana. 

Resolved,  That  .L  P.  Newsham  is  entitled  to  a  seat  as  a  Representative  in  the  Forty-first  Congress 
from  the  Fourth  district  of  Louisiana. 

The  report  was  debated  on  May  20  and  21,*  and  on  the  latter  day  a  resolution 
proposed  by  the  minority  and  declaring  Mr.  Ryan  entitled  to  the  seat  was  disagreed 
to — ayes  54,  noes  79.  Then  the  resolution  of  the  majority  declaring  Mr.  Newsham 
entitled  to  the  seat  was  agreed  to — yeas  79,  nays  71. 

Mr.  Charles  A.  Eldridge,  of  Wisconsin,  moved  to  reconsider  the  vots. 

Mr.  Stevenson  submitted  that  nothing  was  in  order  but  the  swearing  in  of  Mr. 
Newsham. 

'  Globe,  pp.  3640,  3694-3700;  Journal,  p.  818. 
5994— VOL  1—07 15 


226  PKECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   336 

The  Speaker '  overruled  the  point  of  order,  sayin^ — 
No  legislation  is  complete  until  the  power  to  reconsider  is  exhausted. 

On  May  23  ^  the  motion  to  reconsider  was  laid  on  the  table — yeas  94,  nays  80. 

Mr.  Ncwsham  then  took  the  oath. 

336.  The  Louisiana  election  cases  of  Hunt  /•.  Sheldon,  Sypher  i\  St. 
Martin,  etc.,  continued. 

Returns  of  five  of  twelve  parishes  being  rejected  for  intimidation,  the 
House  seated  a  contestant  on  the  vote  of  the  seven  peaceful  parishes. 

On  April  28,  1870,^  Mr.  Stevenson  presented  the  report  in  the  last  Louisiana 
case,  that  of  Darrall  v.  Bailey.     The  committee  say  that — 

The  bloodiest  rioting;  and  the  darkest  deeds  which  were  done  in  the  State  were  committed  in  these 
contested  parishes  of  this  district. 

Fraud  and  violence  were  alleged  as  in  the  other  districts.  The  report  states 
the  case  as  to  the  vote  as  follows: 

Both  parties  affirm  the  validity  of  the  election  in  seven  parishes,  while  the  contestee  affirms  and 
the  contestant  denies  the  validity  of  the  election  in  five  parishes,  including  St.  Martin,  from  which 
there  is  no  valid  return,  and  which  must,  in  any  event,  be  rejected. 

THE    REGISTRY — WHITE    AND    COLORED. 

The  number  of  registered  electors  in  the  district  was 28,  486 

Of  colored  electors 18,  881 

Majority  of  colored  voters 9,  276 

The  colored  nearly  double  the  white  voters. 

PEACEABLE    AND    VIOLENT. 

The  entire  registry 28,  486 

That  of  the  seven  uncontested  parishes  was 15,  294 

That  of  the  contested  parishes 1,3, 192 

A  majority  in  the  peaceable  parishes  of 2, 102 

THE    VOTE. 

The  vote  cast  (including  the  alleged  vote  of  St.  Martin,  of  which  there  is  no  return)  was 26, 106 

The  vote  in  the  uncontested  parishes  was 14,  627 

The  vote  in  the  contested  parishes  (including  alleged  vote  of  St.  Martin)  was 11, 479 

Majority  in  the  peaceble  parishes 3, 148 

There  can  be  no  question,  therefore,  whether  there  was  a  valid  election  in  the  part  of  the  district 
which  is  uncontested.  It  contained  nearly  two-thirds  of  the  territory  and  a  large  majority  of  registered 
electors  and  of  actual  voters. 

The  report  finds  that  the  report  from  the  violent  parishes  should  be  rejected, 
and  that  in  the  peaceable  parishes  Darrall  had  7,436  and  Bailey  7,191.  The 
report  concludes: 

It  may  be  added  that  the  general  condition  of  the  State  affected  the  Republican  vote  in  these 
parishes,  and  that  if  peace  and  quiet  had  prevailed  through  the  State  the  Republican  majority  would 

'  Globe,  p.  3700.     James  G.  Blaine,  of  Maine,  Speaker. 

=  Journal,  p.  830;  Globe,  p.  3733. 

^  House  Report  No.  63,  second  session;  2  Bartlett,  p.  754;  Rowell's  Digest,  p.  246. 


§  337  ELECTORATES    INCAPACITATED    GENERALLY.  227 

have  been  much  heavier,  and  in  the  whole  district  the  contestant  would  have  received  a  large  majority. 
The  colored  registered  vote  of  the  district  was  nearly  double  the  white,  and  many  white  men  would, 
if  permitted,  in  peace,  have  sustained  the  Republican  party.  We  therefore  feel  that  the  result  reached 
is  not  only  legally  correct,  but  that  it  carries  out  the  will  of  a  verj'  large  majority  of  the  people  of  the 
district,  while  it  vindicates  the  rights  of  the  people  we  are  bound  to  protect. 

We  therefore  recommend  the  adoption  of  the  following  resolutions: 

Eesohed,  That  .^dolphe  Bailey  is  not  entitled  to  a  seat  as  Representative  in  the  Forty-first  Congress 
from  the  Third  district  of  Louisiana. 

Resolved.  That  C.  B.  Darrall  is  entitled  to  his  seat  as  Representative  in  the  Forty-first  Congress 
from  the  Third  district  of  Louisiana. 

The  case  was  debated  on  Jul}'  2/  and  on  that  day  Mr.  Kerr  submitted  a 
minority  proposition  declaring  that  Mr.  Bailey  was  entitle!  to  the  seat  and  should 
be  admitted  thereto.     This  was  negatived — yeas  .37,  nays  97. 

The  question  recurring  on  the  resolution  declaring  Mr.  Bailey  not  entitled 
to  the  seat,  it  was  agreed  to  without  division. 

Then  the  resolution  declaring  Mr.  Darrall  entitled  to  the  seat  was  agreed  to — 
yeas  67,  nays  64. 

A  motion  to  reconsider  was  made,  and  on  July  6  ^  was  laid  on  the  table — yeas  96, 
nays  77. 

Mr.  Darrall  then  took  the  oath. 

337.  The  first  Loiiisiana  election  case  of  Benoit  v.  Boatner  in  the 
Fifty-fourth  Congress. 

A  notice  of  contest,  drawn  in  general  terms,  was  held  to  cover  suffi- 
ciently the  various  claims  made  upon  the  testimony  and  in  the  argu- 
ments. 

The  service  of  notice  of  contest  at  the  residence  is  sufficient  compli- 
ance with  the  law. 

On  March  19,  1896,^  the  Committee  on  Elections  No.  2,  through  Mr.  R.  W. 
Tayler,  of  Ohio,  reported  in  the  first  case  of  Benoit  v.  Boatner,  of  Louisiana. 

This  case  involved,  besides  the  merits,  the  following  preliminary  question,  thus 
stated  by  the  committee: 

The  contestant,  on  the  16th  day  of  January,  1895,  caused  tobe6erved,attheplaceof  residence  of  the 
contestee,  a  copy  of  his  notice  of  contest.  The  contestee  at  that  time  was  absent  from  the  State  of 
Louisiana,  and  it  is  admitted  that  under  the  law  of  that  State  it  is  sufficient  notice  of  any  suit  to  make 
service  of  the  same  at  the  place  of  residence  of  the  defendant.  The  contestee  moved  to  dismiss  this  pro- 
ceeding on  the  ground  that  no  proper  notice  of  contest  was  served  upon  him  as  required  by  the  Revised 
Statutes.  The  committee  was  of  the  opinion  and  held  that  the  service  of  the  notice  in  the  manner  stated 
was  sufficient  under  the  L^nited  States  Statutes  and  was  precisely  the  kind  of  notice  which  was  held  to 
be  sufficient  in  the  case  of  Manzanares  ■i^  Luna,  in  the  Forty-eighth  Congress.  The  contestee  duly  served 
upon  the  contestant  his  answer,  and  the  parties  proceeded  to  take  testimony  in  all  respects  as  if  no  ques- 
tion had  been  raised  as  to  validity  of  contestant's  service  of  notice.  The  contestant's  notice  of  contest, 
while  in  general  terms,  was  not  seriously  questioned  as  to  form,  and  sufficiently  covered  the  various 
claims  made  upon  the  testimony  and  in  the  arguments. 

'  Globe,  pp.  .5139-5143;  Journal,  pp.  1141,  1142. 

'  Journal,  p.  1159. 

^  House  Report,  first  session  Fifty-fuurlh  Congress,  No.  867;   Rowell's  Digest,  p.  519. 


228  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   338 

338.   The  first  Louisiana  election  case  of  Benoit  v.  Boatner,  continued. 

Intimidation  and  fraud  having  destroyed  the  integrity  of  an  election 
in  10  of  15  parishes,  the  House  declared  the  seat  vacant. 

Discussion  of  the  extent  and  degree  of  intimidation  and  fraud  justi- 
fying rejection  rather  than  purging  of  the  poll. 

A  case  in  which  the  committee  considered  historic  facts  in  judging 
validity  of  an  election  wherein  appeared  many  irregularities  on  the  part 
of  election  oflicers. 

As  to  the  merits  of  the  case,  it  appeared  on  the  face  of  the  official  returns  that 
sitting  member  had  a  majority  of  9,526.  The  district  consisted  of  15  parishes.  In 
5  of  these  the  fairness  of  the  election  was  not  questioned.  The  controversy  was 
confined  to  the  10  parishes  where  the  colored  males  over  21  years  of  age  numbered 
21,459  and  the  white  males  over  21  j^ears  numbered  7,543.  These  facts  the  com- 
mittee present  from  the  census  of  1890. 

After  sketching  the  provisions  of  the  election  law  of  Louisiana,  the  majority  of 
the  conunittee  proceed  to  an  analysis  of  the  testimony  in  regard  to  the  10  parishes. 

First  are  examined  the  4  "river  parishes"  of  East  Carroll,  Madison,  Tensas, 
and  Concordia,  where  the  returns  gave  the  sitting  member  7,124  votes  and  81  to  the 
contestant.  The  majority  call  attention  to  the  fact  that  in  these  parishes  the  white 
males  over  21  j'ears  of  age  numbered  only  1,765,  while  the  colored  males  of  age  num- 
bered 12,454.  Therefore  the  colored  voters  mnet  have  voted  in  large  numbers  for 
sitting  member,  who  was  a  Democrat,  if  the  returns  were  true.  Yet  the  majority 
feel  convinced  that  the  colored  voters  were  all  Republicans.  The  testimony  showed 
that  it  had  been  a  custom  to  count  the  colored  voters  for  contestant's  party;  that 
the  registration  list  was  enormously  padded;  that  the  poll  books  and  tally  sheets 
had  disappeared  in  almost  every  precinct  of  the  river  parishes;  that  no  election 
officers  could  be  discovered  who  knew  anything  about  them;  that  many  election 
officers  refused  to  obey  subpoenas,  and  others,  on  examination,  refused  on  technical 
grounds  to  answer  as  to  the  records;  that  very  few  of  the  returns  were  sworn  to, 
although  the  law  requiring  it  was  mandatory;  that  in  some  precincts  the  election 
officers  signed  the  returns  in  blank ;  that  the  right  of  suffrage  in  these  parishes  was 
a  farce ;  and  that  the  sitting  member  admitted  in  his  written  statement  filed  with  the 
committee  that  of  the  7,124  votes  counted  for  him  in  these  4  parishes  over  6,000 
ought  to  be  excluded. 

In  Catahoula  Parish  the  same  character  of  frauds  prevailed,  with  the  addition 
that  the  alphabetical  mode  of  voting  people  who  were  dead  or  not  at  the  polls  was 
to  some  extent  resorted  to. 

The  committee  reviewed  the  remaining  5  parishes,  quoting  testimony  which 
satisfied  the  majority  that  intimidation  was  general  and  that  the  planters  very 
generally  considered  themselves  as  having  the  right  to  determine  how  their  colored 
employees  should  vote. 

In  conclusion,  the  majority  of  the  committee  conclude  that  the  right  of  suffrage, 
as  recognized  by  the  Constitution  and  the  laws,  did  not  exist  in  at  least  10  of  the  15 
parishes.  After  noting  the  remarkable  state  of  the  vote  in  the  river  parishes,  the 
majority  say: 

If  no  question  were  raised  as  to  the  validity  of  the  election  outside  of  the  river  parishes,  the  House 
in  justice  to  itself  and  in  the  interest  of  fair  and  honest  elections,  giving  full  weight  to  the  facts  apparent 


§  338  ELECTORATES    INCAPACITATED    GENERALLV.  229 

in  this  testimony,  •would  be  compelled  to  declare  the  election  void.  It  could  not  declare  the  contestant 
elected  because  it  can  not  say,  and  the  contestant  did  not  have  it  in  his  power  to  determine,  how  many 
votes  the  contestant  would  have  received  in  those  4  parishes  if  a  free  and  honest  election  had  been 
conducted.  It  would  have  been  physically  impossible  to  take  the  testimony  of  6,000  or  8,000  witnesses 
as  to  the  person  for  whom  they  voted  or  would  have  voted  if  permitted  to  cast  their  ballots,  and  in  addi- 
tion to  that  the  ver>'  circumstances  that  prevented  their  voting  would  have  prevented  their  testif)-ing. 

This  case  discloses  as  well  the  difficulty  in  obtaining  testimony  and  inducing  men  to  testify  as  it 
does  the  intimidation  practiced  to  prevent  their  voting.  To  invoke  the  rule  which  demands  that 
returns  from  the  tainted  precincts  be  thrown  out  would  still  leave  the  contestee  elected.  It  seems  to 
us  that  in  such  a  case  the  only  thing  that  can  be  done  is  to  declare  the  election  void.  To  do  otherwise 
would  be  to  furnish  an  easy,  safe,  and  certain  mode  of  perpetrating  a  stupendous  fraud,  and  the  more 
stupendous  the  more  effective. 

We  therefore  conclude  as  matters  of  fact: 

First,  that  fraud,  ^^olence,  and  intimidation  so  permeated  the  election  of  November  6,  1894,  except 
in  the  parishes  of  Claiborne,  Franklin,  Jackson,  Lincoln,  and  West  Carroll,  that  there  was  no  free  expres- 
sion of  the  popular  will;  that  fraud,  violence,  and  intimidation  were  so  extensive  and  general  as  to 
render  it  certain  that  there  was  no  fair  and  free  expression  by  the  great  body  of  the  electors,  more  than 
two-thirds  of  the  electors  of  the  district  residing  in  the  remaining  10  parishes. 

Second,  that  in  v'iew  of  the  fact  that  the  majority  for  the  contestee  in  the  11  parishes  outside  of 
the  river  parishes  was  2,483,  and  that  in  the  river  parishes,  where  there  is  a  majority  of  over  10,000 
negroes  of  voting  age.  fraud  was  universal;  that  while  it  is  impossible  to  determine  how  many  votes  the 
contestant  would  have  received  if  a  fair  and  honest  election  had  been  held,  justice  and  good  morals 
revolt  against  the  proposition  that  any  valid  election  was  held. 

We  therefore  hold  as  a  proposition  of  law,  growing  out  of  the  principle  laid  down  in  S>'pher  v.  St. 
Martin,  as  follows: 

"If  fraud,  violence,  and  intimidation  have  been  so  extensive  and  general  as  to  render  it  certain 
that  there  has  been  no  free  and  fair  expression  by  the  great  body  of  the  electors,  then  the  election  must 
be  set  aside,  notwithstanding  the  fact  that  in  some  of  the  precincts  or  parishes  there  was  a  peaceable 
and  fair  election." 

The  views  of  the  mmority,  submitted  by  Mr.  Joseph  W.  Bailey,  of  Texas, 
review  the  testimony,  reaching  a  conohision  different  from  that  reached  by  the 
majorit}-,  ahhough  admitting  that  certain  precincts  should  be  rejected,  energetically 
protests  against  the  conclusion  of  the  majority,  and  says: 

If  permissible  at  aU  to  declare  an  election  void,  it  could,  in  our  judgment,  be  legally  done  only  in 
extreme  cases  where,  by  violence,  widespread  and  concerted  intimidation  and  fraud,  it  would  become 
impossible  to  eliminate  the  lawful  and  voluntary  vote  from  the  tinlawful  and  fraudulent  and  that 
which  had  been  cast  under  the  influence  of  fear. 

In  this  case  not  only  do  such  conditions  not  exist,  but  if  every  poll  attacked  by  contestant,  and 
against  which  he  has  adduced  any  evidence,  be  excluded  from  the  count,  contestee  still  has  a  majority 
of  327;  but  giving  the  evidence  fair  consideration,  and  excluding  only  the  vote  which  is  shown  to  have 
been  fraudulent  and  intimidated,  contestee's  majority  is  5,188. 

Therefore  the  minority  recommended  a  resolution  declaring  sitting  member 
entitled  to  the  seat. 

On  March  20,  1896,'  the  report  was  debated  in  the  House,  and  then  a  decision 
was  obtained  on  the  motion  to  substitute  the  minority  resolution  for  that  of  the 
majority.  That  motion  was  disagreed  to — ^yeas  59,  nays  132.  Then  withotit 
division  the  resolution  of  the  majority  was  agreed  to,  declaring — 

That  there  was  no  valid  election  held  in  the  Fifth  Congressional  district  of  the  State  of  Louisiana 
on  the  6th  day  of  November,  1894,  and  that  neither  Alexis  Benoit  nor  Charles  J.  Boatner  is  entitled  to 
a  seat  in  the  Fifty-fourth  Congress  as  Representative  from  the  Fifth  Congressional  district  of  Louisiana. 


'  Journal,  p.  328;  Record,  pp.  3035-3051. 


230  PRECEDENTS    OE    THE    HOUSE    OF    REPRESENTATIVES.  §   339 

339.  The  second  Louisiana  election  case  of  Benoit  v.  Boatner  in  the 
Fifty-fourth  Congress. 

Where  the  provisions  of  law  are  insufficient  to  secure  a  decision  in  an 
election  case  the  House  prescribes  by  resolution  the  course  of  procedure. 

On  February  5,  1897,'  Mr.  Henry  U.  Jolinson,  of  Indiana,  from  the  Committee 
on  Elections  No.  2,  submitted  the  report  of  the  majority  of  the  committee  in  the 
second  case  of  Benoit  v.  Boatner,  of  Louisiana.  At  the  first  session  of  the  Fifty- 
fourth  Congress,  as  the  result  of  a  contest  between  the  same  parties,  ^  the  seat  had 
been  declared  vacant.  Thereupon,  on  June  10,  1896,  a  special  election  was  held 
in  the  district,  and  Mr.  Boatner  was  returned  by  10,557  votes,  against  5,989  returned 
for  Mr.  Benoit. 

On  December  10,  1896,^  Mr.  Boatner  appeared  with  the  credentials  and  was 
sworn  in.  Mr.  Benoit  meanwhile  had  contested  the  election,  charging  wholesale 
frauds  and  intimidation. 

On  January  14,  1897,^  a  letter  from  the  Clerk  was  laid  before  the  House  announc- 
ing that  if  tliis  case  should  take  the  usual  course  prescribed  by  law,  allowing  tlie 
full  time  of  sixty  days  to  be  used  in  the  preparation  of  briefs,  it  could  not  reach  the 
House  before  final  adjournment.  This  letter  was  referred,  with  the  testimony,  to 
the  Committee  on  Elections  No.  2,  and  the  testimony  was  ordered  to  be  printed. 

On  January  15  ^  the  committee  reported  the  following  resolution,  which  was 
agreed  to: 

Resolved,  That  the  Committee  on  Elections  No.  2,  to  which  the  contested-election  case  of  Alexis 
Benoit  against  Charles  J.  Boatner,  from  the  Fifth  Congressional  district  of  Louisiana,  has  been  referred, 
be,  and  is  hereby,  instructed  and  authorized  to  proceed  to  the  consideration  of  said  case,  and,  having 
first  afforded  to  said  parties  a  fair  opportunity  to  be  heard  as  to  the  merits  of  the  same,  to  report  to  the 
House  their  conclusions  with  respect  to  such  case  in  time  to  afford  to  the  House  an  opportunity  to  deter- 
mine the  same  during  the  present  session  of  Congress. 

340.  The  second  Louisiana  election  case  of  Benoit  v.  Boatner,  contin- 
ued. 

An  election  in  a  district  was  not  declared  void  on  account  of  invalid- 
ity in  one-fifth  of  the  parishes,  affecting  less  than  a  third  of  the  vote. 

Discussion  of  the  degree  of  duress  which  may  be  considered  intimida- 
tion justifying  rejection  of  a  poll. 

Intimidation  justifying  rejection  of  a  poll  may  fall  short  of  physical 
violence  against  the  person  and  need  not  fall  within  the  actual  time  of 
the  election. 

Although  a  parish,  in  a  region  wherein  intimidation  might  be 
expected,  showed  a  marvelous  unanimity  in  the  vote,  the  committee  de- 
clined to  reject  the  poll. 

An  election  being  held  without  the  required  poll  list,  and  there  being 
other  suspicious  circumstances,  the  poll  was  rejected. 

'  Second  session  Fifty-fourth  Congress,  House  report  No.  2808;  Rowell's  Digest,  p.  526. 
^  See  section  338  of  this  work. 
'  Journal,  p.  20. 

*  Journal,  p.  83. 

*  Journal,  p.  SG. 


I 


§   340  ELECTORATES    INCAPACITATED    GENERALLY.  231 

The  conduct  of  the  election  officers  of  a  parish  being  thoroughly  per- 
meated by  fraud,  the  returns  were  rejected. 

The  report  of  the  majority  of  the  committee,  after  reviewing  the  conditions 
of  population,  the  law  of  the  State  as  to  elections,  and  noting  the  fact  that  the  con- 
testant carried  the  parishes  where  white  population  predominated,  while  the 
sitting  Member  was  strongest  in  the  so-called  "colored"  parishes,  proceeds  to 
examine  the  testimony  in  detail,  and  to  make  the  corrections  shown  to  be  just. 

1 .  The  votes  of  two  parishes  were  rejected  entirely :  (a)  In  Tensas  Parish,  where 
the  commissioners  of  election  were  all  supporters  of  the  sitting  member,  the  returns 
many  gave  him  2,067  votes,  and  contestant  141.  In  several  precincts  no  votes  at 
all  were  returned  for  contestant,  of  itself  a  very  suspicious  circumstance,  but  the  poll 
lists  showed  that  not  only  were  dead  and  absent  persons  recorded  as  voting,  but  in 
many  precincts  the  election  officers  returned  the  registered  list  of  voters  instead  of  the 
vote  as  actually  cast.  The  law  required  the  election  commissioners  to  write  down 
the  names  of  the  voters  in  exact  order  as  they  voted,  but  in  many  cases  the  names 
are  recorded  alphabetically.  In  one  precinct  this  peculiarity  permeated  the  entire 
list  of  621  names.  The  contestant  was  able  to  examine  only  one  Avitness  in  the 
parish,  the  officers  of  the  law  on  whom  he  depended  for  the  serving  of  subpoenas 
refusing  or  neglecting  to  do  their  duty.  Although  the  evidence  impeached  the 
fairness  and  integrity  of  the  commissioners  of  election  in  the  parish,  the  sitting 
Member  produced  not  one  of  them  to  testify.  The  majority  of  the  committee 
were  "of  the  opinion  that  the  election  in  this  parish  was  a  sham  and  a  fraud  and 
that  the  returns  therefrom  ought  to  be  wholly  rejected."  The  minority  of  the  com- 
mittee, whose  views  were  presented  by  Mr.  Joseph  W.  Bailey,  of  Texas,  agree  that 
this  parish  should  be  excluded. 

(b)  From  Ouachita  Parish  the  returned  vote  was  1,777  for  Boatner  and  631 
for  Benoit.  The  majority  of  the  committee  concluded  that  the  evidence  "taken 
as  a  whole,  establishes  the  fact  that  there  was  such  intimidation  practiced  upon 
the  colored  voters  as  to  prevent  a  free  and  fair  election  there,  and  that  for  this 
reason  the  vote  of  Ouachita  Parish  should  be  rejected  from  the  count."  The  com- 
mittee continue : 

It  appears  that  for  many  years,  commencing  in  the  year  1876,  personal  violence  had  been  openly 
inflicted  upon  the  colored  electors  by  the  white  Democrats  of  the  parish  with  a  view  of  depriving  them 
of  their  right  of  suffrage.  This  measure  had  worked  the  desired  effect  and  had  very  largely  deterred 
them  from  voting. 

The  evidence  shows  that  this  open  personal  injury  was  not  deemed  by  these  whites  to  be  necessary 
in  very  recent  years,  and  therefore  was  only  occasionally  inflicted.  Milder,  but  nevertheless  lawless 
and  coercive  expedients  were  accordingly  substituted  for  it  by  them.  The  colored  voter,  with  a  vivid 
recollection  of  the  great  wrongs  to  which  he  had  been  subjected,  needed  only  to  be  threatened  with  a 
recurrence  of  these  wrongs  in  order  to  deprive  him  of  his  free  will,  and  either  keep  him  from  the  polls 
altogether,  or  else  compel  him  to  vote  the  Democratic  ticket. 

Accrodingly,  the  latter-day  plan  and  the  one  employed  at  this  election  by  the  friends  and  sup- 
porters of  Boatner  consisted  in  "visiting"  him  before  the  election  and  in  threatening  him  with  the 
consequences  in  the  event  he  dared  to  vote  his  own  sentiments. 

The  Democratic  planters  claimed  and  exercised  the  right  to  vote  their  "  black  hands"  for  Boatner. 
These  "hands"  were  too  timid  and  defenseless  to  make  any  resistance  and  hence  became  the  victims 
of  this  unlawful  practice. 


232  PRECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES.  §  340 

The  majority  of  the  committee  also  say: 

In  pa&jing  upon  this  question  of  intimidation  tlio  committoe  have  had  in  mind  certain  proposi- 
tions which  seemed  to  them  to  be  sound,  and  in  the  light  of  which  they  have  reached  the  conclusion 
above  announced. 

They  recognized  the  fact  that  coercive  measures  do  not  operate  alike  upon  all  voters.  That  which 
would  have  no  effect  whatever  upon  one  class  might,  nevertheless,  exert  an  irresistible  influence  upon 
another  class. 

It  is  therefore  believed  that  in  determining  whether  or  not  intimidation  exists  in  any  case,  due 
regard  should  always  be  had  to  the  mental  and  physical  organization  of  the  particular  electors  upon 
whom  the  wrong  is  charged  to  have  been  inflicted,  their  relation  to  the  alleged  ^Tongdoers,  their  con- 
dition of  dependence  or  independence,  and,  indeed,  to  their  whole  environment  as  well  as  to  the  char- 
acter and  disposition  of  the  wrongdoers  themselves.  Nor  is  it,  in  the  opinion  of  the  committee,  cither 
a  logical  or  a  just  doctrine  that  the  oppressive  acts  which  will  avoid  an  election  must  necessarily  be  of 
such  a  character  as  to  overpower  the  will  of  voters  of  reasonable  courage  and  intelligence.  Such  a 
principle  as  this  woiUd,  in  its  practical  operations,  result  in  the  disfranchisement  of  the  weak  and  the 
ignorant  electors,  who  should  ever  be  the  object  of  the  law's  solicitude,  and  in  the  arrogation  of  polit- 
ical power  into  the  hands  of  the  electors  who  are  strong  and  well  informed. 

It  is  evident,  too,  that  physical  violence  against  the  person  of  the  elector  is  not  the  sole  criterion 
by  which  the  existence  or  nonexistence  of  intimidation  is  to  be  determined,  since  some  electors  might 
be  beaten  without  being  at  all  terrorized,  while  other  electors  might  be  put  in  great  fear  without  the 
striking  of  a  single  blow.  Nor  do  the  committee  lielieve  that  in  passing  upon  the  question  as  to  whether 
intimidation  prevailed  the  examination  should  be  limited  to  the  unlawful  acts  committed  against  the 
voters  at  the  very  time  of  the  election  in  contest.  It  is  oftin  the  case  that  preceding  occurrences, 
although  somewhat  remote  in  point  of  time,  give  great  significance  and  momentum  to  recent  acts  of 
oppression,  and  thus  become  very  proper  subjects  for  examination  and  consideration. 

The  minority  of  the  committee  do  not  consider  that  the  evidence  supports 
the  conclusions  of  the  majority  as  to  intimidation,  and  do  not  assent  to  the  exclu- 
sion of  the  vote. 

2.  In  other  parishes  the  majority  of  the  committee  corrected,  but  did  not 
reject,  the  entire  returns. 

(a)  In  Concordia  the  returns  gave  sitting  Member  1,675  votes  and  contestant 
46.  In  several  precincts  no  votes  at  all  were  returned  for  contestant.  The  testi- 
mony showed  some  informalities  and  irregularities,  but  there  was  other  testimony 
that  the  election  was  fairly  and  honestly  conducted.  The  committee,  therefore, 
except  for  a  slight  correction  in  one  precinct,  did  not  interfere  with  the  vote  as 
returned,  "although  they  regard  the  practical  unanimity  of  the  electors  upon  one 
candidate  as  one  of  the  most  remarkable  occurrences  in  modem  politics." 

(b)  At  Madison  Parish  one  witness  testified  as  to  indimidation  and  one  as  to 
bribery,  but  the  committee  determined  that  the  returned  vote  should  stand. 

(c)  In  Catahoula  Parish  the  majority  of  the  committee  reject  the  entire  vote 
of  the  Jonesville  precinct,  which  returned  497  for  Boatner  and  none  for  Benoit. 
In  tliis  precinct  the  election  officers  were  all  of  sitting  Member's  party,  the  regis- 
trar of  the  parish  failed  to  furnish  the  poll  list,  as  required  to  do  by  law,  and  there 
was  evidence  to  show  not  only  that  the  returned  vote  was  greater  tlian  the  num- 
ber of  voters  in  the  precinct,  but  also  that  it  was  far  larger  than  the  number  who 
actually  voted.     The  committee  say: 

In  the  absence  of  the  poll  list  it  was  of  course  impossible  to  hold  a  fair  and  honest  election,  for 
the  reason  that  it  could  not  be  definitely  known  who  was  entitled  to  vote. 


§  341  ELECTORATES    INCAPACITATED    GENERALLY.  233 

In  Glade  precinct,  where  115  votes  were  returned  for  sitting  Member  and  none 
for  contestant,  uncontradicted  testimony  showed  that  only  30  honest  votes  were 
polled,  all  for  Boatner.  Therefore  the  committee  credited  liim  only  with  that 
number. 

A  similar  correction  was  made  at  Robertson  precinct,  where  the  election  offi- 
cers swore  that  the  tally  sheets  had  been  tampered  with  and  their  names  thereto 
forged.  The  testimony  of  these  officers,  who  were  partisans  of  sitting  Member, 
indicated  that  23  honest  votes  were  probably  cast  for  sitting  Member  and  2  for 
contestant.  The  committee  adopt  these  figures  instead  of  135  for  sitting  Member 
and  2  for  contestant  as  returned. 

The  majority  of  the  committee,  in  conclusion,  find  that  with  all  the  deductions 
and  rejections  there  still  remains  a  majority  of  802  for  sitting  Member.  Therefore 
they  conclude : 

While  the  e^-idencc  establishes  the  fact  that  flagrant  frauds  were  perpetrated  in  all  of  Tensas  Par- 
ish, and  in  a  portion  c  f  Catahoula  Parish,  and  that  intimidation  prevailed  generally  throughout  the 
parish  of  Ouachita,  still  the  committee  do  not  feel  justified  in  recommending  that  the  election  be  held 
void  and  the  seat  declared  vacant,  for  the  reason  that  these  three  parishes  constitute  only  one-fifth  of 
the  total  parishes  of  the  district,  and  their  entire  rejected  vote  does  not  amount  to  one-third  of  the  vote 
cast  therein  at  the  election. 

The  committee  are  not  sure  that  the  fraud  and  intimidation  were  so  extensive  and  general 
throughout  the  district  as  to  render  it  certain  that  there  was  not  a  free  and  fair  expression  by  the  great 
body  of  the  electors,  however  strongly  they  may  suspect  this  to  have  been  the  case. 

The  resolutions  confirming  sitting  Member  in  his  seat  were  agreed  to  without 
division  on  February  15.' 

341.  The  Louisiana  election  case  of  Seattle  v.  Price,  in  the  Fifty- 
fourth  Congress. 

An  election  having  been  peaceable  in  three-fourths  of  a  district,  it 
was  not  declared  invalid  because  of  violence  and  intimidation  in  the  re- 
mainder. 

On  February  5,  1897,"  Mr.  Robert  W.  Tayler,  of  Ohio,  from  the  Committee 
on  Elections  No.  2,  submitted  the  report  of  a  majority  of  the  committee  in  the 
case  of  Beattie  v.  Price,  of  Louisiana.  The  official  returns  gave  the  sitting  Member 
a  plm-ality  of  5,766  votes  over  the  contestant,  which  the  contestant  sought  to 
overcome,  alleging  fraud,  violence,  and  intimidation. 

As  to  a  preliminary  question  the  committee  say: 

An  important  preliminary  question  arose  on  the  motion  made  by  the  contestee  to  suppress  a  portion 
of  the  contestant's  evidence  on  the  ground  that  it  had  not  been  taken  in  compliance  with  the  law. 
This  objection  in  the  main  was  to  the  effect  that  no  proper  notice  had  been  given  that  the  testimony 
of  the  witnesses  would  be  taken  and  that  there  was  no  evidence  of  the  official  character  of  the  persons 
before  whom  the  testimony  was  taken. 

Your  committee  has  examined  all  of  the  testimony  in  the  case,  but,  in  view  of  the  conclusion  at 
which  it  has  arrived,  it  is  not  necessary  to  decide  upon  this  preliminary  motion.  We  have  considered 
the  testimony  as  if  it  had  been  regularly  taken,  but  are  not  to  be  understood  as  approving  or  justifying 
the  taking  of  testimony  without  serving  notice  on  the  opposite  side  of  the  names  of  witnesses  to  be 
examined. 

'Journal,  p.  174. 

^  House  Report  No.  2812,  second  session  Fifty-fourth  Congress;  RoweU's  Digest,  p.  527. 


234  PRECEDENTS   OF   THE    HOUSE    OF    REPKESENTATIVES.  §  341 

The  majority  of  the  committee  note  the  fact  that  the  population  of  the  dis- 
trict consisted  of  115,533  whites  and  98,916  colored  people;  and  cjuote  documents 
to  show  that  contestant  was  the  nominee  of  an  organization  of  white  Republicans 
who  discouraged  the  cooperation  of  colored  Republicans.  The  minoritj',  in  their 
views  (subscribed  to  by  Messrs.  Henry  U.  Johnson,  of  Indiana,  Chester  I.  Long, 
of  Kansas,  and  Jesse  B.  Strode,  of  Nebraska),  deny  this  proposition,  and  claim 
that  in  many  districts  the  organization  invited  the  cooperation  of  colored  voters. 

Both  majority  and  minority  of  the  committee  agreed  that  contestant  had  not 
made  out  a  title  to  the  seat;  but  join  issue  on  the  question  as  to  whether  or  not 
there  was  a  valid  election.     The  majority  of  the  committee  say: 

There  is  nothing  in  this  case  to  justify  the  claim  tliat  there  was  "no  free  and  fair  expression  by 
the  great  body  of  the  electors." 

So  far  as  the  testimony  shows  there  was  a  "peaceable  and  fair  election"  in  not  only  "some  of  the 
precincts  and  parishes,"  but  in  most  of  them. 

There  are  16G  polling  places  in  the  district,  and  as  to  more  than  three-fourths  of  them  there  is  not 
a  syllaljle  of  testimony  showing  fraud,  violence,  or  intimidation.  If  we  were  to  admit  all  that  the 
contestant  claims  as  to  the  force  and  effect  of  the  testimony  respecting  certain  precincts,  and  then 
infer  that  like  conditions  existed  in  the  125  precincts  concerning  which  there  was  no  such  testimony, 
we  might  be  led  to  take  a  drastic  course.  If  we  did,  we  should  be  compelled  to  seat  the  contestant. 
No  matter  which  way  we  look,  or  what  construction  we  put  on  the  testimony,  we  must  hold  that  either 
the  contestant  or  the  contestee  is  entitled  to  a  seat  in  this  House. 

There  is  evidence  showing  that  in  several  of  the  parishes  of  this  Congressional  district  there  was 
some  violence.  This  existed  probably  by  reason  of  the  momentum  of  earlier  resorts  to  violence  and 
intimidation.  In  the  parisli  of  Lafourche  two  colored  men  lost  their  lives  and  one  disappeared.  The 
supporters  of  the  contestant  insists  that  these  deaths,  which  were  violent,  and  the  disappearance  were 
due  to  the  fact  that  the  three  colored  men  were  supporters  of  the  contestant.  The  testimony,  while 
inconclusive,  points  in  that  direction  as  to  Talley  \Miitehurst. 

After  describing  the  murder  of  Wliitehurst,  the  majority  say: 

Atrocious  as  this  crime  was,  whatever  may  have  been  its  cause,  it  had  but  little  if  any  effect  on  the 
election,  and,  coupled  with  every  other  circumstance  of  fraud,  violence,  or  intimidation,  testified  about 
in  the  district,  is  very  far  from  seriously  affecting  the  plurality  the  contestee  received. 

The  minority  say,  however: 

In  our  opinion  the  record  discloses  widespread  intimidation  of  the  colored  voters  by  the  supporters 
of  Price — intimidation  practiced  in  a  majority  of  the  parishes  of  the  district,  the  effect  of  which  was  to 
deter  gi'eat  numbers  of  them  from  attending  the  election  and  casting  their  ballots  for  Beattie. 

For  instance,  the  killing  of  Tally  Whitehurst,  a  prominent  colored  Republican,  and  a  supporter  of 
Beattie,  who  resided  in  the  parish  of  Lafourche,  is  clearly  shown  by  the  evidence  to  have  been  a  cold- 
blooded and  premeditated  murder,  perpetrated  by  some  of  the  white  friends  and  supporters  of  Price,  a 
few  days  before  the  election,  solely  for  political  purposes,  and  to  intimidate  the  colored  voters. 

It  appears  that  this  miuder  had  the  desired  effect  not  only  in  Lafourche  but  also  in  one  or  two  of  the 
adjoining  parishes. 

We  concur  in  the  opinion  of  the  committee  that  Beattie  is  not  entitled  to  be  seated,  but  disagree  with 
their  conclusion  that  Price  is  entitled  to  the  seat. 

We  are  convinced  that  fraud  and  intimidation  prevailed  so  extensively  and  generally  throughout 
the  district  as  to  prevent  a  free  and  fair  expression  by  the  great  body  of  the  electors,  and  we  believe, 
therefore,  that  the  election  should  be  declared  void  and  the  seat  left  vacant. 

The  majority  report  and  minority  views  were  ordered  printed  when  presented 
in  the  House  on  February  5,'  but  there  is  no  record  of  further  action. 

'Journal,  p.  143;  Record,  p.  1586. 


I 


§  342  ELECTORATES    INCAPACITATED    GENERALLY.  235 

342.  The  Senate  election  case  of  Sykes  v.  Spencer,  from  Alabama,  in 
the  Forty-third  Congress. 

The  Senate  gave  immediate  prima  facie  effect  to  credentials  regular  in 
form,  but  impeached  by  a  memorial  and  historical  facts  relating  to  rival 
legislatures. 

The  question  of  the  competency  of  the  electing  legislature  as  an  in- 
herent part  of  a  prima  facie  showing  discussed  by  the  Senate. 

On  December  13,  1872,^  in  the  Senate,  Mr.  Oliver  P.  Morton,  of  Indiana,  pre- 
sented the  credentials  of  George  E.  Spencer,  elected  a  Senator  by  the  legislature  of 
Alabama  for  the  six  years  commencing  March  4,  1873. 

On  February  28,  1873,^  Mr.  George  Goldthwaite,  of  Alabama,  presented  a 
memorial  of  Francis  W.  Sykes,  claiming  the  seat  for  which  Mr.  Spencer  had  creden- 
tials.    This  memorial  impeached  at  length  the  title  of  Mr.  Spencer. 

On  March  6,  1873,^  during  the  swearing  in  of  the  new  Senators,  Mr.  Thomas 
F.  Bayard,  of  Delaware,  objected  to  the  administration  of  the  oath  to  Mr.  Spencer, 
on  the  ground  that  another  claimant  bore  credentials  for  the  seat. 

It  appeared  that  Mr.  Spencer  bore  credentials  in  regular  form— or  at  least  in 
form  as  regular  as  most  credentials  presented — and  signed  by  a  governor  whose 
position,  both  de  jure  and  de  facto  was  unquestioned.  But  the  Senate  had  knowl- 
edge, both  from  the  memorial  of  ^Ir.  Sj'kes  and  historically,  that  Mr.  Spencer  was 
elected  bj-  one  of  two  legislative  bodies,  each  claiming  to  be  the  legislature  of 
Alabama. 

It  appeared  that  there  was  presented  on  behalf  of  Mr.  Sykes  as  credentials 
certificates  signed  by  the  officers  of  the  other  of  the  two  rival  bodies  setting  forth 
his  election. 

In  the  debate  the  cases  of  Goldthwaite  and  Ransom  were  referred  to  as  recent 
precedents. 

The  prima  facie  effect  of  credentials  was  discussed  at  length,  and  it  was  urged 
on  the  one  side  that  the  competency  of  the  legislature  electing  was  an  essential 
question  inhering  in  the  prima  facie  case. 

On  the  other  hand  it  was  urged  that  Mr.  Spencer  was  certified  as  elected  in 
accordance  with  the  law  of  Congress  (act  of  1866),  and  the  effect  of  that  title  should 
not  be  overthrown  by  a  mere  memorialist. 

On  March  7*  a  motion  to  postpone  the  administration  of  the  oath  to  Mr. 
Spencer  until  the  next  day  was  disagreed  to — yeas  24,  nays  32. 

Then,  after  further  debate,  the  question  was  taken:  "Shall  the  oath  be  now 
administered  to  ilr.  Spencer?"  and  it  was  decided  in  the  affirmative  without 
division.^ 

Thereupon  A^Ir.  Spencer  appeared  and  took  the  oath. 

'  Third  session  Forty-second  Congress,  Globe,  p.  172. 

^  Globe,  p.  1930.     Also  Senate  Misc.  Doc.  No.  94,  Third  session  Forty-second  Congress. 

^  Special  session  of  Senate,  Forty-third  Congress,  Record,  pp.  3-29. 

*  Record,  p.  22. 

'  Record,  p.  29. 


236  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §   343 

On  December  8,  1873,'  Mr.  Jolxn  B.  Gordon,  of  Georgia,  submitted  the  follow- 
ing resolution;  which  was  considered  by  unanimous  consent,  and  agreed  to: 

Resolved,  That  thp  memorial  of  Francis  W.  Sykes,  claiming  to  be  a  Senator-elect  from  the  State  of 
Alabama,  w-ith  accom])anjang  documents,  be  referred  to  the  Committee  on  Privileges  and  Elections, 
with  power  to  send  for  persons  and  papers. 

343.    The  Senate  election  case  of  Sykes  v.  Spencer,  continued. 

A  legislative  body  recognized  by  the  State  executive  and  having  an 
elected  but  not  certified  quorum,  was  once  preferred  to  a  rival  body  hav- 
ing a  certified  but  not  elected  quorum. 

On  April  20'  Mr.  Matt.  H.  Carpenter,  of  Wisconsm,  submitted  the  report  of 
the  Committee  of  Privileges  and  Elections.^  The  report  began  with  a  statement 
of  the  history  of  the  case: 

Mr.  Sykes  claims  the  seat  now  held  by  Hon  .  George  E.  Spencer  as  Senator  from  the  State  of  Ala- 
bama; and  his  claim  is  based  upon  the  assertion  that  the  body  claiming  to  be  the  legislature  of  the 
State  of  Alabama  which  elected  the  said  Spencer  was  not  the  rightful  legislature  of  that  State,  but  that 
another  body  of  men  was  such  legislature;  and  that  the  latter  body,  on  the  10th  day  of  December,  A.  D. 
1872,  duly  elected  the  said  Sykes  to  be  the  Senator  of  the  United  States  for  that  State  for  the  term  of 
six  years  commencing  on  the  4th  day  of  March,  A.  D.  1873. 

It  is  a  fact  that  for  some  time  after  the  day  fixed  by  law  for  the  organization  of  the  legislature  of 
that  State,  in  1872,  there  were  two  bodies,  each  claiming  to  be  the  legislature  of  that  State — one  known 
as  the  statehouse  legislature,  which  pretended  to  elect  Mr.  Sykes,  and  the  other  known  as  the  court- 
house legislature,  which  pretended  to  elect  Mr.  Spencer;  and  the  question  is,  which  of  these  two  bodies 
ought  to  bo  considered  the  rightful  legislature  at  that  time?  On  the  3d  day  of  December,  1872,  the 
court-house  legislature,  so  called,  pretended  to  elect  Mr.  Spencer.  The  governor  of  the  State  certified 
that  Mr.  Spencer  had  been  duly  elected  on  that  day  by  the  legislature  of  the  State;  and  the  Senate, 
upon  that  certificate,  seated  Mr.  Spencer  as  a  Senator  for  the  term  in  question.  The  first  question  is, 
therefore,  whether  the  body  of  men  which  protended  to  elect  Mr.  Spencer  can  properly  be  regarded  as 
the  legislature  of  the  State  at  the  time  of  such  pretended  election.  If  so,  Mr.  Spencer's  election  was 
valid,  and,  of  course,  if  that  be  so,  Mr.  Sykes  can  have  no  right  to  the  same  seat  during  the  same  term. 

After  further  reviewing  the  law  of  vUabama  and  the  details  of  the  case,  the 
report  continues: 

The  contest  between  these  two  legislatures  depends  upon  this:  In  the  statehouse  legislature  were 
eight  or  nine  members  who  had  received  regular  certificates  of  election,  but  who  are  conceded  not  to 
have  been  elected.  There  were  of  this  class  a  sufficient  number,  together  with  unquestioned  members, 
to  make  a  quorum  in  both  houses  of  the  statehouse  legislature.  In  the  court-house  legislature  persons 
claiming  the  seats  of  this  class  of  members  of  the  statehouse  legislature  assembled  with  others  who 
were  undoubtedly  members-elect  to  the  senate  and  house  of  representatives,  and  thereby  constituted 
in  numbers  a  quorum  of  the  two  houses  at  the  court-hous?.  And  the  question  is,  whether  at  the  time 
the  election  of  Spencer  took  place  by  the  court-house  legislature  that  legislature,  composed  of  a  quo- 
rum of  the  persons  actually  elected,  should  be  regarded  as  the  legislature  of  the  State;  or  whether  the 
statehouse  legislature,  a  quorum  in  both  houses  being  made  by  this  class  of  persons  who  in  fact  were 
not  elected  but  had  the  regular  certificates  of  election,  should  be  regarded  as  the  legal  legislature. 
And  this  again  depends  upon  another  question:  ^Vhether  for  the  time  being,  and  until  some  decision  by 

'  First  session  Forty-third  Congress,  Record,  p.  79. 

=  Record,  p.  318G;  Senate  Report  No.  291. 

'  This  committee  consisted  of  Messrs.  Oliver  P.  Morton,  of  Indiana;  Matt.  H.  Carpenter;  John  A. 
Logan,  of  Illinois;  J.  L.  Alcorn,  of  Mississippi;  Henry  B.  Anthony,  of  Rhode  Island;  John  H. 
Mitchell,  of  Oregon;  Bainbridge  Wadleigh,  of  New  Hampshire;  Wm.  T.  Hamilton,  of  Maryland,  and  Eli 
Saulsbury,  of  Delaware. 


§  343  ELECTOKATES    INCAPACITATED   GENERALLY.  237 

the  two  houses  could  he  arrived  at,  the  eight  or  nine  i)ersons  holding  certificates  without  the  election 
or  the  eight  or  nine  persons  elected  but  ha\'ing  no  certificates  are  to  be  considered  as  entitled  to 
act  and  form  part  of  the  legislature  of  the  State. 

The  report  then  quotes  the  law  as  to  contesting  elections,  and  concludes: 

It  is  not  pretended  that  the  persons  who  were  elected,  but  had  not  received  certificates  of  election, 
took  the  steps  required  by  this  statute  to  contest  the  seats  of  the  persons  who  held  the  certificates,  Viut 
had  not  been  elected.  It  is  claimed,  and  with  great  force,  that,  until  a  contest,  in  the  manner  provided 
by  law,  the  members  who  had  received  the  certificates  of  election,  although  those  certificates  had  been 
erroneously  delivered  and  they  were  not  in  fact  elected,  were  entitled  to  sit  as  members  of  the  legislature. 
It  is  undoubtedly  true  that  had  all  the  persons  claiming  to  be  members  of  the  legislature  met  in  the 
statehouse,  and  the  two  houses  had  proceeded  there  to  organize,  the  persons  holding  the  certificates, 
without  the  election,  would  have  been  entitled  to  their  seats  until  the  persons  who  had  been  elected,  but 
had  received  no  certificates,  should  make  contests  for  their  seats  and  their  claim  should  be  determined 
by  the  houses  themselves. 

The  matter,  then,  comes  to  this:  The  statehouse  legislature  was  the  legislature  in  form,  and  the 
court-house  legislature  was  the  legislature  in  fact.  While  these  two  pretended  legislatures  were  in 
existence,  each  claiming  to  possess  the  legislative  power  of  the  State,  Spencer  was  ek'cted  to  the  Senate 
by  the  court-house  legislature,  and  Sykes  was  elected  l)y  the  statehouse  legislature.  Spencer  was  first 
elected,  and  on  the  day  of  his  election  the  court-house  legislature  was  recognized  by  the  governor  as  the 
l^al  legislature  of  the  State.  Therefore,  in  determining  as  to  the  right  of  Spencer  or  Sykes  to  this  seat, 
the  Senate  is  compelled  to  choose  between  the  body  in  fact  elected,  organized,  acting,  and  recognized 
by  the  executive  department  as  the  legislature,  and  another  body,  organized  in  form,  but  without  the 
election  and  without  a  recognition  on  the  part  of  the  executive  of  the  State  at  the  time  they  pretended 
to  elect  Sykes.  \Mien  we  consider  that  all  the  forms  prescribed  by  law  for  canvassing  and  certif\dng  an 
election,  and  for  the  organization  of  the  two  liouses,  are  designed  to  secure  to  the  persons  actually  elected 
the  right  to  act  in  the  offices  to  which  in  fact  they  have  been  elected,  it  would  l;e  sacrificing  the  end  to 
the  means  were  the  Senate  to  adhere  to  the  mere  form,  and  thus  defeat  the  end  which  the  forms  were 
intended  to  secure. 

The  persons  in  the  two  bodies  claiming  to  be  the  senate  and  house  of  representatives  who  voted  for 
Spencer  constituted  a  quorum  of  both  houses  of  the  members  actually  elected;  the  persons  in  the  state- 
house legislature  who  voted  for  Sykes  did  not  constitute  a  quorum  of  the  two  houses  duly  elected,  Ijut 
a  quorum  of  persons  certified  to  have  been  elected  to  the  two  houses.  Were  the  Senate  to  hold  Sykes's 
election  to  be  valid,  it  would  follow  that  erroneous  certificates,  delivered  to  men  conceded  not  to  'be 
elected,  had  enabled  persons  who  in  fact  ought  not  to  vote  for  a  Senator  to  elect  a  Senator  to  misrepresent 
the  State  for  six  years.  On  the  other  hand,  if  we  treat  the  court-house  legislature  as  the  legal  legislature 
of  the  State,  it  is  conceded  that  we  give  effect  to  the  will  of  the  people  as  evidenced  by  the  election.  So 
that,  to  state  the  proposition  in  other  words,  we  are  called  upon  to  choose  between  the  form  and  the  sub- 
stance, the  fiction  and  the  fact;  and,  considering  the  importance  of  the  election  of  a  Senator,  in  the 
opinion  of  your  committee  the  Senate  would  not  be  justified  in  overriding  the  will  of  the  people,  as 
expressed  at  the  ballot  box,  out  of  deference  to  certificates  issued  erroneously  to  persons  who  were  not 
elected. 

In  the  opinion  of  your  committee  it  is  not  competent  for  the  Senate  to  inquire  as  to  the  right  of 
individual  members  to  sit  in  a  legislature  which  is  conceded  to  have  a  quorum  in  both  houses  of  legally 
elected  members.  But  undoubtedly  the  Senate  must  always  inquire  whether  the  body  which  pretended 
to  elect  a  Senator  was  the  legislature  of  the  State  or  not;  because  a  Senator  can  only  be  elected  liy  the 
legislature  of  a  State.  In  this  case,  Spencer  having  been  seated  by  the  Senate,  and  being  prima  facie 
entitled  to  hold  the  seat,  the  Senate  can  not  oust  him  without  going  into  an  inquiry  in  regard  to  the  right 
of  the  individual  persons  who  claim  to  constitute  the  quorum  in  these  respective  bodies  at  the  court- 
house and  at  the  statehouse.  We  can  not  oust  Spencer  from  his  seat  without  inquiring  and  determining 
that  the  eight  or  nine  individuals  who  were  elected  were  not  entitled  to  sit  in  the  legislature  of  the  State 
because  they  lacked  the  certificates.  But  if  the  Senate  can  inquire  into  this  question  at  all,  it  must 
certainly  inquire  for  the  fact  rather  than  the  e\-idence  of  the  fact.  It  can  not  be  maintained  that  when 
the  Senate  has  been  compelled  to  enter  upon  such  an  examination  it  is  estopped  by  mere  prima  facie 
evidence  of  the  fact,  and  the  certificate  is  conceded  to  be  nothing  more  than  prima  facie  e\'idence.     But 


238  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES,  §  344 

the  Senate  must  go  back  of  that  to  the  fact  itself,  and  determine  whether  the  persons  chiiming  to  hold 
seats  were  in  fact  elected.  When  we  do  thLs  we  come  to  the  conceded  fact  that  these  persona  lacking  the 
certificate  had  in  fact  been  elected,  and  that  the  persons  who  claimed  to  be  the  quorum  of  the  two  houses 
were  in  fact  the  persons  who,  in  virtue  of  the  election,  were  entitled  to  constitute  the  quorum  of  both 
houses. 

So  that,  in  any  view  of  the  matter  which  your  committee  can  take,  we  are  of  opinion  that  Mr.  Sykes 
makes  no  case  entitling  him  to  the  seat  now  occupied  by  Mr.  Spencer,  and  your  committee  ask  to  be 
discharged  from  the  further  consideration  of  the  memorial  of  Mr.  Sykes. 

The  minority  views  were  subscribed  by  Messrs.  Saulsbury  and  Hamilton,  took 
issue  with  the  majority,  and  argued  elaborately  that  the  statehouse  legislature  was 
the  real  legislature,  and  that  it  alone  might  decide  as  to  the  elections  of  its  own 
members. 

The  report  was  debated  at  length  on  May  27  and  28,'  and  at  the  conclusion  of 
the  debate  the  question  recurred  on  the  resolution  of  the  committee : 

Resolved,  That  the  Committee  on  Privileges  and  Elections  be  discharged  from  the  further  consid- 
eration of  the  memorial  of  Francis  W.  Sykes. 

On  motion  by  Mr.  Hamilton,  of  Maryland,  to  amend  the  resolution  by  striking 
out  all  after  the  word  "  resolved"  and  in  lieu  thereof  inserting — 

That  the  Hon.  George  E.  Spencer,  not  having  been  elected  a  Senator  from  the  State  of  Alabama 
by  the  lawful  legislature  of  that  State,  is  not  entitled  to  a  seat  in  this  body. 

After  debate,  it  was  determined  in  the  negative — yeas  11,  nays  3.3. 
On  motion  by  Mr.  Hamilton,  of  Maryland,  to  amend  the  resolution  by  striking 
out  all  after  "resolved"  and  in  lieu  thereof  inserting — 

That  Francis  W.  Sykes,  having  been  duly  and  legally  elected  a  Senator  from  the  State  of  Alabama 
for  the  constitutional  term  commencing  March  4,  1873,  is  entitled  to  the  seat  in  this  body  now  held 
by  the  Hon.  George  E.  Spencer. 

It  was  determined  in  the  negative. 

The  question  recurring  on  the  resolution  reported  by  the  Committee  on  Privi- 
leges and  Elections,  viz: 

Resolved,  That  the  Committee  on  Privileges  and  Elections  be  discharged  from  the  further  consid- 
eration of  the  memorial  of  Francis  \V.  Sykes. 

On  the  question  to  agree  thereto,  it  was  determined  in  the  affirmative. 

344.   The  Senate  election  case  of  Sykes  v.  Spencer,  continued. 

Decision  of  a  committee,  acquiesced  in  by  the  Senate,  that  an  election 
case  once  definitely  settled  might  not  be  reopened. 

On  Thursday,  December  16,  1875,^  Mr.  Spencer,  rising  to  a  question  of  privi- 
lege, referred  to  certain  charges  made  in  the  legislature  of  Alabama,  and  proposed 
a  resolution  for  an  investigation  of  the  subject  so  far  as  he  was  concerned  personally. 
But  on  suggestion  from  Mr.  Saulsbury,  he  modified  it  by  broadening  its  scope,  and 
in  that  form  it  was  agreed  to  as  follows: 

Resolved,  That  the  Committee  on  Privileges  and  Elections  are  hereby  instructed  to  investigate  into 
and  inquire  whether  in  the  election  of  George  E.  Spencer  as  a  Senator  in  Congress  from  the  State  of 
Alabama  there  were  used,  or  caused  to  be  used  and  employed,  corrupt  means  or  corrupt  practices  to  secure 

'  Record,  pp.  4287,  4325-4330;  Appendix,  p.  323. 

^  First  session  Forty-fourth  Congress,  Record,  pp.  232,  233. 


§  344  ELECTORATES    INCAPACITATED    GENERALLY.  239 

his  election  to  the  seat  he  now  holds;  and  that  said  committee  be  empowered  to  administer  oaths,  to 
send  for  persons  and  papers,  to  take  testimony,  to  employ  stenographers  and  such  clerical  assistance 
as  they  may  deem  necessarj-,  and  to  sit  during  the  recess  of  Congress,  if  considered  advisable,  and  to 
report  the  result  of  their  investigations  as  soon  as  practicable. 

Later,  especially  on  January  24  ,1876,'  Air.  Goldthwaite  presented  the  report  of  a 
joint  committee  of  the  general  assembly  of  Alabama  with  evidence  thereto  relating 
to  ilr.  Spencer's  election,  and  a  memorial  of  the  general  assembly  praying  that  the 
seat  held  by  Mr.  Spencer  might  be  declared  vacant. 

On  May  20,"  ilr.  Morton,  from  the  Committee  on  Privileges  and  Elections, 
submitted  a  report  as  follows: 

This  testimony  was  ex  parte  in  its  character,  verj'  much  of  it  hearsay,  and  could  not  be  received 
by  the  committee  as  e\-idence. 

The  question  whether  Mr.  Spencer  was  elected  by  the  lawful  legislature  of  Alabama,  raised  in  the 
memorial  referred  to,  and  in  the  specifications  filed  before  the  committee  by  the  counsel,  Mr.  Morgan, 
who  represented  the  State  of  Alabama,  was  considered  by  a  majority  of  the  committee  to  have  been 
fully  settled  in  the  contest  for  the  seat  occupied  by  Mr.  Spencer,  before  made,  in  the  Senate  by  Mr. 
Sykes. 

The  question  in  that  contest  was  whether  what  was  known  as  the  court-house  legislature,  by  which 
Mr.  Spencer  was  elected,  or  the  capitol  legislatitfe,  by  which  Mr.  Sykes  was  elected,  was  the  lawful 
legislature  of  Alabama.  After  full  consideration  and  argument  of  counsel,  it  was  determined  by  the 
committee  and  afterwards  by  the  Senate  that  the  court-house  legislature  was  the  lawful  one,  and  that 
Mr.  Spencer  and  not  Mr.  Sykes  was  entitled  to  the  seat. 

The  question  having  been  definitely  settled,  it  was  considered  by  the  committee  that  it  was  not 
competent  for  the  committee  or  the  Senate  to  reopen  it,  and  that  it  must  be  treated  as  res  adjudicata. 

Upon  the  other  branch  of  the  inquiry,  as  to  whether  Mr.  Spencer,  or  his  friends,  had  been  guilty 
of  briberj',  corruption,  or  ether  unlawful  practices  in  procuring  his  election,  the  committee  made  faithful 
and  diligent  inquin.-.  Mr.  Morgan,  counsel  for  the  accusers,  subpoenaed  and  examined  many  witnesses, 
and,  after  the  testimony  was  over,  supported  the  charge  against  Mr.  Spencer  by  a  lengthy  argument. 

Those  charges  were  not  proven  in  any  respect.  No  witness  testified  that  Mr.  Spencer  had  given, 
directly  or  indirectly,  or  offered  to  give  money,  or  anj-thing  of  value,  in  consideration  of  votes  or  sup- 
port, in  the  Alabama  legislature:  nor  was  it  shown  that  any  of  his  friends  had  done  so.  Some  hearsay 
testimony  was  offered  to  the  effect  that  certain  persons  had  said  that  they  had  received  money  in  con- 
sideration for  voting  for  Mr.  Spencer  for  the  Senate;  but  this  testimony  was  ruled  out  by  the  committee. 
The  persons  alleged  to  have  made  these  statements  were  competent  witnesses,  but  were  not  produced, 
nor  was  it  proven  that  any  money  had  been  paid  to  them  for  such  a  purpose  by  anybody,  whether  a 
known  friend  of  Mr.  Spencer  or  not. 

The  counsel  for  the  accusers  complain  strongly  of  the  rejettionof  such  testimony;  but  its  illegality 
and  worthless  character  were  too  plain  to  require  argument,  and  had  it  been  admitted  it  might  have 
contributed  to  make  some  scandal,  but  would  have  proved  nothing.  Attempts  were  made  to  offer  the 
hearsay  statements  against  Mr.  Spencer  of  persons  who  were  not  shown  to  have  been  engaged  with  him 
in  any  conspiracy  to  procure  his  election  by  corruption  or  undue  means,  and  by  whose  statements  made 
in  his  absence  he  could  not  be  bound  by  any  known  principle  of  law,  which  were  also  rejected  by  the 
committee. 

While  hearsay  evidence  was  thus  excluded,  the  door  was  thrown  open  widely  to  prove  the  pay- 
ment of  money  by  any  person  to  any  member  of  the  legislature,  or  to  be  used  with  the  legislature,  to 
procure  Mr.  Spencer's  election,  by  any  person,  whether  such  person  was  shown  to  be  a  friend  of  Mr. 
Spencer  or  not. 

The  committee  deem  it  unnecessan,'  to  go  into  the  full  details  of  the  case,  and  ha\'ing  thus  given 
the  general  result,  beg  leave  to  be  discharged  from  the  further  consideration  of  the  resolution  and 
memorial,  and  herewith  submit  copies  of  the  testimony  taken  before  the  committee. 


'Record,  p.  -571. 

2 Record,  p.  3227;  Senate  report  No.  331. 


240  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   345 

Mr.  Saulsbury  did  not  concur  in  all  portions  of  the  report,  holding  that  the 
evidence  relating  to  the  invalidity  of  Mr.  Spencer's  election  should  have  been  pre- 
sented, the  case  not  being  res  adjudicata  to  the  extent  of  preventing  this. 

345.  The  Senate  election  case  of  Ray  and  McMillen,  of  Louisiana,  in 
the  Forty-second  Congress. 

There  being  rival  claimants  bearing  credentials  from  rival  executives 
and  chosen  by  rival  legislatures,  the  Senate  did  not  give  prima  facie 
effect  to  either  credentials. 

On  January  22,  1873,  *  in  the  Senate,  Mr.  J.  R.  West,  of  Louisiana,  presented  the 
credentials  of  William  L.  McMillen,  elected  to  the  Senate  to  fill  the  unexpired  term 
of  William  P.  Kellogg. 

State  of  Louisiana. 

The  following  resolution  was  adopted  by  the  senate  and  house  of  representatives  of  the  State  of  Louis- 
iana, in  joint  session,  on  Wednesday,  the  loth  day  of  January,  1873: 

Whereas  it  appears  by  the  journals  of  each  house  of  the  general  assembly  of  the  State  of  Louisiana 
that  Hon.  W.  L.  McMillen  was,  on  the  14th  day  of  January,  1873,  elected  United  States  Senator  to  fill  the 
unexpired  term  of  Hon.  W.  P.  Kellogg: 

Be  it  resolved  by  the  senate  and  house  in  joint  session,  That  the  said  election  of  Hon.  W.  L.  McMillen  be 
testified  in  accordance  with  the  law. 

D.  B.  Penn, 
Lieutenant-Governor  and  President  of  the  Senate. 

J.  C.  MONCURE, 

Speaker  House  of  Representatives. 

We  certify  the  above  to  be  a  true  copy  of  the  minutes  of  the  senate  and  house  of  representatives, 
adopted  in  joint  session,  January  15,  1873. 

George  B.  Shephard, 
Clerk  of  the  House  of  Representatives. 
E.  A.  Burke, 

Secretary  of  the  Senate. 

State  of  Louisiana, 

Executive  Office, 
New  Orleans,  Januaiy  15,  1S73. 
I,  John  McEnery,  governor  of  the  State  of  Louisiana,  do  hereby  certify  that  Davidson  B.  Penn, 
lieutenant-governor  and  president  of  the  senate;  J.  C.  Moncure,  speaker  of  the  house  of  representatives; 
E.  A.  Burke,  secretary  of  the  senate,  and  Geo.  B.  Shephard,  chief  clerk  of  the  house  of  representatives,  are 
the  officers  herein  designated  and  described,  and  the  foregoing  signatures  are  genuine  and  entitled  to 
credence  as  officers  aforesaid. 

Given  under  my  hand  and  seal  of  the  State,  this  15th  day  of  Januarj-  A.  D.  1S73,  and  of  the  inde- 
pendence of  the  United  States  the  ninety-seventh. 

[l.  8.]  John  McEnery. 

By  the  governor: 
Y.  A.  Woodward, 

Assistant  Secretary  of  Slate. 

'Third  session  Forty-second  Congress,  Globe,  p.  766. 


I  346  ELECTORATES   INCAPACITATED   GENERALLY.  241 

Mr.  West  further  announced  that  there  was  a  contest  in  the  case,  and  he  pre- 
sented thereupon  the  credentials  of  John  Ray,  as  follows: 

State  op  LonsiANA, 

Executive  Department, 
Xetv  Orleans,  January  15,  1873. 
I,  'William  Pitt  Kellogg,  governor  of  the  State  of  Louisiana,  do  hereby  certify  that  on  the  15th  day  of 
Januarj',  in  the  year  of  our  Lord,  1S73,  John  Ray  was  duly  elected  by  the  general  assembly  of  this  State 
to  represent  this  State  in  the  Senate  of  the  United  States,  to  fill  the  vacancy  occasioned  by  the  resigna- 
tion of  Hon.  William  Pitt  Kellogg. 

Given  under  my  hand  and  the  seal  of  this  State,  this  15th  day  of  January,  A.  D.  1873,  and  of  the 
independence  of  the  United  States  the  ninety-seventh. 

[l.  s.]  WiLLi.^M  Pitt  Kellogg. 

By  the  governor. 
P.  G.  Desloxde, 

Secretary  of  State. 

Xo  proposition  was  made  to  administer  the  oath  to  either  claimant,  and  the 
credentials  of  both  were  referred  to  the  Committee  on  Privileges  and  Elections. 

To  this  committee  had  also  been  directed,  on  January  16,  a  resolution 
instructing  it  to  inquire  whether  there  was  an}-  State  government  in  Louisiana, 
and  to  report  a  bill  ordering  an  election  there  for  the  purpose  of  establisliing  a 
government,  Repubhcan  in  form. 

346.   The  Senate  election  case  of  Ray  and  McMillen,  continued. 

Discussion  of  the  authority  of  a  decision  of  a  State  court  over  the 
determinations  of  the  Senate  in  judging  of  the  elections  of  its  members. 

Reference  to  inquiry  as  to  existence  of  a  Republican  form  of  govern- 
ment in  a  State. 

On  February  20,  1873,^  Mr.  Matt.  H.  Carpenter,  of  Wisconsin,  presented  the 
report  of  the  committee,  Messrs.  John  A.  Logan,  of  Illinois;  J.  L.  iVlcom,  of  Miss- 
issippi, and  H.  B.  Anthony,  of  Rhode  Island,  concurring  therewith.  He  also 
reported  a  bill  (S.  1621)  in  accordance  with  the  instructions,  and  the  following 
resolutions : 

Resolved,  That  there  is  no  State  government  at  present  existing  in  the  State  of  Louisiana. 
Resolved,  That  neither  John  Ray  nor  W.  L.  McMillen  is  entitled  to  a  seat  in  the  Senate,  neither 
having  been  elected  by  the  legislature  of  the  State  of  Louisiana. 

The  report  describes  at  length  and  in  detail  the  political  complications  exist- 
ing in  Louisiana,  involving  the  disputes  of  rival  returning  boards  for  control  of 
the  election  returns;  of  the  election  of  November  4,  1872;  the  interposition  of  the 
Federal  courts  and  Executive;  the  existence  of  two  rival  legislatures  and  the  two 
rival  executives  represented  by  the  credentials  before  the  Senate.  The  questions 
were  largely  as  to  facts;  but  the  report  discusses  one  feature  wliich  was  an  essen- 
tial point  of  difference  in  the  committee.  It  was  claimed  for  the  State  govern- 
ment, represented  by  Governor  Kellogg,  that  it  was  recognized  as  legal  by  the  State 
supreme  com-t,  the  highest  judicial  authority  in  Louisiana. 

'  Globe,  p.  1520;  Senate  election  cases.  Fifty-eighth  Congress,  special  session.  Senate  Document 
Xo.  11,  p.  482. 

5994— VOL  1—07 16 


242  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   346 

The  report  of  the  committee  says  on  this  point: 

The  only  question  to  be  settled  by  this  suit  was  whether  Moi^an ,  the  relator,  or  Kennard,  the  defend- 
ant, was  entitled  to  hold  the  office  of  associate  justice  of  the  supreme  court  in  place  of  Howe,  resigned; 
and  the  idea  that  in  disposing  of  this  single  question  the  court  had  any  authority  or  jurisdiction  to  deter- 
mine as  between  Warmoth  and  Pinchback,  neither  of  whom  was  a  party  to  the  cause,  which  of  them 
was  entitled  to  exercise  the  office  of  governor,  and  between  200  or  300  persons,  the  Kellogg  legislature, 
and  as  many  more,  the  McEnery  legislature,  not  one  of  whom  was  a  party  to  the  suit,  which  of  the  rival 
bodies  was  authorized  to  exercise  the  legislative  power  of  that  State,  is  too  preposterous  a  proposition  to 
require  serious  refutation. 

The  utmost  that  can  lie  claimed  for  this  decision  is  that  the  court  recognizes  the  Kellogg  govern- 
ment as  a  government  de  facto,  which  may  be  conceded  without  touching  the  question  whether  it  has 
been  established  by  a  regular  election  or  set  up  and  established  by  the  usurpation  of  the  individuals 
composing  it,  sustained  by  the  military  forces  of  the  United  States. 

The  question  we  are  considering  is  not  a  judicial  question  and  no  judicial  court  can  determine  it. 
The  question  is  political  in  its  character,  and,  so  far  as  the  United  States  have  to  deal  with  it,  must  be 
determined  by  the  political  department  of  this  Government.  We  must  therefore  investigate  the  facts, 
and  no  decision  of  any  branch  of  a  pretended  State  government  can  estop  us  in  this  inquiry. 

The  people  of  the  State  are  about  equally  divided  in  sentiment  in  regard  to  these  two  pretended 
governments.  The  people  of  New  Orleans,  which  is  the  seat  of  government,  support  the  McEnerj'  gov- 
ernment, two  to  one;  and  it  is  believed  that  if  Federal  support  were  withdrawn  from  the  Kellogg  govern- 
ment it  would  be  immediately  supplanted  by  the  McEnery  government.  The  people  of  the  State,  as  a 
body,  neither  support  nor  submit  to  either  government.  Neither  government  can  collect  taxes,  for  the 
people  have  no  assurance  that  payment  to  one  will  prevent  collection  by  the  other  government.  Busi- 
ness is  interrupted  and  public  confidence  destroyed;  and  should  Congress  adjourn  without  making 
provision  for  the  case,  one  of  two  things  must  result;  Either  collision  and  bloodshed  between  the  adher- 
ents of  the  two  governments,  or  the  President  must  continue  the  support  of  Federal  authority  to  the 
Kellogg  government.  The  alternative  of  civil  war  or  the  maintenance  l)y  military  power  of  a  State 
government  not  elected  is  exceedingly  embarrassing;  and  in  the  opinion  of  your  committee  the  best 
solution  of  this  difhculty  is  for  Congress  to  order  a  reelection,  and  provide  for  holding  it  under  authority 
of  the  United  States,  to  the  end  that  a  government  may  be  elected  by  the  people,  to  which  they  will 
submit,  or  which,  in  case  of  disturbance,  the  United  States  can  honestly  maintain. 

Mr.  LjTnan  Trumbull,  of  Illinois,  in  individual  views  filed  by  him,  said  on  this 
point: 

This  pretended  legislature,  installed  in  power  by  the  aid  of  the  United  States  Army,  in  pursuance 
of  a  void  order  of  a  United  States  district  judge,  proceeded  to  elect  John  Ray  to  represent  the  State  of 
Louisiana  in  the  Senate  of  the  United  States;  and  it  is  said  the  Senate  must  receive  him  because  the 
supreme  court  of  Louisiana  has  decided  the  Pinchback  legislature  to  be  the  rightful  legislature  of  the 
State,  and  that  the  Senate  is  bound  to  follow  the  decision  of  the  State  court  as  to  what  constitutes  its 
legislature. 

It  is  true,  as  a  rule,  that  the  Federal  courts  follow  the  decisions  of  the  State  courts  in  regard  to  the 
construction  of  their  own  constitution  and  laws;  but  it  is  not  true  that  the  legislative  department  of  the 
Government  follows  the  decisions  of  the  courts  upon  political  questions.  The  inquiry,  what  is  the  estab- 
lished government  in  a  State,  belongs  to  the  political  and  not  the  judicial  power.  The  Senate,  by  the 
Constitution,  is  made  the  sole  and  only  judge  of  the  election  of  its  membei-s,  who  can  only  be  chosen  by 
the  legislatures  of  the  respective  States.  Ordinarily  the  body  recognized  in  a  State  as  its  legislature 
would  be  held  by  the  Senate  to  be  the  body  authorized  to  elect  a  Senator;  but  when,  as  in  the  case  of 
Louisiana,  there  are  two  bodies  in  a  State,  each  claiming  to  be  its  legislature,  and  each  of  which  has 
chosen  a  person  to  represent  the  State  in  the  Senate,  in  deciding  between  the  claimants  the  Senate  must 
necessarily  determine  which  Ijody  was  the  rightful  legislature  and  had  authority  to  make  the  election. 

In  view  of  the  facts  as  shown  to  exist  in  Louisiana,  the  decisions  of  its  courts  in  favor  of  the  validity 
of  the  Pinchback  legislature  are  entitled  to  no  respect  whatever.  As  has  been  already  shown,  that 
legislature  was  not  elected  nor  brought  into  being  by  the  people  of  the  State,  but  owes  its  existence  to 
the  void  proceedings  of  the  United  States  court  supported  by  militarj'  force. 


§  346  ELECTORATES    INCAPACITATED    GENERALLY.  243 

Mr.  Oliver  P.  Morton,  of  Indiana,  in  views  filed  by  him,  said: 

The  Constitution  says  that  "the  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from 
each  State,  chosen  by  the  legislature  thereof,  for  six  years."  The  manner  of  constituting  the  legislature 
is  left  aljsolutely  to  each  State,  and  the  question  of  its  organization  must  be  left  to  be  decided  by  such 
tribunals  or  regulations  as  are  provided  by  the  constitution  and  la-ws  of  the  State;  and  the  only  question 
about  which  the  Senate  may  inquire  in  determining  the  admission  of  Senators  is  whether  they  have  been 
chosen  by  the  legislature  of  the  State — that  legislature  recognized  by  the  State  or  whose  organization 
has  been  accepted  by  other  departments  of  the  State  government.  Under  our  complex  system  of  gov- 
ernment, all  questions  of  the  organization  of  State  governments,  under  their  own  laws,  must  be  left  to 
the  decision  of  the  tribunals  in  such  States  created  for  that  purpose;  and  when  such  decisions  have  been 
made  they  must  be  accepted  by  the  Government  of  the  United  States  in  their  dealings  with  such  States. 
It  is  no  answer  to  this  to  say  that  in  a  particular  case  such  tribunals  will  or  have  decided  wrongfully. 
The  Government  of  the  United  States  has  no  right  to  review  their  decisions  so  long  as  the  State  possesses 
a  government  republican  in  its  form. 

The  doctrine  that  all  questions  of  election  arising  exclusively  under  the  constitution  and  laws  of  a 
State  must  be  left  to  the  settlement  and  determination  of  the  proper  tribunals  created  by  the  State  for 
the  adjustment  of  such  matters  was  distinctly  recognized  by  the  Supreme  Court  of  the  United  States 
in  the  celebrated  case  of  Luther  v.  Borden,  growing  out  of  the  attempt  in  the  State  of  Rhode  Island  to 
overturn  the  old  charter  government  and  establish  a  new  one  in  its  stead.  In  that  case  the  Supreme 
Court  said: 

"The  point,  then,  raised  here  has  been  already  decided  by  the  courts  of  Rhode  Island.  The  ques- 
tion relates  altogether  to  the  constitution  and  laws  of  the  State;  and  the  well-settled  rule  in  this  court  is 
that  the  coiu-ts  of  the  United  States  adopt  and  follow  the  decisions  of  the  State  courts  in  questions  which 
concern  merely  the  constitution  and  laws  of  a  State.  Upon  what  ground  could  the  circuit  court  of  the 
United  States,  which  tried  this  case,  have  departed  from  this  rule  and  disregarded  and  overruled  the 
decision  of  the  courts  of  Rhode  Island?  Undoubtedly  the  courts  of  the  United  States  have  certain 
powers  under  the  Constitution  and  laws  of  the  United  States  which  do  not  belong  to  the  State  courts. 
But  the  power  of  determining  that  a  State  government  has  been  lawfully  established,  which  the  courts 
of  the  State  disown  and  repudiate,  is  not  one  of  them.  Upon  such  a  question  the  courts  of  the  United 
States  are  bound  to  follow  the  decisions  of  the  State  tribunals." 

But  the  reason  for  the  rule  in  Luther  v.  Borden  is  much  stronger  in  this  case  than  in  that.  In  that 
case  there  was  an  attempt  to  set  up  a  new  constitution  over  the  old  charter,  under  which  it  was  claimed 
that  a  new  government  had  been  organized  throughout,  involving  a  new  supreme  court,  as  well  as  leg- 
blature  and  State  officers.  But  in  Louisiana  there  is  but  one  constitution  and  but  one  supreme  court, 
which  is  recognized  by  all  parties,  and  no  attempt  made  to  set  up  another  in  its  stead,  and  the  only 
question  is  as  to  who  were  elected  State  officers  and  members  of  the  legislature  under  the  recognized 
constitution  and  laws  of  the  State,  of  which  the  supreme  court  must  necessarily  be  the  final  arbiter. 

There  is  no  impeachment  of  the  supreme  court  of  Louisiana  presented  to  the  committee  or  to  the 
country.  All  its  members  but  one  were  placed  upon  the  bench  in  1868,  before  the  present  troubles 
arose,  and  hold  their  office  for  four  years  longer;  and  although  imputations  have  been  cast  upon  its 
action,  I  know  of  no  foundation  for  them,  and  it  is  not  legitimate  for  Congress  to  make  an  inquiry  into 
its  motives.  The  power  and  duty  conferred  upon  the  United  States  by  the  fourth  article  to  guarantee 
to  every  .State  in  the  L'nion  a  republican  form  of  government  is  political  in  its  character  and  not  sub- 
ject to  revision  by  the  judiciarj';  but  when,  upon  inquiry,  it  is  ascertained  that  a  State  has  an  existing 
government  in  active  operation,  which  is  not  obstructed  by  violence,  in  which  each  department  is 
mutually  recognized  by  the  other,  and  which  is  republican  in  its  form,  there  is  no  foundation  for  the 
interference  of  Congress,  and  no  condition  to  which  its  power  can  attach;  and  although  its  officers  may 
have  been  elected  by  fraud  or  installed  without  election,  yet  all  questions  in  relation  to  them  must 
necessarily  arise  under  the  constitution  and  laws  of  the  State,  and,  under  the  decision  in  Luther  v. 
Borden,  be  referred  for  determination  to  the  tribunal  of  the  State. 

The  bill  reported  by  the  committee  was  debated  at  great  Jfeiigth  mi  February 
27,  1873,'  and  the  bill  was  rejected,  yeas  18,  nays  20. 


'  GIol)e,  pp.  1850-1896. 


^ 


244  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   347 

The  resolutions  reported  by  the  committee  were  not  acted  on,  and  the  time 
for  which  the  claimants  to  the  seat  had  been  chosen  expired  without  action  on  their 
claims  and  without  either  of  them  taking  the  seat. 

347.  The  Senate  election  case  of  Pinchback,  McMillen,  Marr,  and 
Eustis  from  Louisiana,  in  the  Forty-third,  Forty-fourth,  and  Forty-fifth 
Congresses. 

There  being  conflicting  credentials  from  rival  claimants  to  the  oflBce 
of  governor,  the  Senate  referred  the  papers  before  considering  the  ques- 
tion of  swearing  in  either  claimant  to  the  seat. 

Instance  wherein  a  committee,  being  equally  divided,  reported  to 
the  Senate  its  inability  to  present  a  proposition  for  action. 

The  Senate  tabled  a  motion  to  receive  a  telegram  relating  to  creden- 
tials of  a  claimant  to  a  seat. 

On  January  21,  1873,'  in  the  Senate,  Mr.  J.  R.  West,  of  Louisiana,  presented 
credentials  of  P.  B.  S.  Pinchback  as  Senator  from  Louisiana  for  the  term  com- 
mencing March  4,  1873.     These  credentials  were  laid  on  the  table. 

On  March  3,  1873,^  the  Vice-President  laid  before  the  Senate  a  telegraphic 
dispatch  from  John  McEnery,  "governor  of  Louisiana,"  as  follows: 

I  have  the  honor  to  inform  you  that  Hon.  William  L.  McMillen  was,  on  the  28th  instant,  duly  elected 
Senator  in  the  Congress  of  the  United  States  by  the  legislature  of  the  State  of  Louisiana  for  the  term 
commencing  March  4,  1873.     His  credentials  were  mailed  to  him  yesterday. 

Mr.  West  having  objected  to  the  reception  of  the  telegram,  a  debate  arose  as 
to  its  nature.  It  was  pointed  out  that  the  credentials  were  often  presented  in  the 
Senate  in  advance,  but  there  was  no  validity  in  them  until  the  time  arrived  for  the 
person  to  whom  they  related  to  claim  the  seat.  The  credentials  themselves  from 
Louisiana  raised  no  question  at  this  time,  and  the  dispatch  was  simply  a,  notification 
as  to  them. 

The  question  being  put  on  the  reception  of  the  telegram,  the  question  of  recep- 
tion was  laid  on  the  table. 

On  the  same  day  ^  Mr.  Carl  Schurz,  of  Missouri,  presented  a  memorial  from 
W.  L.  McMillen,  respectfully  asking  the  Senate  to  take  notice  of  the  fact  of  liis 
election.     This  memorial  was  laid  on  the  table. 

On  March  7,  1873,^  at  the  special  session  of  the  Senate,  Mr.  West  presented 
the  credentials  of  W.  L.  McMillen,  which  were  laid  on  the  table. 

On  December  4,  1873,'^  on  motion  of  Mr.  Oliver  P.  Morton,  of  Indiana,  these 
credentials  were  referred  to  the  Committee  on  Privileges  and  Elections,  no  propo- 
sition being  made  to  administer  the  oath  to  either  claimant. 

On  December  15,°  Mr.  Morton,  from  the  Committee  on  Privileges  and  Elec- 

'  Third  session  Forty-second  Congress;  Globe,  p.  728. 

2  Globe,  p.  2147. 

'Globe,  p.  2165. 

■*  Special  session  of  Senate,  Forty-third  Congress;  Record,  p.  29. 

*  First  session  Forty-third  Congress;  Record,  p.  57. 

6  Record,  pp.  188-191. 


§  348  ELECTORATES    INCAPACITATED    GENERALLY.  245 

tions,  to  whom  were  referred  the  credentials  of  P.  B.  S.  Pinchback  and  W.  L.  Mc- 
3klillen,  claiming  seats  in  the  Senate  as  Senators  from  Louisiana,  reported  that  the 
committee  were  evenly  diArided  upon  the  question  as  to  whether  ^Ir.  Pinchback  was, 
upon  his  credentials,  entitled  to  be  sworn  in  as  a  member,  and  asked  to  be  dis- 
charged from  further  consideration  of  the  subject,  and  to  refer  the  whole  matter 
to  the  determination  of  the  Senate. 

Mr.  ilorton  submitted  the  following  resolution  for  consideration;  which  was 
ordered  to  be  printed: 

Resolved,  That  the  credentials  of  P.  B.  S.  Pinchback  for  a  seat  in  the  Senate  of  the  United  States 
for  six  years,  commencing  on  the  4th  of  March,  1873,  being  in  regular  form,  he  is  entitled  under  the 
law,  and  Ln  conformity  with  the  usages  of  the  Senate,  to  be  sworn  in  as  a  member;  and  that  whatever 
grounds  of  contest  there  may  be  as  to  his  right  to  a  seat  should  be  made  thereafter. 

Mr.  Morton  submitted  the  above  resolution  individually  as  a  Senator,  the  com- 
mittee ha^ong  authorized  no  proposition. 

348.   The  Senate  election  case  of  Pinchback  and  others,  continued. 

In  an  election  case  the  Senate  considered  so  far  as  applicable  testi- 
mony taken  by  its  committee  in  a  former  Congress,  in  a  matter  to  which 
neither  contestant  was  a  party. 

Discussion  in  the  Senate  as  to  whether  or  not  the  competency  of  the 
electing-  body  is  a  question  of  determining  importance  in  considering  the 
prima  facie  effect  of  credentials. 

The  credentials  of  Mr.  Pinchback  were  issued  by  WilUam  Pitt  Kellogg,  as  gov- 
ernor, and  those  of  Mr.  McMillen  by  John  McEnery,  as  governor.  It  appeared 
from  the  debate  that  Mr.  Pinchback's  election  took  place  on  the  same  day  and  by 
the  same  legislature  that  had  elected  Jolm  Ray,  whose  claim  to  a  seat  for  an  unex- 
pired portion  of  a  term  as  Senator  had  not  reached  a  decision  in  the  preceding 
Congress.' 

At  the  outset  of  the  discussion,  on  December  15,^  Mr.  Orris  S.  Ferry,  of  Con- 
necticut, moved  to  take  from  the  files  of  the  Senate  for  consideration  in  connection 
■with  this  case  the  reports  and  evidence  taken  in  the  last  Congress  in  the  Louisiana 
case  by  the  Committee  on  Privileges  and  Elections. 

At  once  there  arose  objection  to  this  course,  it  being  pointed  out  by  Mr.  Roscoe 
ConklLng,  of  New  York,  that  the  document  in  question  recorded  the  result  of  an 
investigation  in  another  case. 

Speaking,  on  December  16,^  Mr.  Oliver  P.  Morton,  of  Indiana,  said: 

This  question  has  never  been  before  the  committee,  nor  has  it  ever  been  before  the  Senate;  and  so 
far  as  that  volume  of  testimony  is  concerned,  while  I  have  no  sort  of  objection  to  anybody  referring  to 
it  for  any  purpose,  it  is  no  part  of  the  res  gesta;.  It  is  not  a  part  of  this  case.  It  was  taken  before  a  dif- 
ferent committee.  The  committee  has  been  twice  reorganized  since  that  time.  It  was  taken  at  a 
former  session  of  Congress  in  a  proceeding  to  which  Mr.  Pinchback  was  not  a  party  and  for  which  he 
is  nowise  responsible;  and  while  it  is  here  for  reference,  as  every  document  in  the  document  room  is, 
:ajid  every  book  in  the  Library  is,  it  is  no  part  of  this  case. 

'  See  section  345  of  this  work.  =  Record,  pp.  189,  191.  '  Record,  p.  222. 


246  PKECEDENTS   OF   THE   HOUSE   OF   REPBESENTATIVES.  §   348 

Replying  on  January  30/  Mr.  Matt.  H.  Carpenter,  of  Wisconsin,  said  on  tliis 
point,  speaking  as  to  Mr.  Pinchback's  status: 

His  prima  facie  case  is  overturned.  The  presumption  that  might  spring  from  reading  these  papers 
is  rebutted  by  the  full  proof  of  the  fact  tliat  a  committee  of  this  body  unanimously,  except  one  of  its 
members,  has  reported  to  you,  and  that  report  lies  upon  your  table  to-day,  or  in  your  document  rooms, 
that  there  was  no  State  legislature  and  there  was  no  State  government  in  Louisiana  on  the  loth  day 
of  January  last,  when  it  is  pretended  Pinchback  was  elected.  Again,  the  Senator  says  this  testimony 
was  not  taken  in  Mr.  Pinchback's  case;  it  was  taken  in  Mr.  Ray's  case,  and  therefore  Mr.  Pinchback 
is  not  to  be  affected  by  it.  Why,  sir,  in  a  judicial  court,  for  reasons  that  pertain  to  such  tribunals  alone, 
the  testimony  taken  in  a  case  between  Smith  and  Jones  can  not  be  used  in  a  case  between  Brown  and 
Gray,  for  the  reason  that  each  is  entitled  to  cross-examine  witnesses  whose  testimony  is  to  affect  him. 

At  this  point  Mr.  Morton  interposed  to  say  that  the  resohition  instructing  the 
committee  to  inquire  whether  there  was  any  State  government  in  Louisiana  was 
offered  on  the  16th  of  January,  1873,  and  the  credentials  were  not  presented  to  the 
Senate  until  some  time  afterwards.  That  investigation  was  already  ordered  before 
the  credentials  were  presented  to  the  Senate.^ 

To  this  Mr.  Carpenter  replied : 

If  the  investigation  had  no  reference  to  Mr.  Ray's  case;  if  it  was  an  independent  proceeding  ordered 
by  the  Senate  to  ascertain  an  important  fact  upon  which  we  might  be  called  to  legislate,  then  it  binds 
all  the  world;  all  mankind  were  parties  to  that  investigation.  *  *  *  It  was  not  a  proceeding  in  Ray's 
case,  and  Mr.  Pinchback  was  as  much  a  party  to  the  proceeding  as  any  other  citizen  of  the  United  States.' 

Mr.  Carpenter  then  proceeded  to  read  from  Lewis's  Reasonings  and  Methods 
in  Politics  to  show  that  the  process  of  ascertaining  facts  for  legislative  purposes 
was  not  so  formal  or  subject  to  such  strict  rules  of  evidence  as  in  judicial  depart- 
ments. 

So  I  say  [he  continued]  that  the  information  which  is  furnished  to  the  Senate  by  the  report  and 
testimony  of  this  committee  not  only  comes  within  the  niles  of  evidence  upon  which  legislative  bodies 
must  act,  but  that  it  was  obtained  in  a  proceeding  instituted  by  its  own  authority,  conducted  by  its 
own  members,  exercising  its  own  powers  to  send  for  persons  and  papers,  and  conducted,  too,  under 
the  supervision  of  the  Senator  from  Indiana  himself;  and  I  say  that  it  is  before  us,  as  evidence  in  this 
case,  and  in  all  cases,  and  for  all  purposes.  The  Senator  says  it  is  before  us  like  any  other  volume  in 
the  document  room,  or  any  book  in  the  library.  I  am  willing  to  accept  that  expression,  because  every 
book  in  the  library  which  gives  us  a  fact  of  history  applicable  to  this  case,  every  law  book  which  dis- 
cusses the  questions  involved  in  this  case,  and  every  document  in  any  room  of  this  Capitol  which  fur- 
nishes information  bearing  upon  this  subject  is  legitimately  and  properly  before  us  this  morning. 

Thereafter  during  the  debate  the  report  in  question  was  referred  to  and  quoted 
from  freely.^ 

>  Record,  p.  1037. 

^The  record  of  the  case  of  P»,ay  and  McMillen  in  the  Forty-second  Congress  shows  that  this  state- 
ment is  accurate;  but  the  credentials  were  referred  to  the  committee  in  season  to  be  taken  into  con- 
sideration in  its  report. 

^This  is  not  wholly  accurate.  On  January  IG,  1873,  the  committee  were  directed  to  require  and 
report  as  to  the  existence  of  a  legal  State  government.  On  January  22,  the  credentials  of  Ray  and 
McMillen  were  presented  and  referred  to  the  committee.  On  February  20  the  committee  reported  both 
as  to  the  existence  of  a  legal  State  government  and  as  to  the  rights  of  Ray  and  McMillen. 

*  On  March  3,  1876,  while  this  question  was  still  pending,  Mr.  George  F.  Edmunds,  of  Vermont,  took 
the  same  view  as  Mr.  Carpenter  took.     First  session  Forty-fourth  Congress,  Record,  p.  1437. 


§  349  ELECTOKATES    INCAPACITATED    GENERALLY.  247 

Proceeding  to  the  merits  of  the  case,  Mr.  Morton  asserted '  the  proposition  that 
if  Wilham  Pitt  Kellogg,  who  as  governor  issued  the  credentials  of  Mr.  Pinchback, 
was  the  lawful  governor,  then  Mr.  Pinchback  was  entitled  to  take  the  seat  \\athout 
delay,  and  any  contest  to  be  made  must  be  made  thereafter.  While  he  would  dis- 
cuss in  this  connection  the  status  of  the  legislature,  he  did  not  consider  it  necessarily 
involved  in  the  argument.  He  referred  in  support  of  this  view  to  the  precedents  in 
the  cases  of  Senator  Goldthwaite,  of  Alabama,  and  of  Potter  v.  Robbins,  from  Rhode 
Island.' 

Mr.  Carpenter  did  not  admit  that  these  precedents  sustained  Mr.  Morton's 
argument,^  and  said: 

When  a  gentleman  comes  to  this  body  with  credentials  in  due  form,  showing  that  he  has  been  elected 
by  a  body  authorized  to  elect  a  Senator,  then  he  has  a  prima  facie  case.  The  case  then  before  the 
Senate  (Goldthwaite  case),  *  *  *  -vras  such  a  case.  There  was  a  question  made  here  as  to  individ- 
uals sitting  in  the  legislature  of  Alabama,  but  there  was  no  question  that  the  body  itself  was  the  legisla- 
ture of  the  State;  and  the  better  opinion  is  that  the  Senate  has  no  authority  to  inquire  into  the  right  of 
individual  members  of  a  State  legislature  to  sit  therein,  tliat  being  a  question  to  be  settled  by  the  legisla- 
ture, if  there  be  a  legislature  to  settle  it;  but  the  Senate  has  authority  to  inquire  whether  the  body  which 
has  pretended  to  elect  a  Senator  was  the  legislature  of  the  State.  The  legislature  alone  can  elect  a  Senator, 
and  therefore  to  make  a  prima  facie  case  it  must  be  shown  that  the  legislature  has  made  an  election. 

Mr.  Morton  called  attention  to  the  fact  that  a  certificate  by  the  governor  was  a 
proper  form  of  making  known  the  election  by  the  legislature,  to  which  Mr.  Carpenter 
replied : 

A  prima  facie  case  is  that  which  appears  before  an  examination  of  the  merits;  but  when  there 
has  been  a  full  investigation  and  trial,  and  it  is  ascertained  that  what  appeared  prima  facie  to  be  the 
case  is  not  the  true  case  then  the  prima  facie  case  is  gone.  In  Robbins's  case  there  had  been  no 
investigation,  and  therefore  the  Senate  properly  acted  upon  the  prima  facie  case.  But  here  a  full 
investigation  had  been  liiade  before  Pinchback  presented  his  prima  facie  case.  Whenever  the  Senate 
acts,  it  must  act  upon  all  the  facts  before  it;  and,  in  this  instance,  we  have  not  only  the  prima  facie 
case  made  by  the  credentials,  but  also  the  full  investigation  showing  that  Pinchback's  prima  facie 
case  is  false. 

349.    The  Senate  election  case  of  Pincliback  and  others,  continued. 

Reference  to  principles  governing  recognition  of  a  State  government 
by  the  President  of  the  United  States. 

The  discussion,  from  the  above  points  of  departure,  naturally  divides  itself 
into  two  main  branches: 

(1)  Was  Governor  Kellogg  the  governor  of  the  State  of  Louisiana  when  the 
credentials  were  issued? 

Mr.  Morton  contended  *  that  he  was.  He  had  been  in  complete  possession  of 
the  office  for  nearly  twelve  months,  acting  as  governor  in  every  respect;  he  had 
been  recognized  as  such  by  the  other  State  officers,  by  the  legislature  in  various 
ways,  by  the  State  comets  from  the  lowest  to  the  highest;  he  had  been  recognized 
by  the  United  States  House  of  Representatives,  which  had  seated  a  Member-elect 
bearing  credentials  signed  by  him;  and,  finall}',  he  had  been  recognized  by  the 

'  Record,  p.  224.     =  Record,  p.  222.     ^  Record,  pp.  1037.  1038.     *  Record,  p.  223. 


248  PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   349 

President  of  the  United  States.  On  this  hist  point  Mr.  Morton  quoted  at  length 
the  decision  of  the  United  States  Supreme  Court  in  the  Rhode  Island  case  arising 
out  of  the  so-called  "Dorr  rebellion,"  the  case  of  Luther  v.  Borden  (7  Howard). 

Mr.  Carpenter  dissented'  from  this  claim  that  Kellogg  was  the  lawful  governor. 
As  to  the  point  that  he  had  held  the  office  for  a  period  of  time  and  was  still  holding 
it,  it  was  sufficient  to  say  that  he  was  holding  it  not  by  the  voluntary  consent  and 
assent  of  the  people  of  Louisiana;  but  by  reason  of  support  from  the  strong  ann  of 
the  military  power  of  the  Federal  Government.  Under  such  circumstances  the 
duration  of  his  power  was  not  material.  If  it  was  not  rightful  in  the  beginning,  it 
was  not  rightful  now.  As  to  its  recognition  by  the  President  and  by  the  courts  of 
Louisiana,  Mr.  Carpenter  denied  the  effectiveness  of  both  these  arguments. 

(a)  As  to  the  force  of  the  decisions  of  the  State  courts  in  limiting  the  inquiry 
of  the  Senate,  Mr.  Morton  contended  ^  that  it  was  obligatory  to  accept  the  decisions 
of  State  tribunals  on  all  questions  arising  upon  State  laws.  He  quoted  the  cases  of 
Luther  V.  Borden,  and  also  Webster  v.  Cooper  (14  Howard).  Mr.  Morton  con- 
tended that  the  Senate,  in  accordance  with  this  principle,  should  take  a  legislature 
as  the  State  gave  it.  But  it  was  objected  in  this  connection,  notably  by  Messrs. 
Eli  Saulsbury,  of  Delaware,  and  John  P.  Stockton,  of  New  Jersey,  that  the  question 
of  the  existence  of  a  legislature  was  directly  before  the  Senate,  and  that  it  alone 
was  the  judge. 

Mr.  Carpenter  discussed  ^  more  fully  the  effect  of  the  decisions  of  the  Louisiana 
court,  taking  the  ground  that  the  courts  had  acted  in  cases  not  properly  within 
their  jurisdiction,  and  that  their  decisions  were  conflicting  and  therefore  not  within 
the  rule  making  them  the  highest  evidence  of  what  the  local  law  was.  He  cited  on 
this  point  the  cases  of  the  Ohio  Life  and  Trust  Company  v.  De  Bolt  (1 6  Howard,  432) , 
Gelpecke  tJ.  Dubuque  (1  Wallace,  17.5),  and  Havemeyer  v.  Iowa  County  (3  Wallace, 
294) .     Mr.  Thomas  C.  McCreery,  of  Kentucky,  also  argued  in  the  same  line.* 

(&.)  As  to  the  alleged  recognition  of  the  Kellogg  government  bj'  the  President, 
the  facts  and  law  were  discussed  at  length^  on  December  16  and  January  26  and 
30,  and  February  2. 

(2)  As  to  the  question  of  the  legality  of  the  legislature  there  was  elaborate 
discussion  and  exploration  of  fact,  the  report  already  discussed  being  the  basis  of 
consideration,  it  being  contended  on  the  one  side  that  the  legislature  was  the  legal 
body,  and  on  the  other  that  it  was  not. 

On  January  26 "  Mr.  Morton  modified  his  resolution  to  read  as  follows: 

Resolved,  That  the  credentials  of  the  Hon.  P.  B.  S.  Pinchback  be  referred  to  the  Committee  on 
Privileges  and  Elections;  that  the  committee  have  power  to  send  for  persons  and  papers,  and  ba  instruct- 
ed to  inquire  into  the  conduct  of  said  Pinchback  in  connection  with  said  election. 

In  making  this  change  Mr.  Morton  announced  that  he  had  learned  that  there 
were  charges  of  improper  conduct  made  against  Mr.  Pinchback  in  connection  with 

'  Record,  p.  1053.  <  Record,  p.  916. 

^Record,  pp.  225,  226.  'Record,  pp.  223, 1050,  1109;  Appendix,  p.  41. 

''Record,  p.  1054.  « Record,  p.  915. 


§  350  ELECTOBATES    INCAPACITATED    GENEBALLY.  249 

the  election,  and  this  was  the  reason  for  the  modification.  Mr.  Carpenter  com- 
mented '  on  this  as  a  virtual  abandonment  of  the  prima  facie  claim,  but  Mr.  Morton 
declined  to  admit  that  this  was  the  significance  of  his  action. 

On  January  27-  the  credentials  of  ilr.  McMUlen  were  recommitted  to  the  Com- 
mittee on  Privileges  and  Elections. 

But  it  does  not  appear  that  any  action  was  taken  at  this  session  on  the  modified 
resolution  presented  b}"  Mr.  Morton.^ 

350.   The  Senate  election  case  of  Pinchback  and  otliers,  continued. 

Discussion  of  the  form  of  credentials  and  the  competency  of  the  elect- 
ing and  certifying  authorities  behind  them  as  elements  in  their  eflB.cacy, 

Discussion  of  the  status  of  a  governor  de  facto  as  distinguished  from 
an  usurper. 

On  December  16,  1874,*  the  Vice-President  laid  before  the  Senate  a  letter  of 
W.  L.  McMillen  requesting  the  speedy  action  of  the  Senate  upon  his  credentials  as 
Senator  elect  from  the  State  of  Louisiana;  which  was  referred  to  the  Committee  on 
Privileges  and  Elections. 

On  December  23 '  Mr.  Morton  submitted  the  following  resolution  for  considera- 
tion; which  was  ordered  to  be  printed: 

Resolved,  That  the  Senate  recognize  the  validity  of  the  credentials  of  P.  B.  S.  Pinchback  as  certified 
to  by  Governor  William  P.  Kellogg,  of  Louisiana,  under  the  seal  of  said  State;  and  the  Committee  on 
Privileges  and  Elections  are  instructed  to  examine  and  report  if  said  Pinchback  is  entitled  to  be  admitted 
on  the  prima  facie  case  thus  made,  or  if  such  admission  should  be  postponed  until  investigation  is  made 
as  to  the  charges  of  corruption  in  his  election  alleged  against  him. 

On  January  22,'  1875  Mr.  West  presented  new  credentials,  in  due  form  but  in 
somewhat  different  form  from  the  preceding  credentials,  dated  January  13,  1875, 
and  signed  by  '"Wm.  P.  Kellogg"  as  governor,  certifying  that  on  January  12,  1875, 
Pinckney  B.  S.  Pinchback  had  been  elected  to  the  United  States  Senate  for  the 
term  expiring  March  4,  1879 — i.  e.,  the  term  beginning  Manh  4,  1873,  as  expressed 
in  the  credentials  issued  to  Mr.  Pinchback  by  William  P.  Kellogg  on  January  15, 
1873. 

These  credentials,  together  with  the  former  credentials  and  other  papers  relating 
to  the  case,  were  referred  to  the  Committee  on  Privileges  and  Elections. 

On  February  8,  1875,'  Mr.  Morton  submitted  the  report  of  the  connnittee,  as 
f  oUows : 

That  the  certificate  of  William  Pitt  Kellogg,  then  and  now  the  governor  of  the  State  of  Louisiana, 
which  certificate  is  verified  by  the  great  seal  of  the  State,  shows  that  on  the  17th  day  of  Januarj',  1873, 
the  Hon.  P.  B.  S.  Pinchback  was  elected  to  a  seat  in  the  Senate  of  the  L^nited  States  for  the  term  of  six 
years,  beginning  on  the  4th  of  March,  1873,  by  the  legislature  of  Louisiana,  in  manner  and  form  as  pre- 


1  Record,  p.  1053. 

=  Record,  p.  941. 

'It  was  stated  in  debate  on  January  22, 1875,  that  no  action  was  taken.  Record,  second  session 
Forty-third  Congress,  p.  647. 

*  Record,  p.  94. 

'Record,  p.  227. 

'Record,  p.  G47. 

'  Record,  p.  1063.  This  report  was  concurred  in  by  4  of  the  7  members  present  at  the  meeting, 
the  whole  membership  of  the  committee  being  9. 


'250  PRECEDENTS    OF    THE    HOUSE    OF    KEPEESENTATIVES.  §   350 

scribed  by  the  act  of  Congress  regulating  the  elections  of  Senators  of  the  United  States.  Upon  this 
certificate  the  committee  are  of  opinion  that  Mr.  Pinchback  has  a  •prima  Jane  title  to  admission  as  a 
member  of  the  Senate,  and  that  whatever  objections  may  exist,  if  any,  as  to  the  manner  of  his  election 
or  as  to  the  legal  character  of  the  body  by  which  he  was  elected,  should  be  inquired  into  afterwards. 
The  committee,  therefore,  recommend  the  adoption  of  the  following  resolution: 
"Resolved,  That  P.  B.  S.  Pinchback  be  admitted  as  a  Senator  from  the  State  of  Louisiana  for  the 
term  of  six  years,  beginning  on  the  4th  of  March,  1873." 

In  support  of  this  report,  on  February  15 '  Mr.  Morton  cited  the  cases  of  Robbing, 
Shields,  and  Goldthwaite.     At  a  later  date  he  also  cited  the  case  of  Spencer. 

Minority  views  ^  were  filed  by  Messrs.  William  T.  Hamilton,  of  Maryland,  and 
Eli  Saulsbury^  of  Delaware.  The  minority  begin  with  a  discussion  of  the  force  and 
effect  of  the  Kellogg  credentials: 

The  power  of  the  Senate,  under  section  5,  article  1,  of  the  Constitution,  to  "judge  of  the  election, 
returns,  and  qualifications  of  its  own  members"  is  absolute  and  unlimited. 

The  object  in  this  case  is  to  seat  P.  B.  S.  Pinchback  upon  this  certificate  alone,  irrespective  of  his 
election,  and  which  in  effect  for  the  present  excludes  any  consideration  of  the  election  itself. 

It  may  be  admitted  that  the  general  practice  haa  been  to  admit  the  person  chosen  as  a  Senator  to 
his  seat  upon  credentials  sufficiently  authenticated  either  by  the  legislature  or  the  governor  of  the  State, 
subject,  of  course,  to  any  contest  that  might  be  thereafter  prosecuted  in  respect  to  his  right  to  the  seat. 
The  credentials  in  themselves,  it  will  be  conceded,  have  no  substantial  value.  It  is  the  election,  and 
the  election  alone,  that  gives  to  the  person  chosen  the  right  to  be  a  Senator. 

The  certificate  of  the  governor  of  a  State  directed  to  be  given  by  the  act  of  Congress  approved  July 
25,  1866,  upon  the  election  of  a  Senator,  is  but  the  certificate  of  a  fact  upon  which  the  official  existence 
of  the  person  chosen  depends.  It  gives  to  it  no  force  whatever,  and  without  it  the  election  is  just  as 
good.  It  is  merely  one  of  the  evidences  of  the  election  in  a  solemn  form,  and  to  which  due  respect 
should  always  be  paid.  In  the  act  referred  to  there  is  nothing  said  as  to  what  effect  should  be  given 
to  such  a  certificate.  It  has,  however,  been  generally  regarded  as  sufficient  in  itself  to  presume  a  lawful 
election  of  the  person  represented  by  it  to  be  chosen.  It  is  most  certainly  appropriate  that  this  act  did 
not  define  the  force  of  such  a  certificate.  It  prescribes  a  duty  that  the  governor  might  or  might  not 
observe.  The  Constitution  of  the  United  States  provides  for  the  election  of  Senators  by  the  legislatures 
of  the  States.  This  is  their  absolute  right.  Congress  may  regulate  the  time  and  manner  of  choosing 
Senators,  and  the  power  of  Congress  over  the  subject  is  limited  to  this  only.  The  right  of  choosing 
Senators  belongs  to  the  legislatures  alone,  and  such  election  is  alone  in  all  cases  of  inquiry  to  be  deter- 
mined by  its  records.  The  governor  is  not  known  in  the  election;  no  duty  is  imposed  upon  him  by  the 
Constitution  in  respect  to  it,  or  in  respect  to  its  authentication.  The  legislature,  to  which  is  alone  con- 
fided the  high  trust  of  choosing  Senators,  can  speak  through  its  own  organization,  its  own  officers,  and 
its  own  acts,  as  its  official  record  will  show. 

The  right  of  election  is  sacred;  the  right  of  having  this  election  determined  by  its  own  record  is 
equally  sacred;  for  it  might  be  that  if  other  independent  departments  of  the  Government,  as  the  execu- 
tive, for  example,  possessed  the  right  or  power  of  authentication  in  the  election  of  a  Senator,  you  might 
impinge  upon  the  full  enjoyment  of  the  power  of  the  legislature  in  the  due  choosing  of  Senators.  This 
absolute  right  to  choose  we  hold  should  not  and  does  not  depend  for  its  efficiency  upon  the  action  of  the 
executive  or  any  other  officer  of  the  State  or  Federal  Government. 

It  will  be  observed  that  the  certificate  such  as  we  now  have  under  consideration  necessarily  involves 
these  elements  of  belief  before  it  can  have  the  force  which  is  now  attempted  to  be  given  to  it  by  the 
report  of  the  committee  in  this  case:  First,  that  the  facts  stated  in  regard  to  the  election  are  true;  and 
second,  that  the  person  certifying  as  governor  is  in  fact  what  he  represents  himself  to  be.  The  efficacy 
Bought  to  be  impressed  upon  this  certificate,  in  at  once  admitting  the  person  represented  to  be  chosen  to 
a  seat,  alone  depends  upon  the  latter  fact.  With  this  in  dispute  the  efficient  power  is  gone.  Investiga- 
tion is  at  once  inaugmated  to  settle  the  disputed  point.     Inquiry  leads  to  inquiry,  and  the  real  life  of 

'  Record,  p.  1277.  *  Senate  Report  No.  626. 


§  350  ELECTORATES   INCAPACITATED    GENERALLY.  251 

the  certificate  is  lost  in  the  strife,  for  it  can  be  readily  seen  that  in  a  contest  as  to  whether  the  certificate 
has  any  validity,  either  by  reason  of  the  allegation  that  the  person  certifying  was  not  in  fact  the  governor, 
or  from  any  other  reason,  the  State  might  be  left  without  a  Senator,  when  by  reference  to  the  acts  of  the 
legislature  the  records  would  show  a  lawful  election  by  a  lawful  body,  and  who  could  deny  that  a  person 
so  chosen  and  with  such  a  record  could  not  be  admitted  without  regarding  at  all  the  contest  about  the 
certificate  of  the  governor,  or  whether  he  was  in  fact  governor? 

We  advert  to  this  to  show  that  a  contest  upon  the  subject  of  certificates  at  all  for  any  legitimate 
cause  destroys  their  force.  It  was  intended  that  by  their  force  alone  there  should  be  immediate  unob- 
structed admission  to  a  seat.  It  must  be  conceded,  in  order  to  give  this  effect  to  the  certificate  before 
us,  that  William  Pitt  Kellogg  was  at  the  time  the  governor  of  Louisiana.  If  he  were  not  the  governor, 
then  it  is  no  more  than  waste  paper.  All  will  admit,  we  presume,  that  this  has  been  a  subject  of  dispute 
at  least  since  the  State  election  which  took  place  on  the  4th  day  of  November,  A.  D.  1872.  A  constant, 
earnest,  and  at  times  an  aggressive  protest  has  been  made  against  Kellogg,  as  not  only  not  entitled  to  be 
the  constitutional  and  rightful  governor  of  Louisiana,  but  as  a  notorious  usurper,  held  in  the  position  he 
has  seized  without  color  of  right  by  means  of  the  armed  forces  of  the  United  States.  Events  occurring 
at  the  time,  and  continually  since,  and  some  of  the  most  painful  character,  prove  that  he  does  not  hold 
this  place  practically  by  any  other  tenure  or  power.  Whatever  else  may  be  said  of  this  notable  promi- 
nent fact,  all  are  well  advised  that  the  right  of  Kellogg  to  be  governor  of  Louisiana  is  in  good  faith  denied 
and  resisted  in  every  way  possible  to  a  peaceful  resistance. 

This  at  once,  most  naturally,  opens  up  the  inquiry  as  to  the  certificate  itself,  and  no  efficacy  is  to  be 
ascribed  to  it  until  this  is  satisfactorily  settled,  for  without  this  it  is  worthless  for  any  purpose.  We 
apprehend  there  is  no  diversity  in  the  committee  on  this  point.  The  report  of  the  committee  insists 
that  Kellogg  is  the  governor  of  Louisiana,  and  would  proceed  to  show  it  by  a  course  of  argument  and  a 
system  of  evidence  satisfactory  to  gentlemen  uniting  in  that  report.  On  the  contrary,  another  course 
of  argument,  and  other  evidence  equally  satisfactory,  have  brought  the  undersigned  to  a  very  different 
conclusion.  The  broad  field  of  inquiry  and  investigation  is  therefore  opened  up,  for  it  must  be  manifest 
to  an  unprejudiced  mind  that  an  examination  into  the  fact  whether  Kellogg  was  the  rightful  governor 
of  Louisiana  at  the  time  he  signed  this  certificate  must  bring  us  to  his  pretended  election,  and,  with  it, 
to  the  election  of  the  body  which  chose  Pinchback.  The  whole  subject  relating  to  the  affairs  of  this 
State,  in  connection  with  the  election  held  on  the  4th  of  November,  1872,  for  the  election  of  governor 
and  other  State  officers  and  members  of  the  legislature,  becomes  involved  in  the  very  first  branch  of  the 
inquiry  which  it  is  conceded  by  all  must  be  made  and  settled  before  any  force  can  be  imparted  to  the 
certificate. 

Before  entering  upon  this  inquiry  we  submit  most  respectfully,  putting  it  in  the  mildest  form, 
whether  this  is  not  an  exceptional  case  from  the  ordinary  one,  where  it  is  conceded  that  there  was  a 
rightful  governor  to  sign  certificates  and  where  there  was  a  legislature  to  elect.  It  must  be  admitted 
that  no  such  case  was  ever  before  presented  to  the  consideration  of  the  Senate.  Notwithstanding  it  has 
been  the  usual  practice  to  admit,  in  the  first  instance,  persons  to  a  seat  upon  such  certificates,  leaving 
the  contest,  if  any,  to  be  proceeded  with  thereafter  in  the  usual  way,  yet  the  very  first  question  as  to  the 
official  character  of  the  person  pretending  to  be  governor  impairs,  as  we  have  before  said,  the  wonted 
efficacy  of  such  certificate;  so  that  when  in  the  examination  of  this  primary  question  is  involved  the 
body  that  chose  Pinchback,  and  in  fact  the  whole  State  government  of  Louisiana,  would  it  be  fair, 
rational,  and  just  to  stop  short  of  the  substantial  merits  of  the  case  when  all  can  be  settled  at  once? 

It  will  be  admitted,  we  think,  that  in  such  a  controversy,  opening  up  both  the  official  character  of 
the  governor  and  the  legal  validity  of  the  legislature  choosing  the  Senator,  we  could  determine  against 
the  validity  of  the  certificate  and  at  the  same  time  determine  the  validity  of  the  election  upon  the 
record  of  the  legislature  and  upon  its  official  power  of  election.  Suppose  that  such  certificates  should 
be  attacked  for  fraud,  as  they  could  be,  could  anyone  say  that  such  attack  would  involve  alone  the 
fraudulent  character  of  the  certificate,  and  not  the  rightful  issue — the  election  itself?  The  attack  would 
involve  both,  and,  involving  both,  common  reason  would  dictate  that  we  should  decide  the  substantial 
question.  While  we  could,  in  such  an  inquiry,  set  aside  the  certificate,  we  would  give  to  the  person 
rightfully  chosen  his  seat,  and  all  done  in  the  same  proceeding.  For  if  our  inquiry  should  be  alone  con- 
fined to  the  certificate,  for  whatever  cause,  we  would  be  exposed  to  the  fallacy  of  setting  it  aside  and 
then  remitting  the  case  to  the  governor  for  other  or  further  certificate  of  a  fact  simply,  when  we  could, 
and  it  would  be  our  duty,  ascertain  the  fact  ourselves  to  end  the  matter. 


'252  PRECEDENTS    OF    THE    HOUSE    OF    REPEESENTATIVES.  §   350 

Therefore  we  conceive  that  even  in  a  technical  sense,  upon  a  question  submitted  as  this  is,  an 
examination  of  the  whole  subject  is  necessary  to  come  to  right  conclusions;  but  when  we  view  it  in  its 
broad  sense,  and  as  we  have  it  in  the  light  of  history  and  events  daily  transpiring,  many  of  which  we 
must  or  are  presumed  to  know,  as  legislators  and  members  of  this  body,  we  would  consider  it  a  gross 
dereliction  of  public  duty  did  we  confine  ourselves  to  a  technical  consideration  of  matter  not  substantial 
when  in  it  are  involved  questions  of  the  greatest  moment,  and  which  in  their  proper  solution  demand 
our  earnest  efforts  and  soundest  judgment. 

The  facts  present  the  broadest  grounds  for  interposition  in  the  broadest  sense  to  ascertain  the  real 
right  and  settle  a  question  that  has  already  given,  and,  until  rightly  settled,  will  give  to  the  country 
the  greatest  concern.  The  facts  can  not  be  denied  that  imperatively  call  for  such  an  interposition; 
mere  parchment  titles,  mere  certificates,  sink  into  insignificance  before  the  patent  and  undeniable  facts 
which  environ  this  case.  Never  before  has  such  a  case  been  made,  and  it  is  to  be  hoped  that  no  such 
one  will  ever  be  made  again. 

A  brief  reference  to  the  prominent  facts  will  show  how  cntirelj-  and  neecessarily  the  whole  case  is 
before  us. 

The  views  then  go  on  to  review  the  facts  of  the  State  election  of  November  4, 
1872,  in  Louisiana,  to  discuss  the  rival  returning  boards,  the  fraudulent  returns, 
the  rival  governors  and  rival  legislatures,  and  then  proceed  to  discuss  the  status  of 
Kellogg  as  governor: 

But  to  recur  to  the  question.  If.  in  the  course  of  the  investigation,  from  all  the  facts  drawn  from 
all  the  sources  to  which  we  have  referred,  we  conclude  that  the  pretended  governor  is  a  mere  usurper, 
then  his  acts  are  void  and  avail  nothing.  Persons  hold  office  or  place  under  three  different  tenures — 
first,  de  jure;  second,  de  facto;  and,  third,  as  a  usurper — the  only  three  modes,  we  believe,  known  to 
the  law;  and  by  one  or  the  other  of  these  tenures  does  the  person  exercise  the  office  or  place  that  he  holds. 

The  first  is  clothed  with  all  the  powers  that  right,  combined  with  possession,  can  give.  The  second 
is  only  clothed  with  the  powers  possession  can  give,  that  possession  being  obtained  under  a  color  of  right; 
and  these  powers  are  limited  to  certain  well-defined  acts.  The  third  ref  3rs  to  a  person  undertaking  to 
hold  office  without  any  color  of  right;  he  is  a  mere  usurper,  whose  acts  are  void. 

The  distinguishing  differences  between  officers  de  jure  and  de  facto  and  a  mere  usurper  are  well 
laid  down  in  the  books  in  the  earlier  days,  and  the  same  are  observed  to  this  day.  In  a  leading  case, 
decided  so  far  back  as  1738,  the  general  principles  relating  to  officers  de  jure  and  de  facto  were  well 
defined.  In  this  case  one  Goldwire,  "under  pretense  and  color  of  being  elected  mayor  of  Christ  Church, 
in  the  county  of  Southampton,"  was  presented  unto  William  Willis,  steward  of  the  court  leet,  and  was 

there  sworn  into  the  office  of  mayor,  and,  in  fact,  exercised  the  office  till day  of ,  1736,    and 

that  being  in  the  exercise  of  said  office,  and  under  "pretense  of  being  elected,  and  sworn  into  the  same, 
he  issued  a  summons  to  the  several  burgesses  of  the  corporation  to  meet,"  etc.,  and  at  such  meeting  he 
nominated  the  defendant  Lisle  as  one  of  the  burgesses,  and  the  question  was  whether,  when  he  made 
such  nomination,  he  was  mayor  de  facto,  for  it  was  found  that  he  had  never  been  elected,  and,  if  mayor 
de  facto,  whether  he  had  the  power  to  make  the  appointment.  It  was  held  by  the  court  that  Goldwire 
was  not  so  much  as  a  mayor  de  facto;  for  in  order  to  constitute  a  mayor  de  facto  it  is  necessary  that  there 
be  some  form  or  color  of  an  election;  but  without  this,  the  taking  the  title  and  regalia  of  the  office,  and 
the  acting  and  being  sworn  in  as  mayor  are  not  sufficient.  Now,  here  it  appears  that  Goldwire  was  never 
elected  in  fact;  and  though  it  be  stated  that  he  was  sworn  at  the  leet,  it  does  not  appear  (as  it  ought) 
that  this  was  agreealjle  to  the  constitution  of  the  borough.  And  it  is  not  material  that  he  acted  as  mayor, 
as  it  is  found  that  a  quo  warranto  was  recently  prosecuted  against  him,  pending  which  the  present  elec- 
tion was  made,  and  that  he  was  thereupon  adjudged  to  be  a  usurper."  (Andrews's  Reports,  Henr\'  v. 
Lisle,  173.)     The  distinctions  then  made  are  continued  to  this  day,  and  are  as  clearly  defined: 

"An  officer  de  facto  is  one  who  exercises  the  duties  of  an  office  under  color  of  an  appointment  or 
election  to  that  office.  He  differs,  on  the  one  hand,  from  a  mere  usurper  of  an  office,  who  undertakes  to 
act  as  an  officer  without  any  color  of  right,  and  on  the  other  from  an  officer  de  jure,  who  is  in  all  respects 
legally  appointed  and  qualified  to  exercise  the  office.  These  distinctions  are  very  obvious,  and  have 
always  been  recognized." — (17  Connecticut,  Plymouth  v.  Painter,  588;  7  Johnson,  People  v.  Collins,. 
549;  2  Kent.) 


§  350  ELECTORATES    INCAPACITATED   GENERALLY.  253 

It  is  claimed  by  some  that  though  it  be  a  question  whether  Kellogg  be  a  governor  de  jure,  yet  he 
is  a  governor  de  facto,  and  as  such  his  certificate  of  the  election  of  Pinchback  is  to  be  recognized  as  equally 
binding  upon  us  as  if  he  were  governor  de  jure. 

Holding,  as  we  do,  that  he  is  neither  the  governor  de  jure  nor  de  facto,  but  a  mere  usiu^er,  and  a 
usurper  not  keeping  himself  in  position  by  his  own  unaided  local  power,  but  by  the  aid  of  armed  forces 
of  a  foreign  power — in  its  true  relations  to  this  case  as  much  a  foreign  power  aa  that  of  Great  Britain 
could  be — we  desire,  briefly,  to  examine  this  phase  of  the  subject. 

Keeping  in  view  the  rulings  we  have  cited,  is  Kellogg  so  much  as  a  governor  de  facto?  In  disposing 
of  this  we  dispose  of  his  character  as  governor  de  jure. 

As  we  have  already  noticed,  the  constitution  of  Louisiana  provides  that  the  governor  shall  be 
elected  by  the  people.  To  be  such  de  facto  he  must  be  in  by  color  of  an  election.  If  he  has  no  color 
of  an  election,  he  is  nothing  but  a  usurper,  "who  is  one  undertaking  to  act  without  a  color  of  right." 
Two  propositions  are  to  be  here  considered  in  order  to  arrive  at  correct  conclusions — 

1.  Was  Kellogg  elected  by  a  majority  of  the  votes  of  the  people  at  the  election  held  on  the  4th  day 
of  November,  1872? 

2.  If  he  was  not,  then  had  he  such  a  color  of  an  election  as  to  constitute  him  governor  de  facto? 
This  brings  us  to  the  wider  domain  of  fact  which  at  every  step  has  marked  this  controversy  from 

its  inception,  in  1872,  to  the  present  period.  In  the  direct  examination  of  the  matter  all  the  facts  that 
may  tend  to  a  correct  result  should  be  considered.  We  have  a  great  variety  of  facts  and  circumstances, 
some  historical  in  their  character,  some  which  we  are  obliged  to  know  or  are  assumed  to  know  from  our 
constitutional  relations  to  the  State,  her  people,  her  goverimient,  her  officials,  whether  judicial,  minis- 
terial, executive,  or  political,  and  those  which  we  have  gathered  ourselves  through  committees  of  this 
body  in  the  investigation  had  by  resolution  of  this  body  passed  on  16th  January,  1873,  and  which  is  as 
follows:  "Resolved,  That  the  Committee  on  Privileges  and  Elections  be  instructed  to  inquire  and  report 
to  the  Senate  whether  there  is  any  existing  State  government  in  Louisiana,  and  how  and  by  whom  it 
is  constituted;"  and  to  which  committee  were  also  referred  the  certificates  of  John  Ray  and  W.  L. 
McMillen,  both  claiming  the  seat  in  this  body  supposed  to  have  been  made  vacant  by  the  resignation  of 
William  Pitt  Kellogg. 

This  committee,  composed  of  Messrs.  Morton,  Carpenter,  Logan,  Anthony,  Trumbull,  Alcorn,  and 
Hill,  made  a  diligent  and  laborious  investigation  of  aU  the  matters  connected  with  both  questions,  and 
made  an  elaborate  report  to  the  Senate,  accompanied  by  a  large  amount  of  testimony.  It  is  Senate 
Report  Xo.  457,  Forty-second  Congress,  third  session.  From  all  the  evidence,  then,  and  which  covers 
and  exhausts  the  whole  subject,  was  Kellogg  in  fact  elected  by  the  people  of  Louisiana  the  governor  of 
that  State? 

After  examining  the  facts  the  minority  conclude — 

Then,  so  far  as  Kellogg  is  concerned,  there  is  nothing  to  show  that  he  had  the  slightest  right,  either 
by  an  election  or  the  color  of  an  election,  to  hold  this  office.  He  must  therefore  be  regarded  as  a  usurper; 
for  in  no  other  character  could  he  hold  the  place,  if  not  in  that  of  governor  de  jure  or  dc  facto. 

The  principles  are  well  and  plainly  defined  in  the  case  of  Plymouth  v.  Painter,  17  Conn.,  already 
quoted,  in  respect  to  the  acts  of  persons  holding  place  under  one  or  the  other  of  these  modes.  The 
following  is  from  page  593 ; 

"The  acts  of  a  mere  usurper  of  an  office,  without  any  color  of  title,  are  undoubtedly  wholly  void, 
both  as  to  individuals  and  the  public.  But  where  there  is  a  color  of  a  lawful  title,  the  doings  of  an 
officer,  as  it  respects  third  persons  and  the  public,  must  be  respected  until  he  is  ousted  on  a  quo  warranto, 
which  is  the  appropriate  proceeding  to  trj-  the  validity  of  a  title  to  an  office,  and  in  which  it  would  be 
necessary  for  him  to  show  a  complete  title  in  all  respects;  although  in  a  suit  against  a  person  for  acts 
which  he  would  have  an  authority  to  do  only  as  an  officer,  he  must,  in  order  to  make  out  a  justification, 
show  that  he  is  an  officer  de  jure;  because  the  title  to  the  office  being  directly  drawn  in  question,  in  a 
suit  to  which  he  is  a  party,  may  be  regularly  decided.  So  where  he  sues  for  fees,  or  sets  up  a  title  to 
property  by  virtue  of  his  office,  he  must  show  himself  to  be  an  officer  de  jure." 

It  is  here  laid  down — 

First.  That  the  acts  of  a  usurper  are  void. 

Secondly.  That  the  acts  of  an  officer  in  by  a  color  of  title — that  is,  an  officer  de  facto,  where  the 
rights  of  third  persons  or  the  public  are  concerned — are  to  be  respected. 


254  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   350 

Thirdly.  That  where  he  is  directly  concerned  he  must  show  himself  to  be  an  officer  de  jvire 
whenever  the  direct  issue  is  made,  either  as  to  title,  or  fees,  or  as  a  trespasser,  or  otherwise. 

If  Kellogg,  then,  be  a  usuqior,  the  certificate  relied  upon  in  this  case  has  no  value  for  any  purpose. 
But  let  us  assume,  for  the  sake  of  the  argument,  that  Kellogg  was  governor  de  facto;  that  he  was  in  by 
color  of  an  election,  and  by  color  of  an  election  only,  and  not  liy  an  election  itself;  with  such  knowledge 
upon  our  part,  with  the  known  fact,  besides,  that  his  right  to  the  place  is  denied  and  contested,  that 
there  is  a  rival  governor,  in  fact  a  rival  government,  we  should  proceed  with  great  caution  in  giving  such 
efficacy  to  his  simple  certificate.  True,  the  third  section  of  the  act  of  Congress  of  1866,  making  provision 
for  the  election  of  Senators,  makes  it  the  duty  of  the  governor  to  certify  the  election  to  the  President 
of  the  Senate;  it  still  stops  short  of  prescribing  the  force  of  such  a  certificate.  No  doubt  Congress 
intended  that  ordinarily  it  should  be  regarded  as  sufficient  for  admission  to  a  seat,  but  it  must  be  mani- 
fest that  this  certificate  is  not  the  real  credentials  of  a  Senator-elect,  but  intended  originally,  we  may 
presume,  as  a  substitute  for  it.  The  real  credentials  of  the  election  is  a  copy  of  the  record  of  the  election 
itself,  properly  certified  by  the  officers  of  the  body  electing;  for  Congress  has  no  right  to  impose  this 
duty  upon  the  governor,  and  that  neither  it  nor  the  person  elected  can  compel  the  governor  to  issue 
any  such  certificate. 

There  must  be  design  in  not  presenting  a  certified  copy  of  the  record  of  election  by  the  legislatiu-e 
instead  of  depending  alone  upon  this  certificate  of  the  governor,  when  it  was  well  known  that  everj' 
step  in  the  progress  of  this  case  would  be  contested.  The  declaration  in  the  report  submitted  by  the 
committee,  that  Kellogg  was  then  and  now  the  governor  of  Louisiana,  defines  the  spirit  of  the  whole 
proceeding;  and  that  is  that  it  is  more  of  an  object  to  get  Kellogg  recognized  in  some  way  as  governor 
by  this  body  than  the  admission  of  Pinchback  to  a  seat  in  it. 

Therefore  should  we  be  more  careful  still  how  we  undertake,  in  giving  ostensible  credence  alone 
to  a  certificate,  to  pass  upon  a  higher  matter — the  legal  character  of  the  person  giving  it.  Why  not, 
in  such  an  acknowledged  condition  of  things,  recur  to  his  credentials,  which  the  record  of  the  election 
or  a  copy  of  it  can  make?  But,  that  produced,  it  is  too  apparent  that  the  contest  would  be  transferred 
from  the  governor  to  the  legislature;  the  legislature  is  out  of  being,  and  thereftjre  the  fact  of  an  election 
by  it  can  only  be  inquired  into;  but  the  governor  is  still  living  in  the  place  in  which  he  was  put,  and 
still  kept  by  an  armed  force,  and  to  be  kept  there  if  his  acts  are  to  be  respected  or  sanctioned  by  us. 
How  shall  we  close  our  eyes  to  the  facts  staring  us  in  the  face?  We  again  beg  leave  to  repeat  that  with 
the  assumption  that  Kellogg  is  at  best  but  a  governor  de  facto,  with  a  rival  governor  claiming  the  right, 
and  with  the  acknowledged  power  to  exercise  it  in  the  absence  of  the  troops  of  the  United  States,  should 
we  not  be  careful,  if  we  can  in  any  way  abstain  from  determining  questions  of  the  present,  which  concern 
alone  the  present,  and  which  should  be  determined  in  a  different  way  and  by  all  branches  of  the  Govern- 
ment, if  to  be  determined  at  all  by  it?  The  election  of  Pinchback  does  not  concern  the  present;  the 
body  electing  him  is  functus  t)fficio.  He  must  stand  or  fall  by  the  action  of  that  body.  Let  us  go  back 
to  that,  and  upon  the  acts  and  legal  validity  of  that  body  determine  the  right  to  a  seat.  We  say  again 
that  the  passage  of  the  resolution  decides  only  one  thing,  the  right  of  membership,  and  binds  no  one 
to  anything  besides;  but  the  fact  that  in  doing  this  we  have  acknowledged  the  legal  validity  of  Kellogg's 
official  character  may  influence  others  or  justify  others  in  doing  things  to  the  infinite  injustice  of  the 
people  of  Louisiana,  and  to  the  persons  there  claiming  to  be  officers  by  virtue  of  a  rightful  election. 

Again,  we  well  understand  the  principles  which  limit  and  qualify  the  powers  of  an  officer  de  facto. 
His  acts  are  scanned  and  judged;  he  can  do  only  those  that  are  to  be  considered  as  necessary  to  be  done; 
indeed,  so  confined  in  this  respect  that  it  was  held,  in  the  case  of  King  v.  Lisle,  that  the  proper  question 
in  a  case  would  be  "whether  the  person  be  an  officer  de  facto  as  to  the  particular  purpose  under  con- 
sideration;" he  can  do  nothing  for  himself;  he  can  not  set  up  title  by  virtue  of  his  office;  he  can  not 
sue  for  his  fees  or  salary;  he  can  not  justify  in  a  trespass;  he  can  do  nothing  that  may  bring  in  issue 
his  right  to  hold  the  office  without  showing  that  de  jure  right  for  the  exercise  of  it.  As  a  judge  de  facto 
his  judgment  in  a  litigation  between  third  parties  would  be  good;  a  sale  of  property  under  such  a  judg- 
ment would  be  good  to  pass  title;  and  for  the  reason  that  third  parties  are  not  supposed  to  be  able  to 
inquire  into  the  rights  of  one  holding  and  exercising  the  duties  of  the  office,  and  must  therefore  act  upon 
what  appears  to  be  the  right.  But  a  sheriff  de  facto  seizing  and  selling  the  property  under  that  or  any 
other  judgment  in  a  suit  against  him  for  the  seizure  by  the  owner  or  possessor  of  the  property,  he  must 
for  his  defense  show  that  he  held  bis  office  de  jure,  for  this  concerns  himself  only,  and  he  should  know 
whether  he  was  in  right  an  officer. 


§  351  ELECTORATES    INCAPACITATED    GENERALLY.  255 

Shorn  of  the  general  and  enlai^ed  powers  of  an  officer  de  jure  by  the  plainest  principles  of  law, 
limited  and  circumscribed  by  rules  founded  in  reason  and  having  the  sanction  of  ages,  shall  we  be 
disposed  to  give  to  the  act  of  such  an  officer — governor  de  facto,  if  even  he  be  such — that  full  and  unqual- 
ified effect  in  this  case,  with  the  extraordinary  circumstances  surrounding  it,  as  if  he  were  an  oiEcer 
de  jure,  when  that  act,  too,  bears  directly  upon  the  constitution  of  this  body,  which  we  are  bound  to 
guard,  and  upon  the  right  of  a  State  to  have  its  true  representatives  upon  this  floor?  In  regard  to  the 
constitution  cf  this  body  the  direct  issue  is  made;  this  pretended  governor  represents  himself  to  be 
the  governor  of  Louisiana,  and  upon  this  alone  does  the  committee  rest  the  case.  It  is  admitted  that 
he  must  be  the  governor  to  give  the  certificate  any  power  whatever.  In  raising  the  question  it  is  shown 
that  he  is  only  governor  de  facto,  if  governor  at  all,  and  not  de  jure — that  is,  governor  for  a  purpose  only, 
and  that  purpose  to  be  judged  of,  whether  proper  or  not,  when  the  exigency  arises.  It  is  upon  us,  and 
it  is  whether  we  shall  constitute  members  of  this  body  upon  the  certificates  of  such  a  governor,  or  shall 
we  not  rather  recur,  as  we  have  before  inquired,  into  the  election  itself  or  the  record  of  it? 

Upon  this  body  rests  the  duty  of  preserving  its  own  organization,  and  of  admitting  its  own  members. 
Here  its  power  is  supreme,  and  for  its  independence  it  must  depend  upon  this  power,  and  its  proper 
and  legal  and  rational  exercise;  and  it  is  to  judge  of  the  fact  whether  a  certificate  (not  of  a  governor, 
as  contemplated  by  the  law,  a  rightful  governor  in  all  respects — but  of  such  a  governor)  shall  have  the 
efficacy  now  asked  for  it. 

Indeed,  in  this  very  case,  in  the  complications  in  Louisiana,  the  troubles  and  disorders  there,  the 
very  soul  of  the  objection  that  we  now  urge  against  the  recognition  of  this  certificate  is  made  to  appear. 
There  is  trouble  about  the  State  government  in  that  State.  There  is  trouble  as  to  who  is  the  constitu- 
tionally elected  governor,  both  claiming  it,  and  as  to  which  body  of  the  two  claiming  to  be  the  legislature 
is  the  real  one.  In  this  contest,  where  so  much  right  is  involved,  and  where  right  should  be  done, 
might  it  not  be  that,  if  we  should  admit  Pinchback  upon  the  certificate  of  Kellogg,  we  would  to  that 
extent  recognize  him  as  the  rightful  governor  of  Louisiana,  and  possibly  direct  additional  power  against 
the  other  side?  Would  this  be  wise,  and  ju.st,  and  expedient;  and  when  we  know,  too,  that  so  far  as 
the  certificate  in  itself  is  concerned  it  adds  nothing  to  title,  but  that  the  election  constitutes  this?  If 
it  is  the  policy  to  settle  these  disturbances  in  Louisiana,  to  recognize  either  governor  or  none,  do  it  in 
the  usual  manner  known  to  the  laws,  and  that  is  by  legislation  upon  the  part  of  Congress,  when  the 
whole  subject  can  be  considered,  and  the  remedy,  if  any,  be  applied. 

351.   The  Senate  election  case  of  Pincliback  and  others  continued. 

The  Senate  in  election  cases  investigates  the  legality  of  the  legisla- 
ture as  organized,  but  refrains  from  questioning  the  titles  of  the  compo- 
nent parts  of  an  undoubted  legislature. 

Having  thus  disposed  of  the  question  of  the  competency  of  Kellogg  as  governor, 
the  minorit}'^  continue: 

Having  come  to  the  conclusion  that  Kellogg  was  a  mere  usurper  and  the  certificate  not  entitled  to 
respect,  or  if  it  should  be  considered  by  some  that  he  was  the  governor  de  facto,  that  even  in  this  view  no 
force  ought  to  be  given  to  his  certificate,  we  are  brought  to  the  consideration  of  the  main  fact  itself — the 
election  of  Pinchback  by  a  legislature.  While  this  is  not  technically  before  us,  it  is  substantially. 
While  the  report  of  the  committee  bases  its  action  entirely  upon  the  force  of  the  certificate,  the  resolution 
submits  the  question  of  admission  generally.  It  can  not  be  denied  that  the  inquiry  upon  one  branch 
opens  up  the  whole  subject,  and  one  can  not  be  well  considered  without  considering  both. 

This  brings  us  to  the  examination  of  the  body  organized  under  the  returns  made  by  the  Lynch 
board,  to  which  we  have  referred  in  the  other  branch  of  the  case.  In  looking  into  the  organization  that 
elected  Pinchback,  the  surreptitious  inauguration  of  Kellogg  into  the  gubernatorial  office  pales  into 
insignificance  before  the  fraudulent  creation  of  this  body  into  a  legislature  and  of  its  shameless  pretension 
to  power. 

Even  admit  that  Kellogg  was  the  rightful  governor  of  Louisiana  and  that  his  certificate  should  have 
all  the  force  which  could  properly  under  ordinarj'  circumstances  attach  to  it,  still  all  the  facts  are  before 
us,  and  they  are  of  the  gravest  character.  The  question  is  not  who  are  members  of  the  legislature  of 
Louisiana — for  that  body  is  the  judge  of  this,  and  of  their  elections  and  qualifications;  with  these  we 
have  nothing  to  do;  but  the  question  is  as  to  the  legislature  as  organized,  whether  there  is  one  in  being 


256  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   351 

to  elect,  and  whether  such  an  one  elected  Pinchback.  The  existence  of  a  legislature  competent  to  elect 
a  Senator  is  not  only  a  historical  fact  to  be  known  to  us  as  any  other  patent  fact,  but  it  is  one  which  is 
susceptible  of  proof. 

It  will  be  necessary  again  to  give  a  brief  r^sumd  of  the  facts  known  to  (»xist  in  Louisiana  respecting 
the  organization  of  the  body  claiming  to  be  the  legislature  of  that  State,  and  which  elected  Pinchback. 

After  reviewing  the  facts,  especially  the  mandate  of  Judge  Durell,  of  the  Federal 
court,  and  its  enforcement  by  Federal  troops,  the  minority  say: 

The  whole  proceeding  from  its  inception  down  to  its  final  consummation  was  a  gross  usurpation, 
accompanied  with  every  species  of  fraud  and  tyranny.  The  body  that  was  organized  under  this  man- 
date and  its  military  enforcement  is  not  entitled  to  any  legal  existence  that  any  American  should  acknowl- 
edge.   The  whole  is  a  product  of  fraud,  conspiracy,  and  of  armed  force,  and  is  entitled  to  no  consideration. 

We  wish  it  to  tie  remembered  that  we  are  not  inquiring  into  the  component  parts  of  a  legislative 
body.  Each  house  of  the  legisalture  must  do  that  for  itself.  We  are  inquiring  into  the  aggregate  char- 
acter of  the  body  as  organized  and  as  it  represents  itself  to  be — a  legislature;  how  it  was  brought  into 
being;  how  supported;  and  under  what  authority.  We  find  no  single  element  in  it  to  constitute  it  a 
legislature  representing  the  free  people  of  Louisiana  under  their  constitution  and  laws;  but,  on  the  con- 
trary, simply  a  body  organized  under  the  mandate  of  a  Federal  judge  supported  by  the  armed  force  of 
the  United  States,  based  upon  a  pretended  election  found  by  a  returning  board  without  a  single  official 
return,  and  not  having  a  title  of  authority,  and  acting  in  violation  and  in  defiance  of  all  law.  We  find 
that  body,  pretending  to  be  the  legislature  of  Louisiana,  the  mere  creature  of  a  conspiracy  as  bold,  as 
reckless,  and  as  wicked  as  any  that  has  ever  disgraced  the  annals  of  history.  We  speak  thus  strongly 
because  our  instincts  as  American  citizens  prompt  us  to  the  reprobation  it  so  signally  deserv'cs.  This 
body  thus  organized  chose  P.  B.  S.  Pinchback  a  Senator  in  Congress  for  the  period  he  claims. 

The  large  mass  of  the  members  of  it  were  never  elected  in  fact;  the  returning  board  declaring  them 
to  be  elected  had  not  a  single  power  to  do  so;  it  never  had  an  official  return  before  it. 

After  reviewing  the  liistories  of  the  rival  legislatures,  the  minority  continue: 

Can  the  Senate  hesitate  to  determine  between  such  governments?  The  interposition  of  mere  force 
without  cause  and  without  right,  by  which  one  for  the  present  may  be  put  up  and  the  other  down,  should 
not  deter  us  in  determining  which  is  the  rightful  one.  The  soldiers  of  the  United  States  should  not  be 
allowed  to  step  in  between  our  judgment  and  our  duty.  The  day  is  not  yet  upon  us,  we  trust,  when  the 
sword  is  to  settle  questions  alone  for  us  to  determine.  Taking  all  the  facts  as  they  appear  in  the  case 
before  us,  from  the  inception  of  each  rival  body  to  the  final  consummation  in  their  respective  organiza- 
tions, we  can  determine  between  them.  It  is  our  duty  to  do  so:  and  we  have  facts  sufficiently  numerous 
and  authentic  to  determine  fairly  and  intelligently  between  them.  Each  has  chosen  Senators,  and  both 
are  here  with  certificates. 

There  can  be  no  doubt  that  where  there  are  rival  bodies,  each  claiming  to  be  the  rightful  legislature 
of  a  Stale,  and  each  presenting  a  Senator  for  admission  upon  this  floor,  we  must  judge  between  them,  for 
the  reason  that  we  are  to  judge  of  the  elections,  the  qualifications,  and  returns  of  our  own  members; 
and  in  this  we  are  to  know  whether  the  body  choosing  a  Senator  is  the  legislature  having  the  constitutional 
right  to  do  so,  and  that  such  an  one  did  choose  a  Senator. 

This  was  clearly  submitted  in  the  case  of  Robbins  and  Potter,  contesting  Senators  from  Rhode 
Island.     Mr.  Poindexter,  who  submitted  the  majority  report  in  that  case,  says: 

■'There  was  but  one  governor  and  but  one  senate  in  the  State  claiming  to  be  a  part  of  the  general 
assembly.  If  there  had  existed  another  body  of  men,  however  chosen,  contending  for  the  offices  of  the 
governor  and  senators  in  the  State,  it  will  not  be  denied  that  their  respective  rights  might  be  the  subject 
of  inquiry  in  deciding  a  contested  election  in  the  Senate  of  the  United  States." 

The  right  of  the  Senate  is  undoubted  to  judge  in  this  respect.  Its  power  is  not  limited,  for  the  sound 
reason  that  its  independence  can  only  be  absolutely  preserved  in  po.ssessing  such  a  right.  In  exercising 
it  here  we  should  not  be  capricious,  but  governed  in  our  conduct  by  rules  that  good  sense,  honest  inten- 
tion, and  a  desire  for  truth  and  justice  should  naturally  inspire.  No  other  department  of  the  Govern- 
ment ought  to  control  it;  no  other  department  of  the  Government  should  be  allowed,  under  any  pretext 
or  in  the  exercise  of  any  power,  to  trench  upon  it.  It  is  a  primary  right,  for  in  its  free  and  absolute 
exercise  the  very  life,  existence,  and  organization  of  free  legislative  bodies  depend. 


§351 


ELKCTOBATES    INCAPACITATED    GENEKALLY.  257 


Coming  to  the  main  point  again,  should  the  Senate  hesitate  between  the  rival  governments?  How 
can  the  Senate  recognize  the  Kellogg  government,  stamped,  as  it  is,  all  over  with  fraud,  conspiracy, 
and  force?  There  is  not  an  element  of  free  constitutional  government  in  it.  Mere  intruders  and  usurpers 
in  all  departments  of  it,  how  shall  the  Senate,  in  respect  for  constitutional  government,  admit  that  such 
a  body  as  that  organized  under  the  order  of  Durell  shall  impose  upon  us  a  Senator?  We  might  receive 
with  just  as  much  plausibility  and  complacency  a  Senator  from  the  soldiery  who  guarded  that  body 
when  it  went  through  the  forms  of  choosing  one.  The  bayonet  organized  it,  kept  it  in  being,  protected 
it  by  day  and  by  night,  and  without  it  no  one  would  be  here  pressing  a  claim  to  a  seat  by  virtue  of 
anya  uthority  from  it. 

Speaking  for  ourselves,  we  can  not  in  any  manner  acknowledge  any  such  election.  We  can  not 
give  any  respect  or  efficacy  to  the  certificate  under  consideration  as  that  of  a  rightful  governor,  and  must 
therefore  declare  that  in  our  opinion  P.  B.  S.  Pinchback  is  not  entitled  to  a  seat  as  a  Senator  from  the 
State  of  Louisiana. 

In  conclusion  the  minority  say: 

It  is  said  that  the  Senate  is  bound,  or  ought  to  be  bound,  by  decisions  of  the  judicial  tribunals  of 
the  State  when  inquiring  into  the  existence  of  a  government  or  of  its  officers;  also  by  the  action  of  other 
departments  of  the  State  government:  also  by  the  late  act  of  the  President  and  by  reason  of  the  posses- 
sion of  the  office  for  a  length  of  time.  We  shall  only  briefly  remark  that  this  body  is  bound  liy  nothing 
in  the  exercise  of  its  undoubted  power.  But  admitting  that  any  or  all  of  these  combined  should  have 
more  or  less  influence  upon  the  judgment  of  the  Senate  in  coming  to  conclusions,  we  may  be  permitted 
to  say  that,  in  regard  to  the  judicial  action  of  the  courts  of  Louisiana  in  relation  to  this  subject,  the 
question  in  issue  never  was  fairly  presented,  and  with  the  further  remark  that  it  is  painfully  evident 
that  a  majority  of  the  court  deciding  cases  having  relevancy  at  all  to  the  subject  was  in  complicity  with 
the  Kellogg  government  to  maintain  its  power;  and  so  with  the  other  dejiartments  of  the  State  govern- 
ment, for  all  depended  for  their  very  existence  upon  the  official  being  of  Kellogg.  As  to  the  action  of 
the  President  having  any  tjinding  force  upon  the  Senate,  we  say  that  his  power  to  act  relates  alone  to  one 
thing,  and  that  is  the  suppression  of  violence  when  legally  called  upon  for  aid  in  suppressing  such 
violence.  His  action  can  not  bind  beyond  the  simple  fact  and  its  real  dependents;  it  decides  no  right 
for  us  or  for  Congress.  One  word  as  to  the  continuous  possession  of  Kellogg,  and  which  it  is  claimed 
gives  him  some  standing  to  be  considered  in  this  body.  His  possession  is  that  of  fraud  and  force,  and 
this  possession  is  to-day  only  held  by  this  force.  It  is  the  possession  of  might  against  right,  and  the 
weakness  of  the  title  will  at  once  be  witnessed  upon  the  withdrawal  of  the  force  which  keeps  him  in 
place.  In  our  opinion,  there  is  nothing  in  the  matters  that  would  be  set  up  to  secure  a  recognition 
of  the  Kellogg  government.  The  whole  is  a  crime  against  our  civilization  and  a  blot  upon  our  free 
institutions. 

The  resolution  proposed  by  the  majority  of  the  committee  was  debated  on 
February  15,  16,  and  17,  1875,'  and  on  the  latter  day,  by  a  vote  of  yeas  39,  nays  22, 
it  was  laid  on  the  table.  Mr.  Lot  M.  Morrill,  of  Maine,  who  made  the  motion  to  lay 
on  the  table,  explained  that  he  did  so  from  no  spirit  of  hostility  to  the  resolution, 
but  simply  because  the  Senate  needed  to  proceed  to  other  business.^  And  there- 
after during  the  Forty-third  Congress  the  resolution  remained  on  the  table. 

On  March  5,  1875,'  when  the  Senate  met  in  special  session,  at  the  beginning 
of  the  Forty-fourth  Congress,  Mr.  Morton  offered  this  resolution: 

Resolved,  That  P.  B.  S.  Pinchback  be  admitted  as  a  Senator  from  the  State  of  Louisiana  for  the 
term  of  six  years  beginning  on  the  4th  of  March,  1873. 

'Record,  pp.  1277-1289,  1306-1310,  1327-1353,  1358-1382. 

=  Record,  p.  1382. 

'  Special  session  Senate,  Forty-fourth  Congress,  Record,  p.  2. 

5994— VOL  1—07 17 


258  PKECEDENTS   OF   THE   HOUSE   OF   KEPRESENTATIVES.  §   352 

This  resolution  was  debated  at  length  on  March  8,  9,  10,  12,  and  13,'  and  on 
the  latter  day  a  motion  was  submitted  by  Mr.  George  F.  Edmunds,  of  Vermont, 
to  amend  the  resolution  by  inserting  the  word  "not"  before  the  word  "admitted." 

This  amendment  was  debated  on  March  15  and  16,^  and  on  the  latter  day 
further  consideration  was  postponed  until  the  second  Monday  in  December  next, 
the  vote  being  yeas  33,  nays  30. 

352.   The  Senate  election  case  of  Pinchback  and  others,  continued. 

The  Senate  declined  to  seat  the  bearer  of  credentials  signed  by  a  per- 
son exercising  the  authority  of  a  governor,  it  being  objected  that  the 
signer  was  an  usurper  and  that  there  was  no  election  by  a  valid  legis- 
lature. 

Discussion  as  to  how  far  the  Senate,  in  considering  an  election  case, 
should  follow  a  decision  of  a  State  court  as  to  the  competency  of  the  leg- 
islature. 

Discussion  of  the  powers  of  the  Senate  under  the  constitutional  au- 
thority to  judge  the  elections  and  returns  of  its  members. 

Instance  wherein  an  unsuccessful  contestant  for  a  seat  in  the  Senate 
was  permitted  to  withdraw  his  credentials. 

Discussion  as  to  the  required  form  for  Senate  credentials  under  the 
law. 

Discussion  of  the  judicial  knowledge  which  must  exist  to  justify 
giving  prima  facie  effect  to  credentials. 

On  Thursday,  December  9,  1875,^  at  the  first  or  regular  session  of  the  Forty- 
fourth  Congress,  Mr.  West  presented  the  following  letter: 

Washington,  D.  C,  December  8,  1876. 
To  the  Honorable  the  President  and  members  of  the  Senate  of  the  United  Slates: 

The  undersigned  would  respectfully  ask  permission  to  withdraw  his  credentials  as  Senator-elect 
by  the  McEnery  legislature  from  the  State  of  Louisiana. 

Respectfully,  W.  L.  McMillen. 

At  the  same  time  Mr.  West  presented  and  had  read  an  open  letter  from  Mr. 
McMillen  to  John  McEnery,  claimant  to  the  governorship  of  Louisiana.  In  this 
letter  he  explained  how  he  had  contested  with  John  Ray  for  the  remainder  of  the 
term  ending  March  4,  1873,  and  with  Pinckney  B.  S.  Pinchback  for  the  full  term 
begiruiing  at  that  date,  and  how  a  question  as  to  the  respective  bodies  represented 
by  himself  and  his  opponents  had  prevented  an  award  of  the  seat.  He  then 
continues — 

In  November,  1874,  the  successors  to  the  general  assembly  electing  me  were  chosen,  and  after 
continued  effort  the  difficulties  in  the  way  of  organization  of  the  assembly  were  composed. 

Under  the  auspices  of  a  committee  of  Congressmen,  a  plan  of  adjustment  was  agreed  upon,  the 
parties  thereto  embracing  many  of  the  gentlemen  who  honored  me  with  their  support  in  1872-3,  and 
the  settlement  resulted  in  the  formation  of  a  general  assembly  largely  Democratic  and  conservative 
in  the  lower  house,  and  generally  accepted  as  legitimate  by  both  of  the  political  parties  of  the  State; 
and  said  assembly  so  constituted,  at  their  extra  session  in  April  last,  did  formally  recognize  W.  P. 

'  Record,  pp.  3-7,  9-17,  17-25,  32^1,  41-53. 

2  Record,  pp.  55-62,  62-91. 

'  First  session  Forty-fourth  Congress,  Record,  p.  190. 


§  352  ELECTORATES    INCAPACITATED    GENERALLY.  259 

Kellogg  as  the  executive  of  Louisiana.  Ftirther,  the  House  of  Representatives  of  the  Congress  of  the 
United  States,  with  a  large  Democratic  majority,  following  the  action  of  the  preceding  Republican 
House,  did,  on  the  6th  instant,  recognize  the  final  and  determining  action  of  the  present  legislature  of 
the  State  of  Louisiana  relative  to  the  State  government  thereof  by  seating,  prima  facie,  the  six  members 
of  Congress-elect  from  said  State  bearing  the  credentials  of  W.  P.  Kellogg,  and  refusing  at  the  same 
time  to  recognize  your  competency  to  exercise  executive  functions  for  Louisiana. 

The  letter  then  goes  on  to  state  that  as  the  issues  are  determined  a  further 
contest  by  him  could  have  no  beneficial  effect,  and  he  considers  it  his  duty  to  "wdth- 
draw  his  credentials. 

The  letter  having  been  read,  Mr.  West  offered  the  following — 

Ordered,  That  the  request  of  William  L.  McMillen,  heretofore  claiming  a  seat  in  the  Senate  from 
the  State  of  Louisiana,  for  the  return  of  his  credentials  be  granted. 

On  December  14'  the  order  was  debated  at  length,  it  being  objected  that  the 
credentials  were  transmitted  to  the  Senate  in  pursuance  of  law,  and  that  they 
belonged  to  its  archives  and  should  not  be  withdrawn.  But  by  a  vote  of  j'eas  30, 
nays  28,  the  order  was  agreed  to. 

On  December  20-  Mr.  Thomas  F.  Bayard,  of  Delaware,  by  consent  of  the  Sen- 
ate, presented  and  had  laid  on  the  table  a  paper  purporting  to  be  the  credentials 
issued  by  John  McEnery  as  governor,  showing  the  appointment  of  Robert  H.  Marr 
as  Senator  from  Louisiana  to  fill  the  vacancy  caused  by  the  resignation  of  William 
L.  McMillen. 

On  January  18,  1876,^  Mr.  Allen  G.  Thurman,  of  Ohio,  presented  the  creden- 
tials of  James  B.  Eustis,  of  Louisiana,  for  the  term  beginning  March  4,  1873. 
These  credentials  were  not  from  the  governor  of  the  State,  but  consisted  simply  of 
duly  certified  transcripts  of  the  proceedings  of  the  legislature  of  Louisiana  result- 
ing in  the  election  of  Mr.  Eustis.  At  once  a  question  was  raised  by  Mr.  Roscoe 
Conkhng,  of  New  York,  who  called  attention  to  the  fact  that  the  laws  of  the  United 
States  required  that  the  credentials  of  a  Senator  should  be  certified  by  the  gov- 
ernor of  the  State.*  Mr.  Thurman  replied  that  there  was  no  method  of  coercing  a 
governor  who  should  refuse  to  sign  the  certificate,  and  the  requisition  of  the  stat- 
utes could  not  be  understood  as  constituting  the  certificate  of  the  governor  the  only 
evidence  of  the  election  of  a  Senator  by  a  State  legislature.  In  return  Mr.  Conk- 
ling  called  attention  to  the  fact  that  the  papers  nowhere  alleged  that  the  governor 
had  refused  to  give  the  ordinary  credentials,  and  the  papers  themselves  were  not 
those  on  which  the  Senate  should  rely  as  prima  facie  evidence. 

Mr.  Thurman  cited  the  case  of  Mr.  Sykes,  of  Alabama,  wherein,  the  governor 
having  refused  to  sign  credentials,  a  transcript  of  proceedings  had  been  accepted  as 
title  papers  of  the  party. 

'  Record,  pp.  200-204. 

2  Record,  p.  248. 

^  Record,  pp.  451—455. 

*  Sections  18  and  19  of  the  Revised  Statutes  provide; 

'It  shall  be  the  duty  of  the  executive  of  the  State  from  which  any  Senator  has  been  chosen  to 
certify  his  election,  under  the  seal  of  the  State,  to  the  President  of  the  Senate  of  the  United  States. 

"The  certificate  mentioned  in  the  preceding  section  shall  be  countersigned  by  the  secretary  of 
state  of  the  State." 


260  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   352 

On  January  24/  on  motion  of  Mr.  Morton,  the  papers  purporting  to  be  the  cre- 
dentials of  Mr.  Eustis  were  referred  to  the  Committee  on  Privileges  and  Elections. 

On  January  26  ^  Mr.  West  presented  a  memorial  of  certain  State  senators  of 
Louisiana  in  relation  to  the  election  of  Mr.  Eustis,  and  was  referred  to  the  Committee 
on  Privileges  and  Elections. 

On  January  28^  Mr.  Morton,  from  that  committee,  presented  the  following 
report : 

That  in  their  opinion  there  is  no  vacancy  in  the  office  of  Senator  from  the  State  of  Louisiana,  P.  B.  S. 
Pinchback  having  been  elected  in  January,  1873,  to  the  term  beginning  on  the  4th  of  March,  1873. 
They  therefore  recommend  that  the  papers  relating  to  Mr.  Eustis  be  laid  upon  the  table. 

Three  members  of  the  committee  announced  their  dissent  from  the  report. 

On  February  3,*  on  motion  of  Mr.  Morton,  the  Senate  proceeded  to  the  consid- 
eration of  the  resolution  submitted  by  him  on  March  5,  1875,  the  pending  question 
being  the  motion  of  Mr.  Edmunds  to  insert  "not"  before  the  word  "  admitted." 

The  debate  on  this  proposition  went  on  during  February  4,  7,  March  1,  3,  7, 
and  8.' 

Mr.  James  L.  Alcorn,  of  Mississippi,  who  had  originally  concurred  in  the  report 
which  found  that  there  was  no  legal  State  government  in  Louisiana  in  1873,  sketched 
briefly  the  developments  in  the  situation." 

McEnery's  legislature  was  finally  dispersed,  and  ho  was  driven  from  the  field,  and  Kellogg  was 
left  in  possession.  Congress  refused  to  do  anything.  Kellogg,  in  spite  of  all  local  opposition,  main- 
tained his  government.  His  official  position  was  recognized  in  the  State  of  Louisiana.  It  became  an 
accepted  authority  throughout  the  United  States,  so  far  as  it  could  be  emanating  from  the  governor  of 
a  State.  Finally  the  House  of  Representatives,  at  the  last  session  of  Congress,  passed  a  formal  resolu- 
tion recognizing  the  Kellogg  government.  The  Senate  of  the  United  States,  subsequent  to  that  time, 
passed  a  resolution  to  the  same  effect. 

Therefore  Mr.  Alcorn  urged  that  the  certificate  of  Governor  Kellogg  should  be 
good,  and  should  be  honored. 

While  it  was  denied,'  especially  by  Mr.  George  F.  Edmunds,  of  Vermont,  that 
the  Senate  had  m  express  terms  recognized  Kellogg  as  governor,  and  wliile  a 
reference  to  the  resolution  showed  that  it  was  merely  an  approval  of  the  action  of 
the  President  "in  protecting  the  government  in  Louisiana,  of  which  W.  P.  Kellogg 
is  the  executive,"  yet  Mr.  Edmunds  admitted  that  Kellogg  was  the  executive. 

But  Mr.  Edmunds  denied  *  that  the  question  was  narrowed  merely  to  the 
credentials.  He  showed  that  the  pending  resolution  covered  final  as  well  as 
prima  facie  right.  But  even  narrowing  the  case  down  to  the  credentials,  he 
denied  the  effect  of  the  Kellogg  certificate: 

What  is  this  paper?  It  bears  the  great  seal  of  the  State  of  Louisiana.  How  do  we  know  that  to  be 
the  great  seal  of  the  State  of  Louisiana?    We  know  it  upon  precisely  the  same  ground  that  we  know 

'  Record,  p.  574. 

*  Record,  p.  637.  The  memorial  is  found  in  Senate  Miscel.  Doc.  No.  41,  Forty-fourth  Congress, 
first  session. 

'  Record,  p.  706. 

*  Record,  p.  8G6. 

5  Record,  pp.  886-889,  907-913,  1382-1392,  1436-1444,  1511-1516,  1645-1558. 
«  Record,  p.  1383. 

7  Record,  p.  1389. 

8  Record,  pp.  1436,  1437. 


§   352  ELECTORATES    INCAPACITATED    GENERALLY.  261 

that  there  is  a  legislature  of  the  State  of  Louisiana,  or  that  there  is  not  a  legislature  of  the  State  of  Louis- 
iana, or  that  in  the  year  1863  there  was  no  legislature  of  the  State  of  North  Carolina — I  mean  no  consti- 
tutional legislature  under  the  Constitution  of  the  United  States.  How,  then,  do  we  get  at  the  first 
knowledge,  the  first  step,  on  the  subject  of  this  prima  facie?  We  get  it  by  the  judicial  knowledge — 
to  borrow  a  phrase  of  art  which  we  are  supposed  to  possess,  whether,  in  fact,  we  do  or  not — that  this  seal 
is  the  seal  of  the  State  of  Louisiana.  We  do  not  get  it  by  proof;  we  do  not  get  it  by  attempting  to  hear, 
try,  or  determine  the  question:  but  we  get  it,  as  I  say,  by  that  judicial  knowledge  which  the  laws  of 
the  land  impute  to  everybody  called  upon  to  administer,  as  we  are  here,  either  legislative  or  judicial 
ftmctions.  Therefore  *  *  *  this  paper,  on  the  face  of  it,  is  an  official  paper,  emanating  from  some 
executive  authority  or  person  acting  in  executive  capacity  in  the  State  of  Louisiana.  Does  our  judicial 
knowledge  stop  there?  *  *  *  No,  sir.  That  is  not  the  law;  it  is  not  common  sense.  This  body, 
in  my  opinion — and  the  law  is  all  one  way  upon  the  subject — was  in  a  constitutional  and  legal  sense 
just  as  well  advised  of  the  state  of  legality  or  the  want  of  the  state  of  legality  of  the  legislature  that 
elected  this  man  before  the  inquiry  made  by  the  Committee  on  Privileges  and  Elections  as  afterwards. 
That  inquiry,  in  the  judicial  sense,  was  an  inquiry  to  infoim  the  conscience  of  the  Senate  just  as  we 
refer  to  a  lexicon  or  to  a  law  book  or  to  a  precedent  in  our  statutes.  We  are  bound  to  know,  in  short, 
what  are  the  legislatures  of  the  various  States,  which  bodies,  if  there  are  two,  or  whether  a  particular 
body,  if  there  be  only  one,  is  the  government  of  that  State  or  is  the  chief  officer  of  any  department  of 
it.  *  *  *  If  that  be  true,  then  this  paper  is  not  a  prima  facie  case,  as  it  is  called,  unless  we  also 
have  the  judicial  knowledge  that  the  body  of  men  who  purport  to  have  elected  him  was  the  legislature 
of  the  State  of  Louisiana. 

Mr.  Morton,  on  the  other  hand,  urged  that  in  the  recent  case  of  Senator  Spencer, 
of  Alabama,^  the  Senate,  under  conditions  the  same,  had  honored  the  credentials. 

Proceeding  to  discuss  the  status  of  the  legislature,  Mr.  Edmunds  referred '  to 
the  fact  that  the  decision  of  the  supreme  court  of  Louisiana  was  the  ground  on 
wliich  the  validity  of  the  legislature  was  affirmed.  While  den;}nng  that  the  supreme 
court  had  actually  declared  the  legislature  legal,  he  would,  for  purpose  of  argument, 
admit  the  contention.     He  then  said: 

The  Constitution,  which  is  the  supreme  law  of  the  land ,  says  that  not  the  supreme  court  of  Louisiana, 
not  the  supreme  court  of  any  State,  but  we,  here,  under  a  personal  oath,  each  one  of  us  to  do  justice 
according  to  the  law,  shall  be  the  judge  for  this  purpose  of  what  the  law  of  the  State  of  Louisiana  is. 
Sir,  I  am  not  ready  to  abdicate;  I  have  no  right  to  abdicate.  This  provision  of  the  Constitution  making 
us  the  judge,  first,  last,  and  always,  of  the  election  of  a  Senator,  was  inserted  from  the  gravest  consid- 
erations, not  only  of  public  convenience,  but  of  public  safety.  The  fathers  of  the  countiy  in  their 
wisdom  did  not  intend  that  this  Government  should  be  broken  down  as  so  many  of  its  predecessors  had 
been  by  the  factions  and  storms  of  localities  in  States,  but  to  compose  this  National  Government  there 
should  be  this  perpetual  and  supreme  tribunal,  which  was  itself  to  be  the  judge  of  the  election  of  its 
members,  and  nobody  else  was.     It  was  not  a  concurrent  jurisdiction;  it  was  an  exclusive  one. 

On  this  question  also,  Mr.  Allen  G.  Thurman,  of  Ohio,  who  concurred  in  the 
view  that  the  competency  of  tlie  legislature  was  vital  in  the  case,  said :' 

There  is  one  conclusive  answer  to  all  that  has  been  said  about  the  decisions  of  the  supreme  court 
of  Louisiana,  and  that  is  that  the  question  before  us  is  to  be  decided  by  this  Senate,  and  by  this  Senate 
alone,  and  that  the  decision  of  no  court,  not  even  if  it  were  the  Supreme  Court  of  the  L'nited  States, 
has  even  the  force  of  a  precedent  on  a  question  like  this.  The  Constitution  makes  the  Senate  the  sole 
judge  of  the  elections,  returns,  and  qualifications  of  its  members.  It  can  not,  therefore,  be  bound  by 
the  decision  of  any  other  tribunal  or  any  other  body  of  men. 

'  Record,  p.  1441.  ^  Record,  p.  1439.  ^  Record,  p.  910. 


262  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    353 

On  March  8,  1876/  the  amendment  proposed  by  Mr.  Edmunds  was  agreed  to, 
yeas  .32,  nays  29.  Then  the  resolution  as  amended  was  agreed  to,  yeas  32,  nays  29. 
So  it  was — 

Resolved,  That  P.  B.  S.  Pinchback  be  not  admitted  as  a  Senator  from  the  State  of  Louisiana  for 
the  term  of  six  years  beginning  on  the  4th  of  March,  1873. 

353.   The  Senate  election  case  of  Pinchback  and  others,  continued. 

The  Senate  has  admitted  a  person  elected  while  the  case  of  another 
claimant  to  the  seat  was  yet  pending. 

In  determining  an  election  case  the  Senate  has  taken  notice  of  the 
journals  of  a  State  legislature. 

In  a  case  wherein  a  governor  declined  to  sign  the  credentials  of  a 
Senator-elect  the  Senate  admitted  the  claimant  after  examination  of  final 
right. 

On  March  8,  1877,^  at  the  beginning  of  the  Forty-fifth  Congress,  Mr.  Thurman 
called  attention  to  the  fact  that  the  decision  in  the  Pinchback  case  had  settled 
that  there  was  a  vacancy,  and  therefore  removed  the  ground  on  which  the  committee 
had  reported  against  the  claim  of  Mr.  Eustis  in  the  preceding  Congress.  Therefore 
he  proposed,  and  the  Senate  on  the  next  day  agreed  to,  a  resolution  taking  the 
credentials  of  Mr.  Eustis  from  the  files  and  referring  them  to  the  Committee  on 
Privileges  and  Elections. 

On  December  1,  1877,^  Mr.  Bainbridge  Wadleigh,  of  New  Hampshire,  from  the 
Committee  on  Privileges  and  Elections,  submitted  a  report  as  follows: 

Mr.  Eustis  claims  to  have  been  elected  on  the  12th  of  January,  1876.  The  body  which  elected  him 
was  that  formed  by  what  is  known  as  the  Wheeler  compromise,  and  there  is  no  doubt  that  it  was  the 
lawful  legislature  of  Louisiana. 

Two  questions  arise  in  this  case:  First,  whether  Mr.  Eustis  was  lawfully  elected;  second,  whether 
at  the  time  of  his  election  a  vacancy  existed  which  the  legislature  of  Louisiana  had  the  right  to  fill. 

The  legislature  of  Louisiana  on  the  12th  day  of  January,  1876,  consisted  of  a  house  containing  111 
members  and  a  senate  with  36  senators.  On  the  11th  day  of  January,  1876,  the  house  voted  to  go  into 
an  election  for  United  Stales  Senator,  and  the  senate  on  the  same  day  refused  to  do  so.  On  the  12th 
day  of  January,  it  appearing  that  there  had  been  no  election  on  the  day  before,  64  members  of  the  house 
and  12  members  of  the  senate,  being  a  majority  of  all  entitled  to  seats  in  both  houses,  met  in  joint 
convention  and  elected  Mr.  Eustis. 

Your  committee  find  that  although  the  senate  refused  to  take  part  as  such  in  said  election,  and 
although  a  minority  of  the  senate  only  did  take  part  in  it,  yet  there  was  a  substantial  compliance  with 
the  act  of  Congress  of  1866.  Upon  the  constitutionality  of  that  act  your  committee  express  no  opinion. 
The  Senate  has  repeatedly,  however,  by  its  action  affirmed  its  constitutionality;  and  your  committee 
feel  bound  by  the  precedents  which  the  Senate  has  established. 

The  second  question,  whether  or  not  a  vacancy  existed  at  the  time  of  Mr.  Eustis's  election  which 
the  legislature  of  Louisiana  had  the  right  to  fill,  is  one  of  some  difficulty.  At  the  time  of  said  election 
Mr.  P.  B.  S.  Pinchback  was  the  claimant  for  the  same  seat  under  two  elections — one  in  1873,  the  other 
in  1875.  His  credentials  and  claims  under  said  elections  had  been  presented  to  the  Senate  and  by  it 
referred  to  the  Committee  on  Privileges  and  Elections.  Said  committee,  on  the  5th  day  of  March,  1875, 
reported  a  resolution  to  the  Senate  that  Mr.  Pinchback  be  admitted  thereto.  On  the  8th  day  of  March, 
1876,  that  resolution  was  amended  so  as  to  change  it  to  a  resolution  that  he  be  not  admitted.  The  reso- 
lution was  passed  as  thus  amended  on  the  same  day. 

'  Record,  pp.  1557,  1558. 

-  Special  session  Senate,  Forty-fifth  Congress,  Record,  p.  39. 

^  First  session  Forty-fifth  Congress,  Record,  p.  800. 


§  353  ELECTORATES    INCAPACITATED   GENERALLY.  263 

Your  committee  feel  bound  to  regard  that  vote  of  the  Senate  as  a  final  adjudication  of  the  claims 
of  Mr.  Pinchback  and  a  decision  that  he  had  no  right  to  a  seat.  Mr.  Eustis's  election  took  place  while 
Mr.  Pinchback's  case  was  pending  in  the  Senate,  and  it  may  be  contended  with  much  force  that  until 
the  final  adjudication  by  the  Senate  of  Mr.  Pinchback's  claims  there  was  no  vacancy  which  the  legisla- 
ture was  authorized  to  fill. 

This  question  arose  at  the  first  session  of  the  Twenty-third  Congress,  in  the  case  of  Potter  v.  Robbins, 
where  a  majority  of  the  special  committee  of  the  Senate  held  that  the  legislature  of  Rhode  Island  had 
no  authority  to  proceed  to  the  election  of  another  Senator  until  the  seat  of  the  Senator-elect  had  been 
vacated  by  a  solemn  decision  of  the  Senate  of  the  United  States.  Silas  Wright,  of  New  York,  made  a 
report  in  behalf  of  the  minority  of  said  committee,  in  which  it  was  contended  that  if  the  election  of  Mr. 
Robbins  was  not  made  by  the  lawful  legislature  of  the  State  it  was  absolutely  void,  and  that  therefore 
Mr.  Potter's  election  whUe  Mr.  Robbins's  claim  to  a  seat  in  the  Senate  was  still  pending  was  valid. 

Your  committee  do  not  question  the  soundness  of  the  rule  laid  down  in  that  case,  but  are  not  dis- 
posed to  apply  it  to  this  case,  where  the  circumstances  are  very  different.  In  the  case  of  Potter  v. 
Robbins  Mr.  Robbins  had  been  admitted  to  the  Senate,  the  committee  had  before  it  both  his  credentials 
and  those  of  Mr.  Potter;  but  here  there  is  no  contest.  The  Senate  never  admitted  Mr.  Pinchback  to 
his  seat,  but  decided  that  he  had  no  right  thereto. 

This  seat  has  long  been  vacant.  Mr.  Eustis  is  the  only  person  who  appears  to  claim  it.  The  lawful 
character  of  the  legislature  which  elected  him  is  admitted.  His  election  was  substantially  in  compliance 
with  the  law  of  Congress.  No  one  appears  to  contest  his  right  to  a  seat.  Under  these  circumstances 
your  committee  believe  that  Mr.  Eustis  should  be  admitted  to  the  Senate,  and  report  a  resolution  to  that 
effect  and  recommend  its  passage. 

Therefore  the  committee  recom^mended  the  following: 

Resolved,  That  James  B .  Eustis  is  lawfully  entitled  to  a  seat  in  the  Senate  of  the  United  States  from 
the  State  of  Louisiana,  from  the  12th  day  of  January,  1876,  for  the  term  ending  March  3,  1879,  and  that 
he  be  admitted  thereto  upon  taking  the  proper  oath. 

On  December  10/  when  the  report  came  before  the  Senate,  Mr.  John  J.  Ingalls, 
of  Kansas,  announced  that,  with  two  of  his  associates  on  the  committee,  he  dissented 
from  the  report. 

Mr.  Ingalls  urged  in  the  first  place  that  the  report  did  not  touch  the  question 
of  the  credentials,  which  were  irregular  and  not  in  the  form  required  by  law.  It 
had  not  been  made  to  appear  why  the  executive  of  Louisiana  had  declined  to  issue 
credentials.  In  opposition  to  this  it  was  replied  that  a  witness  before  the  committee 
had  testified  to  the  committee  that  the  governor  had  declined  to  issue  the  certificate 
on  the  ground  that  Mr.  Pinchback  had  been  elected  to  the  seat.  Moreover,  the 
question  before  committee  was  not  one  as  to  the  prima  facie  title  only,  but  also 
referred  to  the  case  on  its  merits. 

Taking  up  the  first  poiat  touched  by  the  report  of  the  committee,  Mr.  Ingalls 
contended  that  there  was  nothing  before  the  Senate  to  show  how  many  senators 
and  how  many  representatives  constituted  the  legislature  of  Louisiana  under  the 
constitution  of  Louisiana,  siace  the  papers  of  Mr.  Eustis  did  not  show  this.  It 
was  replied  that  the  journals  of  the  house  and  senate  were  before  the  committee; 
but  Mr.  Ingalls  insisted  that  the  pamphlets  purporting  to  be  such  journals  were  not 
properly  authenticated.  To  this  Mr.  Allen  G.  Thurman,  of  Ohio,  replied,  in  effect, 
that  the  Senate  were  bound  to  take  notice  of  the  laws  and  journals  of  a  legislature. 
The  journals  were  put  in  evidence  before  the  committee  and  were  not  denied.  It 
was  also  stated  in  this  connection  that  the  Senate  should  take  official  notice  of  the 
constitution  of  the  State. 

'  Second  session  Forty-fifth  Congress,  Record,  pp.  82-87. 


264  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   354 

Mr.  Ingalls  also  contended  that  the  election  of  a  Senator  being  b}''  the  legis- 
lature, a  quorum  of  both  houses  were  necessary  to  constitute  the  joint  convention 
referred  to  in  the  law  of  1866,  and  that  the  law  might  not  constitutionally  provide 
that  a  Senator  could  be  elected  in  a  joint  convention  wherein  less  than  a  quorum  of 
one  body  was  present.  To  this  Mr.  Thurman  replied  that  in  electing  a  Senator  in 
joint  convention  the  legislature  did  not  act  in  its  organized  capacity  as  a  legislature. 
Otherwise  one  branch  might  veto  the  election  of  a  Senator.  It  was  in  view  of  a 
condition  of  this  sort  wliicli  had  arisen  in  Indiana  that  the  law  of  1866  was  passed. 

As  to  the  second  point  treated  in  the  report,  Mr.  Ingalls  urged  that  there  was 
no  vacancy.  The  election  was  held  before  the  Senate  had  acted  on  Mr.  Pinchback's 
claim.  When  the  Senate  did  act  it  simply  declared  that  Mr.  Pinchback  be  "not 
admitted  to  a  seat  in  the  Senate."  In  the  case  in  the  Twenty-third  Congress,  to 
which  the  report  of  the  majority  referred,  it  was  held  that  a  vacancy  did  not  occur 
until  it  was  officially  ascertained  and  declared  by  the  Senate.  In  reply,  it  was 
stated  that  the  case  in  the  Twenty-third  Congress  was  one  wherein  there  was  a 
contestant.     But  in  this  case  no  one  appeared  to  oppose. 

The  question  being  taken  on  the  resolution  reported  by  the  committee,  it  was 
agreed  to — yeas,  49;  nays,  8. 

Thereupon  Mr.  Eustis  appeared  and  took  the  oath. 

354.  The  Senate  election  case  relating  to  Kellogg,  SpofEord,  and  Man- 
ning, of  Louisiana,  in  the  Forty-fifth  and  Forty-sixth  Congresses. 

The  Senate  declined  to  give  immediate  prima  facie  effect  to  creden- 
tials regular  in  form,  but  from  a  State  where  there  were  rival  claimants 
to  the  governorship  and  rival  legislatures. 

On  January  20,  1877,'  in  the  Senate,  Mr.  Oliver  P.  Morton,  of  Indiana,  pre- 
sented the  credentials  of  William  Pitt  Kellogg,  as  Senator-elect  from  Louisiana,  for 
the  term  of  six  years  commencing  March  4,  1877. 

On  March  5,  1877,''  at  the  time  of  the  organization  of  the  Senate  in  the  Forty- 
fifth  Congress,  Mr.  Kellogg  advanced  to  the  Secretary's  desk  to  take  the  oath,  when 
Mr.  Lewis  V.  Bogy,  of  Missouri,  objected  to  the  administration  of  the  oath  on 
the  ground  that  there  were  two  legislatures  in  Louisiana,  and  that  there  would  be 
be  a  contest.     On  March  6,  Mr.  James  G.  Blaine,  of  Maine,  offered  the  following: 

Resolved,  That  the  oaths  prescribed  by  law  be  now  administered  by  the  Vice  President  to  William 
Pitt  Kellogg,  whose  credentials  as  a  Senator  from  the  State  of  Louisiana  were  presented  on  the  20th 
of  January,  1877. 

To  this  Mr.  Thomas  F.  Bayard,  of  Delaware,  proposed  on  March  7: 

Strike  out  all  after  the  word  "resolved,"  and  in  lieu  thereof  insert  "the  credentials  of  William 
Pitt  Kellogg,  claiming  to  be  a  Senator  from  the  State  of  Louisiana,  do  now  lie  upon  the  table  until  the 
appointment  of  a  Committee  on  Privileges  and  Elections,  to  whom  they  shall  be  refen-ed." 

The  resolution  was  debated  on  March  6  and  7.  It  was  urged  that  while  ordi- 
narily a  certificate  in  regular  form  was  sufficient  for  a  prima  facie  case,  yet  in  this 
case  there  were  two  persons  claiming  to  be  governor  and  two  bodies  claiming  to 
be  the  legislature.     Tliis  fact  was  well  known.     Mr.   Kellogg's  credentials  were 

'  Second  session  Forty-fourth  Congress,  Record,  p.  762. 

'Special  session  of  Senate,  Forty-fifth  Congress,  Record,  pp.  1,  2,  15,  16,  17-23. 


§  355  ELECTOEATES    INCAPACITATED    GENERALLY.  265 

signed  by  Stephen  B.  Packard,  as  governor,  but  it  was  alleged  by  Mr.  Bayard 
that  there  was  no  proof  that  Mr.  Packard  was  either  de  jure  or  de  facto  governor, 
and  in  reality  he  was  neither.  There  was  the  same  vmcertainty  as  to  the  legislature. 
On  March  7,'  Mr.  Bayard's  amendment  was  agreed  to — yeas  35,  nays  29.  Then 
the  resolution  as  amended  was  agreed  to — yeas  43,  nays  21. 

355.  The  Senate  election  case  relating  to  Kellogg  and  others,  con- 
tinued. 

There  being  two  conflicting  credentials,  the  Senate  declined  to  give 
immediate  prima  facie  effect  to  either,  although  the  electing  and  certify- 
ing government  behind  one  had  been  swept  away  by  force. 

On  October  17,  1877,^  Mr.  Allen  G.  Thurman,  of  OhiO;  presented  the  creden- 
tials of  Henr}-  M.  SpofTord,  as  Senator-elect  from  Louisiana,  for  the  term  of  six 
years  commencing  March  4,  1877.  These  credentials  were  signed  by  Francis  T. 
Nichols,  as  governor  of  Louisiana,  bore  date  of  June  20,  1877,  and  stated  that 
the  election  of  ilr.  Spofford  had  been  accomplished  on  April  24,  1877. 

On  October  18,^  the  Senate  resumed  consideration  of  the  resolution  presented 
the  day  before  by  Mr.  Thiirman: 

Resolved,  That  Henry  M.  Spofford,  whose  credentials  as  Senator  from  the  State  of  Louisiana  have 
this  day  been  read,  be  now  sworn  and  admitted  as  such  Senator. 

Mr.  George  F.  Edmunds,  of  Vermont,  objected  that  while  the  Spofford  cre- 
dentials might  be  prima  facie  correct,  yet  there  were  on  the  files  of  the  Senate 
other  credentials  in  favor  of  Mr.  Kellogg.  So  the  records  of  the  Senate  antag- 
onized the  prima  facie  standing  of  the  Spofford  credentials. 

In  support  of  ilr.  Thurman's  motion  it  was  urged  that  the  Senate  might  take 
judicial  notice  of  the  history  of  the  country,  which  showed  that  the  legislature 
electing  ilr.  Kellogg  had  ceased  to  exist,  and  that  Mr.  Packard  had  ceased  to  be 
de  facto  governor. 

Finally,  after  debate,  the  resolution  proposed  by  Mr.  Thurman  was  amended 
and  agreed  to  as  follows: 

Resolved,  That  the  credentials  of  Henry  M.  Spofford,  claiming  to  be  a  Senator  from  the  State  of 
Louisiana,  be  referred  to  the  Conmaittee  on  Privileges  and  Elections;  and  the  said  committee  shall  also 
consider  and  report  upon  the  credentials  of  William  Pitt  Kellogg. 

On  October  2^*  the  Senate  gave  the  Committee  on  Privileges  and  Elections 
authority  to  take  testimony  in  the  case. 

356.  The  Senate  election  case,  relating  to  Kellogg  and  others,  con- 
tinued. 

A  person  ascertained  by  a  majority  of  the  committee  to  be  legally 
elected  and  certified  was  seated  by  the  Senate,  although  both  executive 
and  legislature  were  displaced  by  force  before  the  Senate  acted. 

There  being  rival  legislatures,  the  Senate,  in  deciding  an  election 
case,  investigated  the  titles  of  the  legislators,  even  to  the  circumstances 
of  their  elections. 

'  Record,  p.  23.  '  Record,  pp.  99-106. 

'^  First  session  Forty-fifth  Congress,  Record,  p.  78.  *  Record,  p.  150. 


266  PRECEDENTS    OP    THE    HOUSE    OF    REPRESENTATIVES.  §   356 

In  a  Senate  election  case,  by  consent  of  the  parties,  testimony  taken 
by  Senate  and  House  committees  in  proceedings  to  which  neither  con- 
testant was  a  party,  was  admitted  for  what  it  was  worth. 

An  instance  wherein  the  Senate  indorsed  the  principle  that  a  legis- 
lator whose  presence  was  forcibly  obtained  and  who  refused  to  vote 
might  be  counted  as  part  of  the  quorum. 

On  November  26,  1877/  Mr.  Bainbridge  Wadleigh,  of  New  Hampsliire,  sub- 
mitted the  report  of  the  committee,  accompanied  by  the  following  resolutions: 

Resolved,  That  William  Pitt  Kellogg  is,  upon  the  merits  of  the  case,  lawfully  entitled  to  a  seat  in  the 
Senate  of  the  United  States  from  the  State  of  Louisiana  for  the  term  of  six  years  commencing  on  the  4th 
day  of  March,  1877,  and  that  he  be  admitted  thereto  upon  taking  the  proper  oath. 

Resolved,  That  Henry  M.  Spofford  is  not  entitled  to  a  seat  in  the  Senate  of  the  United  States. 

In  their  report  the  committee  say: 

Mr.  Kellogg  claims  to  have  been  elected  on  the  10th  day  of  January,  1877.  Mr.  Spofford  claims  to 
have  been  elected  on  the  24th  of  April,  1877.  In  an  inquiry  into  these  cases  upon  their  merits,  the  first 
question  which  arises  is,  whether  the  body  which  elected  Mr.  Kellogg  was  the  lawful  legislature  of 
Louisiana  at  the  time  of  such  election. 

There  was  in  said  State  on  the  6th  of  November,  1876,  an  election  for  governor,  lieutenant-governor, 
and  members  of  the  general  assembly.  The  statements  of  the  votes  cast  at  such  election  were  required 
by  law  to  be  sent  to  a  board  of  returning  officers  for  all  elections  in  the  State.  Said  returning  officers 
were  by  law  authorized  and  required  to  ascertain,  return,  and  certify  the  election  of  members  of  the  gen- 
eral assembly.  No  other  tribunal  was  clothed  with  (hat  power  or  duty.  They  were  required  to  report 
their  decisions  to  the  secretary  of  state,  and  it  was  by  law  provided  that  the  secretary  of  state  should  trans- 
mit to  the  clerk  of  the  house  of  representatives  and  secretary  of  the  senate  of  the  last  general  assembly 
a  list  of  the  names  of  such  persons  as,  according  to  the  decisions  of  the  returning  officers,  were  elected 
to  either  branch  of  the  general  assembly. 

It  was  the  duty  of  the  said  clerk  and  secretary  to  place  the  names  oi  such  persons  so  furnished  upon 
the  roll  of  the  house  and  senate,  respectively,  and  those  representatives  and  senators  whose  names  were 
so  placed  by  the  clerk  and  secretary,  and  none  others,  were  competent  to  organize  the  house  of  represent- 
atives or  senate. 

The  secretary  of  state,  in  obedience  to  the  statute,  transmitted  to  the  clerk  of  the  former  house  and 
secretary  of  the  senate  a  list  of  the  names  of  persons  by  the  said  returning  officers  decided  to  have  been 
elected  to  either  branch  of  the  general  assembly,  and  from  the  list  thus  furnished  the  clerk  and  secretary 
organized  each  house  of  the  State  legislature  on  the  1st  day  of  January,  1877. 

By  the  constitution  of  Louisiana  the  house  of  representatives  is  composed  of  120  members  and  the 
senate  of  36  members.  There  is  no  doubt  that  Gl  members  of  the  house  constitute  a  quorum  of  that  Itody, 
and  that  19  members  constitute  a  quorum  of  the  senate.  There  were  present  at  the  organization,  and 
took  part  in  the  proceedings,  8  senators  holding  over,  and  11  newly  elected — 19  in  all — having  the  certifi- 
cates of  said  returning  officers,  which  was  a  quorum,  and  68  representatives,  thus  declared  to  have  been 
elected,  being  7  over  a  quorum.  After  such  organization  the  members  of  the  two  houses  assembled  in 
joint  convention  on  the  10th  day  of  January,  1877,  to  elect  a  Senator  of  the  United  States. 

Upon  reading  the  journal  of  each  house  it  was  found  that  no  election  of  Senator  had  been  made  the 
day  before.  The  roll  of  each  house  was  called,  and  it  was  found  there  were  present  in  the  joint  convention 
17  senators  and  66  representatives,  they  composing  a  majority  of  all  the  members  of  the  general  assembly 
of  the  State.  Nominations  were  then  made  for  Senator,  and  a  viva  voce  vote  was  had,  and  William  Pitt 
Kellogg  received  the  votes  of  17  senators  and  66  representatives,  and  was  declared  by  the  president  of 
the  senate  (the  presiding  officer  of  the  joint  convention)  to  have  received  a  majority  of  all  the  votes  of 
the  general  assemljly,  and  to  have  been  duly  elected  a  Senator  of  the  United  States  for  the  term  of  six 
years  beginning  on  the  4th  day  of  March,  1877. 

'  Senate  Report  No.  16,  first  session  Forty-fifth  Congress. 


\ 


§  356  ELEOTOKATES   INCAPACITATED   GENERALLY.  267 

Your  committee  find  that  said  election  was  held  strictly  in  accordance  with  the  act  of  Congress  of 
1866  to  regulate  the  times  and  manner  of  holding  elections  for  Senators.  The  credentials  of  Mr.  Kellogg 
are  signed  by  Stephen  B.  Packard  as  governor  of  the  State  of  Louisiana,  and  bear  date  the  11th  day  of 
January,  1877. 

It  appears  to  your  committee  that  Mr.  Packard  was  on  that  day  the  lawful  governor  of  the  State  of 
Louisiana. 

The  report  goes  on  to  show  that  by  returns  duly  transmitted  by  the  returning 
officers  and  duly  counted  by  the  legislature  it  was  ascertained  that  Mr.  Packard 
was  elected  governor.     The  report  then  continues: 

Upon  the  facts  hereinbefore  stated  your  committee  are  of  the  opinion — 

First,  that  the  returning  officers  of  Louisiana  were  a  lawful  tribunal,  solely  authorized  and  required 
to  ascertain,  return,  and  certify  to  the  election  of  members  of  the  general  assembly. 

Second,  that  those,  and  only  those,  who  held  certificates  of  election  from  said  returning  officers  were 
entitled  to  seats  in  the  general  assembly  at  the  organization  thereof. 

Third,  that  the  body  which  first  organized  with  a  quorum  of  the  members  in  each  branch  thereof, 
having  such  certificates,  and  which  was  duly  recognized  by  the  lawful  governor  of  said  State,  was  the 
lawful  legislature. 

The  proof  before  your  committee  seems  conclusive  that  at  the  time  the  legislature  which  elected 
Kellogg  was  organized  there  were  present  a  quorum  of  each  house  thereof  then  lawfully  entitled  to  seats 
therein;  that  at  the  time  of  his  election  there  were  present  a  quorum  of  the  general  assembly  then  law- 
fully entitled  to  seats  therein,  all  of  whom  voted  for  said  Kellogg,  and  that  said  legislatiure  was  recog- 
nized by  the  lawful  governor  of  said  State.  It  was,  however,  contended  by  Mr.  Spofford  that  it  was  the 
duty  of  your  committee  to  go  behind  the  certificates  of  the  returning  officers  and  investigate  the  elections 
of  individual  members  of  the  general  assembly.  At  his  request  your  committee  did  investigate  such 
elections  and  find  the  following  facts; 

Of  the  lawful  election  of  57  members  of  the  house  of  representative  which  aided  in  electing  Mr.  Kel- 
logg there  is  no  dispute  whatever,  and  they  now  sit  in  the  Nicholls  house,  which  took  part  in  the  election 
of  Mr.  Spofford.  Three  more  of  the  members  of  tlie  Packard  house,  from  the  parish  of  Orleans,  were 
until  recently  admitted  on  all  hands  to  have  had  a  majority  of  the  votes  cast,  and  your  committee  find 
that  they  were  lawfully  elected.  Besides  these  60  members  of  the  house,  there  were  11  more  whose 
election  is  disputed  by  Mr.  Spofford  upon  the  ground  that  they  did  not  receive  a  majority  of  the  votes 
cast.  Of  the  21  members  of  the  senate  which  participated  in  the  election  of  Mr.  Kellogg,  there  were  16 
whose  right  to  hold  their  seats  is  admitted. 

The  election  of  3  more  from  the  twelfth,  eighteenth,  and  twenty-second  senatorial  districts  is 
disputed  upon  the  ground  that  they  did  not  receive  a  majority  of  the  votes  cast.  Two  more.  Baker  and 
Kelso,  were  not  declared  elected  by  the  returning  board,  but  were  seated  by  a  vote  of  the  senate  acting 
under  its  constitutional  right  to  judge  of  the  election  of  its  own  members. 

Complaint  is  made  by  Mr.  Spofford  that  one  Steven,  a  lawful  senator,  was  taken  against  his  will  into 
the  senate  and  detained  there  against  his  will  for  the  purpose  of  making  a  quorum.  Your  committee 
believe  there  is  no  good  reason  for  such  complaint.  If  the  senate  had  organized  witli  a  quorum  of  mem- 
bers lawfully  entitled  to  seats  therein,  as  was  the  case,  it  had  the  undoubted  right  to  compel  the  attend- 
ance of  absent  members. 

The  senators  and  members  whose  title  to  seats  is  disputed  on  the  ground  that  they  did  not  receive 
a  majority  of  the  votes  cast  were  those  declared  elected  by  the  returning  board  on  account  of  the  rejec- 
tion of  the  votes  cast  at  certain  polls  in  the  parishes  of  East  Baton  Rouge,  De  Soto,  West  Feliciana,  La- 
fayette, Morehouse,  Ouachita,  and  Webster;  in  the  twelfth  senatorial  district,  composed  of  the  parishes 
of  East  Feliciana,  West  Feliciana,  and  Pointe  Couple;  the  eighteenth  senatorial  district,  composed  of  the 
parishes  of  Ouachita  and  Caldwell;  and  the  twenty-second  senatorial  district,  composed  of  the  parishes 
of  Natchitoches,  De  Soto,  Red  River,  and  Sabine. 

There  were  no  votes  rejected  in  the  parishes  of  Sabine,  Pointe  Couple,  and  Red  River.  A  compara- 
tively small  number  of  the  votes  were  rejected  on  account  of  the  obvious  illegalities,  informalities,  and 
misconduct  of  the  election  officers,  and  there  is  little  complaint  on  account  of  the  rejection  of  such  votes. 
The  rest  were  rejected  on  account  of  violence  and  intimidation  which  prevented  a  fair  election.     The 


268  PKECEDENTS   OF   THE   HOUSE   OF   EEPBESENTATIVES.  §  356 

evidence  of  such  intimidation  is  overwhelming  and  irrefutable.  Many  of  the  Republican  leaders  were 
killed,  others  were  tortured,  others  driven  into  exile.  Companies  of  armed  men  paraded  the  parishes 
by  night,  carrying  terror  wherever  they  went. 

After  citing  facts  as  to  these  intimidations  the  committee  proceed  to  a  com- 
plaint of  Mr.  Spoflord  that  the  returning  officers  were  guilty  of  fraud  in  rejecting 
the  returns  of  the  parishes  before  mentioned,  and  also  in  having  committed  forgery 
in  altering  the  statement  of  votes  from  the  parish  of  Vernon.  "But  the  law  is 
clear,"  says  the  report,  "that,  even  had  the  returning  officers  been  guilty  of  fraud, 
or  had  mistakenly  exceeded  their  authority,  it  was  the  right  and  duty  of  the  persons 
returned  by  them  as  elected  to  take  their  seats  in  the  general  assembly." 

The  report,  after  citing  section  141  of  Cushing's  Law  and  Practice  of  Legisla- 
tive Assemblies  and  a  New  Hampshire  case  occiu-ring  in  1875  (56  N.  H.  Reports), 
continues : 

When  your  committee  decided  to  go  behind  the  certificates  of  the  returning  officers  and  to  seek 
the  real  merits  of  the  case  in  the  thousands  of  pages  of  printed  testimony  taken  for  the  use  of  the  Senate 
and  House,  Mr.  Spofford  contended  that  your  committee  should  simply  ascertain  the  number  of  votes 
deposited  in  tlie  ballot  boxes  at  the  election.  Your  committee  believe,  however,  that  if  their  inquiry 
is  to  extend  beyond  the  question  as  to  who  were  the  lawful  governor  of  Louisiana  and  the  lawful  mem- 
bers of  the  general  assembly,  it  should  go  far  enough  to  ascertain  how  far  the  freedom  of  election  was 
impaired  by  intimidation,  violence,  and  crime.  The  law  on  this  subject  is  thus  stated  by  Cushing 
in  his  Law  and  Practice  of  Legislative  Assemblies,  pages  G7,  68,  section  181: 

"The  great  principle  which  lies  at  the  foundation  of  all  elective  governments  and  is  essential, 
indeed,  to  the  very  idea  of  election  is  that  the  electors  shall  be  free  in  the  giving  of  their  suffrages.  This 
principle  was  declared  by  the  English  Parliament,  with  regard  to  elections  in  general,  in  a  statute  of 
Edward  I,  and,  with  regard  to  elections  of  members  of  Parliament,  in  the  Declaration  of  Rights.  The 
same  principle  is  asserted  or  implied  in  the  constitutions  of  all  the  States  of  the  Union.  Freedom  of 
election  is  violated  by  external  violence,  by  which  the  electors  are  constrained,  or  by  bribery,  by  which 
their  will  is  corrupted;  and  in  all  cases  where  the  electors  are  prevented,  in  either  of  these  ways,  from 
the  free  exercise  of  their  right,  the  election  will  be  void  without  reference  to  the  number  of  votes  thereby 
affected." 

The  evidence  clearly  proves,  and  your  committee  believe,  that  by  intimidation,  violence,  and 
crime  freedom  of  election  was  utterly  destroyed  at  those  polls  in  the  ten  parishes  heretofore  referred  to, 
whose  votes  were  rejected  by  the  returning  officers;  that  in  throwing  out  such  polls  and  declaring  the 
Republican  candidates  elected  the  returning  officers  did  that  which  they  believed  to  be  legal,  and 
which  was  really  equitable  and  just  and  what  the  two  houses  of  the  general  assembly  would  have  been 
bound  in  law  to  do  with  the  facts  Iwfore  them.  They  believe,  therefore,  that  the  members  by  whose 
votes  the  general  assembly  was  organized,  and  a  sufficient  number  of  the  members  by  whose  votes 
Mr.  Kellogg  was  elected,  were  not  only  lawfully  but  equitably  entitled  to  their  seats. 

It  is  contended  by  Mr.  Spofford  that  the  legislature  which  elected  Mr.  Kellogg  and  the  governor 
who  signed  his  credentials  have  vanished  from  political  existence  and  ceased  to  have  any  authority 
in  the  State  of  Louisiana,  and  that  therefore,  if  for  no  other  reason,  his  own  election  is  valid.  Your 
committee  find  that  at  and  after  the  organization  of  the  legislature  which  elected  Mr.  Kellogg  an  over- 
whelming array  of  armed  and  organized  militarj-  force  was  used  to  destroy  and  crush  out  the  lawful 
State  government  of  Louisiana.  By  it  the  courts  were  overthrown  and  annihilated,  and  under  its 
constantly  impending  menace  the  lawful  legislature  gradually  melted  away  and  its  terrorized  members 
Bought  safety  in  the  so-called  NichoUs  legislature  or  abdicated  their  rights. 

By  such  and  perhaps  other  equally  illegal  means  the  so-called  Nicholls  legislature  at  length  came 
to  contain  an  undisputed  majority  of  the  members  lawfully  elected  to  the  general  assembly;  and  on  the 
24th  day  of  April  that  legislature  chose  Mr.  Spofford,  the  contestant,  a  Senator  of  the  United  States. 
Your  committee  are  of  the  opinion  that  his  claim  is  not  well  founded.  Until  and  after  the  election 
of  Mr.  Kellogg,  Governor  Packard  and  what  is  known  as  his  legislature  were  de  facto  and  de  jure  the 
government  of  Louisiana.     Upon  that  legislature  devolved  the  duty  of  electing  a  Senator  of  the  United 


§  356  ELECTOEATES    INCAPACITATED    GENERALLY.  269 

States.  That  duty  -was  performed  by  them  in  the  election  of  Mr.  Kellogg.  Xo  subsequent  events, 
especially  successful  revolution  through  treasonable  force,  could  undo  what  had  been  lawfully  done. 
The  doctrine  contended  for  by  Mr.  Spofford,  if  established,  would  render  insecure  all  political  vested 
rights.  It  would  offer  a  premium  to  overthrow  by  force  the  result  of  every  sharply  contested  election, 
and  at  no  distant  day  reduce  this  countrj'  to  the  unhappy  condition  of  those  wretched  communities 
which  are  continually  a  prey  to  disorder  and  civil  war. 

The  minority  views,  signed  by  Messrs.  Eli  Saulsbury,  of  Delaware,  A.  S.  Mer- 
rimon,  of  North  Carolina,  and  Benjamin  H.  Hill,  of  Georgia,  foimd  that  the  Nicholls 
legislature  had  a  quorum  in  both  houses,  and  declared  that  had  it  not  been  for  the 
unlawful  action  of  the  retimiing  board  there  would  have  been  no  pretense  for  the 
Packard  legislature,  which  assembled  imder  protection  of  United  States  troops. 

The  minority  deny  that  at  an}'  time  the  Packard  senate  had  a  quorum,  since 
it  had  secured  the  required  number  by  force. 

Then  Mr.  Steven,  a  "holding  ovei*"  senator,  sitting  in  "the  Nicholls  legislature,"  happened  to  be 
in  the  State  house  on  business,  and  the  sergeant-at-arms  of  the  Packard  legislature  seized  and  took 
him  into  the  senate  chamber  to  try  and  restore  their  nominal  quorum.  He  was  taken  by  force,  and 
against  his  will  and  protest,  and  he  did  not  participate  in  anything  done.  The  seizure  of  Mr.  Steven 
was  a  disgraceful  proceeding,  and  the  object  had  in  view  was  to  make  a  nominal  quorum  in  order  to 
admit  as  senators,  upon  a  feigned  contest.  Baker  and  Kelso,  two  candidates  who  were  defeated  at  the 
polls,  and  who  did  not  even  hold  certificates  of  election  from  the  retiu'ning  board.  Steven  did  not 
vote,  refused  to  participate,  and  without  him  there  was  no  quorum  present  when  Kelso  and  Baker 
were  admitted. 

As  to  the  Packard  legislature  the  minority  say: 

Treachery  and  fraud  mark  every  lineament  of  the  so-called  "Packard  legislature''  from  its  incipi- 
ency,  and  the  Senate  can  not  escape  seeing  this.  But  apart  from  fraud,  where  there  are  two  rival  bodies 
of  men  in  a  State,  each  claiming  in  good  faith  to  be  the  lawful  legislature,  and  each  contests  the  right  of 
the  other  from  the  beginning  of  their  existence,  and  such  contest  is  continued  without  intermission 
untU  one  prevails  and  absorbs  the  other,  so  that  the  latter  completely  disappears,  and  all  the  coordinate 
branches,  and  all  the  authorities,  and  the  great  mass  of  the  people  of  the  State,  and  the  President  and 
courts  of  the  United  States,  recognize  the  prevailing  body  as  the  lawful  legislature,  and  all  its  acts 
passed  from  its  beginning  as  laws  of  the  State,  and  recognize  no  single  act  of  the  body  so  absorbed  and 
totally  disappearing,  can  the  Senate  of  the  United  States,  many  months  after  it  has  so  completely  dis- 
appeared, recognize  the  body  thus  disappearing  as  the  legislature  of  the  State  by  admitting  to  the 
Senate  as  a  Senator  a  person  who  claims  to  have  been  elected  by  such  a  body  of  men? 

The  statement  of  the  proposition  irresistibly  suggests  the  answer — it  can  not.  The  Senate  may 
have  the  physical  power  to  do  so — it  has  not  the  right  to  do  so — it  can  only  do  so  by  the  arbitrary  exercise 
of  lawless  despotic  power.  Such  an  act  on  the  part  of  the  Senate  could  only  be  regarded  as  a  defiance 
of  the  authority,  right,  and  will  of  the  State  and  an  insult  to  its  dignity;  it  would  shock  the  moral  sense 
of  the  American  people,  and  afford  cause  for  profound  distrust  and  alarm  for  the  safety  of  our  system 
of  government. 

An  important  question  arose  as  to  the  evidence  admitted  in  tliis  case.  The 
majority  report  frequently  cites  the  reports  of  the  Field  and  Morrison  committees 
of  the  House  of  Representatives,  and  the  Howe  and  Sherman  committees  of  the 
Senate.     The  minority  views  explain  tliis: 

The  contestants  were  each  requested  to  indicate  what  testimony  he  desired  to  produce,  and  after 
debate  they  were  requested  to  confer  and  see  what  state  of  facts  they  could  agree  upon  touching 
controverted  material  points  at  issue.  Statements  were  submitted  to  Mr.  Kellogg  touching  the  result 
of  the  election  in  parishes  indicated,  and  Mr.  Kellogg  made  a  statement  in  that  respect  in  reply.  These 
statements  were  received  as  evidence,  and  it  was  further  agreed  to  receive  the  testimony,  or  so  much 
thereof  as  may  be  pertinent,  taken  by  Congressional  committees  commonly  known  as  the  "Howe  com- 


270  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   356 

mittee,"  the  "Morrison  committee,"  the  "Sherman  committee,"  and  the  "Field  committee,"  touching 
Louisiana  affairs.  Mr.  Spofford  did  not  object  to  the  reception  of  this  testimony,  but  he  strenuously 
insisted  on  being  allowed  to  take  testimony  in  support  of  the  several  allegations  specified  by  him. 

In  the  debate,  on  November  28/  Mr.  Hill,  who  signed  the  minority  views, 
explained  that— 

The  conmiittee  well  knew  that  much  testimony  had  been  taken  both  by  the  Senate  and  House 
on  a  former  occasion  involving  some,  but  only  some,  of  the  issues  between  these  contestants;  btit  know- 
ing that  that  testimony  was  not  taken  in  this  case,  and  therefore  was  not  legal  testimony  without  their 
admission,  the  committee  called  first  upon  these  contestants  to  make  statements  before  the  committee 
as  to  what  points  they  desired  evidence  taken  upon. 

Mr.  Hill  went  on  to  say  that  Mr.  Kellogg  insisted  on  the  evidence  in  the  Howe 
and  Sherman  reports,  wliich  had  been  taken  by  the  Senate,  and  Mr.  Spoflford  that 
he  would  agree  to  that  if  the  evidence  of  the  Field  and  Morrison  committees  of  the 
House  of  Representatives  could  be  referred  to  as  evidence  in  precisely  the  same 
manner  for  what  they  were  worth.  All  tlie  testimony  in  these  reports  was  taken 
before  the  election  for  Senator  was  had,  and  was  not  taken  with  reference  to  the 
rights  of  the  parties  to  this  contest;  but  it  did  bring  out  many  facts  concerning 
the  election  of  the  governor  and  legislature  in  Louisiana  which  it  was  material  for 
the  Senate  to  understand  in  considering  tliis  question. 

In  addition,  Mr.  Spofford  had  asked  to  be  permitted  to  take  certain  testimony 
wliich  he  specified  in  addition.     The  minority  held  that  he  should  have  this  right. 

We  are  of  opinion  that  the  testimony  so  proposed  by  Mr.  Spofford  is  material,  and  ought,  in  justice 
to  him  and  the  Senate,  to  have  been  received.  Besides,  it  can  not  be  truly  said  that  the  respective 
claims  of  the  contestants  have  been  decided  upon  their  "substantial  merits''  when  one  of  them  is  not 
allowed  to  produce  material  testimony  which  he  offers  and  is  anxious  to  produce.  And  it  may  be  that 
a  decision  made  by  the  Senate  now,  without  fair  opportunity  to  produce  such  testimony,  may  be 
reviewed  and  reversed  at  some  future  time.  It  is  well  to  put  an  end  to  controversy  now  by  allowing 
both  the  contestants  the  fullest  and  fairest  opportunity  to  produce  all  material  testimony.  We  think, 
therefore,  that  the  whole  matter  ought  to  be  recommitted  to  the  committee,  to  the  end  the  proposed 
testimony  may  be  taken. 

The  resolutions  proposed  by  the  majority  were  debated  on  November  28,  29, 
and  30,^  the  principal  question  being  as  to  the  request  of  Mr.  Spofford.  In  his 
request  he  had  specified  certain  testimony  intended  to  show  ^vTongdoing  by  Mr. 
Kellogg  in  connection  with  the  proceedings  of  the  returning  board;  but  on  behalf 
of  the  majority  it  was  asserted  that  in  this  point  the  testimony  of  the  reports 
accepted  as  evidence  was  full  and  conclusive. 

On  November  30  '  Mr.  Saulsbury  moved  to  recommit  the  subject,  with  instruc- 
tions to  take  the  testimony  referred  to.  Tliis  motion  was  disagreed  to — yeas  29, 
nays  29. 

Mr.  Hill  then  moved  the  following  substitute  amendment  to  the  first  resolu- 
tion proposed  by  the  committee: 

That  Henry  M.  Spofford  be  admitted  as  a  Senator  from  the  State  of  Louisiana  on  a  prima  facie  title, 
and  subject  to  the  right  of  William  Pitt  Kellogg  to  contest  his  seat. 

1  Record,  pp.  740,  741.  =  Record,  pp.  730,  749,  7G7.  '  Record,  p.  778. 


§  357  ELECTORATES    INCAPACITATED    GENERALLY.  271 

This  motion  was  disagreed  to — yeas  27,  nays  29.' 

The  resolutions  of  the  committee  were  then  agreed  to — ^yeas  30,  nays  28. 

And  on  the  same  day  ilr.  Kellogg  appeared  and  took  the  oath. 

357.  The  Senate  election  case  relating  to  Kellogg  and  others,  con- 
tinued. 

A  Senate  election  case  having  been  once  decided,  an  attempt  to  reopen 
it  failed  after  a  favorable  report  from  a  committee  and  elaborate  dis- 
cussion. 

Discussion  in  the  Senate  of  the  doctrine  of  res  adjudicata  as  applied 
to  an  election  case. 

At  the  beginning  of  the  next  Congress,  on  March  21,  1879,''  Mr.  Benjamin  F. 
Jonas,  of  Louisiana,  presented  in  the  Senate  the  petition  of  Henry  M.  Spofford 
praying  for  the  reopening  of  his  case.  The  petition  was  referred  to  the  Committee 
on  Privileges  and  Elections. 

On  April  16  '  Mr.  Hill,  of  Georgia,  reported  from  that  committee  the  following: 

Resolved,  That  the  Committee  on  Privileges  and  Elections  be  authorized  to  have  printed  for  its  use 
the  argiiments  before  it  in  the  case  of  Spofford  against  Kellogg  relative  to  a  seat  in  the  Senate  from  the 
State  of  Louisiana,  with  such  evidence,  papers,  and  documents  relative  to  the  case  as  it  may  deem  proper. 

Mr.  Edmunds,  of  Vermont,  made  objection  to  the  resolution  if  it  contemplated 
the  taking  of  evidence  in  order  to  reopen  a  case  which  he  considered  settled;  but  on 
a  suggestion  of  Mr.  George  F.  Hoar,  of  Mavssachusetts,  the  resolution  was  modified 
and  agreed  to  as  follows: 

Resolved,  That  the  Committee  on  Privileges  and  Elections  be  authorized  to  have  printed  for  its  use 
the  ?rguments  before  it  in  the  case  of  Spofford  against  Kellogg  relative  to  a  seat  in  the  Senate  from  the 
State  of  Louisiana,  with  such  other  proceedings  in  relation  to  the  case  as  it  may  deem  proper. 

On  May  1  *  Mr.  Saulsbury,  from  the  Committee  on  Privileges  and  Elections, 
reported  a  resolution  as  follows: 

Resolved,  That  the  Committee  on  Privileges  and  Elections,  to  which  was  referred  the  memorial  of 
Henrj'  M.  Spofford,  praying  permission  to  produce  evidence  relating  to  the  right  of  Hon.  William  Pitt 
Kellogg  to  the  seat  in  the  Senate  held  by  him  from  the  State  of  Louisiana,  and  in  support  of  the  claim 
of  said  petitioner  thereto,  be,  and  said  committee  is  hereby,  instructed  to  inquire  into  the  matters  alleged 
in  said  petition,  and  for  that  purpose  said  committee  is  authorized  and  empowered  to  send  for  persons 
and  papers,  administer  oaths,  and  do  all  such  other  acts  as  are  necessarj'  and  proper  for  a  full  and  fair 
investigation  in  the  premises.  Said  committee  may,  in  its  discretion,  appoint  a  subcommittee  of  its 
own  members  to  make  such  investigation  in  whole  or  in  part,  which  subcommittee  shall  have  authority 
to  employ  a  clerk,  stenographer,  and  sergeant-at-arms,  and  shall  have  all  the  powers  of  the  general  com- 
mittee to  administer  oaths  and  send  for  persons  and  papers,  and  may  make  such  investigation  either  in 
Washington  or  in  the  State  of  Louisiana,  and  said  committee  or  its  subcommittee  may  sit  in  vacation. 

On  May  2  ^  the  resolution  came  up  for  consideration,  when  Mr.  George  F.  Hoar, 
of  Massachusetts,  proposed  the  following  amendment  in  the  nature  of  a  substitute: 

Whereas  on  the  25th  day  of  October,  1877,  the  Senate  unanimously  adopted  the  following  resolution: 

"Resolved,  That  the  Committee  on  Privileges  and  Elections  on  the  contested  cases  of  William  Pitt 

Kellogg  and  Henry  M.  Spofford,  claiming  seats  as  Senators  from  the  State  of  Louisiana,  and  whose  cre- 

'  Record,  p.  797.  *  Record,  p.  1011. 

^  First  session  Forty-sixth  Congress,  Record,  p.  33.  *  Record,  p.  1022. 

=  Record,  p.  469. 


272  PRECEDENTS    OF    THE    HOUSE    OF    EEPKESENTATIVES.  §   357 

dentials  have  been  referred  to  such  committee,  be  authorized  to  send  for  persons  and  papers,  and  admin- 
ister oaths,  with  a  view  of  enabling  said  committee  to  determine  and  report  upon  the  title,  respectively, 
on  the  merits  of  each  of  said  contestants  to  a  seat  in  the  Senate." 

And  whereas  on  the  26th  day  of  November,  1877 ,  said  committee  reported  the  following  resolutions: 
"Resolved,  That  William  Pitt  Kellogg  is,  upon  the  merits  of  the  case,  entitled  to  a  seat  in  the  Senate 
of  the  United  States  from  the  State  of  Louisiana  for  the  term  of  six  years  commencing  on  the  4th  day  of 
March,  1877,  and  that  he  be  admitted  thereto  upon  taking  the  proper  oath; 

"  Resolved,  That  Henry  M.  Spofford  is  not  entitled  to  a  seat  in  the  Senate  of  the  United  States; "        »  , 
And  on  the  30th  day  of  November,  1877,  the  Senate  adopted  said  resolution,  and  thereafter  on  the      I 
same  day  said  Kellogg  was  duly  admitted  to  take  the  oath  and  took  his  seat  as  a  Senator  from  said  State 
for  said  term: 

Resolved,  That  said  proceedings  are  final  and  conclusive  upon  the  right  of  said  Kellogg  and  the 
claim  of  said  Spofford  to  said  seat  for  said  term. 

As  the  grounds  on  which  it  was  proposed  to  reopen  the  case  became  of  impor- 
tance, the  text  of  the  petition'  was  often  referred  to.  After  the  purely  formal 
Dortions,  Mr.  Spofford  went  on  as  to  the  claims  of  himself  and  Mr.  Kellogg: 

That  a  partial  or  imperfect  investigation  of  their  respective  claims  to  the  above-mentioned  seat  in 
the  Senate  was  had  before  the  said  committee,  but  the  case  made  by  your  petitioner  against  the  claim 
of  the  said  Kellogg  was  not  fully  heard  by  the  committee,  because  they  came  to  a  sudden  determina- 
tion to  close  the  same  without  giving  him  opportunity  to  adduce  proof,  which  he  had  constantly  offered 
to  adduce  if  leave  were  granted,  having  a  material  bearing  upon  the  contest  for  said  seat  against  Kel- 
logg's  claim;  that  the  pendency  of  a  controversy  in  the  Senate  relative  to  the  disposition  to  bo  made 
of  another  contest  between  other  parties  over  another  seat  led  to  the  hurried  closing  of  the  evidence 
in  the  case  between  said  Kellogg  and  petitioner  by  the  committee,  a  majority  of  wliom  speedily  made 
a  report  in  favor  of  said  Kellogg's  claim;  that  this  abrupt  closing  of  the  case  and  refusal  of  petitioner's 
request  for  leave  to  take  evidence  was  against  the  remonstrance  of  petitioner,  who  desired  to  make  a 
formal  protest,  but  was  told  that  no  precedent  was  known  for  such  a  practice;  that  the  report  of  the 
committee,  made  while  the  other  controversy  just  referred  to  was  under  debate  in  the  Senate,  led  to 
confusion  in  considering,  discussing,  and  disposing  of  the  two  cases;  that  for  the  reasons  aforesaid  peti- 
tioner's case  against  the  said  Kellogg  never  had  a  full  examination  and  hearing  upon  its  merits,  either 
in  the  committee  or  in  the  Senate,  and  should  therefore,  petitioner  most  respectfully  submits,  be  reex- 
amined, to  the  end  that  justice  may  be  done. 

Petitioner  further  represents  that  the  State  of  Louisiana,  through  its  legislature  (as  will  fully  appear 
by  a  joint  resolution  of  the  two  houses  of  the  general  assembly,  approved  February  1,  1878,  to  which 
reference  is  here  made),  has  protested  against  the  admission  and  retention  of  said  Kellogg  in  said  seat 
and  the  exclusion  of  yoiu-  petitioner  therefrom  as  leaving  unfullilled  that  provision  of  the  Constitution 
of  the  United  States  which  declares  "that  the  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  to  be  chosen  by  the  legislature  thereof,  for  six  years. " 

Petitioner  further  represents  that  he  ever  has  been  and  still  is  ready  to  furnish  evidence  to  estab- 
lish the  five  specifications  upon  which  he  was  not  permitted  to  take  proof  heretofore,  and  particularly 
evidence  of  the  direct  and  active  interference  of  said  Kellogg  in  the  preparation  of  illegal  complaints 
or  protests  against  polls  of  which  he  had  no  knowledge. 

Petitioner  further  represents  that  since  the  contest  aforesaid  and  very  recently  he  has  discovered 
new  and  material  evidence  to  prove  that  the  election  of  said  Kellogg  was  null  and  void,  by  reason  of 
improper,  illegal,  and  corrupt  influences  exerted  by  him  in  person  to  bring  about  his  own  election  as 
Senator;  to  prove  that  he  obtained  and  held  the  title  of  governor  by  corrupt  bargain,  not  by  election, 
and  then  used  the  power,  patronage,  and  resources  of  the  governor's  office  to  procure  the  return  and 
organization  of  a  general  assembly  for  the  purpose  of  electing  him  Senator,  and  afterwards  employed 
both  menace  and  bribery  among  those  whom  he  had  assisted  to  have  returned  as  members  to  induce 
them  to  vote  for  him  as  Senator;  and  that  but  for  such  illegal  and  corrupt  interference  personally 
exerted  by  the  said  Kellogg  he  would  not  have  secm-ed  the  nominal  election  under  which  he  claims 
his  seat.     All  of  which  petitioner  now  offers  to  prove  upon  a  review  of  the  case. 

'Second  session  Forty-sixth  Congress,  Senate  Report  No.  388,  p.  5. 


K   357  ELECTORATES    INCAPACITATED    GENEKALLY.  273 

The  resolution  reported  from  the  committee  and  the  amendment  proposed  by- 
Mr.  Hoar  formed  an  issue  which  was  debated  at  length  on  May  2,  6,  and  7.'  It 
was  urged  in  opposition  to  the  resolution  of  the  committee  that  the  case  was  one 
falhng  under  the  doctrine  of  res  adjudicata.  In  support  of  tliis  position  Mr.  Angus 
Cameron,  of  Wisconsin,  cited  ^  as  precedents  the  Fitch  and  Bright  case,  the  Spencer 
case,  and  the  Butler  and  Corbin  case,  and  also  the  cases  of  Bogy  and  Cameron,  all 
Senate  cases. 

The  doctrine  of  res  adjudicata  was  debated  at  great  length,  both  abstractly 
and  in  reference  to  the  constitutional  functions  of  the  Senate  in  judging  the  elec- 
tions of  its  own  Members.^ 

On  behalf  of  the  committee  it  was  urged  that  the  petition  set  forth  a  new  ground 
not  touched  on  in  the  original  case,  viz,  the  alleged  corruption  of  the  legislature  by 
Mr.  Kellogg,  and  that  tliis  justified  the  reopening  of  the  case. 

On  May  7,*  Mr.  Edmunds  proposed  to  the  resolution  of  the  committee  an 
amendment  so  that  the  inquiry  as  to  the  matters  alleged  in  the  petition  should 
go  "so  far  only  as  relates  to  any  charge  in  said  petition  of  personal  misconduct 
on  the  part  of  said  Kellogg  which  may  render  him  liable  to  expulsion  or  censure." 

This  amendment  was  disagreed  to — yeas  20,  nays  27. 

Thereupon  ]\Ir.  Roscoe  Conkling,  of  New  York,  moved  to  amend  the  com- 
mittee's resolution  by  adding: 

Providing  that  the  inquiry  hereby  authorized  fshall  be  confined  to  the  matters  alleged  in  the 
memorial  of  Mr.  Spofford  to  be  new  and  different  from  those  covered  by  the  previous  inquiry. 

This  amendment  was  disagreed  to — yeas  20,  nays  27. 

Mr.  Edmunds  proposed  as  an  amendment  the  lines  "recognizing  the  validity 
and  finality  of  the  previous  action  of  the  Senate  in  the  premises,"  which  was  disa- 
greed to — yeas  20,  nays  27. 

Mr.  Conkling  then  proposed  the  following: 

Provided,  That  such  questions  in  said  ca.«e  as  were  fully  considered  and  adjudged  in  the  former 
investigation  shall  not  be  opened  under  this  resolution. 

Which  was  disagreed  to — yeas  20,  nays  27. 

Mr.  John  A.  Logan,  of  Illinois,  proposed  the  following  amendment,  which  was 
disagreed  to — yeas  19,  nays  28: 

Provided,  That  said  committee  be  further  empowered  and  directed  to  make  inquiry  and  take  tes- 
timony upon  the  matter  as  to  whether  any  unlawful  or  corrupt  means  were  employed  to  disorganize 
the  body  by  which  William  Pitt  Kellogg  claims  to  have  been  elected  to  the  Senate,  or  to  organize  that 
by  which  the  memorialist  claims  to  have  been  elected  or  to  secure  the  alleged  election  of  the  memorialist. 

One  amendment  proposed  by  Mr.  George  F.  Hoar  to  the  committee  resolution 
was  agreed  to  without  debate.     It  added  thereto  the  words: 

And  said  committee  are  further  instructed  to  inquire  and  report  whether  bribery  or  other  corrupt 
or  unlawful  means  were  resorted  to  to  secure  the  alleged  election  of  the  memorialist. 

'First  session  Forty-sixth  Congress,  Record,  pp.  1022-1024,  1071-1087,  1099-1123. 
=  Record,  pp.  1077-1079. 

^Note  particularly  the  speech  of  Mr.  Matt.  H.  Carpenter,  of  Wisconsin,  Record,  p.  1100. 
*  Record,  pp.  1112-1123. 
5994— VOL  1—07 18 


274  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   357 

The  question  was  then  taken  on  the  amendment  hi  the  nature  of  a  substitute 
abeady  pending,  and  it  was  disagreed  to — yeas  17,  nays  26. 

The  original  resolution  of  the  committee,  as  amended,  was  then  agreed  to — 
yeas  26,  nays  17. 

On  June  21  the  Committee  on  Privileges  and  Elections,  or  one  of  its  subcom- 
mittees, was  authorized  to  sit  during  the  recess  of  Congress. 

On  February  9,  1880,'  the  Vice-President  laid  before  the  Senate  resolutions 
of  the  Louisiana  legislature  denying  the  validity  of  Mr.  Kellogg's  election  and  pro- 
testing against  liis  continuance  as  Representative  of  the  State.  These  resolutions 
were  referred  to  the  Committee  on  Privileges  and  Elections.  Also,  on  February 
12,^  a  memorial  of  certain  members  of  that  legislature,  affirming  the  legality  of 
Mr.  Kellogg's  election,  was  presented  and  referred.  Also,  on  February  17,  a  memo- 
rial from  certain  citizens  was  presented  and  referred. 

On  March  22  ^  the  report  of  the  committee  and  the  minority  views  were  pre- 
sented. The  report  was  submitted  by  Mr.  Hill,  of  Georgia,  and  was  accompanied 
by  the  foUowmg  resolutions: 

Resolved,  That,  according  to  the  evidence  now  known  to  the  Senate,  William  P.  Kellogg  was  not 
chosen  by  the  legislature  of  Louisiana  to  the  seat  in  the  Senate  for  the  term  beginning  on  the  4th  day 
of  March,  1877,  and  is  not  entitled  to  sit  in  the  same. 

Resolved,  That  Henry  M.  Spofford  was  chosen  by  the  legislature  of  Louisiana  to  the  seat  in  the 
Senate  for  the  term  beginning  on  the  4th  of  March,  1877,  and  that  he  be  admitted  to  the  same  on  taking 
the  oath  prescribed  by  law. 

In  the  report,  which  was  concurred  in  by  Messrs.  Saulsbury ;  Hill ;  Frances  Kernan , 
of  New  York;  James  E.Bailey,  of  Tennessee;  Luke  Prior, of  Alabama,  and  Zebulon 
B.  Vance,  of  North  Carolina,  the  facts  as  to  the  election  by  the  legislature  were 
briefly  stated,  and  then  the  committee  go  on  to  state  that  they  have  investigated 
the  subject  as  directed  to  do  by  the  Senate. 

The  memorialist  and  the  sitting  Member  appeared  before  the  committee  in  person  and  by  counsel. 
On  the  5th  of  June,  1879,  the  full  committee  commenced  the  examination  of  witnesses  in  this  city. 
The  examination  was  continued  in  November  and  December  by  a  subcommittee  in  the  city  of  New 
Orleans,  and  wa.s  again  resumed  by  the  full  committee  in  this  city,  and  was  continued  until  both  parties 
announced  they  had  no  further  testimony  to  offer.  Nearly  150  witnesses  have  been  examined,  and 
over  1,200  printed  pages  of  testimony  have  been  taken  and  are  herewith  reported  to  the  Senate,  with 
the  conclusions  of  law  and  fact  at  which  the  committee  have  arrived. 

In  the  opinion  of  your  committee,  the  evidence,  now  for  the  first  time  fully  taken,  clearly  and 
abundantly  establishes  the  following  facts: 

I.  That  said  William  Pitt  Kellogg,  then  holding  the  office  of  governor  of  the  State  of  Louisiana,  and 
pending  the  canvass  in  said  election  of  1876,  did  conspire  with  divers  persons,  and  in  aid  of  such  con- 
spiracy did  fraudulently  use  the  influence  and  power  of  his  office  of  governor,  to  prevent  a  fair,  free, 
and  legal  election  in  said  State,  to  the  end  that  he  might  procure  from  the  commissioners  of  election 
the  return  of  a  legislature  a  majority  of  whose  members  should  be  of  the  Repul)lican  party  and  pre- 
sumed to  be  favorable  to  his  election  to  the  Senate. 

II.  That,  having  failed  in  this,  the  said  William  Pitt  Kellogg,  still  holding  the  office  of  governor, 
did  conspire  with  divers  persons,  and  in  aid  of  such  conspiracy  did  fraudulently  use  the  influence  and 
power  of  his  office  of  governor,  to  change  the  result  as  returned  by  the  commissioners  of  election,  to 

'  Second  session  Forty-sixth  Congress,  Record,  p.  749. 

=  Record,  p.  833. 

'Record,  p.  1758;  Senate  Report  No.  388;  Record,  p.  1758. 


§   357  KLECTOKATES    INCAPACITATED   GENERALLY.  275 

the  end  that  he  might  procure,  through  false  certificates  of  election,  the  organization  of  a  pretended 
legislature  a  majority  of  whose  members  should  be  of  the  Republican  party,  and  supposed  to  be  favor- 
able to  his  election  to  the  Senate. 

III.  That  said  William  Pitt  Kellogg  did  conspire  witli  divers  others  to  prevent,  and  by  force,  through 
the  metropolitan  police,  aided  by  the  Army  of  the  United  States,  did  prevent  the  lawfully  elected 
members  of  the  legislature,  and  especially  those  of  the  Democratic  party,  from  assembling  in  the  halls 
of  the  senate  and  house  of  representatives  in  the  Statehouse  of  the  said  State  of  Louisiana;  and  did, 
by  threats,  by  the  use  of  money,  by  the  promise  of  offices,  and  by  other  corrupt  practices,  compel  and 
induce  to  assemble  in  said  halls,  respectively,  a  mob  of  his  coconspirators,  against  the  will  of  the  people 
of  Louisiana,  many  of  whom  had  not  been  elected,  and  some  of  whom  had  been  neither  elected  or  cer- 
tified, to  the  end  that  he  might  procure  a  pretended  legislatiu-e  for  the  inauguration  of  Stephen  B. 
Packard  as  governor,  who,  he  well  knew,  had  not  been  elected,  and  from  which  mob  he  might  procure 
the  form  of  his  own  election  to  the  Senate,  and  which  pretended  election  he  knew  such  pretended 
governor  would  certify. 

IV.  That  said  William  Pitt  Kellogg  having  thus  corruptly  procured  the  assembling  of  a  body  of 
persons  pretending  to  be  a  legislature,  in  which  were  included  persons  not  elected,  and  from  which 
had  been  forcibly  excluded  persons  who  had  been  elected  and  certified  as  members,  did,  by  bribery, 
by  the  use  of  money  and  the  promise  of  offices,  and  by  other  corrupt  practices,  induce  said  body  of 
persons  to  go  through  the  form  of  choosing  him  to  a  seat  in  the  Senate  of  the  United  States. 

V.  That  said  William  Pitt  Kellogg,  well  knowing  that  the  facts  now  proven  to  exist  did  exist,  did 
falsely  represent  that  no  such  facts  existed  or  could  be  proven,  seeking  thereby  to  induce  a  majority 
of  the  committee,  without  taking  the  evidence  which  has  now  been  taken,  to  make  a  report  declaring 
his  title  to  the  seat,  and  with  intent  to  induce  a  majority  of  the  Senate  to  admit  him  to  the  seat  so 
fraudulently  claimed. 

VI.  That,  to  prevent  the  discovery  of  the  briberies,  frauds,  and  corruptions  now  proven  to  exist, 
the  said  William  Pitt  Kellogg  did  procure  a  large  number  of  the  persons  composing  said  pretended 
legislature  to  be  appointed  to  public  offices  of  profit  in  the  custom-house  at  New  Orleans  and  elsewhere, 
as  inducement  not  to  disclose  the  truth.  That,  after  other  persons,  officers,  and  members  of  said  pre- 
tended legislature  had  freely  and  voluntarily  admitted,  under  oath,  their  knowledge  of  said  briberies 
and  corruptions,  and  had  been  summoned  to  appear  as  witnesses  before  your  committee,  and  were 
under  the  protection  of  the  Senate,  said  W'illiam  Pitt  Kellogg  did,  by  bribery  and  corrupt  practices, 
induce  such  witnesses  to  testify  falsely  that  they  had  not  made  such  admissions,  or  that,  if  they  had 
made  them,  they  were  not  true. 

The  report  then  goes  on  to  review  the  testimony  by  which  they  considered  their 
conclusions  justified  and  then  go  on  to  discuss  the  question  as  to  the  reopening 
of  the  case: 

Your  committee  are  unable  to  see  how  an  impartial  legal  mind  can  read  the  evidence  taken  and 
doubt  the  guilt  of  the  sitting  member  upon  every  charge  which  has  been  made  against  him,  notwithstand- 
ing so  many  of  the  witnesses  must  be  admitted  to  be  disreputable. 

But  the  sitting  member,  through  his  very  aide  counsel,  also  insisted,' with  great  earnestness  and 
skill  before  your  committee,  that  the  Senate  at  a  former  session  having,  "after  and  upon  evidence  going 
to  the  merits  of  the  case,"  declared  that  Kellogg  was  "upon  the  merits  of  the  case  entitled  to  the  seat," 
this  decision  is  final  and  conclusive,  and  can  not  now  be  reexamined  and  reversed.  This  was  the  first  and 
chief  position  on  which  the  title  of  the  sitting  member  was  made  to  rest.  Your  committee  have  fully 
considered  the  question  thus  presented,  and  can  not  doubt  the  correctness  of  the  conclusions  at  which 
they  have  arrived . 

Stated  in  the  light  of  the  facts  now  known  and  herewith  reported  to  the  Senate,  this  position  would 
read  thus:  That  though  the  sitting  memlier  was  not,  in  fact,  chosen  by  the  legislature  of  Louisiana,  and 
though  the  body  of  men  alleged  to  have  elected  him  was  assembled  through  fraud,  was  held  together  by 
force,  and  was  controlled  by  bribery  and  corruption,  and  all  this  was  accomplished  by  a  conspiracy  to 
defraud  the  State  and  people  of  Louisiana,  of  which  conspiracy  the  sitting  member  was  himself  the  chief, 
yet,  the  Senate  having  decided  in  ignorance  and  by  the  suppression  of  these  facts  that  the  sitting  member 
was  entitled  on  the  merits  to  the  seat,  the  Senate  is  compelled  to  allow  him  to  retain  the  seat  after  full 


276  PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   357 

knowledge  that  every  fact  which  was  assumed  to  exist  when  he  was  admitted  is  and  was  false  and  untrue. 
The  reply  to  such  a  position  is  sufficiently  furnished  in  the  statement  of  the  position  itself.  But  your 
committee  will  not  rest  the  argument  here,  and  will  consider  it  in  the  light  of  precedent  and  law.  Coun- 
sel for  the  sitting  member  says: 

"If,  therefore,  this  committee  and  the  Senate  shall  set  aside  this  judgement  on  the  merits  it  will 
present  to  the  counti-y  and  the  world  a  spectacle  not  seen  before  in  the  century  of  our  national  existence 
just  closed." 

We  might  justly  reply  to  this  that  this  case,  in  the  facts  now  proven,  already  presents  to  the  country 
and  the  world  a  spectacle  not  before  seen  in  this  century  or  any  previous  century  of  this  or  any  other 
nation.  We  trust  such  a  spectacle  will  never  again  be  presented,  and  that  it  may  not  be  it  ought  to  be 
now  condemned  by  all  men,  and  especially  by  this  Senate.  If  it  shall  be  understood  that  seats  once 
prociu-ed  in  this  body  by  any  means,  however  false  and  fraudulent,  which  bad  men  may  employ  cannot  be 
taken  away,  this  Senate  may  soon  be  largely  composed  of  members  not  chosen  by  the  legislatures  of  the 
States.  Successful  frauds  will  displace  the  positive  requisition  of  the  Constitution  in  the  elections  of 
Senators.  A  case  without  precedent  can  not  be  decided  by  precedent.  Fraud  has  certainly  become  a 
powerful  agent  in  our  politics,  but  we  are  not  willing  to  admit  it  has  yet  become  the  supreme  law  above 
review  and  beyond  remedy. 

But  while  no  case  like  this  was  ever  before  presented  for  decision,  yet  principles  have  been  announced 
in  other  cases  which  will  furnish  some  guide  to  a  proper  determination  of  this  question. 

In  the  case  of  Bright  and  Fitch,  in  the  Thirty-fifth  Congress,  the  rehearing  asked  was  refused  because 
"all  the  facts  and  questions  of  law  involved  were  as  fully  known  and  presented  to  the  Senate  on  the 
former  hearing  as  they  were  then  presented  in  the  memorial  of  the  legislature  asking  a  rehearing."  It 
was  held  that  in  such  a  case  the  judgment  first  rendered  by  the  Senate  "was  final,  and  precluded  further 
inquiry  into  the  subject." 

In  the  Butler  and  Corbin  case,  in  the  Forty-fifth  Congress,  the  report  of  the  minority  of  the  Commit- 
tee on  Privileges  and  Elections  correctly  stated  that  no  allegation  was  made  "that  testimony  was  before 
excluded  which  ought  to  have  been  admitted,  or  that  testimony  was  admitted  which  ought  to  have  been 
excluded;  no  request  by  either  party  to  produce  testimony  had  been  denied,  and  no  pretense  that 
testimony  then  offered  and  excluded  can  now  be  produced.  The  jurisdiction  is  the  same;  the  parties  are 
the  same;  the  subject-matter  of  contest  is  the  same,  the  facts  are  the  same,  and  the  questions  of  law  are 
the  same."  The  report  further  said;  "If,  on  the  former  hearing,  Mr.  Corbin  had  been  denied  the  privi- 
lege of  introducing  material  facts  which  he  offered  to  produce;  if  he  presented  material  facts  now  which 
were  then  unknown;  if  all  the  facts  and  questions  of  law  now  known  and  presented  were  not  then  as  fully 
known  and  presented,  the  undersigned  will  not  undertake  to  say  his  petition  for  a  rehearing  ought  not,  in 
justice  and  right,  to  be  gravely  heard  and  considered  on  the  merits."  The  Senate  adopted  these  views, 
though  it  is  a  significant  fact  that  a  large  and  intelligent  minority  of  the  Senate  voted  to  unseat  Mr. 
Butler  and  to  admit  Mr.  Corljin,  when  not  a  single  new  fact  or  question  of  law  had  been  presented  or 
offered. 

Yoiur  committee  freely  admit  that  a  decision  rendered  on  the  merits  ought  not  to  be  afterwards 
reviewed  and  reversed  on  light  or  even  doubtful  grounds.  In  the  courts  the  familiar  rule  is  that  new 
evidence  to  authorize  a  reversal  "ought  to  be  material  and  such  as  would  probaljly  produce  a  different 
result."  In  this  case  your  committee  are  willing  to  apply  a  much  stronger  test,  though  there  is  no  reason 
why  a  stronger  should  be  required.  Let  us  adopt  and  apply  the  rule  so  strongly  and  forcibly  expounded 
by  a  distinguished  member  of  this  Senate  in  the  following  language: 

"The  Senate  would  do  manifest  injustice  were  it  hastily  and  without  the  most  plain  and  most  mani- 
fest reason  to  reverse  a  decision  that  had  been  made  seating  a  Senator  on  this  floor.  The  case  must  be 
extremely  strong  that  would  justify  such  a  proceeding.  All  that  I  am  free  to  admit,  but  to  say  that  the 
technical  rule  of  res  adjudicata  that  applies  to  courts  of  justice  applies  in  this  Chamber  on  a  question  of 
this  kind  is  to  confound  all  distinctions  and  to  disregard  all  the  laws  of  this  body."  (Congressional 
Record  of  May  7,  p.  24.) 

Let  us  now  apply  this  rigid  rule  to  the  present  case: 

1.  On  the  former  hearing  not  a  single  witness  was  examined.  Some  admissions  were  made  by  the 
parties,  and  some  reports  of  investigations  by  Congressional  committees  not  on  the  issues  involved  in  this 
contest  "were  agreed  to  be  considei-ed  in  evidence  as  far  as  they  were  pertinent."  This  was  done  only 
to  narrow  the  field  of  investigation. 


§  357  ELECTORATES    INCAPACITATED    GENERALLY.  277 

On  this  hearing  nearly  150  witnesses  have  been  examined,  making  over  1,200  printed  pages  of 
testimony  of  the  most  material  and  controlling  character. 

2.  On  the  former  hearing  the  memorialist  begged  and  pleaded  for  the  privilege  of  having  witnesses 
called  and  examined  on  five  points  not  covered  by  the  admissions  and  reports  above  referred  to,  and  by 
which  witnesses  he  alleged  he  could  prove,  among  other  things,  the  direct  personal  complicity  of  the 
sitting  member  in  glaring  frauds  in  the  pretended  legislature  which  elected  him.  All  these  appeals  were 
refused  by  the  majority  of  the  committee,  although  an  investigation  had  been  previously  ordered  by  the 
Senate  and  resolved  upon  by  the  committee,  and  the  investigation  was  suddenly  closed  against  the  protest 
of  the  memorialist  and  a  minority  of  the  committee. 

On  the  present  hearing  the  witnesses  have  been  examined,  and  the  complicity  of  the  sitting  member 
in  the  frauds  alleged  has  been  most  convincingly  established. 

3.  On  the  former  hearing  there  was  no  evidence  and  no  opportunity  to  produce  evidence  showing 
conspiracies,  briberies,  and  other  corruptions  by  the  sitting  member  to  procure  a  fraudulent  legislature, 
and  to  control  the  members  thereof  in  his  own  election  to  the  Senate. 

On  the  present  hearing  such  conspiracies,  briberies,  and  corruptions  of  the  most  startling,  unblushing, 
and  unparalleled  character  have  been  positively  testified  to  by  numerous  witnesses,  and  these  briberies 
and  corruptions  have  been  shown  to  extend  to  the  witnesses  in  the  case  in  the  very  face  of  the  Senate. 

Your  committee  could  multiply  the  features  of  contrast  between  the  former  and  the  present  hearing 
in  this  case,  but  we  forbear.  Under  the  most  technical  rule  of  res  adjudicata  there  is  not  a  court  in  civil- 
ized Christendom  which  would  hesitate  to  review  and  reverse  a  judgment  so  utterly  unauthorized  and 
unjust;  and  surely  it  can  not  be  contended  that  the  Senate  can  have  less  power  than  a  court  to  annul 
such  a  decision. 

Conceding  then,  for  the  argument,  that  the  Senate  in  passing  upon  contests  for  seats  in  this  body  acts 
as  a  court,  and  that  the  technical  rule  of  res  adjudicata  applies  to  decisions  rendered  in  such  cases,  do 
courts  not  reexamine,  review,  and  reverse  their  decisions?  Are  not  appeals,  writs  of  error,  motions  for 
new  trials,  and  bills  of  review  familiar  to  us  all?  The  Senate,  in  considering  such  cases  in  the  first 
instance,  is  not  bound  by  the  forms  of  proceedings  in  the  courts.  We  have  no  declarations,  no  com- 
plaints, no  bills  in  chancery-,  nor  pleas,  demurrers,  answers,  and  joinders  of  issue  in  the  Senate.  If  the 
Senate  proceeds  to  original  judgment  without  the  pleading  known  to  the  courts,  may  not  the  Senate  also 
proceed  to  review,  reexamine,  and  reverse  such  judgments  when  good  cause  is  shown,  without  resorting 
to  the  processes  which  in  such  cases  are  known  to  the  courts?  If  the  Senate  is  a  court,  then  if  the  facts 
in  a  given  case  are  such  as  would  require  the  vacation  of  a  judgment  if  rendered  by  a  court,  surely  the 
Senate  would  also  be  authorized  to  vacate  such  judgment.  The  exclusion  by  the  court  of  material  testi- 
mony on  the  first  hearing,  the  discoverj-  of  new  and  material  evidence  since  the  hearing,  the  existence 
of  frauds,  forgeries,  briberies,  and  perjuries  in  procuring  the  first  judgment  are  all  well-known  grounds 
on  either  one  of  which  courts,  by  some  of  the  methods  of  proceeding,  will  review  and  reverse  such  judg- 
ments. All  these  grounds  are  shown  by  the  evidence  and  the  records  of  this  Senate  to  exist  in  extraordi- 
nary' clearness,  force,  and  repeated  abundance  in  the  case  we  are  now  considering.  Is  the  Senate,  by 
being  likened  to  a  court,  to  be  bound  by  decisions  which  a  court  would  rigorously  vacate  and  annul? 

But  the  attempt  to  apply  to  the  Senate  the  technical  rule  of  res  adjudicata  as  it  obtains  in  the  courts 
is  a  palpable  sophistry  and  not  an  argument.  In  the  correct  and  forcible  language  of  Senator  Thurman, 
before  quoted,  "it  confounds  all  distinctions  and  disregards  all  the  rules  of  this  body." 

In  cases  where  the  contestants  claim  to  represent  the  same  State  government,  and  the  issue  between 
them  is  one  of  informality  or  irregularity,  or  noncompliance  with  statutory  provisions,  there  would 
be  some  show  of  reason  for  the  application  of  this  doctrine.  In  such  cases  there  ought  to  be  an  end  of 
litigation  in  the  Senate  as  well  as  in  the  courts.  A  wise  policy  would  certainly  require  in  such  cases  the 
principle  if  not  the  rule  of  res  adjudicata.  It  is  to  such  cases  the  authorities  cited  by  the  eminent  counsel 
for  the  sitting  member  were  intended  to  apply. 

But  the  questions  involved  in  the  present  case  rise  immeasurably  above  such  issues.  They  are  not 
questions  of  regularity,  but  of  authority.  They  are  not  questions  of  discretion,  but  of  duty.  They  exist 
more  between  the  State  of  Louisiana  and  this  Senate  than  between  the  contestants.  In  their  nature 
these  questions  are  not  merely  judicial,  but  political  in  the  highest  sense. 

The  Constitution  says: 

"The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from  each  State,  chosen  by  the 
legislature  thereof." 


278  PKECEDENTS   OF   THE    HOUSE   OF   EEPKESENTATIVES.  §    357 

Can  a  man  Bit  as  a  member  of  this  Senate  who  was  not  chosen  by  the  legislature  of  his  State?  But 
suppose,  in  ignorance  of  the  fart  that  he  was  not  so  chosen,  the  Senate  is  induced  to  declare  him  entitled 
to  the  seat  "on  the  merits,"  after  investigation;  does  such  erroneous  decision  supplant  the  Constitution 
and  give  him  a  title  after  the  mistake  becomes  known? 

Let  us  suppose  an  impossible  case:  Suppose  a  majority  of  this  Senate  should  for  any  purpose,  par- 
tisan or  otherwise,  seat  a  man  in  this  body  who  they  knew  was  not  chosen  by  the  legislature  of  his  State, 
would  any  future  Senate  be  compelled  to  continue  such  person  in  the  seat?  Would  not  such  continuance 
be  as  criminal  as  the  original  admission?  Will  any  man  pretend  that  a  plain  constitutional  provision  can 
be  superseded  by  a  mistaken  decision  of  this  Senate?  If  the  sitting  member  was  not  chosen  by  the  legis- 
lature of  Louisiana,  every  hour  he  sits  on  this  floor  after  that  fact  is  known  is  a  violation  of  the  Constitu- 
tion. It  is  a  question  of  obedience  to  the  Constitution.  Can  any  person  estop  this  Senate,  can  the  Sen- 
ate estop  itself,  from  obeying  the  Constitution?  Can  the  Senate  estop  itself  from  inquiring  toties 
quoties  whether  he  was  chosen  by  the  legislature?  Can  it  be  so  estopped  by  its  own  erroneous  deci- 
sion on  a  former  hearing? 

In  cases  like  the  one  now  before  us  your  committee  do  not  hesitate  to  adopt  the  language  employed 
by  those  eminent  constitutional  lawyers — Mr.  Collamer,  of  Vermont,  and  Mr.  Trumbull,  of  Illinois — in 
the  Fitch  and  Bright  case  in  1859.     They  said : 

"The  power  of  the  Senate  to  judge  of  the  election  and  qualification  of  its  own  members  is  unlimited 
and  abiding.  It  is  not  exhausted  in  any  particular  case  by  once  adjudicating  the  same,  as  the  power  of 
reexamination  and  correction  of  error  and  mistake,  incident  to  all  judicial  tribunals  and  proceedings, 
remains  with  the  Senate  in  this  respect,  as  well  to  do  justice  to  itself  as  to  the  States  represented  or  to  the 
persons  claiming  or  holding  seats.  Such  an  aliiding  power  must  exist  to  purge  the  body  from  intniders; 
otherwise  anyone  might  retain  his  seat  who  had  once  wrongly  procured  a  decision  of  the  Senate  in  his 
favor  by  fraud  or  falsehood,  or  even  by  papers  forged  or  fabricated." 

In  the  light  of  the  evidence  now  before  the  Senate  the  sitting  member  was  admitted  by  a  wrongly 
procured  decision  of  the  Senate  in  his  favor  by  means  quite  as  criminal  as  those  stated  in  the  last  para- 
graph quoted,  since  the  means  employed  by  him  to  secure  his  pretended  election  included  conspiracies, 
briberies,  and  perjuries  often  repeated,  and  the  knowledge  of  which  was  vigorously  suppressed  on  the 
former  hearing.  He  was  not  chosen  by  the  legislature  of  Louisiana.  He  was  chosen  by  a  body  of  men 
who  conspired  with  him  to  defeat  the  will  of  the  State,  and  who  excluded  by  force  the  members  elected 
by  the  people  in  order  that  the  conspirators  might  be  enabled  to  accomplish  their  work. 

The  primary  authority  to  determine  what  is  the  legislature  of  a  State  is  and  must  be  the  State  herself. 
When  the  State  determines  that  question  for  herself,  it  is  determined  for  all  the  world.  In  case  there  are 
two  governments,  or  two  bodies  each  claiming  to  be  the  true  government  or  the  true  legislature  of  the 
State,  and  the  State  has  not  determined  the  controversy,  the  duty  may  devolve  upon  others,  and  in  this 
case  upon  this  Senate  to  adjudge  that  question  pro  hac  vice. 

In  January,  1877,  a  portion  of  the  members  elected  by  the  people  united  with  others  not  elected 
and  seized  the  Statehouse  by  cooperation  with  the  sitting  member,  who  was  then  acting  as  governor, 
were  barricaded  in  the  building,  which  was  surrounded  with  troops,  and  refused  to  permit  other  elected 
members  to  be  admitted  into  the  building.  The  barricaded  persons  called  themselves  the  legislature, 
and  the  excluded  members  met  in  St.  Patrick's  Hall  and  called  themselves  the  legislature.  This  was 
the  condition  of  things  when  the  sitting  member  presented  his  credentials  to  this  Senate  and  asked  to  be 
admitted  to  his  seat  on  this  floor.  He  was  not  admitted,  but  his  credentials  were  referred  to  the  Committee 
on  Pri\aleges  and  Elections.  Before  the  committee  took  any  action  whatever  the  issue  thus  raised 
between  these  two  rival  bodies  was  settled  by  the  State.  It  was  decided  that  the  body  which  assembled 
and  oi-ganized  in  St.  Patrick's  Hall  was  the  true  legislature  of  the  State.  This  decision  was  accepted  by 
all  the  people  of  Louisiana  and  by  all  the  departments  of  her  government,  by  the  President  and  House 
of  Representatives,  and  by  the  circuit  and  district  courts  of  the  United  States,  and  finally  by  all  the 
persons  who  composed  the  body  which  seized  the  Statehouse.  The  latter,  which  had  been  known  as  the 
Packard  legislature,  disbanded,  leaving  not  a  resolution,  or  act,  or  other  thing  which  has  ever  been  recog- 
nized as  authoritative,  or  which  has  been  claimed  to  be  valid,  save  only  the  pretended  election  of  the 
sitting  member  to  this  Senate;  and  this  single  act  has  been  recognized  only  by  this  Senate.  The  former 
body,  which  had  been  known  as  the  NichoUs  legislature,  performed  all  the  functions  of  a  legislature  from 
the  beginning,  passed  laws  which  are  obeyed  by  all  the  people  and  enforced  by  all  the  courts.  All  the 
persons  who  had  been  elected  left  the  pretended  Packard  legislature  and  took  their  seats  in  the  NichoUs 


I 

I 


§  357  ELECTORATES    INCAPACITATED    GENERALLY.  279 

l^islature,  and  those  who  had  not  been  elected  admitted  they  were  not  elected,  without  even  a  contest, 
and  went  home  or  into  the  custom-house  or  some  other  Federal  office. 

The  regular  legislature  thus  organized,  composed  of  all  the  members  elected  by  the  people,  chose 
the  memorialist  to  the  seat  he  is  now  claiming.  The  election  was  free,  regular,  legal,  and  without  taint 
of  corruption  of  any  kind,  and  his  credentials  are  in  due  form.  Of  a  legislature  which  was  composed, 
when  full,  senate  and  house,  of  156  members,  the  memorialist  received  over  140  votes. 

Since  the  former  hearing  in  this  case  the  supreme  court  of  Louisiana  has  also  decided  that  the  officers 
of  the  Packard  government  had,  in  Januarj-,  1877,  no  official  status,  and  that  no  acts  performed  by  them 
at  that  time,  though  purporting  to  be  performed  ^•irtute  officii,  could  have  the  force  and  effect  of  official 
acts.     (State  ex  rel.  Lipo  v.  Peck,  30  Annual  Reports,  280.) 

And  in  addition  to  all  this,  the  e\ddence  now  taken  shows  that  the  Packard  legislature,  which  pre- 
tended to  elect  the  sitting  member,  was,  in  fact  as  well  as  in  law,  not  a  legislature,  but  was  a  body  of  men 
assembled  by  fraud,  held  together  by  force  and  controlled  by  bribery,  with  the  aid  and  in  the  interest 
of  the  sitting  member. 

Mr.  George  F.  Hoar,  of  Massachusetts,  submitted  the  minority  views,  which  were 
concurred  in  by  Messrs.  Angus  Cameron,  of  Wisconsin,  and  John  A.  Logan,  of 
Illinois: 

The  party  majority  in  the  Senate  has  changed  since  Mr.  Kellogg  took  the  oath  of  office  in  pursuance 
of  the  above  resolution.  Nothing  else  has  changed.  The  facts  which  the  Senate  considered  and  deter- 
mined were  in  existence  then  as  now.  It  is  sought,  by  mere  superiority  of  numbers,  for  the  first  time 
to  thrust  a  Senator  from  the  seat  which  he  holds  by  virtue  of  the  express  and  deliberate  final  judgment 
of  the  Senate. 

The  act  which  is  demanded  of  this  party  majority  would  be,  in  our  judgment,  a  great  public  crime. 
It  will  be,  if  consummated,  one  of  the  great  political  crimes  in  American  history,  to  be  classed  with  the 
rebellion,  with  the  attempt  to  take  possession  by  fraud  of  the  State  government  in  Maine,  and  with  the 
overthrow  of  State  governments  in  the  South,  of  which  it  is  the  fitting  sequence.  Political  parties  have 
too  often  been  led  by  partisan  zeal  into  measures  which  a  sober  judgment  might  disapprove,  but  they 
have  ever  respected  the  constitution  of  the  Senate. 

The  men  whose  professions  of  returning  loyalty  to  the  Constitution  have  been  trusted  by  the  gener- 
ous confidence  of  the  American  people  are  now  to  give  evidence  of  the  sincerity  of  their  vows.  The 
people  will  thoroughly  understand  this  matter,  and  will  not  be  likely  to  be  deceived  again. 

We  do  not  think  proper  to  enter  here  upon  a  discussion  of  the  evidence  by  which  the  claimant  of  Mr. 
Kellogg's  seat  seeks  to  establish  charges  affecting  the  integrity  of  that  Senator.  Such  evidence  can  be 
found  in  abundance  in  the  slums  of  great  cities.  It  is  not  fit  to  be  trusted  in  cases  affecting  the  smallest 
amount  of  property,  much  less  the  honor  of  an  eminent  citizen,  or  the  title  to  an  object  of  so  much  desire 
as  a  seat  in  the  Senate.  This  evidence  is  not  only  unworthy  of  respect  or  credit,  but  it  is  in  many  instances 
wholly  irreconcilable  with  undisputed  facts,  and  Mr.  Kellogg  has  met  and  overthrown  it  at  every  point. 

The  report  was  taken  up  for  consideration  on  April  22,  and  thereafter  was 
debated  at  length  on  April  23,  26,  27,  and  30,  May  3,  4,  7,  10,  14,  20,  and  Jime  5, 
7,  and  11.'     On  May  7  ^  Mr.  George  F.  Hoar  proposed  the  following  amendment: 

Strike  out  all  after  the  word  "resolved"  where  it  first  appears,  and  insert  the  following: 
"  That  in  the  judgment  of  the  Senate  the  matters  reported  by  the  Committee  on  Privileges  and  Elec- 
tions at  the  present  session  respecting  the  right  to  the  seat  in  this  body  now  held  by  William  Pitt  Kellogg 
and  claimed  by  Henry  il.  Spofford  are  not  sufficient  to  justify  the  reopening  of  the  decision  of  the  Senate, 
pronounced  in  its  resolution  adopted  on  the  30th  day  of  November,  A.  D.  1877,  that  said  Kellogg  was, 
upon  the  merits  of  the  case,  lawfully  entitled  to  a  seat  in  the  Senate  of  the  United  States  from  the  State 
of  Louisiana  for  the  term  of  six  years  commencing  on  the  4th  day  of  March,  A.  D.  1877,  and  that  said 
Spofford  was  not  entitled  to  a  seat  in  the  Senate  of  the  LTnited  States." 

>  Record,  pp.  2676,  2735,  2909,  2952,  2972,  3108,  3161,  3232,  3270,3313,3362,3456,  3511,  3551,  4238, 
4414. 

2  Record,  pp.  3108-3116. 


280  PKECEDENTS   OF   THE    HOUSE    OF   REPRESENTATIVES.  §  357 

The  debate  was  elaborate,  but  it  appeared  that  a  portion  of  the  majority 
party  in  the  Chamber  did  not  subscribe  to  the  conclusions  of  the  committee. 

The  minority  having  set  up  the  doctrine  of  res  adjudicata,  the  question  as 
to  the  exact  functions  of  the  Senate  under  the  constitutional  provision  making 
it  the  judge  of  the  elections  of  its  Members  became  one  of  importance.  On  behalf 
of  the  majority  Mr.  Bailey  declared'  that  the  Senate  was  not  a  court  in  the  strict 
sense,  but  that  its  duties  in  judging  elections  were  in  the  broadest  sense  political. 
Mr.  Pryor  made  ^  an  elaborate  constitutional  argument  to  show  that  the  word 
"judge"  did  not  convert  the  Senate  into  a  judicial  body.  Mr.  Hill  insisted  again 
that  the  Senate  was  a  political  body,  not  a  court."  On  the  other  hand,  Mr.  Hoar 
argued,^  from  the  history  of  the  Constitution  that  in  cases  of  this  sort  the  Senate  acted 
as  a  judicial  body.  Also  Senators  Wade  Hampton  and  Marion  Butler,  of  North 
Carolina,  differing  from  their  party  associates,  held  ^  that  the  Senate  in  such  cases 
acted  as  a  court. 

As  to  the  doctrine  of  res  adjudicata  itself,  Mr.  Hill  set  forth"  the  doctrine 
that  the  Senate  could  constitutionally  judge  only  as  to  who  were  elected  its  mem- 
bers and  could  not  judge  as  to  what  was  the  rightful  legislature  of  a  State.  That 
decision  belonged  to  the  courts,  the  executive,  and  the  people  of  the  State  itself. 
In  this  case  the  Senate  had  presumed  to  judge  what  was  the  legislature.  That 
decision  was  void,  beyond  jurisdiction,  attackable  collaterally.  Mr.  George  G. 
Vest,  of  Missouri,  considered  *  the  decision  of  the  supreme  court  of  Louisiana  con- 
clusive that  the  Nichols  legislature  was  the  only  lawful  one.  The  Senate,  in  his 
opinion,  was  a  "creature  of  the  Constitution  and  has  absolute  power,  irrespective 
of  all  teclinical  rules  of  proceeding,  to  determine  its  own  constitutional  member- 
ship." The  theory  of  Mr.  Hill  was  combated  by  Mr.  Matt  H.  Carpenter,  of  Wisconsin, 
who  declared  "Where  a  court  has  jurisdiction  at  all  it  has  jurisdiction  to  decide 
every  question  necessary  to  the  decision  of  the  question  that  it  must  settle." 
Therefore  the  Senate  could  decide  as  to  the  competency  of  the  legislature,  and 
its  conclusion  was  not  void. 

On  the  doctrine  of  res  adjudicata  Mr.  Carpenter  declared'  that  the  peace  of 
society  required  that  some  things  should  be  presumed  even  against  notorious  facts, 
and  cited  the  Supreme  Court  case  of  Fletcher  v.  Peck  (6  Cranch,  130).  A  wise 
rule  for  the  courts  must  be  a  wise  one  for  the  Senate  acting  in  its  judicial  capacity. 
Mr.  Hampton,  while  believing  that  Mr.  Kellogg  was  wrongly  seated,  said:'  "I 
believe  we  have  not  the  power,  the  rightful  power,  to  rectify  the  wrong."  And 
his  colleague,  Mr.  Butler,  also  declared  °  that  a  Member  seated  on  the  merits  of 
his  case  could  be  unseated  only  by  expulsion,  for  he  believed  that  the  Senate 
expended  its  power  when  once  it  judged.  The  Throckmorton  case  (98  U.  S.,  61) 
was  cited  by  Mr.  Carpenter  on  this  point. 

'  Record,  p.  2677.  *  Record,  p.  3162.  '  Record,  pp.  3319,  3320. 

=  Record,  p.  3110.  *  Record,  pp.  3314,  3511,  3512.     »  Record,  p.  3315. 

3  Record,  p.  3236.  «  Record,  p.  2973.  »  Record,  pp.  3511,  3512. 


§  358  ELECTORATES    INCAPACITATED   GENERALLY.  281 

Messrs.  Keman,  of  New  York,  and  Pendleton,  of  Ohio,  held '  that  material  or 
relevant  facts  ascertained  after  the  decision  might  justify  a  review,  but  the  latter 
considered  the  new  evidence  was  not  such  as  to  Justify  the  reopening. 

As  to  precedents,  the  Gholson  and  Claiborne  case  in  the  House  of  Represent- 
atives in  1837  was  cited'  and  its  applicability  as  a  precedent  was  also  denied.' 
The  Reeder  and  Wliitfield  case  in  the  Hoiise  of  Representatives  in  1856  was  also 
cited.'  It  was  claimed  for  each  of  these  cases  that  the  House  reviewed  a  decision, 
but  this  was  denied. 

No  decision  on  the  question  was  reached  at  this  session  of  Congress. 

By  the  time  the  Third  session  of  the  Congress  began,  Mr.  Spofford  had  died, 
and  on  December  7*  Mr.  Jonas  presented  the  credentials  of  Thomas  Courtland 
Manning,  appointed  a  Senator  by  the  governor  of  Louisiana  to  fill  the  vacancy 
occasioned  by  the  death  of  Henry  M.  Spofford,  who  claimed  to  be  elected  Senator 
from  that  State ;  which  were  referred  to  the  Committee  on  Privileges  and  Elections. 

No  further  action  was  had,  Mr.  Kellogg  retaining  the  seat. 

358.  The  Senate  election  case  of  Sanders,  Power,  Clark,  and 
Maginnis,  from  Montana,  in  the  Fifty-first  Cong-ress. 

There  being  conflicting  credentials  resulting  from  elections  by  rival 
legislative  bodies,  the  Senate  declined  to  give  prima  facie  effect  to  the 
papers  and  examined  the  final  right. 

A  Senate  discussion  favoring  recognition  of  a  legislative  body  having 
a  legally  certified  but  not  legally  elected  quorum  in  preference  to  one 
having  an  elected  but  not  certified  quorum. 

A  legislature  in  electing  a  Senator  may  act  under  the  law  as  an 
assemblage  of  legislators  rather  than  as  two  organized  legislative  bodies. 

On  January  16, 1890,^  in  the  Senate,  Mr.  Henrs'  M.  Teller,  of  Colorado,  presented 
a  paper  purporting  to  be  the  credentials  of  Wilbur  F.  Sanders,  chosen  a  Senator  by 
the  legislature  of  Montana,  and  also  a  paper  purporting  to  be  the  credentials  of 
Thomas  C.  Power,  chosen  a  Senator  by  the  legislature  of  the  same  State,  which 
were  read  and  referred  to  the  Committee  on  Privileges  and  Elections. 

These  credentials  were  alike  in  form.  Each  recited  that  the  senate  and  house 
of  representatives  had  duly  organized  and  elected  as  United  States  Senator,  the 
bearer,  whose  name  was  given.     Then  the  credentials*  proceeded  as  follows: 

Whereas  Hon.  Joseph  K.  Toole,  the  governor  of  said  State,  upon  the  10th  day  of  January,  A.  D.  1S90, 
did  refuse  to  certify  such  election  of  said  Wilbur  F.  Sanders  for  said  Senator: 

Now,  therefore,  I,  Louis  Rotwitt,  secretary  of  the  State  of  Montana,  do  hereby  certify  that  the  said 
Wilbur  F.  Sanders  has  been  duly  elected  by  said  joint  assembly  Senator  in  Congress  from  said  State  of 
Montana. 

In  testimony  whereof  I  have  set  my  hand  and  caused  the  great  seal  of  the  State  of  Montana  to 

>  Record,  pp,  .3363,  3364,  4239. 

=  Record,  pp.  2678,  3162. 

3  Record,  p.  3112. 

*  Third  session  Forty-sixth  Congress,  Record,  p.  15. 

'First  session  Fifty-first  Congress,  Record,  p.  633. 

'For  forms  of  the  credentials  in  this  case,  see  Record,  p.  3419. 


282  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   358 

be  aflBxed  at  my  office  in  Helena,  the  capital  of  said  State,  in  the  year  of  our  Lord,  1890,  and  of  the 
independence  of  the  United  States  of  America  the  one  hundred  and  fourteenth. 

[seal.]  L.  Rotwitt, 

Secretary  of  State  of  the  State  of  Montana. 

On  January  23  ^  Mr.  George  G.  Vest,  of  Missouri,  presented  a  paper  purporting 
to  be  the  credentials  of  William  A.  Clark,  and  also  a  paper  purporting  to  be  the 
credentials  of  Martin  Maginnis,  elected  Senators  by  the  legislature  of  the  State  of 
Montana,  which  were  read  and  referred  to  the  Committee  on  Privileges  and  Elections. 

On  motion  by  Mr.  Vest,  and  by  unanimous  consent, 

Ordered,  That,  pending  the  settlement  of  the  contested  election  cases  of  Senators  from  the  State  of 
Montana,  Messrs.  Wilbur  F.  Sanders,  Thomas  E.  Power,  William  A.  Clark,  and  Martin  Maginnis  be 
admitted  to  the  privileges  of  the  floor  of  the  Senate. 

These  credentials  were  dated  "The  State  of  Montana,  Executive  Office," 
recorded  the  election  of  the  bearers  by  the  legislature,  and  concluded: 

Now,  therefore,  I,  Joseph  K.  Toole,  governor  of  the  State  of  Montana,  do  hereby  certify  that  the  said 
William  A.  Clark  has  been  duly  elected  by  such  joint  assembly  to  serve  as  Senator  in  Congress  from  the 
State  of  Montana. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  great  seal  of  the  State  of  Montana 
to  be  affixed.  Done  at  my  office,  in  Helena,  in  the  year  of  our  Lord,  1890,  and  the  year  of  American 
Independence  the  one  hundred  and  fourteenth. 

Jos.  K.  Toole,  Governor  of  Montana. 

In  fact,  the  "great  seal  of  the  State"  was  not  affixed  to  the  credentials.  The 
signature  of  the  governor  was  attested  only  by  a  notary  public. 

The  credentials  were  referred,  neither  of  the  claimants  being  permitted  to  take 
the  oath. 

On  March  24^  Mr.  George  F.  Hoar,  of  Massachusetts,  chairman  of  the  com- 
mittee, submitted  a  report  concurred  in  by  himself  and  by  Messrs.  William  P.  Frye, 
of  Maine;  Henry  M.  Teller,  of  Colorado;  William  M.  Evarts,  of  New  York;  and  John 
C.  Spooner,  of  Wisconsin.  Dissenting  minority  views  were  presented  by  Messrs. 
Z.  B.  Vance,  of  North  Carolina;  J.  L.  Pugh,  cf  Alabama;  George  Gray,  of  Delaware; 
and  David  Turpie,  of  Indiana. 

The  report  first  states  the  facts: 

No  distinction  exists  between  the  cases  of  Messrs.  Sanders  and  Power,  and  no  distinction  exists 
between  the  cases  of  Messrs.  Clark  and  Maginnis.  The  cases  on  each  side  have  been  presented  and 
argued  upon  the  merits  of  the  title,  and  not  merely  upon  the  question  presented  by  the  certificate  of 
the  governor  or  of  the  secretary  of  state.  The  committee,  therefore,  have  considered  and  repor 
upon  the  whole  case  upon  its  merits. 

The  claimants  on  both  sides  seem  to  be  agreed  that  a  lawful  joint  convention  was  held  in  Montana 
by  the  members  of  the  two  houses  of  the  legislature,  and  elected  Senators  by  due  proceedings.  The 
dispute  is  which  of  two  bodies  claiming  to  be  the  lawfully  organized  house  of  representatives  of  Mon- 
tana was  entitled  to  that  character. 

There  was  no  election  of  Senator  by  concurrent  vote  on  the  Tuesday  appointed  for  that  purpose  by 
the  statute  of  the  United  States  (Rev.  Stat.,  sees.  14,  15).  On  the  following  day  one-half  the  members 
of  the  senate  met  in  joint  assembly  with  a  body  which  had  assembled  and  organized  in  a  room  called 
the  Iron  Hall,  which  body  was  known  as  the  Iron  Hall  or  Republican  house,  whereupon,  a  ballot  for 

'  Record,  pp.  795,  3419.  ^  Senate  Report  No.  538. 


§   358  ELECTORATES    INCAPACITATED    GENERALLY.  283 

Senator  being  had,  Mr.  Sanders  had  a  majority  of  all  the  votes  cast,  and  was  declared  duly  elected. 
No  other  person  having  such  majority,  the  convention  was  adjourned  until  the  day  following,  when,  a 
ballot  for  Senator  being  held,  Mr.  Power  had  a  majority  of  all  the  votes  cast  and  was  declared  duly 
elected.  If  this  body  were  the  lawful  house  of  representatives  of  Montana,  these  two  gentlemen  were 
duly  chosen  Senators. 

On  the  same  day  the  other  half  of  the  members  of  the  senate  met  in  joint  assembly  with  a  body 
which  had  assembled  and  organized  in  the  court-house,  which  body  was  known  as  the  Court  House  or 
Democratic  house,  voted  for  Senators  by  separate  ballotings,  adjourned  from  day  to  day,  and  continued 
balloting  until  Messrs.  Clark  and  Maginnis  had  a  majority  of  all  the  votes  cast  and  were  declared  duly 
elected.  If  this  body  were  the  lawful  house  of  representatives  of  Montana,  these  two  gentlemen  were 
duly  chosen  Senators. 

These  two  bodies  were  composed  as  follows:  By  the  constitution  of  Montana  the  house  of  repre- 
sentatives consists  of  fifty-five  members,  of  whom  twenty-eight  are  a  quorum.  Twenty-five  persons  of 
whose  title  to  sit  in  the  house  of  representatives  and  take  part  in  its  proceedings  no  question  is  made, 
together  with  five  persons  claiming  to  be  entitled  to  sit  and  take  part  as  representatives  from  the  county 
of  Silver  Bow,  met,  as  above  stated,  at  the  Iron  Hall,  at  the  time  fixed  by  the  constitution  for  the  meeting 
of  the  legislature,  and  organized  there.  The  auditor,  who  is  required  by  the  constitution  to  preside  at 
the  organization  of  the  house,  called  them  to  order  and  presided  till  a  speaker  was  chosen.  Twenty- 
four  other  persons  of  whose  title  to  sit  in  the  house  of  representatives  and  take  part  in  its  proceedings  no 
question  is  made,  together  with  five  other  persons  claiming  to  be  entitled  so  to  sit  and  take  part  as  rep- 
resentatives from  the  county  of  Silver  Bow,  met,  as  above  stated,  at  the  court-house,  at  the  time  fixed 
by  the  constitution  for  the  meeting  of  the  legislature,  and  organized  there. 

The  whole  case,  therefore,  turns  upon  the  question  which  of  these  two  sets  of  five  persons  was 
entitled  to  sit  in  the  house  of  representatives  from  the  county  of  Silver  Bow,  take  part  in  the  organiza- 
tion and  other  proceedings  down  to  and  including  the  time  of  the  election  of  Senators.  It  is  not  claimed 
that  there  was  any  adjudication  of  the  house  itself  affirming  or  denying  such  title. 

In  determining  the  question  as  to  the  rights  of  the  respective  claimants  to  the 
five  contested  seats  the  committee  discuss  three  questions: 

First.  Which  of  the  two  sets  or  groups  of  five  members  claiming  to  sit  for  the  county  of  Silver  Bow 
had  credentials  from  the  officer  or  board  entitled  to  canvass  the  vote  and  declare  the  result? 

On  this  question  a  sharp  difference  arose  between  the  majority  and  minority, 
arising  from  different  constructions  of  the  laws  of  Montana.  The  majority  held  that 
the  credentials  issued  by  the  State  canvassing  boards  were  the  only  lawful  cre- 
dentials. The  minority  sustained  the  credentials  issued  by  the  county  clerks. 
The  case  largely  turned  on  this  issue,  which  was  discussed  at  length  in  the  reports 
and  in  the  debate  on  the  floor. 

Second.  If  one  group  of  five  had  the  lawful  credentials,  but  the  other  group  were  in  fact  elected, 
which  was  legally  entitled  to  sit  in  the  house  at  its  original  organization  and  remain  and  take  part  in 
all  subsequent  proceedings  until  the  house  itself  had  adjudicated  their  title,  there  being  in  existence 
two  bodies  each  claiming  to  be  the  true  house? 

The  majority  report  says: 

It  will  hereafter  appear  that  it  is  unnecessary  to  decide  this  question  for  the  purposes  of  the  present 
case.  We  believe,  for  reasons  hereafter  stated,  that  the  certificates  of  the  State  board  declared  the 
true  will  and  choice  of  the  people  as  expressed  by  a  majority  of  the  votes  actually  and  lawfully  cast. 
But,  as  the  matter  has  been  discu.ssed,  it  is  proper  to  say  that  we  are  unable  to  see  any  distinction  in 
principle  between  the  case  of  a  person  claiming  title  to  a  seat  in  an  assembly  whose  character  is  disputed 
by  some  other  body,  and  in  an  assembly  whose  character  is  undisputed.  The  majority  of  persons  having 
a  right  to  seats  in  the  house  of  representatives  have  a  right  to  organize  that  house  and  to  transact  all  its 
lawful  business,  including  the  enactment  of  laws  and  the  election  of  Senators.  Persons  who  have  the 
certificates  of  election  have  such  right  to  seats.  Every  act  of  the  a.ssembly  in  which  they  take  part, 
and  to  which  their  consent  is  necessary,  has  as  absolute  validity  as  if  their  title  had  been  affirmed  by 


284  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    358 

an  adjudication  of  the  house  itself.  Their  title  is  not,  as  is  sometimes  carelessly  said,  a  prima  facie 
title.  It  is  an  absolute  title,  continuing  until  the  house  itself  has  adjudicated  that  some  other  person 
be  admitted  to  their  place.  This  adjudication  is  only  operative  for  the  future,  and  has  no  retroactive 
effect  whatever.  When  the  house  makes  the  inquiry  on  the  merits,  it  may  treat  the  credentials  as 
prima  facie  evidence  upon  that  question.  But  until  the  house  tries  the  case,  the  credential  is  conclu- 
sive as  to  all  the  world. 

If  this  be  true,  how  can  an  attempted  usurpation  by  another  body  of  the  functions  of  the  house,  to 
which  they  belong,  in  the  least  affect  their  right?  If  four  certified  members  had  come  over  from  the 
court-house  to  the  Iron  Hall,  according  to  this  argument,  these  men,  who  had  no  title  to  their  seats  beftire, 
would  at  once  become  entitled  to  them.  If  the  men  who  went  to  the  court-house  had  never  gone  there 
or  made  any  claim  to  the  seats,  in  that  case,  according  to  this  theory,  the  five  certified  members  from 
Silver  Bow  would  have  been  all  right.  It  seems  to  us  impossible  to  believe  that  the  right  of  these  gen- 
tlemen to  sit  and  vote,  the  validity  of  any  laws  they  might  have  helped  to  enact,  or  of  the  choice  of  any 
ofiicer  they  might  help  to  elect,  should  depend  on  the  acts  of  other  persons. 

This  question  may  be  raised  at  the  beginning  of  any  session  of  Congress.  If  the  certificate  of  the 
proper  officer  of  the  State  give  no  title,  surely  the  act  of  the  clerk  in  placing  the  claimant's  name  on  a 
roll  can  give  none.  It  would  be  competent,  if  the  claim  we  are  dealing  with  be  sound,  to  organize  the 
House  of  Representatives  of  the  United  States  with  a  quorum  partly  made  up  of  persons  having  creden- 
tials and  partly  of  persons  having  none,  and  thereby  put  upon  the  Senate,  when  called  upon  to  determine 
whether  it  will  recognize  such  a  body,  the  necessity  of  going  into  evidence  of  what  occurred  at  the 
popular  elections  and  of  trying  the  right  of  the  Members  of  the  House  to  their  seats.  The  President  must 
make  for  himself  a  like  inquiry,  and  perhaps  the  courts  a  third.  It  might  be  that  these  bodies  would 
come  to  different  conclusions  upon  the  voluminous  and  conflicting  evidence  in  a  contested-election  case, 
and  thus  the  whole  Government  would  be  thrown  into  confusion.  We  suppose  that  there  has  been  more 
than  one  occasion  in  recent  years  when  a  majority  of  the  Senate  firmly  believed  that  enough  of  the 
Members  of  the  House  who  held  credentials  were  not  duly  elected  to  change  the  political  majority.  I 
this  doctrine  be  accepted,  the  party  in  the  minority  in  the  House  may  at  any  time  associate  with  them- 
selves persons  enough  claiming  to  have  been  chosen  to  make  a  quorum,  and  disregard  the  certificates  of 
the  executives  of  the  States  and  the  Clerk's  roll.  The  Senate  may  then  take  evidence  of  what  occurred 
at  the  polls,  thereby  determine  who  were  lawfully  elected,  recognize  the  body  so  organized,  and  thereby 
give  the  persons  it  finds  so  elected  the  seats  to  which  neither  credentials  nor  judgment  of  the  House  have 
ever  given  a  title. 

The  report  in  Sykes  v.  Spencer,  decided  by  the  Senate  in  1873,  is  relied  upon  as  supporting  an 
opinion  contrary  to  that  which  we  have  stated.  If  so,  we  dissent  from  it.  But  it  is  to  be  remarked  that 
in  that  case,  which  was  upon  an  election  held  less  than  seven  years  after  the  close  of  the  war,  the  doctrine 
oi  the  report  is  not  relied  upon  in  the  debate.  It  is  further  to  be  observed  that  that  case  is  to  be  distin- 
guished from  this  by  the  fact  that  there  it  was  conceded  that  the  persons  who  had  not  certificates  were 
duly  elected.  The  distinction  from  the  general  rule  is  expressly  put  by  Mr.  Carpenter,  in  his  report, 
upon  this  concession.  When  the  fact  there  conceded  is,  as  in  the  present  case,  disputed,  and  to  be  proved, 
we  think  there  are  but  two  ways  in  which  it  can  be  proved  to  the  Senate.  One  is  the  possession  of 
lawful  credentials.  The  other  is  the  judgment  of  the  House  itself,  not  only  the  final,  but  the  sole  judge 
of  the  elections,  qualifications,  and  returns  of  its  Members. 

Mr.  Gray,  speaking  for  the  minority,  said  they  did  not  dissent  frona  the  propo- 
sition laid  down  by  the  majority,  and  did  not  found  their  case  on  the  principles 
enunciated  in  the  case  of  Sykes  v.  Spencer,  which  he  declined  to  indorse.  The 
ruling  was  considerably  discussed  during  this  debate.' 

Third.  Is  there  evidence  which  warrants  the  Senate  in  finding  that  the  persons  who  had  the  creden- 
tials were  not,  in  fact,  duly  elected? 

The  majority  and  minority  disagreed  sharply  as  to  which  set  of  contestants 
were  actually  elected,  and  this  question  was  discussed  at  length  in  the  report  and  on 

'  Record,  pp.  2910,  2918,  3188. 


§  358  ELECTORATES    INCAPACITATED    GENERALLY.  285 

the  floor.     The  majority  found  that  the  persons  bearing  the  State  canvassing-board 
credentials  had  in  fact  been  elected. 

On  another  point  the  majoritj-  concluded: 

The  suggestion  has  been  made  that,  to  elect  a  Senator,  there  must  be  in  existence  a  legislature 
exercising,  or  at  least  capable  of  exercising,  the  law-making  function;  and  that  when  this  function  is 
interrupted  or  abdicated,  or  has  never  been  set  in  motion  because  either  house  refuses  to  recognize  and 
act  in  concert  with  the  other,  or  because  the  governor  refuses  to  treat  either  as  possessed  of  legislative 
authority,  there  is,  in  fact,  no  legislature  in  the  constitutional  sense,  and  therefore  no  body  competent 
to  appoint  a  Senator.  In  Montana  the  governor  declined  to  recognize  the  Iron  Hall  house,  and  the 
senate,  which  was  evenly  divided  politically,  did  not  recognize  either  Iron  Hall  or  Court-House. 

The  suggestion  is  ingenious,  but  we  do  not  think  it  will  bear  examination.  The  governor  is  no 
part  of  the  law-making  power.  The  legislature  may  pass  laws,  if  he  do  not  assent  to  them.  He  has 
only  the  power  to  require  the  legislature  to  reconsider  a  bill  or  resolve  they  have  once  passed.  On 
such  reconsideration  a  two-thirds  vote,  instead  of  a  bare  majority,  is  essential  to  the  enactment.  (Con- 
stitution of  Montana,  art.  5,  sec.  29.) 

It  would  be  a  strange  condition  of  things  if  the  governor  of  a  State,  or  the  President  of  the  United 
States,  could,  by  a  simple  refusal  of  recognition,  suspend  all  legislative  functions,  so  that  bills  presented 
to  him  should  not  become  laws  through  his  inaction,  or  be  passed  over  his  veto.  Such  a  theory,  which 
rests  wholly  on  implication,  would,  if  adopted,  neutralize  plain  provisions  of  the  Constitution. 

Neither  house  of  the  legislature,  when  once  lawfully  constituted,  can  abandon  its  own  authority. 
Much  less  can  it  take  away  the  authority  of  the  other.  Neither  House  of  Congress  can  even  adjourn 
for  more  than  three  days  without  the  consent  of  the  other.  A  like  provision  is  in  the  constitution  of 
Montana.  This  theory  enables  one  house,  or  the  executive,  to  overthrow  at  once  all  the  constitutional 
securities  for  the  preser%-ation  of  the  legislative  power.  It  is  utterly  opposed  to  the  act  of  Congress 
prescribing  the  manner  of  the  election  of  Senators  (Revised  Statutes,  sees.  14  to  19.)  If  no  concurrent 
election  be  had,  "the  members  of  the  two  houses  shall  convene  in  joint  assembly." 

This  is  intended  to  put  it  out  of  the  power  of  a  majority  of  either  house  to  prevent  a  choice  of  Senator. 
This  provision  we  think  clearly  constitutional.  It  is  in  accordance  with  the  legislative  usage  in  the 
matter  of  electing  officers  whose  choice  may  be  prevented  altogether  if  two  distinct  bodies  must  concur 
to  produce  a  valid  result. 

In  conclusion,  the  majority  recommended  these  resolutions: 

Resolved,  That  William  A.  Clark  is  not  entitled  to  be  admitted  to  a  seat  in  the  Senate  from  the  State 
of  Montana. 

Resolved,  That  Martin  Maginnis  is  not  entitled  to  be  admitted  to  a  seat  in  the  Senate  from  the  State 
of  Montana. 

Resolved,  That  Wilbur  F.  Sanders  is  entitled,  upon  the  merits  of  the  case,  to  be  admitted  to  a  seat 
in  the  Senate  from  the  State  of  Montana. 

Resolved,  That  Thomas  C.  Power  is  entitled,  upon  the  merits  of  the  case,  to  be  admitted  to  a  seat 
in  the  Senate  from  the  State  of  Montana. 

The  report  was  debated  at  length  on  April  2,  3,  7-11,  15,  and  16.'  On  the 
latter  day^  a  motion  to  recommit  was  disagreed  to — yeas  26,  nays  32. 

Then  the  question  recurring  on  agreeing  to  the  first  two  resolutions  reported 
by  the  committee,  Mr.  Gray  moved  a  substitute  declaring  Messrs.  Sanders  and 
Power  not  elected.     This  amendment  was  disagreed  to — yeas  26,  nays  32. 

The  two  first  resolutions  of  the  committee  were  then  agreed  to — yeas  38, 
nays  19. 

Then  the  question  recurred  on  the  two  last  resolutions  of  the  committee,  declar- 

•  Record,  pp.  2906,  2908,  3101,  3136,  3188,  3228,  3279,  3378,  .3419. 
2  Record,  pp.  3433-3435. 


286  PRECEDENTS    OF   THE    HOUSE    OF   REPRESENTATIVES.  §   359 

ing  Messrs.  Sanders  and  Power  entitled  to  the  seats.  A  substitute  amendment 
declaring  that  in  the  judgment  of  the  Senate  there  had  been  no  choice  was  disagreed 
to — yeas  23,  nays  30. 

Then  the  resolutions  were  agreed  to — yeas  32,  nays  26. 

Messrs.  Sanders  and  Power  thereupon  appeared  and  were  sworn. 

359.  The  Senate  election  cases  of  John  T.  Morgan,  of  Alabama,  and 
L.  Q.  C.  Lamar,  of  Mississippi,  in  the  Forty-fifth  Congress. 

The  Senate  gave  immediate  prima  facie  effect  to  perfect  credentials 
certifying  election  by  a  legally  organized  legislature,  although  it  was 
objected  that  popular  will  had  been  subverted  in  electing  the  legislators. 

On  March  5,  1877,'  at  the  time  of  swearing  in  Senators-elect,  Mr.  George  E. 
Spencer,  of  Alabama,  objected  to  the  administration  of  the  oath  to  Mr.  John  T.  Mor- 
gan, of  Alabama. 

On  March  7 '  Mr.  Thomas  F.  Bayard,  of  Delaware,  offered  this  resolution: 

Resolved,  That  the  credentials  of  John  T.  Morgan,  Senator-elect  from  the  State  of  Alabama,  be  taken 
from  the  table  and  that  he  be  sworn. 

On  March  8 '  Mr.  Spencer  proposed  an  amendment  providing  that  the  credentials 
be  referred  to  a  committee  before  the  swearing  in  of  Mr.  Morgan. 

It  did  not  appear  that  there  was  any  question  as  to  the  credentials,  as  to  the  title 
of  the  governor  who  signed  them,  or  as  to  the  fact  that  the  legislature  which  elected 
him  was  the  only  legislature  of  the  State.  But  it  was  urged  that  in  the  election  of 
the  State  government  the  will  of  the  people  had  been  subverted  by  violence,  and 
therefore  that  the  action  of  the  legislature  was  void. 

After  debate  Mr.  Spencer's  amendment  was  rejected,  the  resolution  was  agreed 
to,  and  Mr.  Morgan  took  the  oath. 

360.  On  March  3, 1877,^  in  the  Senate,  the  credentials  of  L.  Q.  C.  Lamar,  of 
Mississippi,  for  the  six  years  commencing  March  4,  1877,  were  presented. 

On  March  5,'  at  the  time  of  swearing  in  Senators-elect,  Mr.  George  E.  Spencer,  of 
Alabama,  objected  to  the  administration  of  the  oath  to  Mr.  Lamer  because  of  condi- 
tions set  forth  in  the  report  of  the  Committee  on  Privileges  and  Elections,  who  had 
investigated  the  recent  election  in  Mississippi. 

On  March  6,^  Mr.  William  A.  Wallace,  of  Pennsylvania,  offered  the  following: 

Resolved,  That  the  credentials  of  L.  Q.  C.  Lamar,  Senator-elect  from  the  State  of  Mississippi,  be  taken 
from  the  table  and  that  he  be  sworn. 

Mr.  Spencer  moved  to  amend  the  resolution  by  a  substitute  referring  the  creden- 
tials to  the  Committee  on  Privileges  and  Elections. 

In  the  debate  Mr.  Spencer  urged  that  the  State  government  of  Mississippi,  as 
shown  by  the  report  of  the  Senate's  committee,  was  a  fraud  and  an  usurpation.  The 
legislature  had  been  chosen  in  an  election  wherein  violence  and  intimidation  pre- 

'  Special  session  of  Senate,  Forty-fifth  Congress,  Record,  p.  2. 

^  Record,  p.  24. 

3  Record,  pp.  24-31. 

*  Second  session  Forty-fourth  Congress,  Record,  p.  2147. 

*  Record,  pp.  5-15. 


§  360  ELECTORATES    INCAPACITATED    GENERALLY.  287 

vailed.  In  his  view  a  mob  could  not  organize  a  State  government  sufficient  to  make 
out  a  prima  facie  case. 

It  appeared  that  Air.  Lamar's  credentials  were  issued  by  a  governor  whose  title 
was  not  disputed  by  any  other  claimant  and  by  a  legislature  that  was  unquestioned 
as  the  only  legislature  of  the  State.  It  was  urged  that  the  objections  raised  went 
to  the  fact  of  election,  and  should  not  prevent  the  swearing  in  of  Mr.  Lamar  on  his 
undisputed  prima  facie  showing. 

There  was  little  objection  to  this  claim;  but  Mr.  Oliver  P.  Morton,  of  Indiana, 
called  attention  to  the  Pinchback  case  ot  Louisiana,  and  declared  that  it  was  incon- 
sistent to  seat  Mr.  Lamar  and  deny  a  seat  to  Mr.  Pinchback,  who  bore  credentials 
from  the  only  recognized  governor  of  Louisiana  of  an  election  by  the  recognized 
and  existing  legislature  of  the  State.  In  opposition  to  this  view  it  was  urged, 
especially  by  Mr.  Henry  L.  Dawes,  of  Massachusetts,  that  a  rival  claimant  also 
presented  credentials  from  a  rival  governor  of  Louisiana,  and  that  Mr.  Pinchback's 
case  was  thus  so  complicated  that  both  claimants  should  wait  until  their  claims 
could  be  examined. 

Mr.  Bainbridge  Wadleigh  declared  that  the  question  which  arose  was  whether 
the  voice  which  came  here  was  really  the  voice  of  Mississippi.  An  usurpation  should 
not  have  a  voice  on  the  floor  of  the  Senate.  He  favored  an  examination  before 
admitting  Mr.  Lamar. 

The  question  recurring  on  the  amendment  proposed  by  Mr.  Spencer,  there 
appeared  1  yea  (Mr.  Wadleigh)  and  58  nays. 

Then  the  resolution  proposed  by  Mr.  Wallace  was  agreed  to — yeas  57,  nays  1 
(Mr.  Wadleigh). 

Mr.  Lamar  then  appeared  and  took  the  oath. 


Chapter  X. 
ELECTORATES   DISTRACTED  BY  CIVIL  WAR. 


1.  Joint  rale  exclnding  persons  elected  in  insnrrectionary  States.     Section  361. 

2.  Informal  elections  in  districts  nnder  military  duress.     Sections  362-381. 

3.  Principles  dednced   from    Senate  decisions  as   to  States    nnder   military   dnress. 

Sections  382-385. 

361,  Persons  bearing  credentials  regular  in  form,  but  coining  from 
communities  disorganized  by  civil  war,  have  been  excluded  until  Con- 
gress should  determine  the  status  of  the  constituencies. 

In  the  days  of  reconstruction  the  two  Houses,  by  joint  rule,  excluded 
Members-elect  with  credentials  in  due  form,  some  entirely,  others  until 
the  States  were  declared  by  law  entitled  to  representation. 

An  instance  wherein  credentials  of  persons  claiming  to  be  Members- 
elect  were  referred  to  a  joint  committee  of  the  two  Houses. 

Credentials  regular  in  form  have  been  presented  as  a  matter  of  privi- 
lege, although  the  status  of  the  constituency  was,  by  reason  of  civil  war, 
in  doubt. 

On  December  12,  1865,'  Mr.  Henry  J.  Raymond,  of  New  York,  as  a  question  of 
privilege,  presented  the  credentials  of  the  Representatives  from  the  State  of  Ten- 
nessee, signed  by  the  governor,  sealed  with  the  seal  of  the  State,  and  otherwise 
regular  in  form. 

Mr.  Thaddeus  Stevens,  of  Pennsylvania,  raised  the  question  that,  as  the  State 
of  Tennessee  was  not  known  to  the  House  or  to  Congress,  no  question  of  privilege 
was  presented. 

The  Speaker  -  overruled  the  point  of  order,  saying  that  the  usages  of  the  House 
since  the  rebellion  began  showed  that  a  claimant  to  a  seat,  with  papers  prima  facie 
indicating  his  election,  was  entitled,  as  a  question  of  privilege,  to  have  them  pre- 
sented. 

A  question  then  arose  as  to  the  reference  of  the  credentials,  it  not  being  pro- 
posed that  the  oath  should  be  administered  on  the  prima  facie  showing. 

Finally,  after  debate,  the  credentials  were  referred  to  the  newly  constituted 

'  First  session  Thirty-ninth  Congress,  Journal,  pp.  51,  52;  Globe,  pp.  31-33. 
^  Schuyler  Colfax,  of  Indiana,  Speaker. 


288 


I 


§  361  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  289 

Joint  Committee  on  Reconstruction,  by  a  vote  of  yeas  125,  nays  42.  Tliis  committee 
had  been  constituted  by  resolution  of  the  two  Houses,  which  provided  that  until 
the  conmiittee  should  have  investigated  and  reported  on  the  condition  of  the  so- 
called  Confederate  States,  no  Member  should  be  received  into  either  House  from 
any  of  these  States,  and  that  all  papers  relating  to  such  representation  should  be 
referred  to  the  joint  committee.'  On  December  14  ^  the  House  reenforced  the  pro- 
visions of  the  concurrent  resolution  by  agreeing  to  the  following,  by  a  vote  of  yeas 
107,  nays  56: 

Resolved,  That  aU  papers  which  may  be  oSered  relative  to  the  representation  of  the  so-called  Con- 
federate States  of  America,  or  either  of  them,  shall  be  referred  to  the  joint  committee  of  fifteen  without 
debate,  and  no  Members  shall  be  admitted  from  either  of  said  so-called  States  until  Congress  shall  declare 
such  States,  or  either  of  them,  entitled  to  representation. 

During  consideration  of  the  resolution  it  was  objected  that  imder  the  Consti- 
tution and  laws  the  Speaker  was  required  to  administer  the  oath  to  Representatives 
of  States  as  they  should  appear. 

Later,  on  February  20,  1866,'  the  House  passed  a  concurrent  resolution  declar- 
ing that  "no  Senator  or  Representative  shall  be  admitted  into  either  branch  of 
Congress  from  any  of  said  [insurrectionary]  States  tintil  Congress  shall  have  declared 
sucli  State  entitled  to  sucii  representation." 

This  resolution  was  later  agreed  to  by  the  Senate.* 

At  various  times  between  the  adoption  of  these  resolutions  and  June  4,  1866,^ 
the  credentials  of  various  gentlemen  from  the  insurrectionary  States  were  presented 
and  referred  under  the  rule. 

The  report  of  the  Joint  Committee  on  Reconstruction  °  showed  that  Tennessee 
had  a  republican  form  of  government,  and  an  act  of  Congress  was  passed  at  this 
session  and  approved  July  24,  1866,  "restoring  Tennessee  to  her  relations  to  the 
Union"  and  declaring  her  "again  entitled  to  be  represented  by  Senators  and 
Representatives  in  Congress."  '  Accordingly,  on  the  day  of  the  approval  of  the 
act,  and  later,  the  Members-elect  from  Tennessee  appeared  and  were  sworn.* 

Gentlemen  bringing  credentials  from  other  insurrectionary  States  were  not 
admitted  during  this  Congress. 

The  report  of  the  Joint  Committee  on  Reconstruction,'  made  at  this  session 
of  Congress,  took  the  ground  that  Congress  could  not  "be  expected  to  recognize 
as  valid  the  election  of  Representatives  from  disorganized  communities  "  without 
first  providing  constitutional  or  other  guarantees. 

'Journal,  p.  10. 

-Journal,  pp.  71,  72;  Globe,  p.  61. 

2  Journal,  pp.  300-315;  Globe,  pp.  943-950. 

*  Journal,  p.  353;  Globe,  p.  1132. 

5  Journal,  pp.  88,  96,  98,  111,  135,  145,  245,  332,  792,  838. 

'First  session  Thirty-ninth  Congress,  Report  No.  30. 

n4Stat.  L.,  p.  364. 

"Journal,  p.  1110. 

'House  Report  No.  30,  p.  xviii. 

5994— VOL  1—07 19 


290  PRECEDENTS   OF    THE   HOUSE   OF   REPRESENTATIVES.  §  362 

36S.  The  North  Carolina  election  case  of  Charles  Henry  Foster  in 
the  Thirty-seventh  Congress. 

The  House  declined  to  seat  a  claimant  chosen  by  a  few  people  at  an 
election  wholly  informal  because  of  civil  war. 

The  House  declined  to  honor  credentials  regular  in  form,  but  refer- 
ring to  a  constituency  notoriously  incapacitated  by  civil  war. 

Instance  of  a  claim  for  a  seat  brought  before  the  House  by  petition. 

On  July  13,  1861/  the  petition  of  Charles  Henry  Foster,  claiming  to  have  been 
elected  Representative  from  the  First  Congressional  district  of  North  Carolina,  was 
presented  and  referred  to  the  Committee  on  Elections.  Mr.  Foster  apparently  did 
not  seek  at  this  time  to  establish  a  prima  facie  right  to  the  seat. 

On  December  2,  1861,''  at  the  beginning  of  the  next  session  (the  regular  long 
session),  credentials  in  regular  form  were  presented  in  behalf  of  Mr.  Foster.  These 
credentials  referred  to  another  election  and  had  no  reference  to  the  petition  of  the 
preceding  session.  It  was  urged  in  behalf  of  Mr.  Foster  that  a  provisional  govern- 
ment had  been  formed  in  North  Carolina,  that  proclamation  of  the  governor  had 
been  made  calling  an  election,  which  had  been  duly  held,  and  that  Mr.  Foster  now 
presented  the  certificate  of  the  governor  under  the  broad  seal  of  the  State  entitling 
him  to  the  seat  from  the  Second  district. 

Objection  was  made  to  the  admission  of  Mr.  Foster  to  the  seat,  and  the  papers 
were  referred  to  the  Committee  on  Elections,  who  had  not  reported  on  the  memorial 
presented  at  the  first  session. 

On  December  18  ^  the  committee  reported  that  Mr.  Foster  was  not  entitled  to 
a  seat  either  from  the  First  or  Second  districts  of  North  Carolina,  his  claim  being 
founded  upon  imposition.  The  House  agreed  to  this  report  without  debate  or 
division. 

On  March  6,  1862,*  a  memorial  of  68  loyal  electors  of  the  Second  district  was 
presented  asking  the  admission  of  Mr.  Foster  to  the  House.  This  memorial  was 
referred  to  the  Committee  on  Elections,  who  reported  on  June  16.^ 

In  this  report  the  committee  say: 

This  is  the  fourth  time  that  Mr.  Foster  has  claimed  to  have  been  elected  a  Representative  to  the 
Thirty-seventh  Congress  from  the  State  of  North  Carolina — twice  from  the  First  and  twice  from  the 
Second  district.  On  the  18th  day  of  December  last  the  House  adopted  without  division  the  follrwing 
resolution : 

"Resolved,  That  Charles  Henry  Foster  is  not  entitled  to  a  seat  in  this  House  as  a  Representative  in 
the  Thirty-seventh  Congress,  either  from  the  First  or  from  the  Second  district  of  North  Carolina." 

The  present  claim  is  based  entirely  upon  proceedings  which  have  transpired  since  that  date.  Those 
proceedings  consist  of  what  purports  to  be  a  poll  list  of  81  votes  cast  for  Mr.  Foster  at  Chickamacomico 
precinct  on  the  16th  February  last,  supported  by  a  copy  of  a  paper  purporting  to  be  signed  by  30  citizens 
of  Carteret  County,  "ratifying  and  approving"  said  election,  and  a  copy  of  a  resolution  of  like  purport, 
supposed  to  have  been  adopted  by  some  citizens — how  many  it  is  not  known — of  Craven  County.  The 
other  voting  presented  to  the  committee  were  proceedings  upon  which  a  former  election  was  claimed, 
which  claim  was  unanimously  rejected  by  the  House. 

'First  session  Thirty-seventh  Congress,  Journal,  p.  74;  Globe,  p.  115. 
^Second  session  Thirty-seventh  Congress,  Journal,  p.  7;  Globe,  p.  3. 
3  Journal,  p.  88;  Globe,  p.  132. 

*  Journal,  p.  413;  Globe,  p.  1103. 

*  House  Report,  No.  118. 


§  363  ELECTOBATES    DISTRACTED    BY    CIVIL    WAR,  291 

The  Second  district  of  North  Carolina  is  composed  of  the  counties  of  Wayne,  Edgecomb,  Green, 
Pitt,  Lenoir,  Jones,  Onslow,  Carteret,  Craven,  Beaufort,  and  Hyde,  and  usually  casts  about  9,000  votes. 
The  regular  day  of  election  was  the  first  Thursday  in  August,  1861.  There  was  no  election  for  Members 
of  Congress  held  on  that  day,  because  the  whole  State  was  at  that  time  in  the  armed  occupation  of  rebels. 

The  committee  further  say  that  since  then  some  portions  have  been  reclaimed 
and  the  authority  of  the  Government  asserted.  But  the  claimant  admitted  that 
voting  in  any  other  precinct  than  that  where  the  election  occurred  was  impossible. 
The  voting  that  did  occur  was  without  the  slightest  authority  of  law.  No  election 
was  called,  no  writ  of  election  issued.  There  was  no  governor  of  the  State,  provi- 
sional, military,  or  of  any  other  character,  except  the  Confederate  governor. 

The  committee  also  found  that  the  memorial  of  citizens  of  Carteret  County 
was  of  an  anomalous  character,  unworthy-  of  effect  as  a  legal  document. 

Therefore  the  committee  recommended  that  Mr.  Foster  be  considered  not 
entitled  to  the  seat.     The  House  concurred  in  tliis  report  without  division.' 

363.  The  Virginia  election  cases  of  Joseph  Segar,  in  the  Thirty- 
seventh  Congress. 

The  House  refused  to  seat  a  claimant  chosen  by  a  mere  fraction  of 
the  people,  at  an  election  informally  called  and  held,  in  a  district  under 
duress  of  armed  enemies. 

The  House  declined  to  give  prima  facie  title  to  the  bearer  of  informal 
credentials  referring  to  a  constituency  notoriously  paralyzed  by  civil  war. 

A  legislature  being  in  existence,  a  constitutional  convention  may  not 
fix  the  times,  etc.,  of  elections  of  Representatives. 

On  December  2,  1861,^  Mr.  Joseph  Segar  appeared  with  credentials  in  the  form 
of  a  certificate  of  the  vote  cast,  attested  by  a  certificate  from  the  provost  marshal 
of  the  Federal  camp,  Hamilton,  purporting  to  give  him  title  to  the  seat  from  the 
First  Congressional  district  of  Virginia. 

The  House  had  admitted  to  seats  Members  elected  under  authority  of  the 
provisional  government  of  Virginia,  but  in  the  case  of  Mr.  Segar  there  arose  a 
question  as  to  what  portion  of  the  voters  of  the  district  had  participated  in  that 
election.  After  debate  the  House  declined  to  allow  Mr.  Segar  the  prima  facie  title 
to  the  seat,  and  referred  his  credentials  to  the  Committee  on  Elections. 

On  January  20,  1862,^  the  committee  made  its  report,  recommending  that  Mr. 
Segar  be  not  admitted  to  the  seat.  In  this  case,  as  in  the  case  of  Mr.  Beach,  the 
election  was  held  under  authority  of  a  proclamation  of  Governor  Pierpont.  The 
committee  state  the  facts  as  follows: 

A  convention  assembled  at  Wheeling,  in  the  State  of  Virginia,  on  the  11th  of  June  last,  in  which 
were  represented,  it  is  believed,  thirty-nine  counties  of  the  State,  situate  in  what  is  known  as  Western 
Virginia.  This  convention  adopted  on  the  19th  of  June  "an  ordinance  for  the  reorganization  of  the 
State  government,"  after  having  declared  that,  because  of  the  treasonable  practices  and  purposes  of  the 
State  convention  lately  held  in  Richmond,  and  of  the  executive  of  the  State  in  connection  therewith, 
"the  offices  of  all  who  adhere  to  the  said  convention  and  executive,  whether  legislative,  executive,  or 
judicial,  are  vacated."  By  the  same  ordinance  a  legislature,  or  general  assembly,  for  the  State  of 
Virginia  was  created,  and  required  to  "assemble  in  the  city  of  Wheeling  on  the  1st  day  of  July,  and 


'Journal,  p.  912;  Globe,  pp.  2879,  2880. 

'Second  session  Thirty-seventh  Congress,  Journal,  p.  7;  Globe,  p.  3. 

'House  Report  No.  12;  1  Bartlett,  pp.  415,  426;  Rowell's  Digest,  pp.  179,  181. 


292  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    363 

proceed  to  organize  themselves  as  prescribed  by  existing  laws  in  their  respective  branches."  Said 
convention  subsequently  elected  a  governor  for  the  State  of  Virginia,  who  still  holds  the  office  thus 
conferred  upon  him. 

The  legislature  thus  created  assembled  as  required  and  passed  many  enactments  for  the  whole 
State  of  Virginia,  elected  two  United  States  Senators,  who  were  admitted  to  seats  in  the  Senate,  and 
assumed  all  the  functions  of  the  general  assembly  of  Virginia  under  its  preexisting  constitution  and 
laws.  The  convention  which  created  and  set  in  motion  this  new  government  did  not,  however,  dis- 
solve itself  upon  the  assumption  of  the  several  functions  of  government  by  the  executive  officers  and 
general  assembly  which,  in  the  exercise  of  provisional  powers,  it  had  itself  brought  into  being,  but  con- 
tinued to  hold  its  meeting  after  the  assembling  of  the  legislature  and  to  share  with  it  in  ordinary  IcgLs- 
lation  for  the  whole  State.  The  legislature  was  in  session  till  the  24th  of  July,  and  how  much  longer 
the  committee  are  not  informed.  The  convention  was  in  session  on  the  20th  of  August,  and  on  that 
day  passed  an  ordinance  providing  for  the  election  of  Representatives  in  Congress  in  each  district  where 
from  any  cause  such  election  was  not  held  on  the  fourth  Thursday  in  May  last,  the  day  provided  by 
law  for  such  election,  and  also  "in  the  Eleventh  district,  where  a  vacancy  now  exists,  an  election  for 
such  Representative  shall  be  held  on  the  fourth  Tuesday  in  October  next,  which  shall  be  conducted 
and  the  result  ascertained,  declared  and  certified  in  the  manner  directed  in  the  second  edition  of  the 
Code  of  Virginia" 

In  accordance  with  the  proclamation  of  Governor  Pierpont,  an  election  was 
held  at  Hampton,  in  Elizabeth  County,  on  October  24,  1861,  at  which  25  votes 
were  cast  for  Mr.  Segar.  A  certificate  of  these  votes,  signed  by  the  election  officers 
and  certified  by  the  provost-marshal  of  Camp  Hamilton,  were  the  only  credentials 
presented  by  Mr.  Segar  on  December  2.  On  a  subsequent  day  of  the  session  he 
presented  credentials  signed  by  the  governor  ami  attested  under  seal  of  the  Com- 
monwealth. 

There  was  also  presented  the  proceedings  of  a  meeting  on  Chincoteague 
Island,  at  which  136  citizens  expressed,  on  December  10,  a  preference  for  Mr.  Segar, 
but  Mr.  Segar  did  not  rely  on  this.  He  based  his  claim  on  the  25  votes  cast  at 
Hampton,  clauning  that  his  claim  was  strictly  legal. 

The  committee  say: 

The  committee  have  been  led  to  investigate  this  claim  of  legality.  The  whole  authority  for  this 
election  is  the  ordinance  of  the  Wheeling  convention  passed  August  20.  Assuming  that  the  proceed- 
ings of  that  convention,  and  of  the  legislature  and  executive  created  by  it,  have  ripened  into  a  State 
government,  legal  in  all  respects,  still  the  question  arises.  Was  it  one  of  the  functions  of  that  con- 
vention to  provide  for  the  time,  place,  and  manner  of  electing  Representatives  in  Congress,  especially 
after  the  legislature  had  assembled?  The  purpose  of  that  convention  was  the  creation  of  a  new  State 
government.     The  only  l)asis  upon  which  it  rests  is  necessity. 

A  new  government  must  begin  somewhere,  and  there  must  be  somebody  to  make  it.  As  necessity 
was  the  foundation,  so  also  it  was  the  limit  of  the  power  called  into  being  for  the  sole  purpose  of  inaugu- 
rating a  new  government.  It  could  do  anything  necessary  to  carry  out  that  purpose,  and  when  that  was 
done  it  could  do  no  more.  Its  functions  ceased  the  moment  the  new  government  took  on  form  and  life. 
The  two  can  not,  in  the  nature  of  things,  exist  and  move  pari  passu.  Now,  long  before  this  ordinance 
had  passed  the  convention  there  was  in  existence  a  governor  and  a  legislature,  having  all  the  powers 
that  a  governor  and  legislature  could  have  in  Virginia— that  is,  all  the  powers  which  the  constitution 
of  Virginia  clothes  a  governor  and  legislature  with  not  in  conflict  with  the  Constitution  of  the  United 
States.  Now,  this  latter  instrument  provides  (art.  1,  sec.  4)  that  "the  times,  places,  and  manner  of 
holding  elections  for  Senators  and  Representatives  shall  be  prescribed  in  each  State  by  the  legislature 
thereof."  It  is  a  legislative  act.  It  is  a  law.  *  *  *  But  this  time  and  manner  were  not  fixed  in 
the  organic  act  nor  by  the  legislature,  but  by  the  convention  assuming  legislative  functions  in  the 
presence  of  the  legislature  itself. 

Again,  the  ordinance  itself  proposes  to  conform  this  election  to  the  Code  of  Virginia.    It  "shall 


§  363  ELECTOKATES    DISTRACTED    BY    CIVIL    WAR.  293 

be  conducted  and  the  result  ascertained,  declared,  and  certified  in  the  manner  directed  in  the  second 
edition  of  the  Code  of  Virginia."  Has  the  election  under  consideration  been  conducted  in  all  respects 
according  to  the  requirements  of  the  Virginia  Code?  Title  3,  chapter  7,  section  11,  of  that  code 
provides  for  elections  to  fill  vacancies  in  Congress  and  enacts  that  they  "shall  be  superintended 
and  held  by  the  same  officers,  under  the  same  penalties,  and  subject  to  the  same  regulations  as  are 
prescribed  for  the  general  elections."  Section  12  of  the  same  chapter  provides  that  "a  writ  of  election 
shall  be  directed  to  the  sheriff  or  sergeant  of  the  county  or  corporation  for  ■which  the  election  is  to  be 
held;  or  if  the  election  is  to  be  held  for  an  election  district,  or  to  fill  a  vacancy  in  the  Senate  or  in 
Congress,  to  the  several  sheriffs  and  sergeants  of  the  counties  and  corporations  which,  or  any  parts  of 
which,  are  included  in  the  district.  It  shall  prescribe  the  day  of  election  (to  be  the  same  throughout 
the  district),  and  may  fix  a  day  on  which  the  officers  conducting  the  election  are  to  meet  to  make 
returns,  not  later  than  that  fixed  by  law  in  the  case  of  a  regular  election." 

The  committee  further  go  on  to  show  that  in  this  case  there  was  nothing  which 
answered  to  a  writ  of  election;  but  that  the  governor  in  his  proclamation  simply 
"entreats  the  loyal  voters,"  and  addressed  it  not  to  the  sheriffs,  but  "to  the  people 
of  Virginia." 

In  this  case  it  was  admitted  that  there  was  no  election  in  any  other  place 
than  Hampton,  as  notice  could  not  pass  beyond  the  enemy's  lines  to  other  parts 
of  the  district.  Moreover,  the  notice  was  apparently  brought  to  Hampton  through 
the  medium  of  a  newspaper  publication  and  a  private  letter. 

The  committee  concluded  that  the  claim  of  Mr.  Segar  could  not  be  maintained 
if  it  rested  on  the  plea  of  a  strict  conformity  with  all  the  provisions  of  law. 

But  the  conamittee  do  not  rest  their  conclusions  on  so  narrow  a  basis.  They 
sa}^: 

If  the  Union  voters  of  the  district  had  had  an  opportunity  to  chose  a  Representative — if  there  had 
been  no  armed  occupation  of  the  district  by  rebels  so  that  polls  could  have  been  opened  at  the  various 
voting  places  in  the  district,  and  all  who  desired  could  have  deposited  their  ballots,  and  had  done  so 
in  conformity  with  the  provisions  of  law,  so  far  as  the  disturbed  and  abnormal  condition  of  things  would 
permit,  the  committee  would  have  sought  some  way  to  give  effect  to  such  election.  But  enough  of  the 
facts  surrounding  this  election  have  already  been  stated  to  show  that  such  is  not  the  case.  There  was 
but  one  single  poll  in  the  whole  district  opened,  and  but  25  votes  cast.  The  reason  why  there  were  no 
other  polls  opened  or  more  votes  cast  can  not  be  better  expressed  than  by  the  tlaree  freeholders  themselves 
who  certify  to  this  election.     This  is  their  language: 

"And  we  do  further  certify  that  there  was  no  poll  opened  at  any  other  precinct  in  said  county, 
and  that  so  far  as  we  can  learn  and  confidently  believe  there  was  no  poll  opened  or  election  held  for 
Member  of  Congress  in  any  other  county  or  city  or  town  of  said  First  Congressional  district,  owing  to  the 
fact  that  all  the  other  counties  and  election  precincts  of  said  Congressional  district  were,  on  the  24th 
day  of  October  last,  within  the  lines  and  under  the  influence  and  control  of  the  seceding  and  rebel 
States." 

This  state  of  things  is  no  fault  of  the  memorialist  or  the  Union  voters  of  the  district,  but  it  did 
exist  on  the  day  of  this  election.  How  can  it  be  made  to  appear,  then,  that  the  memorialist  is  the 
choice  of  the  district,  or  that  if  an  opportunity  had  existed  an  overwhelming  majority  of  votes  would 
not  have  been  cast  against  him?  In  what  sense  can  it  be  said  that  those  who  did  not  vote  are  to  be 
presumed  to  acquiesce,  when  they  neither  had  the  opportunity  to  vote  nor  the  knowledge  that  voting 
was  going  on?    Acquiescence  presumes  liberty  to  protest.     In  this  instance  that  liberty  did  not  exist. 

On  February  10  and  11,^  the  report  was  debated  at  length  in  the  House. 

On  February  11^  a  motion  was  made  to  substitute  for  the  proposition  of  the 

'  Globe,  pp.  727,  751. 

2  Journal,  pp.  295,  296;  Globe,  pp.  759,  760 


294  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §  364 

committee  a  declaration  that  Mr.  Segar  was  entitled  to  the  seat.  This  was  decided 
in  the  negative — yeas  40,  nays  85. 

Then  the  resolution  of  the  committee  declaring  Mr.  Segar  not  entitled  to  the 
seat  was  agreed  to  without  division. 

364.   The  Virginia  election  case  of  Joseph  Segar,  continued. 

An  instance  wherein  the  House  recognized  an  election  legal  in  form, 
but  participated  in  by  a  small  fraction  of  the  voters,  the  district  being 
disturbed  by  civil  war. 

The  House  declined  to  give  prima  facie  effect  to  regular  credentials, 
having  historic  knowledge  that  the  district  was  incapacitated  by  civil 
war  from  holding  a  regular  election. 

Instance  wherein  a  committee  unable  to  agree  reported  this  fact  to 
the  House,  and  it  became  a  basis  for  action. 

On  March  24,  1862,^  the  credentials  of  Mr.  Segar  were  presented  again,  he 
claiming  to  have  been  elected  at  another  election  held  March  15,  1862. 

It  was  claimed  and  not  disputed  that  the  certificate  presented  was  in  the 
form  required  by  law,  but  it  was  objected  that  the  House  knew  from  the  report  of 
the  committee  on  the  state  of  affairs  in  Virginia  that  no  election  could  have  been 
held  in  that  State  on  March  15,  1862. 

Then,  without  division,  the  credentials  were  referred  to  the  Committee  on 
Electioiis. 

On  April  14^  the  committee  reported  the  following  facts: 

That  those  credentials,  a  copy  of  which  is  annexed,  consist  of  a  certificate  signed  by  "William 
Mears,  conductor  at  the  court-house  at  Northampton,"  "Michael  H.  Higgins,  conductor  at  the  court- 
house of  Accomac,"  and  "John  O.  Evans,  conductor  at  the  court-house  of  Elizabeth  City,"  dated  the 
22d  day  of  March  last,  certifying  that  at  an  election  held  on  the  15th  day  of  said  March  in  the  several 
counties  composing  said  district  the  claimant  was  duly  elected  to  represent  the  same  in  the  Congress 
of  the  United  States.  Mr.  Segar  also  presented  to  the  committee  during  the  hearing  a  proclamation  by 
Governor  Pierpoint  to  the  same  effect,  of  date  the  26th  day  of  March  last,  a  copy  of  which  is  also  annexed. 
The  First  Congressional  district  is  composed  of  seventeen  counties,  viz,  Middlesex,  Westmoreland, 
Richmond,  Essex,  Northumberland,  King  and  Queen,  Lancaster,  Gloucester,  James  City,  the  City  of 
Williamsburg,  New  Kent,  York,  Warwick,  Northampton,  Accomac,  and  Elizabeth  City.  Governor 
Pierpoint  issued  writs  of  election  in  due  form  of  law  on  the  24th  day  of  February,  1862,  directed  to  the 
sheriffs  of  the  several  counties  composing  this  district,  requiring  them  to  hold  an  election  for  Repre- 
sentative to  this  Congress  on  said  15th  day  of  March.  The  claimant  stated  to  the  committee  that  he 
himself  took  these  writs  of  election  to  the  sheriffs  of  the  counties  of  Accomac,  Northampton,  and  Eliz- 
abeth City,  and  that  in  one  of  these  counties  he  saw  the  sheriff  post  up  notice  of  the  election  at  the 
several  election  precincts  more  than  ten  days  before  the  day  of  the  election,  and  in  the  others  he  saw  the 
notices  after  they  were  put  up,  but  whether  they  were  up  the  time  required  by  law  he  does  not  know. 
But  no  writs  of  election  reached  the  sheriffs  in  the  other  fourteen  counties,  nor  was  any  notice  of  election 
given,  or  any  election  held,  at  any  precinct  in  any  of  the  other  fourteen  counties  in  the  district,  for  the 
reason  that  all  the  other  counties  were  at  the  time  of  the  election,  and  had  been  for  a  long  time,  in  posses- 
sion of  the  rebel  army,  and  the  rebel  authorities  had  proclaimed  martial  law  over  them.  For  the  same 
reason  no  election  was  held  in  Elizabeth  City  County,  except  at  one  precinct,  Hampton.  Notice  to 
the  sheriffs  of  these  counties,  to  the  people  thereof,  the  opening  of  a  poll  or  the  casting  of  a  vote  at  any 
precinct  in  any  one  of  them,  were  all  impossibilities. 

'Journal,  p.  472;  Globe,  p.  1339.  ^ House  Report,  No.  70;  1  Bartlett,  p.  415. 


§  364  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  295 

There  were  cast  at  this  election  in  the  several  voting  precincts  of  Accomac  and  Northampton 
counties,  and  at  Hampton,  in  Elizabeth  City  County,  aa  appears  by  the  several  annexed  certificates 
from  commissioners  in  said  counties,  in  all  1,018  votes. 

The  committee  further  foimd  that  Mr.  Segar  had  559  of  the  total,  Arthur  Watson 
438,  and  all  others  21. 

The  vote  of  the  whole  district  for  governor  at  the  May  election  of  1859  was 
7,986,  and  the  population  of  the  whole  district  in  1860  was  122,017. 

In  all  the  coimties  where  the  election  in  question  was  held  there  were  32,216 
inhabitants.  This  included  the  county  of  Elizabeth  City,  in  which  only  one  poll  was 
opened. 

The  counties  occupied  by  the  hostile  army  at  the  time  the  election  was  held  and 
under  martial  law  had  89,001  population.     The  committee  say: 

The  committee  have  no  means  of  knowing,  other  than  may  be  inferred  from  the  foregoing  figures, 
what  portion  of  the  7,986  electors,  who  cast  their  votes  in  that  district  for  governor,  reside  in  the  three 
counties  where  this  election  was  held,  or  how  many  of  them  resided  at  the  time  in  the  fourteen  counties 
where  it  was  impossible  to  hold  any  election. 

Upon  these  facts  the  committee  were  unable  to  agree  upon  any  recommendation  to  the  House.  They 
therefore  ask  to  be  discharged  from  further  consideration  of  the  subject,  and  report  the  following 
resolution: 

Resolved,  That  the  Committee  of  Elections,  to  whom  were  referred  the  credentials  of  .Joseph  Segar, 
claiming  a  seat  in  this  House  as  a  Representative  from  the  First  district  in  Virginia,  be  discharged  from 
the  further  consideration  of  the  subject. 

On  May  6 '  the  question  came  before  the  House,  and  Mr.  Henry  L.  Dawes,  of 
Massachusetts,  chairman  of  the  committee,  in  presenting  the  case,  said : 

The  difficulty  which  the  Committee  on  Elections  encountered  was  this;  They  have  laid  down  a 
principle  heretofore,  and  the  House  has  acted  upon  it  in  several  cases  which  have  been  brought  before  the 
House,  that  if  the  voters  of  a  district  had  an  opportunity  to  vote,  if  there  was  no  restraint  upon  them  so 
that  they  could  vote,  he  who  had  the  highest  number  of  votes  is  entitled  to  a  seat,  whether  the  votes  be 
few  or  whether  they  be  many,  and  the  question  is  whether  this  case  came  within  that  rule. 

Here  were  only  three  counties  out  of  seventeen,  and  although  they  are  large  counties,  they  contain  a 
little  over  30,000  out  of  the  122,000  of  all  the  inhabitants,  and  there  were  polled  only  one-eighth  of  all 
the  votes.  Whether  it  could  be  said  that  in  the  other  fourteen  counties,  which  were  in  the  occupation  of 
the  rebel  armies,  the  voters  could  not  go  to  the  polls  and  express  their  opinion  at  all,  or  not,  or  whether  it 
could  be  said  that  the  voters  of  these  three  counties,  numbering  about  1,000,  expressed  the  wish  or 
desire  of  the  voters  in  the  other  counties  so  nearly  and  so  fairly  that,  under  the  present  state  of  things  in 
Virginia,  it  is  right  or  proper  to  admit  this  man  to  a  seat,  is  a  question  which  the  committee  felt  disposed 
to  bring  before  the  House  to  let  them  pass  upon  it. 

*  *  *  All  that  the  committee  desire  is  that  the  House  shall  say  when  that  state  of  things  [the 
restoration  of  order  in  Virginia],  all  things  considered,  shall  have  been  so  nearly  approached  as  that  it 
shall  be  safe  and  proper  to  admit  as  a  Representative  upon  this  floor,  from  the  First  district  of  Virginia, 
or  from  any  other  district  situated  as  that  district  is,  a  man  who  has  received  but  little  more  than  one-half 
of  one-eighth  of  the  votes  of  the  whole  district,  and  that,  too,  under  circumstances  such  that  the  com- 
mittee was  not  clear  to  say  that  the  others  could  be  said,  in  law  or  in  fact,  to  have  been  free,  or  had  the 
opportunity  to  vote  if  they  had  seen  fit. 

In  the  course  of  the  debate  the  point  was  made,  with  effect,  that  all  the  pro- 
visions of  law  were  followed  in  holding  the  election,  although  after  the  elections  it  had 
been  impossible  wholly  to  comply  with  the  required  forms.  And  after  the  subject 
had  been  referred  to  the  Committee  on  Elections  Mr.  Segar  had  presented  credentials 

'  Globe,  pp.  1971,  1972. 


296  PRECEDENTS   OF    THE   HOUSE    OF   REPKESENTATIVES.  §   365 

from  Governor  Pierpont,  of  Virginia.  It  was  urged  that  as  all  the  departments  of 
the  National  Government  had  recognized  the  government  of  Governor  Pierpont,  that 
certificate  had  exactly  the  same  force  as  that  of  any  other  Representative  on  the  floor 
from  any  State.  It  constituted  prima  facie  evidence,  and  the  House  was  not  called 
on  to  investigate  critically  the  merits  of  the  case. 

The  House,  by  a  vote  of  yeas  71,  nays  47,  substituted  for  the  resolution  of  the 
committee  a  resolution  that  Mr.  Segar  be  admitted  to  a  seat  as  a  Representative  from 
the  First  district  of  Virginia.^ 

Mr.  Segar  then  appeared  and  qualified. 

365.  The  Tennessee  election  case  of  Andrew  J.  Clements  in  the  Thirty- 
seventh  Congress. 

The  House  seated  a  loyal  claimant  voted  for  at  an  election  called  on 
the  legal  day,  but  by  the  governor  of  a  State  in  secession. 

Instance  of  an  election  proven  by  testimony  of  participants,  the  re- 
turning officers  serving  a  secession  government  and  making  no  return. 

The  House  seated  a  claimant  who  had  received  a  third  of  the  votes  of 
a  district,  the  remainder  being  cast  for  candidates  for  a  secessionist  Con- 
gress. 

The  House  declined  to  give  prima  facie  effect  to  informal  papers  re- 
ferring to  an  election  in  a  district  known  to  be  under  duress  of  civil  war. 

On  January  13,  1862,^  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Com- 
mittee of  Elections,  reported  in  the  case  of  Andrew  J.  Clements,  who  claimed  to 
have  been  elected  in  the  Fourth  district  of  Tennessee.  Mr.  Clements  had  first 
appeared  in  the  House  on  December  3,  1861,^  and  a  motion  had  been  made  to  allow 
him  to  take  a  seat  on  his  prima  facie  right;  but  the  House  decided  that  his  papers 
should  be  referred  to  the  Committee  of  Elections  before  he  should  be  allowed  to 
take  his  seat. 

The  report  states  sufficiently  the  facts.  Previous  to  the  day  for  the  election 
of  Congressmen,  the  first  Thursday  of  August,  1861,  the  State  of  Tennessee  had 
perfected  its  acts  of  secession,  and  the  governor  of  the  State  had  ordered  an  election 
for  the  choice  of  delegates  to  the  provisional  congress  of  the  Confederacy.  The  day 
was  the  same  as  that  fixed  by  the  constitution  and  laws  of  the  State  for  the  election 
of  Representatives  to  the  Congress  of  the  United  States,  the  first  Thursday  of  August. 

In  four  of  the  ten  districts  of  the  State  the  Union  men  disregarded  the  acts  of 
secession  and  cast  their  ballots  for  Representatives  to  the  Congress  of  the  United 
States.  One  of  the  districts  was  that  which  Mr.  Clements  sought  to  represent. 
The  report  says  further  of  him : 

He  brings  no  certificate  from  the  governor  of  Tennessee ;  but  the  refusal  of  the  governor  of  Tennessee 
to  grant  a  certificate  of  election  to  one  entitled  to  it  can  not  prejudice  his  right  to  it.  (Richards's  case, 
Hall  &  Clark,  95.)     It  may  and  has  put  him  to  the  trouble  of  substantiating  the  fact  of  his  election  by 

'  Journal,  p.  649;  Globe,  p.  1872. 

-  Second  session  Thirty-seventh  Clongre.ss,  House  Report  No.  9;  1  Bartlett,  p.  366;  Rowell'a  Digest, 
p.  174. 

^  Globe,  p.  6.  Mr.  Horace  Maynard,  of  Tennessee,  on  December  2,  1861,  had  been  sworn  in  on  the 
presentation  of  the  certificates  of  the  several  counties  in  his  district.  Mr.  Clements  did  not  have  the 
same  prima  facie  evidence. 


§  366  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  297 

other  evidence  before  he  can  take  his  seat.  The  memorialist  has  presented  the  proper  certificate  of  the 
sheriff  of  one  county  (Macon  County)  that  he  received  in  that  county  433  votes.  The  sheriffs  of  the 
other  counties  in  the  district  failed  or  refused  to  make  returns  of  the  votes  cast  for  him  in  their  respective 
counties,  being  themselves  either  open  rebels  or  in  sympathy  with  the  rebellion.  But  the  statutes  of 
Tennessee  themselves,  as  well  as  the  precedents  of  Congress,  have  provided  for  this  emergency  by  enact- 
ing that  "if  the  judges  fail  to  return  the  poll  books  or  list  of  votes,  or  copies  of  them  certified  as  aforesaid, 
the  same  may  be  proved  by  other  creditable  testimony,  and  received  as  evidence  in  any  case  arising 
out  of  said  election."  (Code  of  Term.,  sec.  870.)  In  accordance  with  this  provision  the  memorialist  pre- 
sented evidence  before  the  committee  to  satisfy  them  that  he  had  received,  in  addition  to  the  433  returned 
by  the  sheriff  of  Macon  County,  votes  in  each  of  the  other  counties  comprising  the  district,  except 
Warren,  amounting  in  the  aggregate  to  more  than  1,500  votes;  making  in  all  about  2,000  votes.  The 
proof  of  this  has  been  exceedingly  difficult,  because  of  the  fact  that  the  indignation  of  the  secessionists 
against  the  memorialist  for  permitting  himself  to  be  a  candidate  rose  to  such  a  pitch  immediately  after 
the  election  that  he  was  obliged  to  flee  from  the  State  to  escape  assassination,  and  has  not  been  able  to 
return  to  it  since.  But  he  has  furnished  from  the  volunteers,  now  in  the  service  of  their  country  in 
Kentucky,  who  were  his  constituents  and  voted  for  him  in  Tennessee  before  leaving  their  State  for  the 
war,  and  from  other  testimony,  evidence  which  has  satisfied  the  committee  of  the  fact.  The  committee 
are  also  satisfied  that  on  the  day  of  election  there  was  an  armed  rebel  force  present  in  the  district  pre- 
venting or  restraining  the  voters  from  the  exercise  of  the  elective  franchise,  and  that  though  a  violent 
and  bitter  public  sentiment  existed,  calculated  to  overawe  and  intimidate,  yet  the  rebel  forces  had  not 
up  to  that  time  so  taken  possession  of  the  district  as  to  prevent  such  voters  as  chose  so  to  do  to  deposit 
their  votes  for  a  Representative  in  this  Congress.  The  ordinary  vote  of  the  district  is  about  6,000;  and 
then  there  were  at  the  same  time  two  candidates  running  for  the  Confederate  congi-ess,  but  no  other 
candidate  except  the  memorialist  for  the  Congress  of  the  United  States. 

In  conclusion,  the  committee,  upon  the  whole  evidence,  find  that  on  the  day  of  election  no  armed 
force  prevented  any  considerable  number  of  voters  in  any  part  of  the  district  from  going  to  the  polls, 
and  that  on  that  day,  in  conformity  with  the  forms  of  law,  2,000  votes  at  least  were  cast  for  the  memorialist 
as  a  Representative  to  this  Congress,  and  none,  so  far  as  the  committee  know,  for  any  other  person.  They 
therefore  report  the  following  resolution,  and  recommend  its  adoption: 

Resolved,  That  Andrew  J.  Clements  is  entitled  to  a  seat  in  this  House  as  a  Representative  in  the 
Thirty-seventh  Congress  from  the  Fourth  district  in  Tennessee. 

The  House,  on  the  same  day  the  report  was  presented,  agreed  to  it  without 
division.' 

Mr.  Clements  thereupon  appeared  and  took  the  oath. 

366.  The  Virginia  election  case  of  Charles  H.  Upton,  in  the  Thirty- 
seventh  Congress. 

The  House  unseated  a  person  chosen  by  a  few  votes,  at  an  election 
wholly  informal,  in  a  district  almost  entirely  under  duress  of  civil  war. 

Instance  wherein,  by  majority  vote,  the  House  unseated  a  person 
whose  title  was  not  contested  but  whose  election  was  invalid. 

The  presumption  that  those  who  do  not  go  to  the  polls  acquiesce  does 
not  apply  where  a  condition  of  civil  war  prevents  due  notice  of  election. 

An  exceptional  case  wherein  the  Clerk,  without  sufficient  evidence, 
enrolled  a  person  who  participated  for  a  time  as  a  Member. 

An  examination  of  qualifications  of  a  Member-elect  as  to  inhabitancy. 

On  Januarv'  30,  1862,^  the  Committee  of  Elections,  in  accordance  with  the 
direction  of  the  House,  reported  on  the  eligibility  of  and  the  circumstances  attending 
the  election  of  Charles  H.  Upton,  who  at  the  preceding  session  had,  on  his  prima 

'  Globe,  p.  297;  Journal,  p.  166. 

-  Second  session  Thirty-seventh  Congress,  House  Report  No.  17;  1  Bartlett,  p.  368;  Rowell's  Digest, 
p.  174. 


298  PRECEDENTS   OF   THE   HOUSE   OF   EEPBESENTATIVES.  §   366 

facie  right,  been  admitted  to  a  seat  as  a  Representative  of  the  Seventh  Congres- 
sional district  of  Virginia.'  The  election  at  which  he  claimed  to  have  been  elected 
was  held  on  May  23,  1861.     As  to  whether  or  not  he  was  eligible  the  committee  say: 

It  appears  from  the  facts  admitted  in  the  case  and  the  testimony  submitted  to  the  committee  that 
the  incumbent  for  the  last  twenty-five  years  has  been  a  freeholder  in  the  State  of  Virginia,  having  him- 
self for  the  most  of  that  time  been  a  resident  and  inhabitant  of  the  county  of  Fairfax,  where  he  and  his 
family  were  domiciled .  For  some  time  prior  to  the  month  of  November,  1860,  the  incumbent  himself  had 
lived  at  Zanesville,  in  the  State  of  Ohio,  where  he  owned  an  interest  in  and  had  been  engaged  in  conducting 
a  daily  newspaper,  and  it  was  shown  that  he  voted  at  that  place  at  the  annual  State  election  in  October, 
and  again  at  the  Presidential  election  in  November  of  the  same  year.  Under  the  law  of  Ohio  in  force 
at  that  time  the  legal  right  to  vote  at  either  of  those  elections  would  necessarily  imply  a  previous  residence 
in  that  State  of  one  year  at  least.  But  the  evidence  adduced  upon  this  point  satisfied  the  committee 
that  in  the  month  of  November,  soon  after  the  Presidential  election,  he  returned  to  his  previous  residence 
in  the  county  of  Fairfax,  where  his  family  had  remained  and  then  was.  From  that  time  to  the  month 
of  June  last  he  continued  to  be  a  resident  and  inhabitant  of  the  State  of  Virginia,  and  consequently 
not  ineligible,  on  account  of  the  objection  in  question,  as  a  candidate  for  Congress  from  that  State  at 
the  date  above  referred  to. 

As  to  the  conditions  prevailing  in  the  district  the  committee  show  at  the  outset 
that  on  May  14,  1861,  the  secession  of  Virginia  from  the  Union  had  been  peri'ected, 
so  far  as  it  could  be  perfected,  by  the  formal  admission  of  the  State  to  the  Southern 
Confederacy.  On  the  24th  of  the  preceding  April  the  State  convention  which 
framed  the  ordinance  of  secession  had  passed  the  following  ordinance: 

The  election  for  Members  of  Congress  for  this  State  to  the  House  of  Representatives  of  the  Congress 
of  the  United  States,  required  by  law  to  be  held  on  the  fourth  Thursday  of  May  next,  is  hereby  suspended 
and  prohibited  xintil  otherwise  ordained  by  this  convention. 

The  committee  held  that  although  the  acts  of  secession  and  the  above  ordinance 
"were  usurpations  upon  the  rights"  of  the  people  of  Virginia,  and  in  nature  revo- 
lutionary, yet  it  appeared  "that  they  were  generally  acquiesced  in  by  a  very  large 
majority  of  the  people  in  the  whole  of  the  eastern  part  of  the  State."  The  memorial 
of  the  incumbent  showed  to  the  committee  that  this  was  the  fact  throughout  his 
district.     The  committee  then  say: 

The  law  of  the  State  providing  for  the  election  of  Members  of  Congress  on  the  23d  of  May  was  regarded 
and  treated  by  the  governor,  sheriffs,  commissioners,  and  other  officers  charged  with  the  duty  of  seeing 
it  carried  into  effect,  with  the  exception  at  most  of  those  of  a  single  election  precinct,  as  suspended  and 
for  the  time  being  as  practically  repealed.  This  course  of  the  election  officers  appears  to  have  been 
adopted  and  pursued  without  remonstrance  or  objection  from  any  considerable  number  of  the  people 
of  the  Seventh  Congressional  district.  The  great  body  of  the  people  in  the  district  seem  to  have  acted 
upon  the  belief  that  on  the  23d  of  May  there  was  no  law  in  force  in  the  State  which  would  enable  them, 
if  so  disposed,  to  elect  a  Member  of  Congress,  nor  was  there  any  evidence  before  the  committee  that  any 
very  considerable  number,  if  they  had  had  the  power,  would  have  had  the  inclination  to  exercise  it. 
Such  being  the  state  of  the  district,  it  is  a  question  well  worthy  of  grave  consideration  whether  its  political 
condition  was  such  that  any  election  for  a  Member  of  Congress  at  that  time  should  be  held  legally  valid 
either  under  the  law  of  Virginia  or  of  the  United  States,  even  were  the  evidence  of  such  election  clothed 
with  all  the  ordinary  forms  of  law. 

'  On  February  26, 1862,  in  debate  Mr.  Henry  L.  Dawes,  of  Massachusetts,  said  that  Mr.  Upton  came 
without  certificate  of  any  man  touching  his  right  to  the  seat,  and  by  personal  influence  only  induced 
the  Clerk  of  the  last  House  to  put  his  name  on  the  roll  of  Members  elect,  "without  the  slightest  evidence 
in  the  world." 


§   366  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  299 

Mr.  Upton  had  advertised  himself  as  a  candidate,  and  had  called  on  the  Union 
men  to  open  "side  polls"  on  election  day  and  vote  for  him  for  Congress.  It  was 
claimed  that  such  "side  polls"  were  opened  at  five  different  voting  precincts,  at 
wliich  he  received  95  votes.  Certain  documents  were  presented  containing  lists  of 
persons  who  subscribed  to  statements  reciting  that  they  had  been  deterred  by  tlareats 
or  deprived  of  the  opportunity  of  voting,  and  "therefore  voted"  for  Mr.  Upton. 
The  committee  found  that  "the  votes  claimed  to  have  been  cast  at  these  'side 
polls'  were  not  cast  in  conformity  with  any  law  at  that  time  or  heretofore  in  force 
in  Virginia  for  the  election  of  candidates  for  Congress;  they  were  not  given  at  the 
place  of  voting  in  the  precinct,  nor  received  by  any  election  officer,  nor  certified 
or  authenticated  by  any  magistrate  or  commissioner  or  conductor  of  an  election, 
nor  proved  by  the  oath  of  any  witness."  The  committee  therefore  took  no  account 
of  these  votes. 

But  from  a  precinct  called  Ball's  Cross  Roads  a  copy  of  a  so-called  poll  book 
was  certified,  and  this  showed  10  votes  cast  for  Mr.  Upton  for  Congress.  The 
committee  found  that  this  poll  book  was  not  authenticated  "in  due  form,  or  in 
such  manner  as  to  make  its  contents  evidence  for  any  purpose"  as  would  appear 
by  reference  to  the  election  laws  of  Virginia.  The  State  being  in  rebelUon,  the 
returns  could  not  be  delivered  to  the  county  sheriff,  and  the  return  officers  could 
not  make  out  the  certificate  required  by  law  to  be  transmitted  to  the  Governor. 
Armed  men  had  been  at  the  polls  at  the  Cross  Roads,  and  had  evidently  intimidated 
voters  who  might  have  wished  to  vote  for  Mr.  Upton. 

The  committee  say  further — 

In  the  view  the  committee  have  taken  of  this  case,  they  have  not  deemed  it  necessary  for  them 
to  express  any  opinion  upon  the  question  whether,  in  a  Congressional  district  containing  from  6,000 
to  8,000  legal  voters,  the  votes  of  so  few  as  10  electors,  even  if  properly  authenticated  and  clothed  with 
all  the  forms  of  law,  would  furnish  that  evidence  of  a  claim  to  a  seat  in  this  House  that  ought  to  be 
regarded  as  conclusive  of  the  title.  The  proper  time  to  determine  this  question  will  be  when  a  case 
shall  arise  that  makes  a  decision  of  it  more  indispensable  than  the  one  now  submitted  to  the  committee. 

It  was  verj'  apparent,  from  the  evidence  before  the  committee,  that  but  a  very  small  portion  of 
the  voters  in  this  Congressional  district  could  have  been  in  any  way  apprised  that  the  incumbent  was, 
on  the  23d  day  of  May,  a  candidate  for  Congress.  It  is  probable,  from  the  testimony,  that  not  one  voter 
in  ten,  of  the  whole  number,  could  have  known  at  the  time  that  the  incumbent,  or  any  other  candidate, 
was  seeking  an  election  to  that  office. 

What  the  legal  effect  of  this  general  ignorance  and  want  of  notice  to  the  voters  would  be  in  itself, 
considered  independently  of  all  forms  of  law,  is  a  matter  of  very  great  doubt  and  well  worth  grave 
consideration.  Election  implies  choice,  and  choice  a  state  of  mind  in  reference  to  the  object  of  it  the 
reverse  of  ignorance.  With  what  propriety  a  person  may  be  said  to  be  elected  or  chosen  as  a  Repre- 
sentative to  Congress  in  a  district  in  which  nine-tenths  of  those  interested  in  the  election  had  no  knowl- 
edge that  he  or  anyone  else  was  a  candidate,  we  do  not  readily  or  clearly  see.  If  it  should  be  suggested 
that  those  who  do  not  go  to  the  polls  are  presumed  to  acquiesce  in  the  action  of  those  who  do,  would 
not  that  presumption  be  sufficiently  rebutted  by  the  proof  that  those  who  did  not  go  were  not  only 
ignorant  of  the  election,  but  acted  under  the  belief  that  no  election  at  the  time  could  be  legally  held? 

Accordingly,  the  committee  reported  a  resolution  that  Mr.  Upton  was  not 
entitled  to  the  seat. 

When  the  report  came  up  in  the  House  on  February  26  and  27,'  there  was  a 
long  debate  on  the  question  suggested  by  the  committee  as  to  the  size  of  the  elect- 

'  Globe,  pp.  975,  1001. 


300  PEECEDENTS    OF   THE   HOUSE   OF   REPRESENTATIVES.  §  367 

orate.  It  was  urged  that  there  was  no  law  of  Virginia  requiring  for  the  election  of 
a  Member  of  Congress  the  votes  of  any  specified  proportion  of  the  voters,  and  that 
any  number  of  voters  attempting  under  form  or  color  of  law  to  give  expression  to 
the  will  of  the  people  might  be  sufficient  to  exercise  the  power. 

On  the  other  hand,  it  was  argued  that  while  the  forms  of  law  might  be  put 
aside  when  necessary  to  allow  the  voices  of  the  voters  to  be  heard,  in  this  case  it 
was  proposed  to  waive  all  the  requirements  of  law  to  give  effect  to  the  voices  of  ten 
men. 

On  February  27,'  a  motion  was  made  to  amend  the  resolution  proposed  by  the 
committee  so  as  to  declare  Mr.  Upton  entitled  to  the  seat.  This  amendment  was 
defeated,  yeas  50,  nays  73.  Then  the  resolutions  declaring  Mr.  Upton  not  entitled 
to  the  seat  was  agreed  to. 

In  the  debate  the  point  was  made  that  the  unseating  of  Mr.  Upton,  in  a  case 
where  there  was  no  contestant  to  be  seated,  was  virtually  expulsion;  but  this  point 
did  not  figure  largely,  as  there  was  no  serious  questioning  of  the  right  of  the  House 
to  investigate  the  titles  of  its  Members  to  their  seats. 

367.  The  Virginia  election  case  of  Samuel  F.  Beach,  in  the  Thirty- 
seventh  Congress. 

The  House  decided  against  the  validity  of  an  election  informally  held 
and  participated  in  by  only  a  few  voters,  most  of  the  district  being  occu- 
pied hy  an  armed  enemy. 

The  presumption  that  those  who  do  not  go  to  the  polls  acquiesce  does 
not  apply  where  a  condition  of  civil  war  prevents  due  notice  of  election. 

A  legislature  being  in  existence,  a  constitutional  convention  may  not 
fix  the  times,  etc.,  of  elections  of  Representatives. 

On  March  3,  1862,^  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee 
on  Elections,  reported  on  the  memorial  of  Mr.  Samuel  Ferguson  Beach,  who  claimed 
to  represent  the  Seventh  district  of  Virginia.  Mr.  Beach's  certificate  showed  that 
on  October  24,  1861,  at  an  election  held  at  the  court-house  at  Alexandria,  he  received 
138  votes,  and  that  Charles  B.  Shirley,  his  opponent,  received  1 1  votes;  that  no  other 
polls  of  election  were  opened  in  the  district,  as  all  other  portions  than  the  vicinity 
of  Alexandria  were  within  the  lines  of  a  hostile  force.  The  credentials  were  signed 
by  the  conductor  and  two  commissioners  who  were  officers  of  the  election,  and  were 
addressed  to  "His  Excellency  Francis  H.  Pierpont,  Governor  of  the  State  of 
Virginia." 

The  conditions  imder  which  the  election  had  been  held  were  thus  described  by 

the  committee: 

A  convention  assembled  at  Wheeling,  in  the  State  of  Virginia,  on  the  11th  of  June  last,  in  which  were 
represented,  it  is  believed,  thirty-nine  counties  of  the  State,  situate  in  what  is  known  as  Western  Vir- 
ginia. This  convention  adopted  on  the  19th  of  June  "an  ordinance  for  the  reorganization  of  the  State 
government,"  after  having  declared  that,  because  of  the  treasonable  practices  and  purposes  of  the  State 
convention  lately  held  in  Richmond,  and  of  the  executive  of  the  State  in  connection  therewith,  "the 
offices  of  all  who  adhere  to  the  said  convention  and  executive,  whether  legislative,  executive,  or  judicial, 
are  vacated."     By  the  same  ordinance  a  legislature,  or  general  assembly,  for  the  State  of  Vii^inia  was 

'  Journal,  p.  369. 

'  Second  session  Thirty-seventh  Congress,  Report  No.  42;  1  Bartlett,  p.  391;  Rowell's  Digest,  p.  176. 


§  367  ELECTORATES    DISTRACTED   BY    CIVIL    WAR.  301 

created,  and  required  to  "  assemble  in  the  city  of  Wheeling  on  the  1st  day  of  July,  and  proceed  to  organ- 
ize themselves  as  prescribed  by  existing  laws  in  their  respective  branches."  Said  convention  subse- 
quently elected  a  governor  for  the  State  of  Virginia,  who  still  holds  the  office  thus  conferred  upon  him. 

The  legislature  thus  created  assembled  as  required,  and  passed  many  enactments  for  the  whole 
State  of  Virginia,  elected  two  United  States  Senators,  who  were  admitted  to  seats  in  the  Senate,  and 
assumed  all  the  functions  of  the  general  assembly  of  Virginia  under  its  preexisting  constitution  and  laws. 
The  convention  which  created  and  set  in  motion  this  new  government  did  not,  however,  dissolve  itself 
upon  the  assumption  of  the  several  functions  of  government  by  the  executive  officers  and  general  assem- 
bly which,  in  the  exercise  of  provisional  powers,  it  had  itself  brought  into  being,  but  continued  to  hold 
its  meetings  after  the  assembling  of  the  legislature,  and  to  share  with  it  in  ordinary  legislation  for  the 
whol«  State.  The  legislature  was  in  session  till  the  24th  of  July,  and  how  much  longer  the  committee 
are  not  informed.  The  convention  was  in  session  on  the  20th  of  August,  and  on  that  day  passed 
an  ordinance  providing  for  the  election  of  Representatives  in  Congress  in  each  district  where,  from 
any  cause,  such  election  was  not  held  on  the  fourth  Thursday  in  May  last,  the  day  provided  by  law  for 
such  election,  and  aLw  "in  the  Eleventh  district,  where  a  vacancy  now  exists,  an  election  for  such 
Representative  shall  be  held  on  the  fourth  Tuesday  in  October  next,  which  shall  be  conducted,  and  the 
result  ascertained,  declared,  and  certified  in  the  manner  directed  in  the  second  edition  of  the  Code  of 
Virginia." 

Thereupon,  on  October  12,  Governor  Pierpont  issued  a  proclamation,  to  carry 
out  the  ordinance  of  the  convention,  and  closed  with  the  statement  that  he  did 
"hereby  entreat  the  loyal  voters  of  this  State  to  hold  elections  in  their  several 
districts,"  etc. 

Such  was  the  authority  under  which  the  election  was  held.  Mr.  Beach  claimed 
"that  the  ballot  box  knows  no  quorum,  and  that  the  number  of  votes  cast  is  not  a 
legitimate  inquiry  beyond  the  necessity  of  ascertaining  for  whom  a  majority  was 
given." 

The  committee  examined  two  questions  on  which  the  determination  of  the  case 
depended:  (a)  The  legality  of  the  election  in  a  technical  sense;  and  (6)  the  acqui- 
escence of  the  constituency. 

As  to  the  legality  of  the  election,  the  committee  examined  first  the  authority 
under  which  the  election  was  called.     They  say  in  their  report: 

The  whole  authority  for  this  election  is  the  ordinance  of  the  Wheeling  convention  passed  August  20. 
Assuming  that  the  proceedings  of  that  convention,  and  of  the  legislature  and  executive  created  by  it, 
have  ripened  into  a  State  government,  legal  in  all  respects,  still  the  question  arises,  was  it  one  of  the 
functions  of  that  convention  to  provide  for  the  time,  place,  and  manner  of  electing  Representatives  in 
Congress,  especially  after  the  legislature  had  assembled?  The  purpose  of  that  convention  was  the 
creation  of  a  new  State  government.     The  only  basis  upon  which  it  rests  is  necessity. 

A  new  govermnent  must  begin  somewhere,  and  there  must  be  somebody  to  make  it.  As  necessity 
was  the  foundation,  so  also  it  was  the  limit  of  the  power  called  into  being  for  the  sole  purpose  of  inaugu- 
rating a  new  government.  It  could  do  an\'thing  necessary  to  carry  out  that  purpose,  and  when  that  was 
done  it  could  do  no  more.  Its  functions  ceased  the  moment  the  new  government  took  on  form  and  life. 
The  two  can  not,  in  the  nattu'e  of  things,  exist  and  move  pari  passu.  Now,  long  before  this  ordinance 
had  passed  the  convention  there  was  in  existence  a  governor  and  a  legislature,  having  all  the  powers 
that  a  governor  and  legislature  could  have  in  Virginia — that  is,  all  the  powers  which  the  constitution 
of  Virginia  clothes  a  governor  and  legislature  with,  not  in  conflict  with  the  Constitution  of  the  United 
States. 

Now,  this  latter  instrument  provides  (art.  1,  sec.  4)  that  "the  times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  shall  be  prescribed  in  each  State  by  the  legislatures  thereof." 
It  is  a  legislative  act.  It  is  a  law.  If  the  time  had  been  fixed  in  the  constitution  of  the  State,  recognized 
and  acquiesced  in  by  the  legislature,  it  may  be  said  to  be  the  act  of  the  lawmaking  power — a  legislative 
act.  But  this  time  and  manner  were  not  fixed  in  the  organic  act,  nor  by  the  legislature,  but  by  the  con- 
vention assuming  legislative  functions  in  the  presence  of  the  legislature  itself. 


302  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES/  §  368 

Further  discussing  the  legahty  of  the  election,  the  committee  point  out  numer- 
ous particulars  in  which  the  election  failed  to  be  carried  out  in  conformity  with  the 
Code  of  Virginia,  which  the  convention  prescribed  as  the  guide.  The  governor  had 
directed  no  writ  of  election  to  the  sheriffs,  but  had  simply  entreated  the  loyal  voters, 
the  election  had  not  been  advertised  over  the  district,  the  vote  had  not  been  can- 
vassed and  proclaimed. 

Therefore  the  committee  concluded  that  if  the  claim  of  the  memoriahst  rested 
exclusively  on  a  strict  conformity  with  all  the  provisions  of  law,  it  could  not  be 
maintained. 

The  committee,  however,  continue: 

But  the  committee  do  not  desire  to  rest  their  conclusions  upon  so  narrow  a  basis.  If  the  Union 
voters  of  the  district  had  had  an  opportunity  to  choose  a  Representative,  if  there  had  been  no  armed 
occupation  of  the  district  by  rebels,  so  that  polls  could  have  been  opened  at  the  various  voting  places 
in  the  district,  and  all  who  desired  could  have  deposited  their  ballots,  and  had  done  so  in  conformity 
with  the  provisions  of  law,  so  far  as  the  disturbed  and  abnormal  condition  of  things  would  permit,  the 
committee  would  have  sought  some  way  to  give  effect  to  such  election.  But  enough  of  the  facts  sur- 
rounding this  election  have  already  been  stated  to  show  that  such  is  not  the  case.  There  was  but  one 
single  poll  in  the  whole  district  opened,  and  but  149  votes  cast.  The  reason  why  there  were  no  other 
polls  opened  or  more  votes  cast  can  not  be  better  expressed  than  by  the  three  freeholders  themselves 
who  certify  to  this  election.     This  is  their  language: 

"And  we  further  certify  that  there  were  no  other  polls  of  election  held  at  any  other  precinct  in 
said  county  of  Alexandria,  nor  in  any  other  of  the  counties  of  this  Congiessional  district,  as  far  as  we 
can  learn  and  believe;  and  that  all  the  other  counties  of  this  Congressional  district  are,  and  were  at  the 
time  of  said  election,  included  within  the  lines  of  the  rebel  army." 

This  state  of  things  is  no  fault  of  the  memorialist  or  the  Union  voters  of  the  district;  but  it  did 
exist  on  the  day  of  this  election.  How  can  it  be  made  to  appear,  then,  that  the  memorialist  is  the  choice 
of  the  district,  or  that  if  an  opportunity  had  existed  an  overwhelming  majority  of  votes  would  not  have 
been  cast  against  him?  In  what  sense  can  it  be  said  that  those  who  did  not  vote  are  to  be  presumed  to 
acquiesce,  when  they  neither  had  the  opportunity  to  vote  nor  the  knowledge  that  voting  was  going 
on?    Acquiescence  presumes  liberty  to  protest.     In  this  instance  that  liberty  did  not  exist. 

Therefore  the  committee  recommended  the  adoption  of  a  resolution  declaring 
that  Mr.  Beach  was  not  entitled  to  the  seat  claimed  by  him. 

On  March  31,  1862,^  the  report  of  the  committee  was  agreed  to  by  the  House, 
without  debate  or  division. 

368.  The  Virginia  election  case  of  "Wing  v.  McCloud  in  the  Thirty- 
seventh  Congress. 

The  House  declared  invalid  an  election  informally  held  and  partici- 
pated in  by  a  small  fraction  only  of  the  voters,  the  district  being  largely 
occupied  by  an  armed  enemy. 

The  House  declined  to  seat  on  prima  facie  showing  a  claimant  declared 
elected  by  the  governor's  proclamation,  the  district  referred  to  being 
notoriously  under  duress  of  civil  war. 

On  January  8, 1863,^  the  credentials  of  Mr.  Jolm  B.  McCloud,  as  Representative- 
elect  from  the  Second  Congressional  district  of  Virginia,  were  presented  to  the 
House,  and  a  motion  was  made  that  he  be  permitted  to  take  the  oath.  This  cer- 
tificate was  in  the  form  of  a  proclamation  of  Governor  Pierpont,  of  Virginia,  declaring 
Mr.  McCloud  duly  elected. 

1  Journal,  p.  490;  Globe,  p.  1452. 

-  Third  session  Thirty-seventh  Congress,  Journal,  p.  1G.5;  Globe,  p.  237. 


§  368  ELECTORATES    DISTBACTED    BY    CIVIL    WAR.  303 

Objection  being  made,  the  credentials  were  referred  to  the  Committee  on 
Elections,  and  the  oath  was  not  administered.  The  House,  however,  allowed  the 
privilege  of  the  floor  to  Mr.  McCloud,  as  was  customary  in  the  cases  of  contestants 
and  claimants  for  seats. 

On  February-  4'  the  committee  reported  both  on  the  claim  of  Mr.  McCloud 
and  also  the  claim  of  Mr.  W.  W.  Wing,  who  contested  the  election  on  the  ground 
that  certain  ballots  had  been  improperly  counted  for  Mr.  McCloud,  thereby  vio- 
lating the  Virginia  law  requiring  viva  voce  voting. 

The  committee  found  it  uimecessary  to  go  into  this  controversy,  since  the 
validity  of  the  entire  proceeding  was  in  doubt. 

The  Second  district  of  Virginia  was  composed  of  ten  counties  and  Norfolk 
city.  The  election  occurred  December  22,  1862,  and  in  all  1,402  votes  were  cast, 
645  for  Mr.  McCloud,  621  for  jMt.  Wing,  and  136  for  other  candidates. 

The  election  was  called  by  proclamation  of  "John  A.  Dix,  Major-General," 
and  was  held  in  precincts  in  four  counties  by  election  officers  appointed  by  "Egbert 
L.  Viele,  Brigadier-General  and  ililitary  Governor."  In  addition  there  were  writs 
of  Governor  Pierpont  directed  "To  the  sheriff,  or  any  constable,  or  to  any  free- 
holder" in  the  coimty,  and  requiring  them  to  hold  an  election.  The  committee 
saj^  in  regard  to  the  proceeding: 

It  is  difficult  to  imagine  a  proceeding  so  entirely  in  disregard  of  the  requirements  of  the  law  of  this 
State  as  this  election.  ^\'hether  authority  for  it  be  sought  in  the  proclamation  of  Major-General  Dix, 
"commanding  the  department  of  Virginia,"  or  in  that  of  Brigadier-General  Viele,  "military  governor 
of  Norfolk,"  or  in  the  writs  of  election  issued  by  Francis  H.  Pierpoint,  governor  of  the  Commonwealth 
of  Virginia,  or  in  all  three  combined,  it  is  equally  in  conflict  with  the  plainest  provisions  of  the  law  of 
the  State,  ^^'hat  territory  in  Virginia  the  "department  of  Virginia^'  embraces  the  committee  are  not 
informed;  so  that  they  are  unable  to  say  that  it  did  or  did  not  embrace  the  Second  Congressional  district. 
The  committee  are  also  ignorant  of  the  source  from  whence  General  Dix  obtained  authority  to  call  an 
election  at  all.  He  does  not  piu^ort  to  call  it  as  militarj'  governor,  who  is  clothed  to  some  extent  with 
civil  as  well  as  military  powers.  The  committee  are  not  aware  that  General  Dix  assumes  to  discharge 
any  other  civil  functions  whatever.  But  the  proclamation  itself  undertakes  to  prescribe  the  qualifi- 
cations which  alone  would  entitle  a  man  to  vote  at  this  election,  when  the  Constitution  of  the  United 
States  and  of  Virginia  have  fixed  the  qualification  of  voters  for  Representative  to  Congress,  and  these 
qualifications  can  not  be  added  to  or  taken  from. 

Article  1,  section  2,  of  the  Constitution  of  the  United  States  is  as  follows: 

"The  House  of  Representatives  shall  be  composed  of  Members  chosen  everj'  second  year  by  the 
people  of  the  several  States,  and  the  electors  in  each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State  legislature." 

And  the  constitution  of  Virginia  provides,  article  3,  section  1: 

"Every  white  male  citizen  of  the  Commonwealth,  of  the  age  of  21  years,  who  has  been  a  resident 
of  the  State  for  two  years,  and  of  the  county,  city,  or  town  where  he  offers  to  vote  for  twelve  months 
next  preceding  an  election,  and  no  other  person,  shall  be  qualified  to  vote  for  members  of  the  general 
assembly." 

And  section  4  provides,  as  already  cited,  that  "in  all  elections  votes  shall  be  given  openly,  or  viva 
voce,  and  not  by  ballot." 

A  comparison  of  these  several  provisions  with  the  proclamation  of  General  Dix  will  show  the  depar- 
ture and  conflict  without  any  comment  or  inquiry  into  the  authority  for  issuing  it. 

The  proclamation  of  General  Viele  seems  to  have  been  in  aid  of  that  of  General  Dix.  It  is  issued 
by  him  as  "military  governor  of  Norfolk."  The  committee  have  failed  to  obtain  the  instructions  to 
General  Dix  in  this  matter,  and  are  equally  ignorant  of  the  extent  of  jurisdiction  of  the  military  gov- 

'  Report  No.  23;  1  Bartlett,  p.  45.5;  Rowell's  Digest,  p.  182. 


304  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §   368 

emorof  Norfolk.  If  anything  can  be  learned  from  his  title,  it  is  confined  either  to  the  city  or  county  of 
Norfolk.  If  that  be  so,  he  could  hardly  interfere  in  this  election  with  the  counties  of  Princess  Ann,  Nan- 
semond,  or  Isle  of  Wight.  But  he  not  only  appointed  commissioners  of  election  in  the  county  of  Norfolk, 
but  also  in  the  other  counties  already  named,  and  required  all  from  all  these  counties  to  make  returns 
to  "these  headquarters  within  three  days  subsequent  to  the  election."  The  statutes  of  Virginia  require 
these  commissioners  to  be  appointed  by  the  court  of  each  county,  and  require  them  to  make  returns 
to  the  clerks  of  the  county  courts  of  their  respective  counties,  and  they  to  the  clerk  of  the  county  of 
Isle  of  Wight,  and  he  declares  the  result.  But  it  seems  that  this  proclamation,  like  that  (jf  tieneral  Dix, 
was  confined  to  four  out  of  the  eleven  counties  of  this  district.  There  is  no  authority  of  law  for  this 
selection,  and  it  is  supposed  to  have  been  induced  by  necessity,  the  remainder  of  the  district  being 
within  the  rebel  lines.  But  whatever  the  reason,  the  House  can  at  once  see  the  danger  if  it  were 
permitted.  If  certain  counties  may  be  selected  in  a  district,  and  others  omitted  in  the  issue  of  writs  of 
elections,  then  the  control  of  the  representation  must  rest  with  the  power  of  selection.  It  should  be 
sufficient,  however,  that  the  law  does  not  sanction  any  such  selection,  and  requires  the  issue  of  writs  to 
the  proper  officers  of  all  the  counties. 

But  the  writs  of  Francis  H.  Pierpoint,  governor  of  the  Commonwealth  of  Virginia,  were  also  issued 
in  this  case,  as  has  been  already  said.  There  were  none  of  them  sent  to  any  county  in  the  district  except 
the  four  already  named,  and  therefore  all  that  has  been  said  touching  the  same  proceeding  under  the 
proclamations  of  General  Dix  and  General  Viele  has  equal  force  here.  But  these  writs,  although  bear- 
ing date  the  12th  of  December  and  calling  originally  for  an  election  upon  Saturday,  the  27th  day  of 
December,  were  first  brought  into  the  district  on  Saturday,  the  20th,  and  delivered  on  Sunday,  the  21st, 
to  one  of  the  candidates  for  distribution,  and  then  by  erasions  and  insertions  made  at  some  time — the 
committee  do  not  know  when — they  became  writs  for  an  election  on  the  next  day — that  is,  on  Monday, 
the  22d  day  of  December,  and  they  were  so  distributed  that  day.  Now,  it  is  expressly  enacted  by  the 
statutes  of  Virginia  that  "every  officer  to  whom  a  writ  of  election  is  directed  shall,  at  least  ten  days 
before  such  election,  give  notice  thereof,  and  of  the  time  of  the  election,  by  advertisement  at  each  place 
of  voting  in  his  county  or  corporation."  With  this  plain  and  express  provision  of  law  before  them  the 
committee  are  at  a  loss  for  any  explanation  of  the  reason  of  delivering  these  writs  on  Sunday  for  an 
election  the  next  day,  except  that  given  to  the  candidate  at  the  time  of  their  delivery  by  General  Sam- 
uels, the  messenger  who  brought  them,  as  stated  to  the  committee  by  Mr.  Wing  himself,  viz,  "to  give  a 
semblance  of  legality  to  the  election,"  WTiatever  may  have  been  the  reason  for  this  proceeding,  the 
proceeding  itself  will  have  a  tendency  to  invoke  the  closest  scrutiny  on  the  part  of  the  House  into  the 
regularity  of  each  successive  step  in  all  elections  held  under  the  circumstances  which  attend  this. 

But  turning  from  an  examination  of  the  conformity  to  legal  requirements  in  this  election  to  the  ques- 
tion whether  the  voters  of  this  district,  conforming  as  nearly  to  law  as  possible,  have,  unrestrained  and 
unawed  by  the  presence  of  any  considerable  rebel  force,  had  full  and  fair  opportunity  to  express  their 
choice  of  a  Representative,  the  committee  find  that  but  1,402  votes  in  all  were  cast  in  a  district  usually 
polling  about  10,000  votes;  that  of  the  eleven  counties  composing  this  district  polls  were  opened  in  only 
four  of  them,  and  not  in  every  precinct  in  these  four,  for  the  reason  that  they  were  in  the  armed  occupa- 
tion of  the  rebels.  No  polls  could,  therefore,  be  opened,  and  not  a  single  voter — be  the  numlier  what  it 
may  in  this  much  the  greater  portion  of  the  district — could  cast  a  vote,  or  in  any  way  have  a  voice  in 
the  selection  of  a  Representative.  According  to  the  uniform  rule  adopted  by  the  committee  and  sus- 
tained by  the  House  this  has  failed,  in  any  just  sense,  to  be  the  election  of  a  Representative  from  the 
Second  district  in  Virginia.  The  committee,  therefore,  report  adversely  upon  the  right  of  either  claimant 
to  the  seat. 

Therefore  the  committee  concluded  that  neither  Mr.  Wing  nor  Mr.  McCloud 
was  entitled  to  the  seat. 

On  February  14,*  in  the  debate,  it  was  stated  that  the  testimony  of  Governor 
Pierpont  had  been  taken  since  the  report  was  written,  and  it  appeared  that  the  alter- 
ation in  the  writs  had  been  made  by  military  officers. 

The  House,  without  division,  agreed  to  the  report  of  the  committee.'^ 

>  Globe,  p.  963.  *  Journal,  p.  400. 


§  369  ELECTORATES   DISTRACTED    BY    CIVIL    WAR.  305 

369.  Tte  North  Carolina  election  case  of  Jennings  Pigott  in  the 
Thirty-seventh  Congress. 

In  time  of  civil  war  an  election  participated  in  by  a  small  number  of 
loyal  voters  was  held  invalid,  more  than  two-thirds  of  the  district  being 
unable  to  participate. 

The  House  declined  to  give  prima  facie  effect  to  irregular  credentials 
referring  to  a  district  notoriously  under  duress  of  civil  war. 

A  mere  sojourner  in  a  State  was  held  not  to  be  qualified  as  an  inhab- 
itant to  represent  a  district  in  Congress. 

On  January  15,  1863,'  the  credentials  of  Jennings  Pigott,  claiming  to  have  been 
elected  to  the  House  from  the  Second  district  of  North  Carolina,  were  presented  and 
the  suggestion  was  made  that  Mr.  Pigott  be  sworn  in.  But  the  House  referred  the 
credentials  to  the  Committee  on  Elections,  and  the  oath  was  not  administered. 

On  February  14,^  the  committee  reported,  finding  that  Mr.  Pigott  claimed  to 
have  been  elected  January  1,  1863,  by  virtue  of  a  proclamation  issued  by  Edward 
Stanley,  military  governor  of  North  Carolina.  The  committee  do  not  consider  the 
legaHty  of  that  action,  or,  in  fact,  of  any  of  the  steps  taken  in  pursuance  of  that  proc- 
lamation. The}'  consider  only  (a)  the  numbers  of  loyal  voters  participating  in  the 
election,  and  (6)  the  qualifications  of  the  claimant. 

As  to  the  election,  the  committee  find  that  the  whole  nmnber  of  votes  cast  was 
864,  of  which  Mr.  Pigott  received  595.  There  was  voting  in  only  three  of  the  eleven 
counties  composing  the  district,  and  in  one  of  the  three  there  was  voting  in  only  one 
precinct.  And  there  were  many  voting  places  in  the  three  counties  where  no  polls 
were  opened  or  notice  taken  of  the  election.  Generally,  the  presence  of  armed  ene- 
mies prevented  the  opening  of  these  polls,  and  the  remaining  eight  counties  were 
almost  entirely  in  the  armed  occupation  of  the  enemy.  Therefore  the  committee 
concluded  that  Mr.  Pigott  could 

in  no  just  sense  be  deemed  the  choice  of  the  loyal  voters  of  a  district  in  which  more  than  half  of  them 
had  no  opportunity  to  express  that  choice.  Voters  may  voluntarily  stay  away  from  the  polls,  and  they 
are  thereby  taken  and  deemed  to  have  acquiesced  in  what  was  done  by  those  who  are  present.  But 
no  such  presumption  rests  upon  those  who  are  under  duress;  and  it  can  never  be  known  that  they  would 
not  have  made  choice  of  another  if  the  iron  grasp  of  the  rebellion  had  been  unloosed. 

As  to  the  second  point,  whether  Mr.  Pigott  was  at  the  time  of  the  election  an 
"inhabitant"  of  North  Carolina,  within  the  meaning  of  the  Constitution,  the 
committee  say : 

Mr.  Pigott,  although  a  native  of  North  Carolina,  had  resided  in  the  city  of  Washington  for  the  last 
ten  or  eleven  years,  owned  real  estate  here,  dwelt  with  his  family  in  his  own  house  here,  and  had  on 
more  than  one  occasion  voted  here  for  municipal  officers.  After  Mr.  Stanly  was  appointed  military 
governor  of  North  Carolina,  Mr.  Pigott  was  appointed  his  private  secretary,  and,  renting  his  hotise  in 
Washington,  went  to  North  Carolina  in  that  capacity,  and  had  remained  there  as  such  private  secretary 
two  or  three  months  when  this  election  took  place.  He  had  done  nothing  since  his  return  to  the  State 
to  indicate  a  permanency  of  abode  there  beyond  what  is  here  stated.  The  committee  are  of  opinion 
that  to  be  an  inhabitant  within  the  meaning  of  this  section  of  the  Constitution,  if  it  does  not  mean 
resident  or  citizen,  certainly  means  more  than  sojourner,  which  is  all  that  can  be  claimed  for  Mr.  Pigott. 

'  Third  session  Thirty-seventh  Congress,  Journal,  p.  194;  Globe,  p.  334. 
2  House  Report  No.  41;  1  Bartlett,  p.  463;  Rowell's  Digest,  p.  184. 
5994— VOL  1—07 20 


306  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   370 

In  the  case  of  John  Bailey  (Contested  election  cases,  411),  who  was  elected  a  Representative  from 
Massachusetts  while  a  clerk  in  one  of  the  Departments  in  Washington,  where  he  had  been  for  six  years, 
although  a  native  of  Massachusetts,  it  was  decided  that  he  had  ceased  to  be  an  inhabitant  of  Massa- 
chusetts within  the  meaning  of  the  Constitution.  And  the  able  report  of  the  committee  in  that  case, 
adopted  by  the  House,  defines  the  word  inhabitant  in  this  connection  to  be  "a  bona  fide  member  of 
the  State,  subject  to  all  the  requisitions  of  its  laws  and  entitled  to  all  the  privileges  and  advantages 
which  they  confer."  In  the  opinion  of  the  committee  the  sojourn  of  Mr.  Pigott  in  North  Carolina, 
for  the  temporary  and  transient  purpose  of  being  private  secretary  to  a  military  governor,  was  not  an 
inhabitancy  within  this  definition. 

Therefore  the  committee  reported  that  Mr.  Pigott  was  not  entitled  to  the  seat. 

On  February  23  '  the  report  was  considered  in  the  House.  A  proposition  was 
made  to  amend  by  adopting  a  substitute,  reciting  that  the  loyal  people  of  the 
district,  having  done  their  best  to  secure  representation,  should  not  be  deprived 
of  their  rights  because  of  the  act  of  disloyal  persons;  that  the  acts  of  the  disloyal 
had  devolved  the  responsibilities  of  citizensliip  on  the  loyal ;  that  the  Constitution 
guaranteed  to  every  State  a  republican  form  of  government  and  equal  represen- 
tation in  Congress;  that  the  payment  of  taxes  was  reciprocal  with  the  right  of 
representation;  that  protection  of  citizens  in  their  right  of  voting  was  the  duty 
of  the  Government;  and  therefore  that  the  loss  of  that  right  by  loyal  citizens  because 
of  invasion  of  the  disloyal  was  a  misfortune  and  not  a  fault;  that  laws  prescribing 
the  time,  mode,  and  manner  of  holding  elections  were  merely  directory;  and 
finally  that,  in  accordance  with  these  principles,  IMr.  Pigott  was  entitled  to  the  seat. 

This  amendment  was  disagreed  to  -  without  division ;  and  then  the  report 
of  the  committee  was  agreed  to.     So  Mr.  Pigott  was  not  admitted  to  the  seat. 

370.  The  Tennessee  election  case  of  John  B.  Rodgers  in  the  Thirty- 
seventh  Congress. 

The  House  declined  to  seat  a  claimant  voted  for  in  a  district  estab- 
lished by  an  insurgent  authority  and  at  an  election  called  by  that 
authority. 

Instance  of  a  claim  for  a  seat  presented  by  a  memorial. 

On  January  19,  1863,^  the  memorial  of  Jolui  B.  llodgers,  claiming  a  seat  in  the 
House  from  Tennessee,  was  presented  and  referred  to  the  Committee  of  Elections, 
no  suggestion  being  made  that  Mr.  Rodgers  should  be  sworn  in. 

On  February'  9  ^  the  committee  reported  as  follows: 

That  Mr.  Rodgers  claims  to  have  been  elected  to  this  House  in  November,  1861,  from  a  district  in 
Tennessee,  made  up  in  part  of  the  counties  embraced  in  the  district  now  represented  by  Mr.  Maynard 
(the  Second)  and  in  part  of  counties  embraced  in  the  district  now  represented  by  Mr.  Clements  (the 
Fourth).  These  gentlemen  were  elected  in  August,  1861,  and  subsequently  to  their  election,  the  com- 
m.ittee  are  informed  by  Mr.  Rodgers  that  the  State  was  redistricted  by  the  rebel  legislature  for  the 
so-called  Confederate  congress,  and  an  election  in  these  new  districts  was  held  for  the  Confederate  con- 
gress in  November  following.  It  is  claimed  by  Mr.  Rodgers  that  at  this  election  votes  were  cast  for  him 
as  a  Representative  to  this  Congress;  and  it  is  by  virtue  of  these  votes  that  he  now  claims  a  seat.  All 
the  evidence  submitted  by  Mr.  Rodgers  in  support  of  his  claim  accompanies  this  report.     The  com- 

'  Journal,  p.  460;  Globe,  pp.  1208-1212. 

^  The  Journal,  by  the  evident  use  of  the  word  "agreed"  for  "disagreed,"  states  that  this  amendment 
was  agreed  to.     The  context  of  the  Journal,  as  well  as  the  Globe,  shows  that  it  was  disagreed  to. 

^  Third  session  Thirty-seventh  Congress,  Journal,  p.  206;  Globe,  p.  382. 
-      *  House  Report  No.  32;  1  Bartlett,  p.  462;  Rowell's  Digest,  p.  184. 


§  371  ELECTORATES    DI8TBACTED    BX    CIVIL    WAR.  307 

mittee  have  found  no  foundation  for  the  claim,  and,  referring  the  House  to  the  accompanying  papers, 
do  not  deem  further  comment  necessary.     They  accordingly  report  the  following  resolution: 

Resolved,  That  John  B.  Rodgers  is  not  entitled  to  a  seat  in  this  House  as  a  Representative  from  the 
State  of  Tennessee. 

The  House,  on  February  14,^  agreed  to  the  resolution  mthout  division. 

371.  The  Virginia  election  case  of  Christopher  L.  Grafflin  in  the 
Thirty-seventh  Congress. 

The  House  considered  invalid  an  election  informally  held  wherein  all 
but  a  fraction  of  the  voters  were  prevented  by  civil  war  from  partici- 
pating. 

The  House  declined  to  give  prima  facie  effect  to  credentials  regular  in 
form  but  referring  to  a  district  notoriously  under  duress  of  civil  war. 

On  January  23,  1S63,-  the  credentials  of  Christopher  L.  Grafflin,  claiming  to 
be  elected  as  Representative  from  the  Eighth  Congressional  district  of  Virginia, 
were  presented  to  the  House  and  the  motion  was  made  that  he  be  permitted  to  take 
the  oath.  The  credentials  were  signed  by  Governor  Pierpont  and  under  the  seal 
of  the  State. 

The  House  did  not  permit  Mr.  GrafSin  to  take  the  oath,  but  referred  the 
credentials  to  the  Committee  of  Elections. 

On  February  23 '  the  committee  reported  as  follows : 

Writs  of  election  were  issued  by  the  governor  of  the  Commonwealth,  bearing  date  the  13th  of  Decem- 
ber, 1862,  ordering  an  election  of  Representative  in  this  district  on  the  31st  of  said  December.  These 
writs  were  placed  in  the  hands  of  Mr.  O.  D.  Downey,  who  was  instructed  to  visit  the  district  and  deter- 
mine, from  actual  observation,  whether  the  district  was  in  a  condition  to  hold  an  election  at  the  time 
fixed  in  the  writ ;  and  if,  from  the  presence  of  rebels  or  other  causes  connected  with  the  war,  he  should 
deem  an  election  at  that  time  impracticable  or  unsafe,  to  appoint  such  other  day  as,  in  his  judgment, 
would  be,  under  all  the  circumstances,  most  suitable  and  proper.  On  the  arrival  of  Mr.  Downey  in 
the  district  he  found  the  condition  of  the  people  so  unsettled  (a  strong  force  of  the  enemy  occupying 
several  of  the  counties,  and  in  the  immediate  neighborhood  of  others,  threatening  those  desirous  of 
exercising  the  elective  franchise)  that  he  deemed  an  election  upon  the  day  fixed  in  the  writ  wholly 
impracticable.  He  accordingly  fixed  upon  the  5th  of  January,  1863,  as  the  time  for  holding  this  elec- 
tion. At  that  time  there  were  cast  in  the  county  of  Morgan  158  votes  for  Mr.  Grafflin  and  58  for  Joseph 
S.  Wteat;  in  the  county  of  Berkeley  115  votes  for  Mr.  Grafflin;  and  in  the  county  of  Hampshire  69  votes 
for  Mr.  Grafflin  and  2  votes  for  Mr.  \Vheat;  342  votes  in  all  for  Mr.  Grafflin  and  60  votes  for  Mr.  Wheat — 
a  total  of  402  votes.  No  votes  were  cast  in  any  other  county,  and  in  but  two  precincts  in  Hampshire 
and  one  in  Berkeley.  In  the  counties  of  Frederick,  Page,  Warren,  Clarke,  Loudoun,  and  Jefferson,  six 
out  of  the  nine  composing  the  district,  there  were  no  votes  cast.  Of  some  of  these  counties  the  rebels 
had  armed  occupation,  and  into  others  guerrilla  bands  were  constantly  making  incursions,  filling  the 
people  with  terror,  and  threatening  with  imprisonment  all  who  should  participate  in  this  election. 
To  open  the  polls  under  such  circumstances  in  these  counties  would  have  been  worse  than  a  farce;  it 
would  have  been  an  invitation  to  the  rebels  to  visit  with  violence  the  peaceful  and  loyal  citizens  so 
situated  that  our  forces  could  not  protect  them. 

This  case  comes  within  the  precedent  established  in  the  recent  case  of  Lewis  McKenzie,*  claiming 
a  seat  as  a  Representative  from  the  Seventh  district  in  Virginia  by  virtue  of  an  election  precisely  similar 
to  this.  The  laws  of  Virginia  require  the  governor  to  fix  in  his  writ  the  time  for  holding  an  election  to 
fill  a  vacancy,  and  nowhere  authorize  him  to  delegate  that  power  to  another. 

'Journal,  p.  401;  Globe,  p.  963. 

^  Third  session  Thirty-seventh  Congress,  Journal,  pp.  226,  227;  Globe,  pp.  489,  491. 

^  House  Report  No.  43;  1  Bartlett,  p.  464;  Rowell's  Digest,  p.  184. 

*  See  Section  372. 


308  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  372 

The  election  itself,  had  the  day  upon  which  it  was  held  been  authorized  by  law,  like  that  in  the  case 
of  McKenzie,  already  alluded  to,  was  not  a  general  election  in  the  whole  district,  but  only  a  partial 
and  imperfect  one,  in  which  much  the  largest  portion  of  the  voters  of  the  district  took  no  part  and  had 
no  opportunity  to  take  part.  No  notices  were  served  and  no  polls  opened;  and  if  there  had  been,  no 
voter  could,  with  safety  to  his  property,  his  liberty,  or  his  life,  have  voted  in  much  the  largest  portion 
of  the  district.  The  committee  regret  that  they  can  not  find  any  ground  for  pronouncing  this  an  election 
in  any  just  sense  of  that  term.  After  a  careful  revision  of  the  decision  to  which  they  arrived  in  the  case 
of  McKenzie,  already  stated,  which  was  sustained  by  the  House,  they  see  no  occasion  to  question  its 
correctness,  and  they  tlierefore  report  the  accompanying  resolution  and  recommend  its  adoption: 

Resolved,  That  Christopher  L.  Grafflin  is  not  entitled  to  a  seat  in  this  House  as  a  Representative 
from  the  Eighth  Congressional  district  of  Virginia. 

On  March  3  '  the  resolution  proposed  by  the  committee  was  agreed  to  with- 
out division. 

372.  The  Virginia  election  case  of  Lewis  McKenzie,  in  the  Thirty- 
seventh  Congress. 

The  House  declined  to  hold  valid  an  election  informally  held  and, 
because  of  civil  war,  participated  in  by  only  a  small  fraction  of  the  voters 
of  the  district. 

On  January  29,  1863,^  the  credentials  of  Lewis  McKenzie  as  Representative- 
elect  from  the  Seventh  Congressional  district  of  Virginia,  were  presented  to  the 
House  and  referred  to  the  Committee  of  Elections,  no  motion  being  made  that  the 
oath  be  administered  to  Mr.  McKenzie.  The  credentials  were  in  the  form  of  a 
statement  of  the  votes  cast  in  two  counties,  no  returns  being  received  from  eight 
counties,  and  were  signed  by  "Jefferson  Tacey,  Clerk." 

On  February  9  ^  the  committee  reported,  showing  the  following  facts  and  con- 
clusions: 

To  Thomas  J.  Edlen, 

Special  Commissioner  Jot  Alexandria  County: 

Whereas  the  voters  of  the  Seventh  (7th)  Congressional  district  of  Virginia,  composed  of  the  counties 
of  Alexandria,  Spottsylvania,  Fairfax,  Fauquier,  Prince  William,  Rappahannock,  Culpeper,  Stafford, 
Orange,  and  King  George,  failed  to  elect  a  Representative  to  the  Thirty-seventh  (37th)  Congress  of 
the  United  States  on  the  23d  of  May,  1861,  you  are  hereby  required,  having  first  taken  the  oath  or 
affirmation  prescribed  by  existing  laws,  to  hold  an  election  to  supply  the  vacancy  aforesaid,  at  the 
several  places  of  voting  in  Alexandria  County,  on  Wednesday,  the  31st  day  of  December,  1862,  or  such 
other  day  as  you  may  appoint,  and  of  which  you  shall  give  due  notice;  and  full  authority  is  hereby 
conferred  on  you  to  do  and  pro\ide  whatever  may  be  necessary  for  the  purpose. 

Given  under  my  hand  and  the  less  seal  of  the  Commonwealth,  at  the  city  of  Wheeling,  this 
thirteenth  day  of  December,  1862,  and  in  the  eighty-seventh  year  of  the  Conunon wealth. 

[l.  s.]  F.  H.  Pierpoint. 

By  the  Governor: 

L.  A.  Hagans,  Secretary  of  the  Commonwealth. 

These  writs  ordered  an  election  upon  the  Slst  day  of  December,  1862,  "or  such  other  day  as  you 
may  appoint."  They  were  not  delivered  in  the  district  till  the  evening  of  the  21st  of  December.  The 
statutes  of  Virginia  (Code,  ch.  7,  sec.  17)  require  "each  officer  to  whom  a  writ  of  election  is  directed 
shall,  at  least  ten  days  before  such  election,  give  notice  thereof,  and  of  the  time  of  the  election,  by 
advertisement,  at  each  place  of  voting  in  his  county  or  corporation."  It  became  an  impossibility  to 
give  the  required  notice  for  the  31st  after  the  receipt  of  these  writs,  on  the  night  of  the  21st.     Accordingly, 

'Journal,  p.  580;  Globe,  p.  1540. 

^ Third  session  Thirty-seventh  Congress,  Journal,  p.  297;  Globe,  p.  602. 

3  House  Report,  No.  33;  1  Bartlett,  p.  460;  Rowell's  Digest,  p.  183. 


§  373  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  309 

the  person  to  whom  the  writ  for  Alexandria  County  was  directed,  and  the  person  to  whom  that  for  Fair- 
fax County  was  directed,  met  on  a  subsequent  day  and  fixed  upon  the  loth  of  January  for  the  election, 
and  gave  the  notices  in  their  respective  counties  accordingly.  The  only  authority  for  this  alteration  of 
the  time  is  in  the  writ  itself,  as  follows:  "or  such  other  day  as  you  may  appoint."  No  authority  of  law  for 
giving  any  such  power  to  the  commissioners  was  shown  or  claimed  before  the  committee;,  on  the  con- 
trary, the  statutes  of  Virginia  (Code,  ch.  7,  sec.  16)  expressly  declares  that  the  writ  "shall  prescribe 
the  day  of  election  to  be  the  same  throughout  the  district."  The  committee  are  of  opinion  that  this 
power,  thus  fixed  by  law  in  the  governor,  can  not  be  by  him  delegated  to  anyone  else,  and  for  this 
reason  the  election  held  on  the  15th  of  January  was  without  any  sanction  of  law.  If  it  were  possible 
that  this  power  could  be  delegated,  still  the  committee  find  that  the  day  was  agreed  upon  by  the  com- 
missioner of  Alexandria  and  of  Fairfax  counties  alone,  without  regard  to  those  in  the  seven  other  coun- 
ties composing  the  district.  The  law  is  imperative  that  the  day  shall  be  the  same  throughout  the  dis- 
trict; yet  if  the  commissioners  in  any  two  of  the  counties  can  fix  upon  a  day,  the  same  may  be  done 
by  any  other  two,  and  the  utmost  confusion  would  be  certain  to  ensue.  The  committee  were  unable 
to  sanction  any  such  proceeding. 

The  committee  further  show  that  eight  days  after  the  election  the  legislature 
of  Virginia  passed  an  act  providing : 

An  Act  providing  for  the  return  of  the  special  election  for  a  Representative  in  the  Seventh  Congressional  district,  held  on 
the  loth  day  of  January,  1863.    Passed  January  23,  1863. 

Be  it  enacted  by  the  general  assembly,  That  the  clerk  of  the  county  court,  authorized  by  law  to  make 
returns  of  the  elections  held  on  the  15th  day  of  January,  1863,  for  a  Representative  in  Congress  for  the 
Seventh  district,  be,  and  is  hereby,  authorized  and  required  to  ascertain  the  result  and  grant  certi- 
ficates therefor  at  any  time  within  the  thirty  days  allowed  therefor. 

2.  This  act  shall  be  in  force  from  its  passage. 

The  claimant  contended  that  this  legislation  ratified  and  confirmed  the  act'on 
of  the  two  commissioners  in  fixing  the  day  of  the  election.  But  the  committee 
concluded  that  the  act  referred  wholly  to  the  making  of  the  return,  and  that  it 
was  beyond  the  power  of  the  legislature  to  ratify  or  confirm  an  election  held  without 
authority  of  law. 

The  committee  also  went  further  and  inquired  into  the  character  of  the  election 
itself.  It  appeared  that  there  was  no  election  in  seven  out  of  nine  counties;  that 
in  the  seven  counties  an  election  would  have  been  impossible  because  of  the  presence 
of  the  armed  belligerents;  and  that  the  total  vote  cast  was  onl}'  554,  as  compared 
with  9,273  cast  in  the  Congressional  election  of  1857.  However  loyal  the  people 
of  the  district  might  be,  they  had  had  no  opportunity  to  testify  that  loyalty. 

The  committee  therefore  reported  that  Mr.  McKenzie  was  not  entitled  to  the 
seat. 

On  February  17,'  when  the  report  was  considered,  a  motion  was  made  to  amend 
the  resolution  of  the  committee  so  it  should  declare  Mr.  McKenzie  entitled  to  the 
seat.     This  amendment  was  disagreed  to  without  division. 

The  report  of  the  committee  was  then  agreed  to. 

373.  The  Tennessee  election  case  of  Alvin  Hawkins,  in  the  Thirty- 
seventh  Congress. 

The  House  declined  to  hold  valid  an  election  which  was  entirely 
broken  up  by  contending  armies,  so  that  only  fragmentary  and  informal 
returns  could  be  obtained. 


'Journal,  pp.  413,  414;  Globe,  p.  1036. 


310  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §   373 

On  February  11,  1863,'  the  credentials  of  Mr.  Alvin  Hawkins,  claiming  a  seat 
from  the  Ninth  Congressional  district  of  Tennessee,  were  presented  to  the  House 
and  referred.  No  suggestion  was  made  that  Mr.  Hawkins  should  be  sworn  in  on 
his  prima  facie  showing.  The  credentials  were  dated  at  "Headquarters,  District 
of  Jackson,  Eighteenth  Army  Corps,  Department  of  Tennessee,"  distinguished 
as  "Special  Orders,  No.  29,"  and  was  signed  by  "Jere  C.  Sulhvan,  Brigadier-General 
Commanding  in  District  of  Jackson."  The  credentials  gave  the  vote  cast,  and 
further  stated  that  "forces  of  the  so-called  'Confederate  States'  were  at  various 
places  witliin  said  district  on  said  day  of  said  election  preventing  the  people  from 
voting." 

On  February  28,^  the  Committee  on  Elections  reported  the  following  state  of 
facts:.  The  election  was  held  on  December  29,  1862,  pursuant  to  writs  of  election 
issued  by  Andrew  Johnson,  military  governor  of  Tennessee.  It  appears  that  a 
convention  of  the  people  of  the  district  had  appointed  December  13,  1862,  as  a  time 
for  election;  but  the  appearance  of  the  proclamation  and  writs  of  Governor  Johnson 
ordering  the  election  on  the  29th  so  interfered  with  this  election  that  claimant 
made  it  no  part  of  liis  reliance  in  liis  claim  to  the  seat.  The  election  on  the  29th 
was  almost  entirely  broken  up  by  the  presence  of  contending  armies  in  the  district. 
Indeed,  General  Hurlbut,  commanding  the  Government  forces,  issued  a  military 
order  postponing  the  election.  One  sheriff  was  seized  by  the  enemy  and  his  writs 
of  election  were  destroyed.  Mr.  Hawkins  was  liimself  driven  from  the  district. 
On  liis  return  he  gathered  up  such  returns  as  he  could,  and  procured  the  general 
order  referred  to  as  his  credentials  to  accompany  them. 

In  relation  to  this  condition  of  affairs,  the  committee  conclude: 

The  committee  have  struggled  to  find  some  way  to  give  effect  to  this  effort  to  secui'e  representation; 
but  they  have  not  been  able  to  bring  it  within  any  of  the  rules  adopted  by  the  House  in  determining 
the  election  cases  which  are  analogous  to  this.  How  far  the  election  was  conducted  at  the  polls  in  con- 
formity to  the  law  of  Tennessee  it  has  been  impossible  to  ascertain.  No  one  would  expect  to  find  or 
should  require  rigid  conformity  under  the  peculiarly  trj-ing  circumstances  under  which  this  attempt 
was  made.  But  the  evidence  of  any  votes  at  all  will  be  seen,  by  a  reference  to  the  accompanying 
papers,  to  be  of  the  most  vague,  uncertain,  and  unsatisfactory  character.  The  committee  have  but 
to  call  attention  to  one  or  two  of  these  papers.  An  unofficial  person,  A.  G.  Shrewsbury,  certifies  that 
he  has  seen  the  return  of  votes  in  Henderson  County,  and  that  "there  were  over  700  votes  polled  in 
that  county,  over  700  of  which  were  for  Alvin  Hawkins,  and  the  balance,  nimibering  some  20  or  30, 
were  scattering,  and  for  other  persons."  This  comes,  so  far  as  appears,  from  a  private  citizen,  and 
has  not  even  the  sanction  of  an  affidavit.  In  no  sense  can  it  be  taken  as  evidence.  Of  a  similar  char- 
acter is  what  purports  to  be  a  return  from  Chestnut  Bluff,  a  precinct  in  Dyer  County,  to  which  the 
committee  call  attention.  These  papers  are  the  bases  of  the  certificate  of  General  Sullivan.  The  law 
requires  all  the  returns  to  be  made  to  the  governor,  and  he  is  to  make  the  certificate.  It  was  impos- 
sible for  this  to  be  done,  and  Governor  Johnson  has  furnished  nothing.  The  committee  are  of  opinion 
that  it  would  be  a  very  unsafe  precedent,  sure  to  be  fruitful  of  mischief,  to  take,  as  evidence  of  an  elec- 
tion, the  papers  here  presented.  Mr.  Hawkins  himself  was  driven  from  the  district  and  has  no  personal 
knowledge  of  the  facts.  He  has  letters  from  highly  respectable  citizens  corroborating,  to  some  extent, 
these  papers?  and  while,  as  a  matter  of  fact,  the  House  may  not  doubt  that  these  transactions  have  taken 
place,  yet  it  would  be  most  dangerous  to  take,  as  legal  proof  of  an  election,  the  papers  here  presented. 

Although  the  evidence,  as  far  as  it  goes,  tends  to  show  that  1,900  votes  were  cast,  nearly  all  for 
Mr.  Hawkins,  yet  it  also  appears  that  a  very  small  pait  of  the  district  participated  in  this  election. 

'Third  session  Thirty-seventh  Congress,  Journal,  p.  373;  Globe,  pp.  887,  888. 
'House  report  No.  46;  1  Bartlett,  p.  466;  Howell's  Digest,  p.  184. 


§   374  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  3H 

Some  parts  had  already  voted  on  tbe  13th;  some  had  postponed  still  further  the  day  of  election,  under 
the  military  order  of  General  Hurlburt,  but  more  was  at  the  very  moment  imder  the  control  and  occu- 
pation of  contending  armies  in  battle  array,  in  which  an  election  was  an  impossibility.  Under  these 
circumstances,  if  it  be  taken  as  satisfactorily  shown  that  1,900  votes  were  polled,  that  fact  must  be  taken 
along  with  the  other  that  they  were  polled  in  a  verj'  small  part  of  the  district,  and  that  much  the  greater 
portion  of  it,  for  the  reasons  stated,  had  no  part  or  lot  in  the  matter.  The  district  at  the  last  election 
for  representative  cast  18,000  votes. 

The  committee  are  again  compelled  to  come  to  the  same  conclusion  they  have  reluctantly  arrived 
at  in  other  cases,  adverse  to  the  right  of  Mr.  Hawkins  to  a  seat  in  this  House,  upon  the  state  of  facts  pre- 
sented to  them  and  which  they  herewith  report.  They  accordingly  recommend  the  adoption  of  the 
accompanying  resolution: 

Resolved,  That  Alvin  Hawkins  is  not  entitled  to  a  seat  in  this  House  as  a  Representative  from  the 
Xinth  district  in  Tennessee. 

On  ^larch  3 '  the  House,  without  division,  agreed  to  the  report  of  the  committee, 
adopting  the  resolution. 

374.  The  Virginia  election  case  of  McKenzie  v.  Kitchen,  in  the  Thirty- 
eighth  Congress. 

The  House  declined  to  hold  valid  an  election  participated  in  by  a  little 
less  than  half  the  voters  of  a  district  divided  between  contending  armies. 

The  House  declined  to  give  prima  facie  effect  to  credentials  in  the 
form  prescribed  by  a  government  already  suspended  and  referring  to  a 
district  distracted  by  war. 

The  Clerk  declined  to  enroll  persons  bearing  credentials  in  form  pre- 
scribed by  a  State  government  already  suspended. 

On  December  7,  1863,^  at  the  time  of  the  organization  of  the  House,  after  the 
roll  of  Members-elect  had  been  called  by  the  Clerk,  the  following  resolution  was 
offered : 

Resolved,  That  the  names  of  L.  M.  Chandler,  Joseph  Segar,  and  B.  M.  Kitchen  be  placed  on  the  roll 
as  Representatives  from  the  State  of  Virginia. 

These  claimants  presented  credentials  made  out  in  form  prescribed  by  an  act 
of  "  the  general  assemblj-  of  Virginia,  held  December  2, 1861,  at  the  city  of  Wheeling." 
That  legislature,  it  was  urged,  had  been  recognized  by  the  National  Government;  but 
since  that  date  the  State  of  West  Virginia  had  been  formed.  The  Clerk  had  not  put 
on  the  roll  the  names  of  the  three  gentlemen,  not  deeming  the  credentials  sufficient. 

The  House,  by  a  vote  of  yeas  100,  nays  73,  laid  on  the  table  the  resolution. 

On  December  9,^  ilr.  Henry  L.  Dawes,  of  Massachusetts,  presented  the  creden- 
tials of  Messrs.  Segar  and  Kitchen,  which  were  referred  to  the  Committee  on  Elections 
without  any  motion  that  the  gentlemen  be  sworn  in. 

On  February  8,  1864,*  the  Committee  on  Elections  reported  both  on  the  right 
of  Mr.  Kitchen  and  on  a  contest  which  had  been  made  against  his  claim  to  the  seat 
by  Lewis  McKenzie. 

As  between  Mr.  Kitchen  and  Mr.  McKenzie  the  election  was  determined  by  the 
vote  of  Berkeley  County,  which  the  contestant  claimed  should  be  included  in  the 

'Journal,  p.  580;  Globe,  p.  1540. 

^  First  session  Thirty-eighth  Congress,  Journal,  p.  8;  Globe,  p.  6. 

'Journal,  p.  20;  Globe,  p.  12. 

*  Report  No.  14;  1  Bartlett,  p.  468. 


312  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   374 

State  of  West  Virginia,  and  therefore  formed  Ho  part  of  the  district  as  constituted 
under  the  laws  of  the  United  States  and  Virginia.  The  committee  found,  as  a  matter 
of  fact  under  the  law,  that,  as  Congress  had  never  assented  to  the  transfer,  Berkeley 
County  belonged  to  Virginia  and  that  its  vote  was  properly  counted. 

The  contestant  further  alleged  that  the  commissioners  of  election  in  Berkeley 
County  certified  the  result  directly  to  the  clerk  of  Alexandria  County,  instead  of 
certifying  to  the  clerk  of  Berkeley  County,  who  was  required  by  the  law  to  record 
it  in  a  book  and  send  a  certified  copy  of  it  to  the  clerk  of  Alexandria  County.  The 
committee  unanimously  agreed  on  the  following  conclusion: 

It  was  not  contended  that  any  fraud  was  committed  or  that  the  true  result  in  Berkeley  was  not 
here  certified,  and  therefore  the  committee  were  of  opinion  that  the  votes  should  be  counted.  This 
determines  the  result  as  to  Mr.  McKenzie.  If  these  votes  were  counted,  he  did  not  receive  a  plurality 
and  would  not,  in  any  event,  be  entitled  to  the  seat. 

On  February  26  '  a  resolution  declaring  Mr.  McKenzie,  the  contestant,  not 
entitled  to  the  seat  was,  after  debate,  agreed  to  without  division. 

The  Committee  on  Elections  did  not,  however,  allow  the  case  to  rest  with  the 
determination  of  the  rights  of  the  contestant.  They  go  into  the  consideration  of 
the  State  of  the  district  and  its  capabilitj^  for  electing  a  Representative. 

The  committee  found  some  difficulty  in  coming  to  a  decision  upon  this  question;  but  the  conclusion 
to  which  they  have  arrived,  after  a  careful  consideration,  they  now  submit  to  the  House. 

The  case  comes  so  near  to  what  seems  to  be  the  dividing  line,  as  established  by  the  precedents  of 
the  last  House  in  similar  cases,  and  the  judgment  of  this  committee  in  the  case  of  Joseph  Segar,  hereto- 
fore reported  to  the  House,  that  the  difficulty  lies  in  determining  upon  which  side  of  that  line  it  falls. 

It  will  be  seen  that  between  that  part  of  the  district  where  polls  could  be  and  were  opened,  and 
the  part  held  by  the  enemy,  there  is  very  nearly  an  equal  division,  whether  it  be  divided  by  territorial 
limits,  by  the  aggregate  of  population,  the  entire  free  population,  or  the  white  male  population.  In 
each  division  the  part  within  the  occupation  and  control  of  the  enemy  is  a  trifle  the  greatest,  but  it  may 
be  treated  practically  as  about  an  equal  division  of  the  district  between  the  rebels  and  the  Union  forces. 
But  it  should  not  be  overlooked  that,  while  that  portion  under  rebel  control  is  held  so  by  force  of  arms 
and  the  presence  of  rebel  bayonets,  it  is  equally  true  that  the  remainder  of  the  district  is,  as  yet,  within 
our  lines  and  under  our  sway  only  by  a  like  force  of  arms  and  presence  of  loyal  troops.  If  the  Union 
forces  were  withdrawn  from  any  portion  of  the  district,  it  would  be  immediately  overrun  by  rebel  armies. 
Practically,  the  Seventh  Congressional  district  of  Virginia,  the  scene  of  some  of  the  fiercest  and  bloodiest 
conflicts  of  arms  in  the  whole  war,  is  still  a  battle  ground. 

The  present  condition  of  that  portion  of  it  within  the  Union  lines  little  fits  it  for  the  free  exercise 
of  the  elective  franchise.  Martial  law  and  military  discipline,  if  not  incompatible  with,  are  certainly, 
at  best,  poor  instrumentalities  for  ascertaining  the  choice  of  freemen.  Off  against  this  portion  of  the 
district  thus  selected,  and  thus  held,  must  be  set  quite  as  large  If  not  a  larger  portion  in  territory,  in 
population,  or  in  voters,  which  all  the  time  has  been  held  bound  in  the  chains  of  an  armed  enemy, 
overrun  with  a  hostile  army,  and  ground  into  the  dust  by  the  heel  of  a  usurped  power. 

The  committee  have,  in  this  state  of  the  facts,  come  to  the  conclusion  that  this  case  comes  within 
the  precedents  of  the  last  Congress,  which  have  been  adopted  by  the  committee  in  the  case  from  the 
First  district  of  Virginia,  already  reported  to  the  House.  They  can  not  satisfy  themselves  that  there  has 
been  such  a  freedom  of  election  in  this  district  as  to  warrant  the  conclusion  that  Mr.  Kitchen  is  the 
choice  of  the  loyal  voters  of  the  whole  district.  However  near  to  a  majority  of  such  voters  those  came 
who  participated  in  this  election,  yet  it  appears  to  the  committee  that  a  greater  portion  failed  to  partic- 
ipate in  it  for  the  reason  that  they  were  held  under  the  power  of  the  rebel  army,  and  therefore  by  no 
method  can  it  bo  shown  that  the  claimant  is  the  choice  of  the  Union  voters  of  the  whole  district.  It 
may  not  be  improper  to  call  attention  to  the  fact  that  while  the  whole  number  of  votes  cast  was  2,059, 


'   Globe,  pp.  847-850;  Journal,  p.  309. 


§  375  ELECT0EATE8    DISTRACTED    BY    CIVIL    WAR.  313 

only  962  of  these  were  cast  for  Mr.  Kitchen;  and  that  of  those,  730  were  cast  in  the  county  of  Berkeley, 
where  Mr.  Kitchen  now  resides,  a  county  which,  on  the  same  day  that  these  votes  were  cast,  voted  also 
unanimously  to  attach  itself  to  West  Virginia,  and  which  has,  so  far  as  the  Icgislatiu-e  of  both  States  can 
effect  it,  been  made  a  part  of  the  new  State,  and  separated  from  this  district  altogether.  Although,  for 
reasons  already  stated,  this  can  have  no  legal  effect  upon  the  vote  to  its  exclusion,  yet  it  is  a  circumstance 
which,  if  it  can  have  any  effect,  certainly  will  not  lead  to  the  conclusion  that  Mr.  Kitchen  would  have 
been  the  choice  of  the  other  counties  whose  voters  were  not  permitted  to  participate  at  all  in  the  election. 

Therefore  the  committee  found  that  Mr.  Kitchen  was  not  entitled  to  the  .seat. 
One  of  the  committee  filed  minority  views. 

This  report  was  debated  on  February  26 '  and  on  April  16,^  the  length  of 
the  debate  as  well  as  the  nature  showing  that  the  case  was  considered  of  great 
importance. 

A  motion  to  amend  the  resolution  proposed  by  the  committee  so  as  to  declare 
Mr.  Kitchen  entitled  to  the  seat  was  disagreed  to  without  division.  Then,  also 
without  division,  the  resolution  was  agreed  to  as  reported  by  the  committee. 

375.  The  Virginia  election  cases  of  Chandler  and  Segar,  in  the  Thirty- 
eighth  Congress. 

An  election  by  one-third  of  the  voters  of  a  district  was  held  invalid 
when  the  presence  of  an  armed  enemy  prevented  the  remainder  from 
expressing  their  wishes. 

The  holder  of  credentials  in  due  form,  whose  prima  facie  title  is  not 
contested,  may  not  take  the  seat  if  a  question  exists  as  to  the  competency 
of  the  constituency. 

On  December  7,  1863/  at  the  organization  of  the  House,  after  the  Clerk  had 
called  the  roll  of  Members-elect,  the  credentials  of  L.  M.  Chandler,  claiming  a  seat 
as  a  Member  from  Virginia,  were  presented,  and  a  resolution  was  oflfered  to  provide 
for  putting  the  name  of  Mr.  Chandler,  with  the  names  of  two  other  gentlemen, 
B.  M.  Kitchen  and  Joseph  Segar,  also  claiming  seats  from  Virginia,  on  the  roll 
of  Members-elect.     This  resolution  was  laid  on  the  table — yeas  100,  nays  73.* 

The  cases  having  been  referred  to  the  Committee  on  Elections,  that  committee 
reported  on  Mr.  Chandler's  case  on  April  25,  1864,^  and  on  Mr.  Segar's  case  on 
January  25,  1864."  The  report  shows  that  in  the  Second  district  of  Virginia, 
which  was  composed  of  eleven  counties,  polls  were  opened  in  nine  places  in  Norfolk 
County,  Portsmouth,  and  Norfolk,  and  the  whole  number  of  votes  cast  was  779, 
of  which  Mr.  Chandler  received  778.  No  polls  were  opened  in  any  other  places 
in  the  district,  because  the  other  counties  except  Norfolk  were  so  under  control 
of  hostile  forces  that  no  man  could  go  to  the  polls  in  safety.  By  the  census  of 
1860  Norfolk  County  (including  Norfolk  city  and  Portsmouth)  had  36,227  popu- 
lation out  of  156,626  in  the  whole  district.  The  committee  conceived  that  this 
case  was    governed    by  the    same    principles  as  were  set    forth  in  the  report    on 

'  Globe,  p.  850. 

2  Globe,  pp.  1673-1678. 

'  First  session  Thirty-eighth  Congress,  Journal,  p.  8;  Globe,  p.  6. 

*  See  case  of  B.  M.  Kitchen,  Section  374. 

'  House  Report  No.  59;  1  Bartlett,  p.  520;  Rowell's  Digest,  p.  190. 

«  House  Report  No.  9;  1  Bartlett,  p.  577;  Rowell's  Digest,  p.  197. 


314  PRECEDENTS   OF   THE    HOUSE    OF   REPRESENTATIVES.  §   375 

Mr.  Segar's  claim,  and  therefore  reported  a  resolution  that  Mr.  Chandler  was  not 
entitled  to  the  seat. 

Mr.  Segar  claimed  to  have  been  elected  in  the  First  district  of  Virginia,  com- 
posed of  twenty  counties,  receiving  about  1,300  votes  out  of  1,667  cast  in  four 
counties.  The  remainder  of  the  district  was  so  occupied  by  hostile  forces  that 
polls  could  not  be  opened.  The  committee  estimated  that  while  1,667  votes  were 
cast,  there  were  about  5,100  loyal  men  in  the  district  who  did  not  vote.  The 
committee  therefore  conclude: 

It  is  true  that  the  legality  of  an  election  does  not  necessarily  depend  upon  the  relative  number  of 
loyal  voters  who  attend  the  polls  and  of  those  who  stay  away.  If  all  are  at  liberty  to  vote,  those  who 
stay  away  must  always  be  con.sidered  as  acquiescing  in  the  action  of  those  who  do  not.  But  acquiescence 
implies  liberty  to  protest.  If  one  stays  away  because  he  could  not  go,  it  is  absurd  to  say  that  he  stays 
away  because  he  acquiesces.  WTien  a  man  is  forcibly  silent  because  his  mouth  is  stopped,  nothing  can 
be  taken  against  him  for  not  speaking.  If,  then,  5,000  Union  men  have  been  kept  from  the  polls  by 
the  arms  of  the  rebels,  it  can  not  be  said  that  they  acquiesce  in  the  choice  made  by  1,700  who  were  at 
liberty  to  go.  It  can  not  be  known,  therefore,  by  the  proceedings  on  election  day,  that  Mr.  Segar  was 
the  choice  of  the  legal  voters  of  the  district.  He  might  have  been,  and  he  might  not  have  been.  The 
committee  have  no  evidence  that,  had  all  been  permitted  to  vote,  he  would  not  have  been  such  choice, 
nor  have  they  that  he  would.  Upon  this  point  it  is  impossible  to  know,  for  less  than  one-fourth  of  the 
voters  were  permitted  to  speak. 

The  question  is,  upon  this  state  of  facts  presented,  whether,  upon  any  known  principle  or  precedent, 
Mr.  Segar  can  be  admitted  to  this  seat  as  the  legally  chosen  representative  of  this  district.  All  principle 
seems  against  it.  By  no  process  of  reasoning  can  the  committee  infer  from  what  was  done  that  Mr.  Segar 
is  the  choice  of  the  district;  and  it  is  upon  no  other  base  that  a  right  to  a  seat  here  can  at  any  time  rest. 
And  precedent  i.s  equally  against  it.  In  the  reported  cases  during  the  last  Congress  the  Committee  of 
Elections  and  the  House  had  occasion  frequently  to  pass  upon  this  very  question.  And  the  principles 
there  laid  down  by  the  committee,  and  sustained  in  every  instance  by  the  House,  both  when  reporting 
in  favor  of  a  right  to  the  seat,  as  in  the  cases  of  Clements,  from  Tennessee,  and  Flanders  and  Hahn,  from 
Louisiana,  and  when  reporting  adversely,  as  in  the  cases  of  Upton,  Segar,  and  McKenzie,  from  Virginia, 
and  Hawkins,  from  Tennessee,  govern  this  case.  Each  of  these  cases  was  determined  upon  the  facta 
peculiar  to  the  case.  But  in  them  all  it  was  recognized  as  a  rule  that  where  the  vote  actually  polled 
was  such  a  minority  of  the  whole  vote  that  it  could  not  be  determined  that  the  person  selected  by  that 
minority  was  the  choice  of  the  whole  district,  and  the  absent  majority  were  not  voluntarily  staying 
away  from  the  polls,  but  were  kept  away  by  force,  then  no  such  selection  thus  made  could  be  treated  as 
an  election. 

Therefore  the  committee  concluded  that  Mr.  Segar  was  not  entitled  to  the  seat. 
They  also,  in  their  report,  settled  a  preliminary  question,  which  they  state  as 
follows : 

The  election  was  held  on  the  fourth  Thursday  of  May,  1863,  and  a  certificate  of  election,  in  sub- 
stantial conformity  with  the  laws  of  Virginia  as  amended  by  the  act  of  January  31,  1862  (Session  I^aws, 
1861,  chap.  44.  p.  40),  was  furnished  Mr.  Segar  by  the  officer  required  by  that  statute  to  certify  an  election 
of  Representative  in  Congress.  This  certificate  accompanies  this  report.  !Mr.  Segar  claimed  that 
having  presented  a  certificate  in  conformity  to  the  laws  of  Virginia,  he  is  now  entitled  to  be  sworn  in, 
and  to  occupy  the  seat  as  a  Representative  till  some  one  else  appears  showing  a  better  title  to  it.  But 
the  committee  were  of  opinion  that  they  should  inquire  into  and  report  the  facts  concerning  this 
election  and  their  conclusion  thereon. 

In  debate  Mr.  Segar  stated  '  that  the  Clerk  originally  put  his  name  on  the  list  of 
Members-elect,  but  erased  it  before  the  Congress  assembled. 

'  Globe,  p.  2312. 


§  376  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  315 

On  May  17  the  cases  of  Messrs.  Chandler  and  Segar  were,  by  unanimous 
consent,  debated  together,^  as  they  involved  the  same  principles. 

The  question  was  first  taken  on  the  resolution  declaring  Mr.  Segar  not  entitled 
to  the  seat,  and  the  House  agreed  to  it,  yeas  94,  nays  23.  The  resolution  declaring 
Mr.  Chandler  not  entitled  to  the  seat  was  then  agreed  to  without  division.^ 

376.  The  Louisiana  election  case  of  A.  P.  Field,  in  the  Thirty-eighth 
Congress. 

The  House  declined  to  recognize  an  informal  election,  participated  in 
by  a  mere  fraction  of  the  voters,  in  a  district  entirely  under  military 
domination. 

The  House  denied  prima  facie  title  to  a  person  enrolled  by  the  Clerk 
on  credentials  signed  by  a  mere  claimant  to  the  governorship  in  a  State 
disrupted  by  civil  war. 

On  December  7,  1863,'  at  the  time  of  the  organization  of  the  House,  the  name 
of  Mr.  A.  P.  Field  was  called  among  those  on  the  Clerk's  roll  of  Members-elect,  and 
Mr.  Field  voted  for  Speaker.  When  the  Members  were  sworn,  Mr.  Thaddeus 
Stevens,  of  Pennsylvania,  objected  to  the  administration  of  the  oath  to  Mr.  Field, 
and  on  his  motion  the  credentials  were  referred  to  the  Committee  on  Elections,  and 
the  administering  of  the  oath  was  deferred  until  after  the  report  of  the  committee. 

The  credentials  of  Mr.  Field  are  thus  described  by  the  committee  in  their 
report^  on  the  final  right  to  the  seat: 

That  no  undue  weight  may  be  given  to  the  credentials  of  Mr.  Field,  purporting  to  come  from  the 
government  of  the  State,  being  signed  "J.  L.  Riddell,  governor  of  the  State  of  Louisiana,"  it  is  proper 
that  the  facts  elicited  before  the  committee  bearing  upon  the  authenticity  of  this  certificate  should 
be  laid  before  the  House. 

Mr.  Riddell  claims  to  have  been  elected  governor  at  the  same  time  with  the  alleged  election  of  Mr. 
Field.  There  were  but  few  votes  cast  for  him,  .500  or  600,  in  the  parishes  about  New  Orleans,  which 
are  joined  with  that  city  in  the  First  and  Second  Congressional  districts  under  the  old  apportionment. 

The  whole  election,  like  that  of  Mr.  Field,  was  under  the  auspices  of  a  committee,  to  whom  the 
votes  were  returned,  and  he  has  himself  no  personal  knowledge  of  the  number  of  votes  cast  for  himself  or 
for  Mr.  Field.  That  he  received  in  all  the  number  of  votes  already  stated  is  only  the  best  opinion  he 
could  form  upon  the  subject.  .\11  voting  for  governor,  as  well  as  Representative  in  Congress,  in  New 
Orleans,  was  forbidden  by  the  military'  governor.  The  committee  express  no  further  opinion  here 
upon  the  propriety  of  such  conduct  on  his  part,  but  only  state  the  fact.  Mr.  Riddell  claims  to  have 
been  elected,  and  qualified  as  governor  by  taking  the  oath  of  office  before  a  justice  of  the  peace  in  New 
Orleans.  The  term  of  office  to  which  Mr.  Riddell  claims  to  have  been  elected  did  not,  according  to 
the  laws  of  the  State,  commence  till  the  1st  of  January,  1864.  It  is  impossible  to  understand  by  what 
process  of  reasoning  this  Mr.  Riddell  has  come  to  the  conclusion  that  he  was  governor  of  the  State  of 
Louisiana  on  the  20th  day  of  November,  1863,  the  day  this  certificate  bears  date. 

It  was  also  stated  by  him  that  the  certificate  in  question  was  made  out  in  this  city  upon  informa- 
tion received  by  him  from  others,  which  he  believed  to  be  true,  but  of  the  truth  of  which  he  had  no 
personal  knowledge. 

On  the  question  as  to  the  final  right  of  Mr.  Field  to  the  seat,  the  Committee 
on  Elections  found  that  the  alleged  election  had  been  held  without  authority  of  law, 
and  that  there  was,  moreover,  no  constituency.* 

'Globe,  pp.  2311-2323. 

Moumal,  p.  670;  Globe,  p.  2323. 

'First  session  Thirty-eighth  Congress,  Journal,  pp.  6,  11;  Globe,  pp.  6,  7,  8. 

*  House  Report  No.  8. 

'1  Bartlett,  p.  580;  Rowell's  Digest,  p.  197. 


316  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  377 

Mr.  Field  claimed  to  have  been  elected  November  2,  1863,  the  day  prescribed 
from  the  law  of  the  State,  in  the  "First  Congressional  district"  under  an  appor- 
tionment next  preceding  the  then  existing  one.  The  existing  apportionment  re- 
quired five  districts  instead  of  the  four  required  by  the  preceding  apportionment; 
and  the  law  of  Congress  of  July  14,  1862,  required  the  five  Members  to  be  elected 
from  "districts  composed  of  contiguous  territory  equal  in  number  to  the  number 
of  Representatives  to  which  said  State  may  be  entitled  in  the  Congress  for  which  said 
election  is  held."  Thus  it  was  necessary  for  the  State  to  be  divided  into  five  instead 
of  four  districts  before  an  election  could  be  held.  But  such  division  of  the  State 
had  not  been  made,  and  therefore  the  election  of  Mr.  Field  from  one  of  the  old 
four  districts  was  not  in  accordance  with  law. 

As  to  the  constituency  on  which  Mr.  Field  relied,  the  committee  say: 

The  election  purports  to  have  been  held  in  the  First  Congressional  district  of  Louisiana  under  the 
old  apportionment.  That  district  is  composed  of  the  two  parishes  of  Plaquemines  and  St.  Bernard, 
containing,  in  1860,  only  12,566  inhabitants,  of  whom  only  2,563  were  male  whites,  and  a  large  portion 
of  the  city  of  New  Orleans,  containing,  in  1862,  when  this  district  was  formed,  about  the  balance  of  the 
then  apportionment  of  93,000,  and  in  1860,  of  course,  a  much  larger  number. 

But  no  election  was  held  on  the  2d  day  of  November  in  any  part  of  this  district  but  the  two  parishes 
of  Plaquemines  and  St.  Bernard. 

The  precise  number  of  votes  actually  cast  for  Mr.  Field  in  these  two  parishes  the  committee  have 
not  been  able  to  ascertain.  Mr.  Field  had  before  the  committee  returns  from  two  or  three  precincts  in 
St.  Bernard,  which  were  made  to  a  committee  appointed  to  aid  in  conducting  the  election,  and  amount- 
iug  to  156  votes,  and  he  believed,  though  he  had  no  personal  knowledge  of  the  fact,  that  as  many  more 
votes  were  cast  for  him  in  Plaquemines.  But  in  all  that  part  of  the  district  made  up  of  the  city  of 
New  Orleans,  comprising  almost  the  entire  district — certainly  more  than  nineteen-twentieths  of  the 
inhabitants — there  was  no  election  held  and  no  opportunity  given  for  an  elector  to  express  his  choice. 
The  election,  so  far  as  the  city  of  New  Orleans  was  concerned,  was  suppressed  by  orders  emanating 
directly  from  the  military  governor  of  the  State,  Brigadier-General  Shepley.  This  suppression  was 
effectual,  so  that  not  a  vote  was  cast  in  the  city,  and  the  only  constituency  Mr.  Field  has  was  the 
small  number  of  votes  already  stated  from  the  very  small  fraction  of  the  district  situated  outside  the 
city  limit.s. 

Therefore  the  committee  were  unanimous  in  finding  no  grounds  for  treating 
this  as  an  election  and  reported  a  resolution  declaring  Mr.  Field  not  entitled  to  the 
seat. 

The  report  was  debated  in  the  House  on  January  29  and  February  9/  and  on 
the  latter  date  the  resolution  of  the  committee  was  agreed  to — ayes  85,  noes  48.^ 

377.  The  Missouri  election  cases  of  Bruce  v.  Loan,  Birch  v.  King,  and 
Price  V.  McClurg  in  the  Thirty-eighth  Congress. 

The  House,  overruling  its  committee,  declined  to  declare  invalid  an 
election  because  of  intimidation  in  certain  counties  by  State  troops  on  duty 
by  order  of  the  governor. 

The  House  declined,  on  proof  of  intimidation  at  8  precincts  out  of 
150,  to  find  general  intimidation  suflacient  to  render  invalid  an  election. 

On  April  8,  1864,'  the  Committee  on  Elections  reported  in  the  case  of  Bruce  v. 
Loan,  of  Missouri. 

» Globe,  pp.  411,  543-547. 

=  Journal,  p.  242;  Globe,  p.  547. 

'First  session  Thirty-eighth  Congress,  Report  No.  44. 


» 


§  377  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  317 

The  question  involved  in  this  election  was  whether  or  not  there  had  been  a 
valid  election  in  the  district. 

The  election  in  question,  held  on  November  4,  1862,  was  the  first  attempted 
to  be  held  in  the  State  since  the  conunencement  of  the  civil  war.  From  August, 
1861,  until  the  summer  of  1862  the  affairs  of  the  State  had  been  conducted  by  a 
provisional  government.  On  June  10,  1862,  a  convention  of  the  people  of  the 
State  adopted  an  ordinance  defining  the  qualification  of  voters  and  civil  officers  in 
the  State  and  specifying  a  form  of  oath  of  loyalty,  which  was  the  new  qualification 
provided,  in  addition  to  the  old  quahfications  of  the  State  constitution. 

The  civil  conmiotion  had  been  so  great  in  the  State  that  there  were  serious 
apprehensions  of  disturbances  on  the  day  of  election.  Therefore  the  adjutant- 
general  of  the  State,  on  October  23,  issued  a  general  order  stating  that  the  test 
oath  of  loyalty  was  a  sufficient  safeguard  against  the  participation  of  disloyal  per- 
sons in  the  election,  and  therefore  warning  the  enrolled  militia,  who  as  citizens 
would  generally  be  at  the  voting  places,  that  they  should  keep  order  at  the  polls, 
prevent  intinudation  of  quahfied  voters,  themselves  abstain  from  interference, 
and,  finally,  that  in  case  of  disturbance  beyond  the  power  of  the  civil  authorities 
to  quell  any  commissioned  officer  present  should,  "at  the  request  of  any  judge, 
sheriff,  or  justice  of  the  peace,"  use  the  necessary  militarv'  force  to  suppress  it. 

On  November  1  another  general  order  cautioned  the  enrolled  militia  against 
constituting  themselves  judges  of  election  and  warned  them  to  "carefully  abstain 
from  all  acts  calculated  to  interfere  ^\■ith  the  fi-eedom  of  election." 

The  Seventh  Congressional  district  consisted  of  fifteen  counties.  It  was 
admitted  that  the  election  was  fair  in  seven  counties,  but  the  contestant,  in  his 
grounds  of  contest,  asserted  the  follo%ving: 

First.  For  interference  by  portions  of  the  armed  militia  of  the  State  of  Missouri  with  the  polls, 
and  the  tearing  up  of  poll  books,  and  the  interference  with  voters  at  the  polls  by  your  friends,  whereby 
persons  desiring  to  vote  for  me  were  prevented  and  intimidated  from  voting  and  rudely  driven  from  the 
polls;  and  by  thus  preventing  persons  who  would  have  voted  for  me  I  lost,  in  the  counties  named  below, 
the  number  of  votes  set  opposite  each  county: 

Buchanan  County 800 

Andrew  County 400 

Holt  County 400 

Atchison  County 400 

Nodaway  County 300 

Dekalb  County 100 

Daviess  County 200 

Livingston  County 600 

Making  a  total  of 3,  200 

which  would  have  elected  me  over  you,  and  made  my  entire  vote  7,754. 

Second.  Improper  interference  and  improper  conduct  of  officers  of  the  election  in  excluding  qual- 
ified voters  from  voting  for  me  in  the  counties  named  in  reason  first. 

Third.  Intimidation  on  the  part  of  portions  of  the  militia  of  the  State  of  Missouri  and  other  armed 
soldiery,  by  threats  intimidating  voters  from  attending  the  election,  who  would  have  voted  for  me  had 
they  attended. 

Fourth.  Interference  of  portions  of  the  militia  of  Missouri  by  forcibly  driving  voters  from  the  polls 
who  had  tickets  in  their  hands  ready  to  vote  for  me. 

Fifth.  Interference  of  portions  of  the  militia  of  Missouri,  in  standing  at  voting  places,  with  miiskets 


318  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   377 

in  their  hands,  and  demanding  the  tickets  of  voters;  and  when  shown  with  my  name  on  them,  the  tickets 
were  torn  up  by  your  friends,  and  the  parties  told  that  they  could  not  vote  that  ticket;  and  persons  who 
were  legal  voters  were  thus  prevented  from  voting  for  me. 

The  whole  number  of  votes  returned  as  cast  at  the  election  was  13,803,  of 
wliich  Mr.  Loan,  tlie  sitting  Member,  was  credited  with  6,582;  Mr.  Bruce  with  4,554; 
Iklr.  H.  B.  Brand  with  2,665,  and  2  scattering.  Thus  the  sitting  Member's  majority 
over  contestant  was  2,028  votes. 

It  appeared  that  at  the  time  of  the  election  the  sitting  Member  was  a  briga- 
dier-general, and  had  shortly  before  the  election  ceased  to  be  in  command  of  the 
enrolled  militia  in  the  Seventh  Congressional  district,  although  he  still  held  such 
official  position  elsewhere.  Many  of  the  candidates  for  State  offices  associatetl  with 
him  on  the  ticket  were  militia  officers  then  in  command.  Neither  the  contestant 
nor  any  of  the  persons  associated  with  him  on  the  ticket  were  connected  officially 
with  the  militia. 

After  examining  the  case  the  Committee  on  Elections  divided,  a  bare  majority 
concluding  that  neither  contestant  nor  sitting  Member  were  entitled  to  the  seat, 
since  military  interference  had  invalidated  the  election;  while  the  minority  con- 
cluded that  the  evidence  did  not  show  sufficient  effects  of  whatever  disturbance 
there  may  have  been  to  overcome  the  plurality  of  the  sitting  Member. 

The  decision  of  the  case,  both  in  the  Committee  and  the  House,  turned  on  the 
examination  of  the  evidence  as  to  the  alleged  intimidation  and  violence  in  the 
several  counties. 

Buchanan  County :  The  only  testimony  was  as  to  the  election  in  St.  Joseph,  in 
the  township  of  Washington.  The  sheriff  of  the  county,  who  favored  the  sitting 
Member,  foimd  the  polls  guarded  by  militia  at  one  precinct,  and  saw  the  ticket  of  a 
citizen  torn  up  by  a  soldier  and  the  citizen  driven  away.  Those  not  favoring  certain 
candidates  seemed  afraid  to  vote.  What  he  saw  at  two  other  precincts  convinced 
him  that  there  could  not  be  a  free  and  fair  election  because  of  the  actions  of  the 
militia.  In  one  of  the  three  precincts,  as  shown  by  other  witnesses,  bands  of  armed 
militiamen  broke  up  the  election  and  tore  up  the  poll  book.  The  majority  of  the 
Committee  became  convinced  from  the  testimony  and  from  comparison  with  the  vote 
of  other  years  that  as  many  as  900  votes  were  lost  to  the  contestant  in  the  township 
because  of  the  disturbance  and  intimidation.  The  minority,  wliile  not  denying  that 
there  had  been  violence  and  intimidation,  thought  a  deduction  of  300  votes  about 
what  the  testimony  indicated,  and  urged  that  this,  with  the  deductions  in  other 
coimties,  would  not  destroy  the  sitting  Member's  plurality.  It  appeared  also  that 
the  military  guard  at  the  polls  was  asked  for  by  contestant. 

Andrew  County:  The  testimony  related  only  to  the  election  precinct  of  Savan- 
nah. Here  there  was  no  militia  guard  at  the  polls,  the  local  commanding  officer 
having  declined  to  furnish  a  guard  imless  called  on  by  the  civil  officers.  The 
witnesses  testified  to  disturbance  and  intimidation,  but  had  only  estimates  as  to 
those  deterred  from  voting  for  contestant.  The  minority  of  the  committee  did 
not  consider  that  any  considerable  number  of  persons  were  intimidated  at  Savamiah, 
although  one  witness  had  estimated  the  number  as  higli  as  200.  The  militia  were 
present  as  citizens  only.  The  majority  of  the  committee  considered  the  decrease  in 
the  total  vote  of  the  county  as  compared  with  the  election  of  1860  as  of  significance. 


§  377  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  319 

Livingston  County:  The  testimony  related  only  to  Chillicothe  precinct.  There 
an  officer  with  a  squad  of  soldiers  marched  to  the  polls  in  the  morning  and  arrested 
several  voters  against  whose  lo3^alty  charges  were  made.  Later  the  troops  were 
ordered  away  by  a  telegram  from  the  governor.  The  majority  of  the  committee 
presented  the  comparison  with  the  vote  in  the  precinct  and  county  two  years 
previous,  showing  a  considerable  falling  off.  The  minority  of  the  committee 
found  no  evidence  to  show  that  any  voters  were  kept  from  tlie  polls  by  the  military, 
the  voting  having  gone  on  after  the  soldiers  had  been  withdrawn.  In  the  whole 
coimty  the  contestant  received  more  than  twice  the  number  of  votes  received  by 
the  sitting  Member. 

Atchison  County:  In  this  county  the  testimony  related  to  the  precinct  of 
Rockport  only,  where  it  was  shown  that  the  polls  were  guarded  by  armed  militia, 
and  where  a  witness  testified  that  he  heard  of  people  who  tried  to  vote  being  thrust 
from  the  polls.  Witness  also  testified  that  he  heard  of  interference  at  most  of  the 
other  precincts  of  the  county.  Witness  also  testified  that  attempts  to  take  depo- 
sitions in  this  county  for  the  purposes  of  the  contest  were  prevented  by  intimidation, 
and  that  by  such  depositions  a  loss  of  about  300  votes  for  contestant  was  expected 
to  be  proved. 

The  majority  of  the  committee  make  the  comparison,  sho^ving  a  falling  off  in 
the  vote  of  the  county.  The  minority  of  the  committee  assail  this  witness  for 
giving  merely  hearsay  testimony,  and  call  attention  to  the  fact  that  he  had  been 
emploj^ed  as  counsel  by  contestant. 

Dekalb  County:  The  testimony  related  only  to  the  precinct  of  Stewartsville. 
Several  witnesses,  including  a  constable  who  was  on  duty  at  the  polls  all  day, 
testified  to  specific  acts  of  intimidation  by  the  enrolled  militia,  and  certain  wit- 
nesses testified  that  they  were  deterred  from  voting.  The  minority  assailed  this 
testimony  as  inadmissible  because  ex  parte,  and  also  from  the  fact  that  the  testimony 
showed  only  estimates  and  opinions  as  to  the  number  of  votes  kept  from  the  poll 
by  intimidation. 

Holt  and  Nodaway  counties:  Contestant  took  no  testimony  in  these  counties, 
as  sworn  testimony  was  produced  to  show  that  it  would  not  have  been  safe  for 
contestant  or  Ids  representatives  to  go  into  these  counties. 

Daviess  County:  Contestant  included  this  county  in  his  notice  as  one  where 
there  had  been  illegal  interference  with  the  freedom  of  election;  but  the  majority 
of  the  conmiittee,  in  their  report,  concede  that  tliis  was  one  of  the  eight  counties 
where  the  election  was  fair. 

From  their  review  of  the  conditions  in  the  above  named  counties  and  from  a 
comparison  of  the  votes  for  the  respective  candidates  in  these  counties  and  those 
where  no  interference  was  alleged,  as  well  as  from  a  comparison  with  the  vote  of 
two  years  previous,  the  majority  concluded  that  the  enrolled  militia  had  "by 
threats,  violence,  and  by  various  modes  of  intimidation  so  far  interfered  w^th  the 
election  as,  in  the  opinion  of  the  committee,  to  render  the  election  a  nullity."  There- 
fore the  majority  reported  resolutions  declaring  neither  contestant  nor  sitting 
Member  entitled  to  the  seat. 

The  minority  criticise  the  nature  of  the  testimony  as  to  a  large  extent  hearsay, 
call  attention  to  the  fact  that  contestant  offered  testimony  as  to  only  eight  precincts, 


320  PRECEDENTS   OF   THE   HOUSE    OF    REPRESENTATIVES.  §  378 

wliile  there  must  have  been  one  hundred  and  fifty  in  the  whole  district.  The  pre- 
sumption, in  the  absence  of  proof,  must  be  that  the  election  in  the  precincts  not 
attacked  by  testimony  were  fair. 

The  minority  also  call  attention  to  the  fact  that  the  aggregate  vote  of  the  dis- 
trict for  Congressman  was  larger  than  that  of  any  other  Congressional  district  in 
the  State  at  this  election. 

The  minority  cited  the  cases  of  Trigg  v.  Preston  and  Clements  to  show  that 
the  acts  of  "a  few  loyal  State  troops,  acting  under  the  orders  of  the  State  authori- 
ties in  guarding  the  polls,"  should  not  be  considered  such  acts  as  to  invalidate 
the  election.  Therefore  it  was  recommended  that  the  House  declare  the  sitting 
Member  entitled  to  the  seat. 

The  report  was  debated  in  the  House  at  length  on  May  6,  9,  and  10,*  those 
sustaining  the  majority  of  the  committee  setting  forth  the  general  state  of  alarm 
and  intimidation  which  the  testimony  tended  to  disclose. 

The  minority  contended  that  when  riotous  interference  or  violence  were  set  up, 
the  law  required  rigorous  proof  that  the  result  of  the  election  had  been  affected  by 
riotous  interruption  or  obstruction;  and  also  when  restraint  or  intimidation  were 
set  up,  proof  was  required  that  an  organized  system  of  unlawful  restraint  or 
intimidation  existed  or  was  acted  upon  to  prevent  the  freedom  of  election  and  to 
secure  the  defeat  of  the  contestant.  And  it  was  contended  that  such  a  state  of  things 
was  not  shown  in  this  case. 

On  May  10  ^  the  House  took  a  test  vote  on  the  resolution — 

Resolved,  That  Benjamin  F.  Loan  (the  sitting  Member)  is  not  entitled  to  a  seat  in  this  House,  etc. — 

And  there  were  yeas  59,  nays  71. 

The  resolution  declaring  contestant  not  entitled  to  the  seat  was  agreed  to 
without  division. 

So  the  contention  of  the  minority  was  sustained.' 

378.  The  Kentucky  election  case  of  McHenry  v.  Yeaman  in  the 
Thirty-eighth  Congress. 

The  House  sustained  an  election  generally  participated  in  by  the 
voters,  although  the  district  was  under  martial  law  and  the  military 
pow^er  enforced  the  State  requirements  as  to  qualifications  of  voters. 

On  May  13,  1864,*  the  Committee  on  Elections  reported  on  the  case  of  McHenry 
V.  Yeaman,  of  Kentucky.  The  only  question  was  whether  there  was  a  legal  election 
in  the  Second  Congressional  district  of  that  State,  the  contestant  asking  that  the 
House  would  vacate  the  seat  "and  refer  this  election  back  to  the  people,  or  take  such 
other  action  in  the  matter  as  may  be  deemed  right  and  proper." 

The  main  grounds  of  the  contest  were  the  issuance  of  certain  mihtary  orders  by 
officers  commanding  in  the  district;  and  the  claim  that  the  election  was  carried  by 
fraud  and  force,  and  that  test  oaths  were  applied  unknown  to  the  laws  of  Kentucky. 

'  Globe,  pp.  2155,  2185,  2207-2214. 

-  Journal,  pp.  640,  641. 

'  The  case  of  Birch  v.  King,  also  from  Missouri,  involved  the  same  principles,  and  the  committee 
asked  that  it  be  discharged.  This  was  done  after  debate.  (Globe,  pp.  2639-2650.)  The  action  was 
also  taken  in  the  Missouri  case  of  Price  v.  McClurg.     (Journal,  p.  787.) 

*  First  session  Thirty-eighth  Congress,  House  Report  No.  70;  1  Bartlett,  p.  550;  Rowell's  Digest, 
p.  193. 


§  378  ELECTOKATES    DISTRACTED    Br    CIVIL    WAR.  321 

By  an  act  of  March  1 1 ,  1862,  the  legislature  of  Kentucky  had  passed  a  law  pro- 
viding in  its  first  section  that  any  citizen  of  the  State  who  had  adhered  to  the  cause 
of  the  so-called  Confederate  States  "shall  be  deemed  to  have  expatriated  himself, 
and  shall  no  longer  be  a  citizen  of  Kentucky,  nor  shall  he  again  be  a  citizen,  except 
by  permission  of  the  legislature,  by  a  general  or  special  statute."  Then  the  act 
further  provided: 

Sec.  2.  That  whenever  a  person  attempts  or  is  called  on  to  exercise  any  of  the  constitutional  or  legal 
rights  and  privileges  belonging  only  .to  citizens  of  Kentucky,  he  may  be  required  to  negative  on  oath  the 
expatriation  provided  in  the  first  section  of  this  act,  and  upon  his  failure  or  refusal  to  do  so  shall  not  be 
permitted  to  exercise  any  such  right  or  privilege. 

On  July  20,  1863,  in  view  of  the  approaching  election  (in  August,  1863,  the 
election  in  question)  the  governor  of  the  State  issued  a  proclamation,  enjoining 
"the  strict  observance  and  enforcement"  of  the  above  act,  in  order  to  preserve  the 
purity  of  the  elective  francliise. 

On  July  28,  1863,  Col.  John  W.  Foster,  commanding  at  Henderson,  Ky.,  issued 
the  following  general  order: 

In  order  that  the  proclamation  of  the  governor  and  the  laws  of  the  State  of  Kentucky  may  be 
observed  and  enforced,  post  commandants  and  officers  of  this  command  will  see  that  the  following  regu- 
lations are  strictly  complied  with  at  the  approaching  State  election: 

None  but  loyal  citizens  will  act  as  officers  of  the  election. 

No  one  will  be  allowed  to  offer  himself  as  a  candidate  for  office,  or  be  voted  for  at  said  election,  who 
is  not  in  all  things  loyal  to  the  State  and  Federal  governments  and  in  favor  of  a  vigorous  prosecution  of 
the  war  for  the  suppression  of  the  rebellion. 

The  judges  of  election  will  allow  no  one  to  vote  at  said  election  unless  he  is  known  to  them  to  be  an 
undoubtedly  loyal  citizen,  or  unless  he  shall  first  take  the  oath  required  by  the  laws  of  the  State  of 
Kentucky. 

No  disloyal  man  will  offer  himself  as  a  candidate,  or  attempt  to  vote,  except  for  treasonable  purposes; 
and  all  such  efforts  will  be  summarily  suppressed  by  the  military  authorities. 

All  necessary  protection  will  be  supplied  and  guaranteed  at  the  polls  to  Union  men  byallthemili- 
tarj'  force  within  this  command. 

Appended  to  this  order  was  the  following  form  of  oath : 

OATH   TO    BE   TAKEN    AT  THE    ELECTION. 

I  do  solemnly  swear  that  I  have  not  been  in  the  service  of  the  so-called  Confederate  States  in  either 
a  civil  or  military  capacity,  or  in  the  service  of  the  so-called  provisional  government  of  Kentucky;  that 
I  have  not  given  any  aid,  assistance,  or  comfort  to  any  person  in  arms  against  the  United  States;  and 
that  I  have,  in  all  things,  demeaned  myself  as  a  loyal  citizen  since  the  beginning  of  the  present  rebellion. 
So  help  me  God. 

On  July  30  a  duplicate  of  tliis  order  was  issued  by  Brigadier-General  Shackelford, 
commanding  at  Russcllville,  Ky. 

On  Jul}-  31  Major-General  Burnside,  commanding  the  Department  of  the  Ohio, 
issued  a  general  order  reciting  that  the  State  of  Kentucky  was  invaded  by  a  hostile 
force  with  the  avowed  purpose  of  keeping  loyal  voters  from  the  polls  and  forcing 
the  election  of  disloyal  candidates  on  August  3,  and  declarmg  the  State  imder  martial 
law.  The  order  disclaimed  any  intention  of  interfering  with  the  proper  expression 
of  public  opinion,  and  declared  that  all  discretion  in  the  conduct  of  the  election 
would  be,  as  usual,  in  the  hands  of  the  legally  appointed  judges  at  the  polls,  who 

5994— VOL  1—07 21 


322  PRECEDENTS    OP    THE    HOUSE    OF    REPRESENTATIVES.  §   379 

would  "  be  held  strictly  responsible  that  no  disloyal  person  be  allowed  to  vote,  and 
to  this  end  the  military  power  is  ordered  to  give  them  its  utmost  support." 

As  part  of  the  record  was  included  a  dispatch  from  General  Burnside  to  General 
Halleck,  dated  August  3,  1863  (the  day  of  the  election),  annoimcing  that  a  hostile 
force,  which  had  crossed  the  Kentucky  River  to  assist  the  command  of  Morgan,  was 
in  full  retreat. 

The  majority  of  the  committee  (which  included  all  but  one  Member)  declined 
to  enter  into  a  consideration  of  the  question  whether  the  military  orders  were  or 
were  not  proper;  but  declared  that  they  "were  designed  to  carry  out  the  law  of 
Kentucky,  and  in  no  wise  to  interfere  with  the  freedom  of  the  elective  franchise." 

The  majority  go  on  to  say  that  the  only  question  was  whether  there  was  an 
election  or  not,  there  being  no  pretense  of  title  on  the  part  of  the  contestant.  As  a 
conclusive  answer  to  the  question  whether  Mr.  Yeaman  was  the  choice  of  the  legal 
voters  of  the  district,  the  committee  give  the  official  votes  at  preceding  elections: 
In  Presidential  election  of  1860  it  was  15,236;  -in  May,  1861,  for  delegates  to  border 
State  convention,  13,328;  in  Jime,  1861,  for  Eepresentative  in  Congress,  14,665; 
in  August,  1863,  for  governor,  10,652.  In  August,  1863,  Mr.  Yeaman  received 
8,311  votes  and  Mr.  McHenry  3,087.  It  was  evident,  therefore,  that  Mr.  Yeaman 
received  a  majority  of  the  whole  voting  population  of  the  district,  measured  even 
by  the  standard  of  1860.  And  it  was  in  evidence  that  the  district  had  contributed 
5,714  men  to  the  Army  of  the  United  States  alone. 

Therefore  the  majority  of  the  committee  recommended  a  resolution  declaring 
Mr.  Yeaman  entitled  to  the  seat. 

The  minority  views,  filed  by  Mr.  D.  W.  Voorhees,  of  Indiana,  on  May  12,  did 
not  deny  that  the  sitting  Member  received  a  large  majority  over  the  contestant, 
but  denied  that  the  election  was  "a  free  and  equal  election,"  such  as  the  constitu- 
tion of  Kentucky  guaranteed : 

Any  election  for  a  civil  officer  held  under  martial  law,  where  the  qualifications  of  voters  are  pre- 
scribed by  military  officers,  is  not  such  an  election  as  the  founders  of  this  Government  intended  should 
be  held  under  the  Constitution  which  they  framed,  and  should  be  declared  void  in  aU  cases  by  the 
Congress  of  the  Nation. 

The  minority  views  further  present  an  analysis  of  the  testimony  to  show  intim- 
idation of  voters,  the  administering  of  various  oaths  as  tests  of  loyalty,  etc. 

On  May  27  and  30'  the  report  was  debated  at  length  in  the  House.  The 
supporters  of  the  majority  report  argued  that  the  sitting  Member  was  manifestly 
the  choice  of  the  district.  A  few,  while  supporting  the  sitting  Member  on  these 
grounds,  condemned  the  act  of  the  military  authorities  in  proclaiming  martial  law. 

On  May  30^  the  resolution  of  the  majority  was  agreed  to  by  the  House — yeas 
95,  nays  26;  so  Mr.  Yeaman  was  confirmed  in  his  seat. 

379.  The  Louisiana  election  cases  of  Flanders  and  Hahn  in  the 
Thirty-seventh  Congress. 

The  House  seated  a  person  elected  according'  to  the  essential  require- 
ments of  law,  except  that  the  time  of  the  election  was  fixed  by  proclama- 
tion of  a  military  governor. 

'Globe,  pp.  2527,  2579.  ^  Journal,  p.  719;  Globe,  p.  2585. 


§  379  ELECTOKATES    DISTRACTED    BY    CIVIL    WAR.  323 

Discussion  of  the  powers  of  a  military  governor,  and  his  status  as  a 
de  facto  executive. 

The  House  declined  to  give  prima  facie  effect  to  credentials  signed  by 
the  military  governor  of  a  State  lately  in  secession. 

On  December  19,  1862/  Mr.  Benjamin  F.  Flanders  appeared  and  presented 
credentials  purporting  to  show  his  election  to  fill  a  vacancy  in  the  office  of  Repre- 
sentative of  the  First  Congressional  district  of  Louisiana.  These  credentials  were 
under  the  seal  of  the  State  and  signed  by  "G.  F.  Shepley,  military  governor  of 
Louisiana,"  and  countersigned  by  "James  F.  Miller,  acting  secretary  of  state." 

The  request  was  made  that  the  oath  be  administered  to  Mr.  Flanders  at  once, 
but  objection  being  made  to  the  natme  of  the  credentials  they  were  referred  to  the 
Committee  of  Elections. 

On  December  22  ^  Mr.  Michael  Hahn  appeared  with  similar  credentials  for  the 
Second  district  of  Louisiana.  The  same  objection  being  made,  the  credentials  were 
referred  to  the  Committee  on  Elections. 

On  February  3,  1863,^  the  committee  reported  on  the  two  cases,  as  they 
involved  the  same  principles.  The  regular  elections  for  Members  of  the  Thirty- 
seventh  Congress  should  have  been  held  in  Louisiana,  under  the  State  law,  on  the 
first  Monday  of  November,  1861.  But  the  State  was  then  in  rebellion,  and  the 
governor  neglected  and  refused  to  order  the  election.  The  reoccupation  by  the 
national  armies  of  the  portions  of  the  State  comprising  the  First  and  Second  dis- 
tricts had  been  followed  by  the  resumption  of  allegiance  on  the  part  of  many 
citizens,  the  total  number  being  over  60,000  up  to  October  21,  1862. 

On  November  14,  1862,  the  military  governor  of  the  State,  George  F.  Shepley, 
issued  a  proclamation  ordering  an  election  for  Members  of  Congress  in  the  First 
and  Second  districts.  This  proclamation,  over  which  the  principal  issue  in  this 
case  forms,  was  as  follows : 

A   PROCLAMATION. 

By  Brigadier-General  George  F.  Shepley,  Military  Governor  of  the  State  of  Louisiana. 

Whereas  the  State  of  Louisiana  is  now  and  has  been  without  any  Representatives  in  the  Thirty- 
seventh  Congress  of  the  United  States  of  America;  and  whereas  a  very  large  majority  of  the  citizens 
of  the  First  and  Second  Congressional  districts  in  this  State,  by  taking  the  oath  of  allegiance,  have  given 
evidence  of  their  loyalty  and  obedience  to  the  Constitution  and  laws  of  the  United  States: 

Now,  therefore,  I,  George  F.  Shepley,  military  governor  of  the  State  of  Louisiana,  for  the  purpose 
of  securing  to  the  loyal  electors  in  the  parishes  composing  these  two  Congressional  districts  their  appro- 
priate and  lawful  representation  in  the  House  of  Representatives  of  the  United  States  of  America,  and 
of  enabling  them  to  avail  themselves  of  the  benefits  secured  by  the  proclamation  of  the  President  of 
the  United  States  to  the  people  of  any  State,  or  part  of  a  State,  who  shall  on  the  first  day  of  February 
next  be  in  good  faith  represented  in  the  Congress  of  the  L^nited  States  by  Members  chosen  thereto  at 
elections  wherein  a  majority  of  the  qualified  voters  of  such  State  have  participated,  have  seen  fit  to 
issue  this  my  proclamation,  appointing  an  election  to  be  held  on  Wednesday,  the  third  day  of  December 
next,  to  fill  said  vacancies  in  the  Thirty-seventh  Congress  of  the  United  States  of  America,  in  the 
following  districts,  namely: 

The  First  Congressional  district,  composed  of  that  part  of  the  city  of  New  Orleans  heretofore 
known  as  municipality  number  one  and  municipality  number  three,  and  now  designated  as  districts 

'Third  session  Thirty-seventh  Congress,  Journal,  p.  101;  Globe,  p.  144. 

=  Journal,  p.  106;  Globe,  p.  164. 

3  House  Report  No.  22;  1  Bartlett,  p.  438;  Rowell's  Digest,  p.  181. 


324  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  379 

numbered  two  and  three,  and  Suburb  Treme,  that  portion  of  the  parish  of  Orleans  lying  on  the  right 
bank  of  the  Mississippi,  and  the  parishes  of  St.  Bernard  and  Plaquemines. 

The  Second  Congressional  district  in  the  State  of  Louisiana,  composed  of  that  part  of  the  city  of 
New  Orleans  above  Canal  street,  known  as  the  First  district,  and  district  number  four,  formerly  the 
city  of  Lafayette,  and  of  the  parishes  of  Jefferson,  St.  Charles,  St.  John  the  Baptist,  St.  James,  Ascension, 
Assumption,  Lafourche,  Terrebonne,  St.  Mary,  and  St. Martin. 

Writs  of  election  will  be  issued,  as  required,  and  the  election  held  at  the  places  designated  by  law. 

The  proceedings  wUl  be  conducted  and  returns  thereof  made  in  accordance  with  law. 

No  person  will  be  considered  as  an  elector  qualified  to  vote  who,  in  addition  to  the  other  qualifica- 
tions of  an  elector,  does  not  exhibit  to  the  register  of  voters,  if  his  residence  be  in  the  city  of  New  Orleans, 
or  to  the  corami.ssioners  of  election,  if  his  residence  be  in  any  other  place  in  said  districts,  the  evidence 
of  his  having  taken  the  oath  of  allegiance  to  the  LTnited  States. 

Given  under  my  hand  and  the  seal  of  the  State  of  Louisiana,  at  the  city  of  New  Orleans,  this 

fourteenth  day  of  November,  A.  D.  1862,  and  of  the  independence  of  the  United  States  of  America 

'he  eighty-seventh. 

George  F.  Shepi.ey, 

Military  Governor  of  Louisiana. 
\  By  the  Governor: 

James  F.  Miller,  Acting  Seeretajy  of  State. 

In  accordance  with  this  proclamation  the  election  was  held.  It  was  claimed 
by  the  Committee  of  Elections,  and  not  disputed,  that  in  essential  respects  the 
election  was  conducted  according  to  the  forms  prescribed  by  the  laws  of  Louisiana, 
excepting  a  law  of  the  disloyal  legislature  prescribing  an  oath  to  support  the  Con- 
federacy as  a  qualification  of  voters.  The  registration  required  by  law  was  not 
wholly  completed  however,  and  persons  not  registered  were  in  some  precincts 
allowed  to  vote  after  proving  that  they  had  the  requisite  qualifications.  The  Com- 
mittee of  Elections  held  that  the  spirit  of  the  law  was  not  in  this  respect  violated, 
and  they  further  say : 

And  had  its  provisions  been  ignored  in  this  particular  it  would  clearly  have  been  only  a  disregard 
of  a  mere  directory  provision  of  the  law.  The  principal  and  only  aim  of  the  law  is  to  secure  fair  election.s, 
and  the  nonobservance  of  directory  provisions  can  not  annul  an  election  carried  on  with  all  the  essentials 
of  an  election  and  with  perfect  fairness. 

This  principle  of  law,  with  regard  to  directory  provisions,  has  been  repeatedly  and  clearly  laid 
down  by  the  supreme  court  of  Louisiana  and  the  supreme  courts  of  other  States,  as  well  as  by  the  Supreme 
Court  of  the  United  States,  and  is  too  well  understood  by  (n-ery  legal  mind  to  need  any  elucidation  here. 
And  it  is  expressly  enacted  that  no  elector  shall  be  deprived  of  his  vote  by  any  omission  to  give  him 
a  certificate  of  his  election. 

But  this  phase  of  the  question  was  little  in  issue,  and  there  was  in  the  contro- 
versy little  insistence  that  the  election  had  not  been  conducted  in  accordance  with 
the  requirements  of  law. 

The  main  issue  of  the  case  is  thus  stated  by  the  committee : 

The  committee  have  found  little  difficulty  in  coming  to  a  conclusion  that  the  claimants  should  be 
admitted  to  their  seats,  except  in  doubts  as  to  the  power  of  the  military  governor  to  fix  the  day  of  this 
election.  In  all  things  else  there  has  been  strict  conformity  to  law.  The  districts  were  entirely  free 
from  a  rebel  force  to  restrain  or  overawe  the  loyal  votes.  The  old  voting  precincts  and  voting  places 
were  all  restored,  and  votes  polled  at  every  one  of  them,  except  in  one  inconsideral)le  parish,  and  part 
of  another  in  one  district  into  which  guerrillas  sometimes  made  incursions.  There  was  a  very  full  vote 
given — a  remarkably  full  one  when  compared  with  the  vote  at  former  Congressional  elections,  if  allow- 
ance be  made  for  the  usual  proportion  of  voters  among  the  soldiers  absent  in  the  Union  and  rebel  armies. 
Two  thousand  men  had  been  recruited  by  General  Butler  into  his  own  regiments,  and  two  full  regiments 
of  Louisiana  troops  had  been  organized  by  him  from  these  two  Congressional  districts,  while  more  had 


§  379  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  325 

gone  into  the  rebel  army,  though  many  of  these  had  returned  to  the  city  and  their  allegiance.  Deduct- 
ing the  proper  proportion  of  voters  from  these,  and  there  can  be  no  doubt  of  a  full  vote  when  the  result 
is  compared  with  that  in  former  years.  At  the  last  election  for  representative  in  the  First  District,  in 
1859,  the  whole  number  of  votes  was  4,970;  at  the  present  election,  2,64.3;  difference,  2,327.  In  the 
Second  district,  in  1859,  the  whole  number  was  10,367;  at  the  present  election  the  whole  number  was 
5,117;  difference,  5.250. 

****  ********* 

It  remains  to  be  considered,  finally,  whether  this  election,  thus  conducted,  in  which  all  the  loyal 
voters  in  such  numbers  participated  in  conformity  with  all  the  provisions  of  law,  shall  be  set  aside  by 
this  House  and  the  representation  denied,  because  the  time  for  holding  it  was  fixed  l)y  the  military 
governor  in  the  absence  of  any  other  governor.  The  exact  powers  of  a  military  governor  can  not  be 
easily  defined.  They  have  their  origin  in,  and  are  probab-ly  limited  by,  necessity.  They  are  to  some 
extent  civil  as  well  as  military,  and  the  authority  for  his  civil  functions  is  no  less  clear  than  for  his  mili- 
taiy.  The  Supreme  Court  and  Congress  have  recognized  both.  The  former,  in  the  case  of  Cross  v. 
Harrison  (16  Howard,  164),  recognized  as  valid  the  imposition  and  collection  of  duties  by  a  military 
governor,  even  after  the  port  at  which  they  were  imposed  and  collected  had  lieen  by  statute  included 
in  a  collection  district  and  a  collector  appointed,  but  who  had  not  entered  upon  the  duties  of  his  office. 
And  Congress  admitted  California  into  the  Union,  with  a  State  government  formed  and  set  in  motion 
even  to  the  election  of  Senators  and  Representatives  in  Congress,  exclusively  under  the  auspices  of  a 
military  governor.  The  constitutionally  elected  governor  of  Louisiana  had  turned  traitor  and  refused 
to  discharge  his  constitutional  obligations  in  this  regard.  What  were  the  loyal  voters  to  do?  Were 
they  to  turn  traitors  also  or  be  disfranchised?  The  Constitution  imposes  upon  the  United  States  this 
obligation  (Art.  IV,  sec.  4): 

' '  The  United  States  shall  guarantee  to  everj'  State  in  this  Union  a  republican  form  of  government 
and  shall  protect  each  of  them  from  invasion;  and  on  application  of  the  legislature  or  of  the  executive 
(when  the  legislature  can  not  be  convened),  against  domestic  violence." 

Representation  is  one  of  the  very  essentials  of  a  republican  form  of  government,  and  no  one  doubts 
that  the  United  States  can  not  fulfill  this  obligation  without  guaranteeing  that  representation  here. 
It  was  in  fulfillment  of  this  obligation  that  the  Army  of  the  Union  entered  New  Orleans,  drove  out  the 
rebel  usurpation,  and  restored  to  the  discharge  of  its  appropriate  functions  the  civil  authority  there, 
lis  work  is  not  ended  till  there  is  representation  here.  It  can  not  secure  that  representation  through  the 
aid  of  a  rebel  governor.  Hence  the  necessity  for  a  military  governor  to  discharge  such  functions,  both 
militarj'  and  civil,  which  necessity  imposes  in  the  interim  between  the  absolute  reign  of  rebellion  and 
the  complete  restoration  of  law.  Suppose  Governor  Moore  to  be  the  only  traitor  in  Louisiana.  One  of 
two  things  must  take  place.  The  people  must  remain  unrepresented,  or  some  one  must  assume  to  fix  a 
time  to  hold  these  elections.  Which  alternative  approaches  nearest  to  repul)licanism — nearest  to  the 
fulfillment  of  our  obligations — to  guarantee  a  republican  form  of  government  to  that  people,  closing  the 
door  of  representation,  or  recognizing  as  valid  the  time  fixed  by  the  military  governor?  Are  this  people 
to  wait  for  representation  here  till  their  rebel  governor  returns  to  his  loyalty  and  appoints  a  day  for  an 
election,  or  is  the  Government  to  guarantee  that  representation  as  best  it  may?  The  committee  can  not 
distinguish  between  this  act  of  the  military  governor  and  the  many  civil  functions  he  is  performing  every 
day,  acquiesced  in  by  everybody.  To  pronounce  this  illegal,  and  refuse  to  recognize  it,  is  to  pronounce 
his  whole  administration  void  and  a  usurpation.     But  necessity  put  him  there  and  keeps  him  there. 

Again,  this  George  F.  Shepley  assumes  to  act  as  governor  of  Louisiana,  discharging  the  civil  f  unct  ions 
of  such  governor.  This  is  one  of  them.  All  loyal  men  in  the  State  acquiesce  in  these  acts.  There  is  no 
other  man  discharging  them  or  seeking  to  discharge  them.  This  act  of  fixing  the  time  of  an  election 
comes  in  conflict  with  no  time  fixed  by  any  other  man.  This  is  to  be  governor  de  facto.  This  House 
has  no  jurisdiction  to  determine  who  is  rightfully  in  the  office  of  governor  of  Louisiana.  Thus  if  this 
act  be  taken  as  the  act  of  a  governor  de  facto  it  must  be  recognized  as  valid. 

The  committee  cited  in  support  of  its  position  the  case  of  Clements,  of  Ten- 
nessee, and  concUided  by  recommending  resolutions  declaring  both  ilr.  Flanders 
and  Mr.  Hahn  entitled  to  seats  in  the  House. 


326  PRECEDENTS    OF    THE    HOUSE    OF    EEPRESENTATIVES.  §   380 

The  debate  began  on  February  9  and  continued  through  February  10  and  17,' 
the  issue  being  joined  almost  entirely  on  the  question  of  the  constitutionality  of 
the  proclamation  of  the  military  governor.  It  was  objected  that  the  Constitution 
had  fixed  the  method  by  which  Members  should  be  elected  to  the  Hovise,  and  that 
the  time,  place,  and  manner  were  to  be  determined  by  the  legislative  power  only. 
This  provision  was  derived  from  the  English  constitution,  where  it  had  been  needed 
to  curb  the  authority  of  the  sovereign.  So  in  this  country  the  fixing  of  the  time  of 
election  by  a  military  governor,  appointed  by  the  President,  was  an  invasion  by 
executive  power.  "No  Representative  can  be  elected  to  the  Congress  of  the  United 
States,"  it  was  argued,^  "except  in  pursuance  of  the  legislation  of  a  State,  or  of  the 
legislation  of  the  Federal  Government.  *  *  *  j^  State  election  law,  which  by 
its  terms  requires  State  officers  duly  qualified  to  execute  it,  can  not  be  executed  by 
a  military  governor  appointed  by  the  President."  No  State  law  and  no  law  of 
Congress  authorized  the  calling  of  the  election  in  question.  Hence  it  was  contended 
that  the  two  gentlemen  were  not  entitled  to  admission. 

On  February  17  the  following  substitute  was  proposed  for  the  resolutions  of 
the  committee: 

That  the  proclamation  issued  by  George  F.  Shepley ,  styling  himself  military  governor  of  Louisiana, 
at  New  Orleans,  on  the  14th  day  of  November,  1862,  etc.  *  *  *  ^as  null  and  void,  without  the 
authority  of  law,  and  imparts  no  validity  to  the  election  of  Benjamin  F.  Flanders  and  Michael  Hahn. 

Resolved,  That  the  election  of  said  Flanders  and  Hahn  appearing  to  have  been  free  and  unrestrained, 
and  in  accordance  with  the  laws  of  Louisiana,  except  that  being  on  a  day  other  than  a  day  of  general 
election,  had  not  been  directed  to  be  held  by  the  governor  of  Louisiana,  the  action  of  the  electors  in  the 
premises  is  ratified  and  confirmed,  and  said  Flanders  and  Hahn  are  declared  entitled  to  their  seats  as 
Members  of  this  House. 

This  amendment  was  disagreed  to — yeas  11,  nays  115. 

Then,  by  a  vote  of  yeas  92,  nays  44,  the  House  agreed  to  the  resolutions  declar- 
ing Messrs.  Flanders  and  Halin  entitled  to  their  seats.^ 

380.  The  Arkansas  election  cases  of  Johnson,  Jacks,  and  Rogers  in 
the  Thirty-eighth  Congress. 

The  House  as  a  matter  of  course  declined  to  give  prima  facie  effect  to 
credentials  emanating  from  the  loyal  provisional  government  of  a  State 
lately  in  secession. 

In  1864  the  Elections  Committee  favored  the  seating  of  claimants 
coming  from  districts  almost  free  from  armed  foes,  but  elected  in  an  elec- 
tion called  by  a  loyal  convention  and  by  a  fraction  of  a  normal  vote. 

On  February  10,  1864,*  Mr.  Henry  L.  Dawes,  of  Massachusetts,  presented  the 
credentials  of  James  M.  Johnson,  from  the  Third  Congressional  district  of  Arkansas. 

The  credentials^  were  in  the  form  of  a  proclamation  issued  by  the  provisional 
governor  of  Arkansas,  reciting  that  in  accordance  with  the  schedule  appended  to 
the  constitution  adopted  by  the  late  convention  of  the  State  of  Arkansas  (held  in 
January,  1864)  an  election  had  been  held  on  March  14,  1.5,  and  16,  1864,  at  which 

'  Globe,  pp.  831,  855,  1030. 

^By  Mr.  John  A.  Bingham,  of  Ohio. 

'Journal,  pp.  411,  412;  Globe,  pp.  1035,  1036. 

*  First  session  Thirty-eighth  Congress,  Journal,  p.  244;  Globe,  p.  574. 

*  Second  session  Thirty-eighth  Congress,  House  Report  No.  18. 


§  380  ELECT0KATE3    DISTAACTED    BY    CIVIL    WAR.  327 

the  constitution  had  been  adopted,  various  State  officers  elected,  and  three  Con- 
gressmen, one  of  whom  was  ilr.  Johnson,  from  the  Third  district. 

Mr.  Dawes  asked  that  the  credentials  be  referred  to  the  Conmiittee  on  Elec- 
tions.    No  request  was  made  that  the  oath  be  administered. 

ilr.  Henr\-  Winter  Davis,  of  Maryland,  moved  that  the  credentials  be  laid  on 
the  table. 

On  February  16,'  the  motion  to  lay  on  the  table  being  withdrawn  to  permit 
debate,  Mr.  Davis  said  he  had  moved  to  lay  the  credentials  on  the  table  because 
other  action  on  them  might  lead  to  the  recognition  by  the  House  of  the  State  of 
Arkansas. 

After  debate  at  length,  Mr.  Kobert  C.  Schenck,  of  Ohio,  moved  to  amend  the 
the  motion  to  refer  by  adding  instructions  that  the  committee  investigate  whether 
or  not  there  was  such  government  existing  in  Arkansas  as  to  entitle  the  State  and 
people  to  representation  in  Congress. 

On  the  question  of  agreeing  to  the  instructions  there  were  yeas  53,  nays  104. 

A  motion  by  Mr.  Davis  to  lay  the  whole  subject  on  the  table  was  disagreed  to; 
and  then  the  motion  of  Mr.  Dawes  that  the  credentials  be  referred  to  the  Committee 
on  Elections  was  agreed  to.' 

On  May  12 '  the  credentials  of  Mr.  T.  M.  Jacks,  from  the  First  Congressional 
district  of  Arkansas,  were  presented  to  the  House  and  referred  to  the  Committee 
on  Elections;  and  on  May  16  *  those  of  Mr.  A.  A.  C.  Rogers  were  similarly  presented 
and  referred. 

On  Februarv*  17,  1865,^  the  conmaittee  reported  resolutions  declaring  that 
Messrs.  Johnson  and  Jacks  were  entitled  to  seats  as  Representatives  from  Arkan- 
sas.    The  committee  say: 

There  seems  in  Arkansas  at  all  times  to  have  been  a  large  number  of  unconditional  Union  men.  It 
is  evident  that  the  so-called  secession  ordinance  was  not  passed  in  accordance  with  the  wishes  of  the 
people  of  the  State.  The  convention  elected  in  1861  was  largely  Union,  but,  without  instructions  from 
the  people,  passed  the  ordinance  of  secession. 

After  three  years  of  war  and  desolation,  the  loyal  people  of  Arkansas  assembled  in  convention  at 
Little  Rock  in  Januarj',  1864.  The  result  of  the  convention's  deliberations  was  the  amending  of  the 
State  constitution,  the  appointment  of  a  provisional  governor,  lieutenant-governor,  and  secretary  of 
state,  and  the  designation  of  the  14th,  15th,  and  16th  days  of  March  as  the  time  for  holding  a  general 
election  throughout  the  State. 

The  acts  of  this  convention,  judging  from  the  statements  of  its  members,  were  rather  suggestive  than 
obligatory.  Indeed,  it  did  not  claim  its  acts  as  binding  until  they  were  ratified  by  the  people,  which  was 
done  with  a  unanimity  seldom  met  with.  At  the  election  on  the  14th,  15th,  and  16th  of  March,  the  acts 
of  the  convention  were  approved  by  12,177  voters,  while  they  were  disapproved  by  only  226.  At  that 
election  the  people  of  more  than  40  counties  elected  State  and  county  officers  necessary  to  set  to  work 
again  the  machinery  of  a  loyal  State  government,  which  had  been  overthrown  by  the  rebellion  in  the 
month  of  May,  1861. 

On  the  18th  of  April,  1864,  the  State  government  was  formally  inaugurated,  since  which  time  it 
has  been  struggling  for  an  existence  under  difficulties  which  those  who  are  strangers  to  its  trials  can 
not  properly  appreciate. 

'  Globe,  pp.  680-^87. 

=  Journal,  pp.  268.  269;  Globe,  p.  687. 

3  Journal,  p.  650;  Globe,  p.  2253. 

*  Journal,  p.  660;  Globe,  p.  2289. 

*  Second  session  Thirty-eighth  Congress,  House  Report  No.  18;  1  Bartlett,  p.  597;  Rowell's  Digest, 
n.  199. 


328  PRECEDENTS   OF    THE   HOUSE   OF   REPRESENTATIVES.  §  381 

The  committee  go  on  to  describe  the  amended  constitution,  showing  that  it 
abolished  slavery,  and  to  show  that  a  State  government  under  this  constitution  was 
in  operation,  and  the  legislature  had  shown  by  its  legislation  that  the  disloyal 
elements  of  the  State  were  not  to  participate  in  its  government.  It  was  also  noted 
that  Arkansas  had  furnished  at  least  10,000  Union  volunteers. 

The  First  district  was  composed  of  twenty  counties,  which  at  the  Presidential 
election  of  1860  cast  16,841  votes.  Fourteen  of  these  counties  participated  "pretty 
fully"  in  the  March  election  in  question,  casting  the  aggregate  vote  of  3,000.  These 
fourteen  counties  in  1860  cast  a  total  of  14,005  votes.  Of  the  3,000  votes  cast  for 
Member  of  Congress  at  the  March  election  Mr.  Jacks  received  all  but  15. 

In  the  Third  district  all  but  one  of  the  nineteen  counties  participated  pretty 
fully,  the  total  vote  being  nearly  5,000,  of  which  Mr.  Johnson  received  over  4,000. 
These  counties  gave  in  1860  an  aggregate  vote  of  16,932. 

The  committee  then  go  on  to  quote  the  position  taken  in  the  case  of  Mr.  Bonanzo, 
of  Louisiana,  as  to  the  course  to  be  taken  when  the  people  had  reorganized  State 
governments. 

The  report  of  the  conunittee  in  these  Arkansas  cases  was  presented  near  the  end 
of  the  Congress,  and  was  not  acted  on  by  the  House. 

381.  The  Louisiana  election  cases  of  Bonanzo,  Field,  Mann,  Wells, 
and  Taliaferro,  in  the  Thirty-eighth  Congress. 

In  1864  the  Elections  Committee  were  divided  as  to  seating  persons 
chosen  under  authority  of  a  constitutional  convention  in  a  State  recently 
in  insurrection. 

The  House  did  not  permit  prima  facie  effect  to  credentials  coming 
from  a  State  lately  in  insurrection  and  from  a  government  of  doubtful 
standing. 

On  December  5,  1864,'  the  Speaker  laid  before  the  House  the  credentials  of 
M.  F.  Bonanzo,  A.  P.  Field,  W.  D.  Mann,  T.  M.  Wells,  and  Robert  W.  Taliaferro,  as 
Representatives  from  the  State  of  Louisiana.  No  motion  was  made  to  administer 
the  oath,  and  the  credentials  were  referred  to  the  Committee  on  Elections.  The 
claimants  were  allowed  the  privileges  of  the  floor. 

On  February  11, 1865,^  the  Committee  reported  on  the  case  of  ^Ir.  Bonanzo,  who 
had  been  returned  by  1,609  votes  out  of  a  total  of  3,065.     The  committee  say: 

This  election  derives  its  authority  from  the  constitutional  convention  which  commenced  its  session 
in  New  Orleans  April  6,  1864,  which  amended  essentially  and  adopted  anew  the  constitution  of  Louisi- 
ana, and,  among  other  things,  did,  on  the  22d  of  July,  1864,  divide  the  State  into  five  Congressional 
districts,  in  accordance  with  the  number  of  Representatives  assigned  to  that  State  in  the  apportionment 
under  the  census  of  1860,  and  ordered  an  election  to  be  held  on  the  first  Monday  of  September,  1864,  to 
fill  the  vacancies  caused  by  the  failure  of  the  State  hitherto  to  elect  Representatives  to  the  present 
Congress. 

Previous  to  this  constitutional  convention  there  had  been  a  State  government, 
elected  in  pursuance  of  a  proclamation  of  the  major-general  commanding  the  depart- 
ment.     The   State  convention,  which  met  April  6,  1864,  and  adjourned  July  25, 

'  Second  session  Thirty-eight  Congress,  Journal,  p.  7;  Globe,  p.  2. 

-Journal,  p.  242;  1  Bartlett,  p.  583;  Rowell's  Digest,  p.  198;  House  Report  Xo.  1.3. 


§  381  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  329 

adopted  a  provision  abolisliing  slavery  as  part  of  the  new  constitution,  and  the  pro- 
ceedings were,  by  proclamation  of  the  governor,  submitted  to  the  people  on  Septem- 
ber 5,  and  were  ratified  without  material  opposition.  The  whole  number  of  votes 
was  over  9,000. 

The  constitutional  convention,  by  ordinance,  divided  the  State  into  five  Con- 
gressional districts,  and  directed  elections  to  be  held  on  September  5,  1S64.  In 
accordance  with  this  ordinance  the  governor  issued  his  proclamation  directing  the 
elections  to  be  held.  Mr.  Bonzano  was  elected  in  accordance  with  these  proceed- 
ings, and  received  liis  certificate  of  election  from  the  governor. 

The  committee  say  in  regard  to  this  election: 

This  election  depends  for  its  validity  upon  the  effect  which  the  House  is  disposed  to  give  to  the 
efforts  to  reorganize  a  State  government  in  Louisiana,  which  have  here  been  briefly  recited.  The  dis- 
tricting of  the  State  for  Representatives,  and  the  fixing  of  the  time  for  holding  the  election,  were  the 
acts  of  the  convention.  Indeed,  the  election  of  governor  and  other  State  officers,  as  well  as  the  existence 
of  the  convention  itself,  as  well  as  its  acts,  are  all  parts  of  the  same  movements. 

It  is  objected  to  their  validity  that  they  neither  originated  in  nor  followed  any  preexisting  law  of 
the  State  or  Nation.  But  the  answer  to  this  objection  lies  in  the  fact  that,  in  the  nature  of  the  case, 
neither  a  law  of  the  State  nor  Nation  to  meet  the  case  was  a  possibility.  The  State  was  attempting  to 
rise  out  of  the  ruin  caused  by  an  armed  overthrow  of  its  laws.  They  had  been  trampled  in  the  dust, 
and  there  existed  no  body  in  the  State  to  make  an  enabling  act.  Congress  can  not  pass  an  enabling  act 
for  a  State.  It  is  neither  one  of  the  powers  granted  by  the  several  States  to  the  General  Government, 
nor  necessarj'  to  the  carrj-ing  out  of  any  of  those  powers,  and  all  "the  powers  not  delegated  to  the  United 
States  by  the  Constitution  nor  prohibited  by  it  to  the  States  are  reserved  to  the  States  respectively  or 
to  the  people."  It  is  preposterous  to  have  expected  at  the  hands  of  the  rebel  authorities  in  Louisiana 
that,  previous  to  the  overthrow  of  the  State  government,  they  should  prepare  a  legal  form  of  proceeding 
for  its  restoration.  In  the  absence  of  any  such  legal  form  prepared  beforehand  in  the  State,  and  like 
absence  of  power  on  the  part  of  the  General  Government,  under  the  delegated  powers  of  the  Constitution, 
it  follows  that  the  power  to  restore  a  lost  State  government  in  Louisiana  existed  nowhere,  or  in  '"the 
people,"  the  original  source  of  all  political  power  in  this  country.  The  people,  in  the  exercise  of  that 
power,  can  not  be  required  to  conform  to  any  particular  mode,  for  that  presupposes  a  power  to  prescribe 
outside  of  themselves,  which  it  has  been  seen  does  not  exist.  The  result  must  be  republican,  for  the 
people  and  the  States  have  surrendered  to  the  L'nited  States,  to  that  extent,  the  power  over  their  form 
of  government  in  this,  that  "the  United  States  shall  guarantee  to  everj-  State  a  republican  form  of 
government." 

It  follows,  therefore,  that  if  this  work  of  reorganizing  and  reestablishing  a  State  government  was 
the  work  of  the  people,  it  was  the  legitimate  exercise  of  an  inalienable  and  inherent  right,  and,  if  repub- 
lican in  form,  is  entitled  not  only  to  recognition,  but  to  the  "guaranty"  of  the  Constitution. 

The  attention  of  the  committee  has,  therefore,  been  directed  to  the  inquiry  how  far  this  effort  to 
restore  constitutional  government  in  Louisiana  has  been  the  work  of  the  people.  Those  engaged  in  the 
traitorous  attempt  to  destroy  the  government  form  no  part  of  that  people  engaged  in  the  patriotic  effort 
to  restore  it.  The  government  is  to  be  made,  if  at  all,  for  and  by  patriots  and  not  by  traitors.  In  answer- 
ing another  and  essential  question,  whether  a  government  once  erected  in  that  State  will  be  able  to 
maintain  itself  against  domestic  violence,  traitors  must  be  counted,  but  not  for  their  voice  in  making 
the  government  itself.  As  well  might  the  inmates  of  a  State  prison  be  enumerated  and  consulted  upon 
determining  the  character  of  a  code  of  laws  designed  for  their  government. 

The  evidence  before  the  committee,  and  all  the  information  they  coidd  obtain,  satisfied  them  that 
the  movement  which  resulted  in  the  election  of  State  officers,  the  calling  of  a  convention  to  revise  and 
amend  the  constitution,  the  ratification  of  such  revisal  and  amendment  by  a  popular  vote,  and  the  sub- 
sequent election  of  Representatives  in  Congress,  was  not  only  participated  in  by  a  large  majority,  almost 
approaching  to  unanimity,  of  the  loyal  people  of  the  State,  but  that  that  loyal  people  constituted  a 
majority  of  all  the  people  of  the  State. 


330  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  382 

The  committee  go  on  to  say  that  they  entertain  no  doubt  of  the  ability  of  this 
government  to  maintain  itself  against  domestic  violence  if  protected  from  enemies 
without. 

Therefore,  the  committee  recommended  a  resolution  declaring  Mr.  Bonzano 
entitled  to  a  seat  as  Representative  from  the  First  district  of  Louisiana. 

A  minority  of  the  committee  dissented  from  this  conclusion.     They  say: 

Has  evidence  been  presented  which  authorizes  this  House  to  declare  that  the  people  of  Louisiana, 
by  any  proper  mode  of  expression,  have  changed  the  status  in  which  they  were  placed  by  their  own  acts 
and  established  a  republican  government?  Such  only  is  the  form  contemplated  by  the  Constitution; 
such  only  has  any  title  to  representation  on  this  floor;  such  only  is  the  United  States  bound  to  guarantee 
or  authorized  to  recognize. 

The  indispensable  quality  of  such  government  is  that  it  shall  emanate  from  the  people;  and  not  only 
must  it  be  derived  from  the  great  body,  but  their  agency  in  its  organization  must  have  been  voluntary. 
The  idea  of  restraint  is  incompatible  with  volition.  The  government  must  not  only  rest  on  the  consent 
of  the  governed  but  that  consent  must  not  be  procured  by  force  or  intimidation. 

It  is  not  sufficient  that  the  result  may  show  that  a  government  apparently  republican  has  been 
created,  but  the  creation  must  be  the  exercise  of  a  will  unaffected  by  the  presence  of  an  overawing  power. 

The  erection  of  a  State  government  is  a  purely  civil  act.  It  has  no  affinity  or  connection  with 
martial  law.  The  civil  power  is  alone  capable  to  distinguish  or  declare  the  fact  of  its  establishment  or 
the  essential  conditions  of  its  existence.  The  Congress  of  the  United  States  is  the  only  body  having 
authority,  primarily,  to  recognize  the  government  of  a  State.  Neither  the  Executive  nor  any  subordinate 
military  commander  has  capacity  to  incept  or  consummate  its  creation.  The  undersigned  do  not  insist 
that  an  act  of  Congress  is  necessary  as  a  prerequisite  to  enable  the  people  of  Louisiana  to  form  a  govern- 
ment, but  the  judgment  of  Congress  must  be  passed  on  the  result  of  the  action  of  the  people  in  the 
recognition  of  their  act  before  Representatives  can  be  entitled  to  admission  on  this  floor.  This  House 
must  be  satisfied  that  their  constitution  is  ordained  in  accordance  with  their  deliberate  and  unforced 
will  before  it  can  lend  its  sanction  to  the  act  or  recognize  its  validity.  Two  questions,  therefore,  are 
presented  for  consideration; 

1.  Did  the  great  body  of  the  loyal  people  of  Louisiana,  in  fact,  participate  or  clearly  concur  in  tlie 
establishment  of  the  government  offered  for  recognition? 

2.  Was  their  act  the  result  of  their  deliberate  will  and  voluntary  choice,  unprocured  by  mDitary 
interference? 

The  minority  answer  the  first  question  by  showing  that  only  nineteen  of  forty- 
eight  parishes  in  the  State  sent  delegates  to  the  constitutional  convention,  and  that 
the  votes  on  the  ratification  of  the  constitution  were  not  representative  of  the  vote 
of  the  State. 

The  minority  answer  the  second  question  by  citing  testimony  and  documents 
tending  to  show  that  the  military  power  was  all-powerful,  and  that  civil  government 
did  not  m  fact  exist  except  in  a  weak  condition. 

The  report  in  this  case  of  Mr.  Bonzano  was  not  acted  on  by  the  House. 

Reports  similar  in  nature  were  made  on  the  cases  of  Messrs.  Field  and  Mann, 
but  were  not  acted  on  by  the  House.* 

382.  The  Senate  election  cases  of  Fishback  and  Baxter,  from 
Arkansas,  in  the  Thirty-eighth  Congress. 

The  Senate  declined  to  give  prima  facie  effect  to  credentials  regular 
in  form  but  from  a  State  known  to  be  kept  from  the  duress  of  an  armed  foe 
only  by  a  partial  military  protection. 

'  House  Reports  Nos.  16,  17;  1  Bartlett,  pp.  596,  597. 


§  382  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  331 

The  Senate  declined  to  admit  persons  elected  under  the  auspices  of  a 
State  government  representing  a  portion  only  of  the  people  in  a  State 
menaced  by  hostile  armies. 

On  May  21,  1864/  the  credentials  of  Hon.  William  Fishback,  claiming  a  seat 
as  a  Senator  from  Arkansas,  were  presented  in  the  Senate,  and  a  motion  was  made 
that  the  oath  be  administered  to  Mr.  Fishback.  The  credentials  were  in  regular 
form,  but  a  question  was  raised  as  to  the  status  of  the  State  of  Arkansas. 

On  June  13,^  after  long  debate,  the  Senate  referred  the  credentials  of  lilr.  Fish- 
back, and  also  of  Hon.  Elisha  Baxter,  also  claiming  a  seat  from  Arkansas,  to  the 
Committee  on  the  Judiciary. 

On  Jime  27,  1864,^  the  report  was  submitted  to  the  Senate.     It  begins: 

That  the  credentials  presented  are  in  due  form,  purporting  to  be  under  the  seal  of  the  State 
of  Arkansas,  and  to  be  signed  by  Isaac  Murphy,  governor  thereof;  and  if  the  right  to  seats  were  to  be 
determined  by  an  inspection  of  the  credentials,  Messrs.  Fishback  and  Baxter  would  be  entitled  to  be 
sworn  as  members  of  this  body.  It  is,  however,  admitted  by  the  persons  claiming  seats,  and  known 
to  the  countrj-,  that,  in  the  spring  of  1861,  the  State  of  Arkansas,  through  its  constituted  authorities, 
undertook  to  secede  from  the  Union,  set  up  a  government  in  hostility  to  the  United  States,  and  main- 
tain the  same  by  force  of  arms. 

The  report  then  goes  on  to  recite  the  liistory  of  secession,  and  then  the  later 
reorganization  of  the  State  government  by  loyal  citizens,  citing  the  cases  of  Rob- 
bins  and  Potter  in  the  Senate,  and  the  decision  of  the  United  States  Supreme 
Court  in  the  case  of  Luther  v.  Borden  as  to  the  rule  of  recognition  of  State  govern- 
ments.    The  committee  conclude: 

The  number  of  persons  in  Arkansas  who  voted  for  President  in  1860  was  54,053,  less  than  one-fourth 
of  whom,  as  appears  from  the  statement  of  the  claimants,  took  part  in  the  reorganization  of  the  State 
government.  This,  however,  would  not  be  fatal  to  the  reorganization,  if  aU  who  were  loyal  to  the  Union 
had  an  opportunity  to  participate,  and  the  State  was  free  from  military  control.  Such,  however,  is 
understood  not  to  have  been  the  case.  The  President  had  not  then,  nor  has  he  up  to  this  time,  recalled 
his  proclamation,  which  declared  the  inhabitants  of  Arkansas  in  a  state  of  insurrection  against  the 
United  States,  nor  was  there  any  e\'idence  before  the  committee  that  said  insurrection  had  ceased  or 
been  suppressed.  At  the  time  when  the  body  which  chose  the  claimants  was  elected,  when  it  assem- 
bled, and  at  this  time,  the  State  of  Arkansas  is  occupied  by  hostile  armies,  which  exercises  supreme 
authority  within  the  districts  subject  to  their  control.  \Miile  a  portion  of  Arkansas  is  at  this  very  time, 
as  the  committee  are  informed,  in  the  actual  possession  and  subject  to  the  control  of  the  enemies  of 
the  United  States,  other  parts  of  the  State  are  only  held  in  subordination  to  the  laws  of  the  Union  by 
the  strong  arm  of  militarj-  power.  While  this  state  of  things  continues,  and  the  right  to  exercise  armed 
authority  over  a  large  part  of  the  State  is  claimed  and  exerted  by  the  military  power,  it  can  not  be 
said  that  a  civil  government,  set  up  and  continued  only  by  the  sufferance  of  the  military,  is  that  repub- 
lican form  of  government  which  the  Constitution  requires  the  United  States  to  guajantee  to  every 
State  in  the  Union. 

When  the  rebellion  in  Arkansas  shall  have  been  so  far  suppressed  that  the  loyal  inhabitants  thereof 
shall  be  free  to  reestablish  their  State  government  upon  a  republican  foundation,  or  to  recognize  the 
one  already  set  up,  and  by  the  aid  and  not  in  subordination  to  the  military  to  maintain  the  same,  they 
will  then,  and  not  before,  in  the  opinion  of  your  committee,  be  entitled  to  a  representation  in  Congress 
and  to  participate  in  the  administration  of  the  Federal  Government.     Believing  that  such  astate  of  things 

>  First  session  Thirty-eighth  Congress,  Globe,  pp.  2392,  2458. 
2  Globe,  pp.  2895-2906;  Senate  Journal,  p.  552. 
nBartlett,  p.  641. 


332  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   383 

did  not  at  the  time  the  claimants  were  elected,  and  does  not  now,  exist  in  the  State  of  Arkansas,  the 
committee  recommend  for  adoption  the  following  resolution: 

''Resolved,  That  \A"illiam  M.  Fishback  and  Elisha  Baxter  are  not  entitled  to  seats  as  Senators  from 
the  State  of  Arkansas." 

On  June  29/  after  full  debate,  the  resolution  was  agreed  to,  yeas  27,  nays  S. 

383.  The  Senate  election  case  of  Willey  and  Carlile,  from  Virginia, 
in  the  Thirty-seventh  Congress. 

From  a  State  distracted  by  civil  war  the  Senate  admitted  Senators 
chosen  by  a  legislature  representing  no  more  than  a  third  or  fourth  of  the 
people. 

The  withdrawal  of  a  Senator  to  join  the  foes  of  the  Government  was 
held  to  create  a  vacancy  which  a  legislature  could  recognize,  although 
the  Senate  had  not  expelled  him. 

Instance  wherein  the  Senate  gave  immediate  prima  facie  effect  to 
credentials  from  a  de  facto  government  in  a  State  disturbed  by  civil  war. 

On  July  13,  1861,^  in  the  Senate,  Mr.  Andrew  Johnson,  of  Tennessee,  presented 
the  following  credentials: 

Virginia,  to  wit: 

The  legislature  of  this  State  having,  on  the  9th  day  of  July,  1861,  in  pursuance  of  the  Constitution 
of  the  United  States,  chosen  Waitman  T.  Willey,  esq.,  a  Senator  of  this  State,  to  fill  the  vacancy  which 
has  happened  by  the  withdrawal  and  abdication  of  James  M.  Mason,  esq.,  I,  Francis  H.  Pierpont,  being 
governor  of  the  Commonwealth,  do  hereby  certify  the  same  to  the  Senate  of  the  United  States. 

Given  under  my  hand  and  the  seal  of  the  Commonwealth  this  11th  day  of  July,  1861. 

[l.  s.]  Francis  H.  Pierpont. 

Mr.  Johnson  also  presented  similar  credentials  certifying  the  election  of  John  S. 
Carlile,  esq.,  as  the  other  Senator  from  Virginia,  to  fill  the  vacancy  caused  by  the 
"withdrawal  and  abdication  of  Robert  M.  T.  Himter,  esq." 

Mr.  Johnson  proposed  that  Messrs.  Willey  and  Carlile  take  the  oath  at  once,  but 
Mr.  James  A.  Bayard,  of  Delaware,  objected,  and  moved  that  the  credentials  be 
referred  to  the  Committee  on  the  Judiciary  for  examination  before  the  adminis- 
tration of  the  oath. 

It  appeared  from  the  ensuing  debate  that  the  Senate  had  recently,  on  July  11, 
expelled  Messrs.  Mason  and  Hunter.  But  the  election  of  Messrs.  Willey  and  Carlile 
had  occurred  on  July  9,  two  days  before  the  expulsion.  Mr.  Bayard  made  the  point 
that  the  legislatiu-e  of  Virginia,  even  if  a  valid  legislature,  might  not  create  or  assume 
a  vacancy.  The  Senate  itself  could  expel,  but  the  legislatvue  could  not.  Neither 
could  the  legislature  determine  that  the  charge  of  crime  vacated  the  seats.  Mr. 
Bayard  further  objected  that  if,  as  he  believed,  Virginia  was  out  of  the  Union,  she 
certainly  should  not  have  representation  in  the  Senate.  If  she  was  in  the  Union 
then  the  Senate  must  take  cognizance  of  her  laws  and  constitution,  and  under  those 
John  Letcher,  and  not  Francis  H.  Pierpont,  was  governor.  The  legislature  which 
had  elected  Messrs.  Willej'  and  Carlile  was  only  a  portion  of  the  real  legislatiu'e  of 
Virginia.  Mr.  Lazarus  W.  Powell,  Senator  from  Kentucky,  stated  that  they  repre- 
sented not  more  than  a  fourth,  or  at  most  a  third,  of  the  people  of  Virginia.     Only 

^  Globe,  pp.  3360-3368;  Senate  Journal,  p.  677. 

-First  session  Thirty-seventh  Congress,  Globe,  pp.  103-109. 


§  384  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  333 

thirty  or  forty  counties  out  of  over  one  hundred  and  fifty  were  represented  in  the 
legislature.     This  statement  was  not  denied. 

In  opposition  to  these  objections  it  was  urged  by  Mr.  Jolinson  that  in  fact  the 
vax-ancies  did  exist  on  July  9.  Both  Mason  and  Hunter  had  withtlrawn  from  the 
Senate,  had  abdicated  before  Jul}'  9.  That  fact  was  notoriotis,  and  the  Senate's 
resolution  of  expulsion  on  July  1 1  did  not  change  that  fact.  Messrs.  Jacob  Collamer, 
of  Vermont,  and  L\Tnan  Trumbull,  of  Illinois,  urged  that  the  resolution  of  expulsion 
had  relation  to  the  time  when  Messrs.  Mason  and  Hunter  committed  the  criminal 
act  of  withdrawing  and  joining  the  foes  of  the  Government.  And  the  legislature  of 
Virginia  might  take  cognizance  of  that  act  as  weU  as  they  might  of  the  death  of  a 
Senator  or  a  resignation.  In  the  case  of  John  F.  Mercer  the  House  of  Representa- 
tives had  settled  that  the  executive  of  a  State  might  take  cognizance  of  the  resigna- 
tion of  a  Representative  and  order  a  new  election. 

.^  to  the  second  objection  it  was  urged  that  the  loyal  portion  of  the  people  of 
Virginia  had  a  government  which  was  at  least  the  de  facto  government  of  the  State; 
and  Messrs.  "Willey  and  Carlile  bore  uncontested  prima  facie  evidence  of  election 
from  that  government.  There  was  no  evidence  from  any  quarter  that  these  gentle- 
men were  not  the  Senators-elect  as  their  credentials  purported  to  show. 

Mr.  Bayard's  motion  was  disagreed  to — yeas  5,  nays  .35. 

Thereupon  Messrs.  Willey  and  Carlile  appeared  and  took  the  oath. 

384.  The  Senate  election  cases  of  Segar  and  Underwood,  from  Vir- 
ginia, in  the  Thirty-eighth  Congress. 

The  Senate  declined  to  admit  to  a  seat  a  person  bearing  uncontested 
credentials  of  election  by  a  legislature  representing  a  small  fraction  of 
the  people  in  a  seceding  State. 

On  February'  17,  1865,'  in  the  Senate,  Mr.  Waitman  T.  Willey,  of  West  Virginia, 
presented  the  credentials  of  Mr.  Joseph  Segar,  as  Senator-elect  from  the  State  of 
Virginia,  to  fill  the  vacancy  caused  by  the  death  of  Lemuel  J.  Bowden,  who  had 
been  admitted  to  a  seat  as  Senator  from  Virginia  in  1S63,  at  the  time  that  certain 
counties  of  old  Virginia  had  been  organized  and  admitted  to  the  Union  as  the  new 
State  of  West  Virginia.  The  condition  of  affairs  was  briefly  set  forth  at  a  later 
day  in  a  Senate  report  ^  submitted  by  Mr.  George  F.  Hoar,  of  Massachusetts,  in 
relation  to  a  claim  by  Mr.  Segar  for  compensation: 

On  the  23d  of  February',  1863,  Mr.  Bowden  was  elected  Senator  for  Virginia  by  the  legislature 
assembled  at  Wheeling,  the  great  portion  of  Virginia,  including  Richmond,  ils  former  seat  of  govern- 
ment, being  then  in  rebellion.  He  was  admitted  to  his  seat,  the  Senate  thereby  recognizing  the  legal 
existence  of  the  State  he  represented.  West  Virginia  was  then  erected  into  a  separate  State.  The 
l^islature  of  Virginia  assembled  at  .Uexandria  and  continued  the  functions  of  a  State  legislature  of 
Virginia.  Mr.  Bowden  continued  to  represent  Virginia  in  the  Senate  until  his  death,  on  the  2d  of 
Januarj',  1864.  December  8,  1864,  the  petitioner  was  elected  to  succeed  Mr.  Bowden,  and  prosecuted 
his  claim  with  diligence.  The  Alexandria  government  was  recognized  as  a  valid  State  organization 
by  President  Lincoln  in  his  amnesty  proclamation  of  December  8,  1863.  It  gave  its  constitutional 
assent  to  the  adoption  of  the  thirteenth  amendment  of  the  Constitution  of  the  United  States,  and  it» 
assent  is  treated  by  Mr.  Seward  in  his  proclamation  announcing  the  adoption  of  the  amendment  aa 
necessary  thereto. 

'  Second  session  Thirty-eighth  Congress,  Globe,  pp.  845-849,  1433,  1434. 
^  Second  session  Forty-fifth  Congress,  Senate  Report  Xo.  509. 


334  PRECEDENTS   OF   THE   HOUSE   OF   KEPRESENTATIVES.  §  385 

Mr.  Charles  Sumner,  of  Massachusetts,  immediately  upon  the  presentation  of 
the  credentials,  objected  to  the  immediate  administration  of  the  oath  and  moved 
that  they  be  referred  to  the  Committee  on  the  Judiciary.  Mr.  Sumner  urged  that 
the  so-called  legislature  of  Virginia  was  little  more  than  a  common  council  of  the 
city  of  Alexandria,  while  the  greater  part  of  Virginia  was  in  armed  resistance  to 
the  Government,  and  the  President  of  the  United  States  had  declared  the  people 
of  the  State  generally  to  be  in  insurrection.  Certain  counties,  however,  had  been 
excepted,  as  stated  in  the  debate  by  Mr.  Jonathan  Doolittle,  of  Wisconsin: 

The  Presidential  proclamation  declaring  the  population  of  certain  States  to  be  in  insurrection 
excepted  from  its  operation  the  counties  of  Alexandria  city  and  county,  Berkeley,  Accomac,  North- 
ampton, Princess  Anne,  Norfolk,  Norfolk  city,  Portsmouth  city,  and  Elizabeth  city  and  county,  in 
the  State  of  Virginia,  containing  a  population  of  over  175,000;  and  these  counties  are  now  represented 
in  the  legislature  at  Alexandria. 

In  favor  of  the  admission  of  Mr.  Segar  it  was  urged  that  the  credentials  were 
sufficient  on  their  face,  and  that  the  right  of  Virginia  to  representation  had  been 
settled  when  Mr.  Bowden  was  admitted  to  a  seat. 

Mr.  Jolm  Sherman,  of  Ohio,  pointed  out  that  the  term  for  which  Mr.  Segar 
had  been  elected  would  expire  on  March  4  next,  and  that  it  was  hardly  worth  wliile 
to  delay  the  pressing  public  business  to  determine  tlais  question.  He  therefore 
moved  that  the  credentials  lie  on  the  table.  This  motion  was  agreed  to — yeas  29, 
nays  13. 

On  March  9,  1865,'  on  the  first  day  of  the  special  session  of  the  Senate,  Mr. 
Jonathan  Doolittle,  of  Wisconsin,  presented  the  credentials  of  John  C.  Underwood 
as  Senator-elect  from  the  State  of  Virginia  for  the  term  beginning  March  4  instant. 

Mr.  Charles  Sunmer,  of  Massachusetts,  moved  that  the  credentials  be  referred 
to  the  Cormnittee  on  the  Judiciary. 

At  this  time  the  question  of  admission  of  Senators  elected  in  Louisiana  and 
Arkansas  was  before  the  Senate,  and  in  view  of  the  doubt  as  to  the  future  treat- 
ment of  the  seceding  States  a  motion  to  postpone  the  consideration  of  the  creden- 
tials to  the  next  session  of  Congress  was  agreed  to  without  division. 

Neither  Mr.  Underwood  nor  Mr.  Segar  were  ever  admitted  to  a  seat. 

385.  The  Senate  election  case  of  Cutler  and  Smith,  from  Louisiana,  in 
the  Thirty-eighth  Congress. 

The  two  Houses  of  Congress  having  by  law  declared  the  State  of 
Louisiana  in  a  state  of  insurrection,  the  Senate  in  1864  did  not  admit 
persons  hearing  credentials  therefrom. 

On  December  6,1864,^  the  credentials  of  R.King  Cutler  and  Charles  Smith,  as 
Senators  from  Louisiana,  were  presented  in  the  Senate.  At  the  same  time  memorials 
were  presented  containing  the  protests  of  citizens  of  Louisiana  against  their  admis- 
sion to  the  Senate.  No  proposition  was  made  to  administer  the  oath  to  the  claimants, 
but  on  December  8  the  credentials  were  referred  to  the  Committee  on  the  Judiciary. 


'  Second  session  Thirty-eighth  Congress,  Globe,  pp.  1433,  1434. 
nbid.,  pp.  5,  8. 


§  385  ELECTORATES    DISTRACTED    BY    CIVIL    WAR.  335 

On  February  18,  1865,'  the  committee  reported,  reviewing  at  length  the  condi- 
tion of  affairs  in  Louisiana  and  concludiag : 

The  persons  in  possession  of  the  local  authorities  of  Louisiana  ha\-ing  rebelled  against  the  authority 
of  the  United  States,  and  her  inhabitants  having  been  declared  to  be  in  a  state  of  insurrection  in  pur- 
suance of  a  law  passed  by  the  two  Houses  of  Congress,  your  committee  deem  it  improper  for  this  body 
to  admit  to  seats  Senators  from  Louisiana,  tiU  by  some  joint  action  of  both  Houses  there  shall  be  some 
recognition  of  an  existing  State  government,  acting  in  harmony  with  the  Government  of  the  United 
States,  and  recognizing  its  authority. 

Your  committee  therefore  recommend  for  adoption,  before  taking  definite  action  upon  the  right  of 
the  claimants  to  seats,  the  accompanying  joint  resolution: 

'  'Resolved  by  the  Senate  mid  House  of  Representatives  of  the  United  States  of  America  in  Congress  assem- 
bled. That  the  United  States  do  hereby  recognize  the  government  of  the  State  of  Louisiana,  inaugurated 
under  and  by  the  convention  which  assembled  on  the  6th  day  of  April,  A.  D.  1864,  at  the  city  of  New 
Orleans,  as  the  legitimate  government  of  said  State,  entitled  to  the  guarantee  and  all  other  rights  of  a 
State  government  under  the  Constitution  of  the  United  States." 

The  report  was  debated  on  Februarj^  23.  24.  and  25,^  but  was  not  finally 
acted  on. 

'  1  Bartlett,  p.  643.  'Globe,  pp.  1011,  lOGl,  1091,  1101. 


Chapter  XI. 

ELECTORATES  IN  RECONSTRUCTION/ 


1.  Members-elect  from  insurrectionary  States  not  admitted  on  prima  facie  title.     Sec- 

tions 386-388.- 

2.  Case  of  the  Georgia  Members  in  1869.     Section  388. 

3.  Principles  deduced  from  Senate  decisions.     Sections  389-396. 

386.  In  the  Fortieth  Congress  Members-elect  from  States  lately  in 
secession  were  not  admitted  until  a  committee  had  examined  their  cre- 
dentials, qualifications,  and  the  status  of  their  constituencies.^In   186S, 

at  the  time  of  the  reconstruction  of  the  State  governments  of  a  number  of  the 
States  recently  in  secession,  persons  claiming  to  be  elected  Members  of  the  House 
appeared  from  the  States  of  Arkansas,  Florida,  North  and  South  Carolina,  Ala- 
bama, Louisiana,  and  Georgia.^  These  persons  bore  credentials  signed,  some  by 
military  authorities  in  command  of  the  districts  comprising  the  State,^  others 
signed  by  the  president  of  a  constitutional  convention.^  The  House  decided  in 
these  cases  to  refer  the  credentials  to  the  Committee  on  Elections  before  the  Members- 
elect  were  sworn  in,"  in  accordance  with  the  precedent  in  the  preceding  Congress. 

The  Committee  on  Elections  reported  in  these  cases  as  to  whether  or  not  the 
credentials  were  "  in  due  form  of  law"  and  whether  or  not  the  States  had  conformed 
to  the  laws  of  Congress.'  Also,  they  reported  as  to  the  qualifications  of  the  Member- 
elect,  especially  as  to  whether  or  not  his  disabilities  had  been  removed  so  that  he 
might  take  the  oath.' 

'  See  also  cases  of  Houston  v.  Broocks  (sec.  644  of  this  volume)  and  Jacobs  v.  Lever,  Myers  v.  Pat- 
terson, and  Prioleau  v.  Legare  (sec.  1135  of  Vol.  II). 

^  See  also  cases  of  Segar  (sec.  318  of  this  volume)  and  Jones  v.  Mann  and  Hunt  v.  Menard  (sec.  326 
of  this  volume). 

^  For  references  to  these  cases  see  p.  cccxvi  of  the  Index  to  the  Congressional  Globe,  second  session 
Fortieth  Congress. 

^Members  of  the  House  protested  against  Members  "  sent  here  by  military  force  acting  under  a 
brigadier-general,"  second  session  Fortieth  Congress,  Journal,  p.  922;  Globe,  p.  3441. 

'So  Members  from  Alabama,  Globe,  p.  4294. 

'Journal,  p.  917;  Globe,  p.  3396. 

'Globe,  p.  4215. 

'Globe,  p.  4254. 

336 


§  387  ELECTORATES  IN  EECONSTBUCTION.  337 

387.  In  1869  the  House  provided  by  resolution  that  the  credentials 
of  persons  claiming  seats  from  certain  States  should  be  examined  by  a 
committee  before  the  oath  should  be  administered. 

The  credentials  of  Members-elect  who  appear  after  the  organization 
are  presented  but  are  not  examined  by  a  committee  before  the  oath  is 
administered,  unless  there  be  objection. 

In  1870  the  House  declined  to  exclude  a  Member-elect  for  alleged 
disloyalty  in  giving  utterance  to  words  indicating  contempt  for  the 
Government. 

On  December  6,  1869,'  at  the  begimiing  of  the  second  session,  after  the  roll  of 
Members-elect  had  been  called  by  States  and  the  presence  of  a  quorum  had  been 
announced,  the  Speaker  invited  Members-elect  ^\^th  credentials,  whose  right  to 
seats  were  unchallenged,  to  come  forward  and  take  the  oath. 

Mr.  Halbert  E.  Paine,  of  Wisconsin,  said  that,  as  there  was  no  law  authorizing 
the  Speaker,  Clerk,  or  other  officer  to  inspect  credentials  presented  after  the  House 
was  once  organized,  it  seemed  most  proper  that  all  credentials  be  referred  to  the 
Committee  on  Elections  for  examination  before  the  bearers  should  be  sworn  in. 

The  Speaker  ^  said  the  usage  had  always  been,  when  there  was  no  objection,  to 
allow  a  Member  to  be  sworn  in  without  any  further  ceremony.  The  Chair  did  not 
propose  to  administer  the  oath  to  any  to  whom  objection  might  be  made. 

Members-elect  to  whom  there  was  no  objection  were  then  sworn  in. 

Later  in  the  day  Mr.  Paine  presented  the  credentials  of  William  Milnes,  jr., 
claiming  a  seat  as  a  Member  from  the  Sixth  district  of  Virginia,  and  at  the  same  time 
offered  the  following  resolution,  which  was  agreed  to  by  the  House: 

Resolved,  That  all  credentials  of  persons  claiming  the  right  to  represent  the  people  of  Virginia  and 
Mississippi  in  this  House  be  referred,  when  presented,  to  the  Committee  of  Elections. 

In  accordance  with  this  resolution  credentials  were  presented  and  referred,  the 
oath  not  being  administered  pending  the  investigation. 

On  Januan,-  27,  1870,^  Mr.  Paine  submitted  from  the  committee  a  report  finding 
that  six  of  the  nine  persons  who  presented  certificates  from  Virginia,  were  entitled 
to  be  sworn  in,  and  submitted  a  motion  that  the  oath  be  administered  to  them. 
Objection  being  made  to  one  of  the  six,  Mr.  Charles  H.  Porter,  he  stepped  aside 
until  the  oath  was  administered  to  the  others.  The  question  recurring  as  to  admin- 
istering the  oath  to  Mr.  Porter,  Mr.  Fernando  Wood,  of  Xew  York,  presented  the 
record  of  a  trial  by  a  military'  conunission  whereby  Mr.  Porter  had  been  pimished, 
after  conviction,  for  declaring  that — 

This  Government  is  all  a humbug  from  beginning  to  end,  etc. 

After  debate  the  motion  to  administer  the  oath  to  Mr.  Porter  was  agreed  to, 
but  immediately  Mr. William  S.  Holman,  of  Indiana,  moved  to  reconsider.  There- 
upon a  debate  arose,  partisan  in  nature,  which  reviewed  the  exclusion  of  the 
Kentucky  Members  on  charges  of  disloyalty.     Finally  the  motion  to  reconsider 

'  Second  session  Forty-first  Congress,  Journal,  pp.  22,  23;  Globe,  pp.  9,  15. 
^  Schuyler  Colfax,  of  Indiana,  Speaker. 
^Globe,  pp.  822-828. 

5994— VOL  1—07 22 


338  PBECEDENTS   OF   THE    HOUSE   OF   REPBESENTATIVES.  §  388 

was  laid  on  the  table — yeas,  167;  nays,  4.  Thereupon  Mr.  Porter  appeared  and 
took  the  oath. 

The  three  other  claimants  to  seats  presented  cases  requiring  further  examina- 
tion, involving  questions  as  to  prima  facie  ami  final  right  that  are  considered  on 
other  pages. 

388.  The  election  case  of  the  Georgia  Members  in  the  Forty-first 
Congress. 

The  House  decided  in  1869  that  a  person  might  not,  by  virtue  of  one 
election,  sit  as  a  Member  of  the  House  in  two  Congresses. 

The  Clerk  declined  to  enroll  claimants  bearing  credentials  referring 
to  an  election  by  virtue  of  which,  the  said  claimants  had  already  held  seats 
in  the  preceding  Congress. 

Instance  wherein  a  constitutional  convention  in  a  State  undergoing 
reconstruction  authorized  the  election  of  Members  of  Congress  in  antici- 
pation of  the  sanction  of  Federal  law. 

Instance  wherein,  during  the  reconstruction  period,  credentials  were 
issued  to  Members-elect  by  a  military  commander. 

On  March  5,  1869,'  when  the  House  of  Representatives  organized  the  names 
of  no  persons  as  Members-elect  from  the  State  of  Georgia  were  included  in  the 
roll  called  by  the  Clerk. 

It  appeared  that  certain  persons  had  appeareil  bearing  credentials  of  the 
governor  of  Georgia,  under  seal  of  the  State,  and  in  due  form  setting  forth: 

Whereas  the  convention  of  the  people  of  this  State,  held  under  the  reconstruction  acts  of  Congress, 
passed  an  ordinance  dated  10th  of  March,  1868,  which  ordained  that  an  election  be  held,  beginning 
on  the  20th  day  of  April,  18G8,  for  Representatives  to  the  Congress  of  the  United  States;  and  whereas 
the  returns  made  agreeably  to  said  ordinance  show  that  you  received  the  highest  number  of  votes  for 
Representative  from  the  Second  Congressional  district  of  this  State;  and  whereas  it  is  my  duty  under 
the  laws  of  Georgia  to  commission  the  persons  legally  elected. 

These  are  therefore  to  commission  you,  the  said  Nelson  Tift,  to  take  session  in  the  House  of  Rep- 
resentatives of  the  United  States  in  accordance  with  said  election  under  said  ordinance,  a  copy  of 
which  is  hereunto  annexed,  and  to  use  and  exercise  all  and  every  the  privileges  and  powers  which  by 
right  you  may  or  can  do,  under  and  by  virtue  of  the  Constitution,  in  behalf  of  this  State. 

This  credential  was  dated  November  24,  1868. 

The  ordinance,  which  was  annexed  to  the  credentials,  provided  that  the  per- 
sons elected  at  the  election  of  April  20,  1868  (at  which  the  constitution  was  voted 
on,  and  which  was  conducted  under  direction  of  the  commanding  general  of  the 
military  district  including  Georgia) — 

shall  enter  upon  the  duties  of  the  several  offices  to  which  they  have  been  respectively  elected  when 
authorized  so  to  do  by  acts  of  Congress  or  by  the  order  of  the  general  commanding,  and  shall  continue 
in  office  till  the  regular  session  provided  for  after  the  year  1868  and  until  successors  are  elected  and 
qualified,  so  that  said  officers  shall  each  of  them  hold  their  offices  as  though  they  were  elected  on  the 
Tuesday  after  the  first  Monday  in  November,  1868,  or  elected  or  appointed  by  the  general  aaaembly 
next  thereafter. 

In  the  debate  it  was  stated  that  while  the  Clerk  was  technically  right  in  not 
putting  the  names  of  the  persons  on  the  roll,  the  House  was  not  bound  by  so  strict 

'First  session  Forty-first  Congress,  Journal,  pp.  5,  14;  Globe,  pp.  16-18. 


§  388  ELECTORATES  IN  RECONSTRUCTION.  339 

technical  rule.     It  appeared  from  the  debate  that  the  same  persons,  by  virtue  of 
the  election  in  question,  had  taken  seats  in  the  preceding  Congress,  the  Fortieth. 

The  House,  m  the  perplexities  caused  by  this  state  of  facts  abandoned  a 
resolution  providing  for  the  swearing  in  of  the  persons  named,  and  agreed  to  this 
resolution: 

Resolved,  That  the  credentials  and  papers  of  J.  W.  Clift,  Nelson  Tift  [mentioning  others],  claiming 
seats  as  Members  of  the  House  of  Representatives  from  the  State  of  Georgia,  be  referred  to  the  Commit- 
tee of  Elections,  when  appointed,  with  directions  to  report  to  the  House  whether  their  papers  present 
a  prima  facie  right  to  their  seats. 

On  January  28,  1870,'  Mr.  John  C.  Churchill,  of  New  York,  from  the  Com- 
mittee on  Elections,  submitted  the  report.  The  report  first  states  fully  the  facts 
m  connection  with  the  case: 

In  November,  1867,  under  the  reconstruction  acts  of  Congress,  members  of  a  convention  to  form 
a  constitution  of  the  State  of  Georgia  were  elected.  This  convention  convened  on  the  9th  day  of 
December,  1867,  and  proceeded  with  the  only  duty  which,  under  those  acts,  they  had  to  perform, 
and  on  the  11th  of  March,  1868,  they  adopted  a  constitution  to  be  submitted  to  the  people  under  the 
acts  above  referred  to. 

On  the  11th  of  March,  1868,  Congress  passed  an  act,  the  second  section  of  which  reads  as  follows: 

"Sec  2.  And  he  it  further  enacted,  That  the  constitutional  convention  of  any  of  the  States  mentioned 
in  the  acts  to  which  this  is  amendatory  may  provide  that  at  the  time  of  voting  upon  the  ratification 
of  the  constitution,  the  registered  voters  may  vote  also  for  Members  of  the  House  of  Representatives  of 
the  United  States,  and  for  all  elective  officers  provided  for  by  the  said  constitution ;  and  the  same  election 
officers  who  shall  make  the  return  of  the  votes  cast  on  the  ratification  or  rejection  of  the  constitution 
shall  enimierate  and  certify  the  votes  cast  for  Members  of  Congress." 

Under  the  authority  of  this  section,  although  anticipating  its  passage,  the  convention  on  the  10th 
of  March,  1868,  adopted  an  ordinance  which  provided  that  an  election  should  be  held,  beginning  on 
the  20th  of  April,  1868,  "for  voting  on  the  ratification  of  the  constitution,  and  for  governor,  members 
of  the  general  assembly,  Representatives  to  the  Congress  of  the  United  States,  and  all  other  officers  to 
be  elected  as  provided  in  the  constitution."  It  was  further  provided  "that  the  persons  so  elected 
shall  enter  upon  the  duties  of  the  several  offices  to  which  they  have  been  respectively  elected,  when 
authorized  so  to  do  by  acts  of  Congress  or  by  the  order  of  the  general  commanding;  and  shall  continue 
in  office  till  the  regular  succession  provided  for  after  the  year  1868,  and  until  successors  are  elected 
and  qualified;  so  that  said  officers  shall  each  of  them  hold  their  offices  as  though  they  were  elected  on 
the  Tuesday  after  the  first  Monday  of  November,  1868,  or  elected  or  appointed  by  the  general  assembly 
next  thereafter." 

General  Meade  was  further  requested  by  the  same  ordinance  to  cause  due  returns  to  be  made,  and 
certificates  of  election  to  be  issued  by  the  proper  officers.  Under  this  ordinance  an  election  was  held, 
beginning  on  the  20th  April,  1868,  at  which  Representatives  in  Congress  were  voted  for  in  the  several 
congressional  districts,  each  voter  so  voting  depositing  but  a  single  ballot,  on  which  was  inscribed 
"for  Representative  in  Congress,"  with  the  name  of  the  person  for  whom  he  voted.  At  this  time 
there  was  no  act  of  Congress  in  existence  giving  representation  in  Congress  to  Georgia,  and  therefore 
no  time  when,  by  the  terms  of  the  above  ordinance,  the  terms  of  the  persons  so  voted  for  could  commence. 

On  the  25th  of  June,  1868,  Congress  passed  a  law  which  declared  that  Georgia  should  be  entitled 
and  admitted  to  representation  in  Congress  when  the  legislature  of  the  State  should  have  duly  ratified 
article  fourteen  of  the  amendments  to  the  Constitution,  and  should  also  have  given  the  assent  of  the 
State  to  certain  fundamental  conditions  specified  in  the  act;  and  the  President  was  required,  within 
ten  days  after  the  receipt  of  official  intelligence  of  the  fact,  to  issue  a  proclamation  announcing  the 
ratification  by  the  legislature  of  the  fourteenth  amendment. 

On  the  1st  of  July,  1868,  General  Meade  issued  certificates  of  election  to  the  several  persons  who 
had  received  a  majority  of  votes  for  Representative  in  Congress  in  their  respective  districts,  which 
certificate,  for  the  First  Congressional  district,  was  in  the  following  form: 

'  Second  session  Forty-first  Congress,  House  Report  No.  16;  2  Bartlett,  p.  596. 


340  PRECEDENTS   OF   THE    HOUSE   OF   EEPKESENTATIVES.  §   388 

"Headquarters  Third  Military  District, 

"(Georgia,  Florida,  and  Alabama.) 
"From  the  returns  made  to  these  headquarters  by  the  boards  of  registration  of  the  election  held  in 
the  State  of  Georgia  for  civil  officers  of  said  State,  and  for  Members  of  Congress,  under  the  provisions  of 
General  Order,  No.  40,  issued  from  these  headquarters,  which  election  commenced  on  the  20th  day  of 
April  and  continued  four  days,  il  is  hereby  certified  that  it  appears  that  in  said  election  J.  W.  Clift  received 
a  majority  of  the  votes  cast  for  a  Representative  to  the  Congress  of  the  United  States  from  the  First  Con- 
gressional district  in  said  State  of  Georgia. 

"George  G.  Meade, 
"Major-General,  U.  S.  A.,  Commanding. 
"Atlanta,  Ga.,  July  1,  1S6S." 

The  certificates  were  similar  in  form,  with  changes  only  of  the  name  of  the  person  certified  to  be 
elected. 

The  convention  adjourned  on  the  11th  March,  1868,  the  constitution  providing  that  the  general 
aj?sembly  should  meet  within  ninety  days  of  the  adjournment  of  the  convention,  and  annually  there- 
after on  the  second  Wednesday  in  January,  or  on  such  other  day  as  the  general  assembly  might  provide. 
This  last  fact  is  important,  since  it  has  been  claimed  before  the  committee  that,  under  the  constitution 
of  Georgia,  no  election  for  Members  of  Congress  could  be  held  until  the  year  1870.  The  clause  of  the 
constitution  so  referred  to  is  as  follows — article  2,  section  11: 

The  election  of  governor.  Members  of  Congress,  and  the  general  assembly,  after  the  year  1868,  shall 
commence  on  the  Tuesday  after  the  first  Monday  in  November,  unless  otherwise  provided  by  law. 

But  this  puts  no  limitation  whatever  upon  the  powers  of  the  general  assembly  to  regulate  the  time 
and  frequency  of  elections,  and,  taken  in  connection  with  the  general  grant  of  power  to  the  general 
assembly  (article  3,  section  5,  1)  to  pass  any  law  consistent  with  the  constitution  they  might  deem  nec- 
essary to  the  welfare  of  the  State,  gave  them  full  control  of  the  subject;  and  the  convention  having 
required  the  general  assembly  to  meet  within  ninety  days  of  their  own  adjournment,  and  also  on  the 
second  Wednesday  of  the  following  January,  the  fullest  opportunity  was  given  to  the  latter  to  provide 
by  further  legislation,  if  necessary,  for  the  proper  representation  of  the  State  in  Congress. 

On  the  8th  of  July,  1868,  the  general  assembly  of  Georgia  organized,  and  soon  after  ratified  the  four- 
teenth amendment  and  assented  to  the  fundamental  conditions  mentioned  in  the  amendatory  recon- 
struction act  of  June  25,  1868;  and  the  President  thereupon,  on  the  27th  day  of  July,  1868,  issued  his 
proclamation  of  the  fact  of  such  ratification.  The  Members-elect  from  Georgia  thereupon,  in  July,  1868, 
presented  their  certificates  of  election  received  from  General  Meade,  and,  so  far  as  eligible,  were  thereon 
admitted  to  seats  in  the  Fortieth  Congress. 

Afterwards,  in  November,  1868,  thegovemor  of  the  State  issued  commissions  to  each  of  these  parties, 
based  upon  the  same  election. 

The  report  goes  on  to  say  that  the  commission  of  the  governor  as  evidence  of 
the  election  is  unauthorized,  General  Meade  having  been  the  only  person  authorized 
by  the  ordinance  to  issue  certificates  of  election.  The  commission  issued  by  the 
governor  of  Georgia  referred  to  the  same  election  as  did  the  certificate  issued  by 
General  ileade  and  conferred  no  additional  powers.  By  the  election  of  April  20, 
1868,  Georgia  became  entitled  to  representation  immediately  upon  comphance  with 
certain  conditions.  Those  conditions  were  complied  with  in  time  for  the  Repre- 
sentatives to  be  admitted  to  the  Fortieth  Congress.  It  was  absurd  to  say  that  the 
right  to  immediate  representation  would  be  satisfied  by  admission  to  the  Forty-first 
Congress.     The  committee  concludes: 

The  action  of  the  persons  elected,  as  well  as  of  the  House,  was  in  entire  harmony  with  this  view. 
Immediately  upon  the  compliance  of  Georgia  with  the  required  conditions,  their  members  presented 
themselves  and  the  House  received  them  as  Representatives  from  that  State. 

It  is  too  late  for  these  claimants  to  deny  that  their  election  entitles  them  to  sit  in  the  Fortieth  Con- 
gress. Their  own  action  has  estopped  them  from  such  denial,  and  unless  they  can  show  themselves 
entitled  by  the  election  of  April  20,  1868,  to  hold  for  two  terms  the  force  of  their  election  is  exhausted. 


§  389  ELECTORATES  IX  KECONSTRUCTION.  341 

The  action  o.  i,ne  people  in  voting  for  them  as  Representatives  in  Congress,  and  their  certificates  of 
election  as  such  Representatives,  have  been  fuOy  answered  by  admitting  them  as  such  Representatives 
to  the  Fortieth  Congress.  Xor  was  it  a  matter  of  choice  with  these  men  whether  they  should  present 
themselves  for  admission  to  the  Fortieth  or  to  the  Forty-first  Congress.  By  the  ordinance  of  the  conven- 
tion under  which  this  election  was  held,  and  the  law  of  Congress  of  June  25, 1868,  they  were  to  enter  upon 
the  duties  of  their  ofiice  whenever  the  State  o'  Georgia  had  complied  with  the  conditions  mentioned  in 
the  last-mentioned  act.  These  conditions  were  complied  with  dtu-ing  the  following  month  of  July, 
1868,  and  therefore  it  became  the  duty  of  these  men  to  enter  upon  the  duties  of  the  office  to  which  they 
had  been  chosen.  This  they  did,  and  became  Members  of  the  House  of  Representatives  of  the  Fortieth 
Congress,  and  acted  as  such  during  the  closing  days  of  the  second  session  of  that  Congress  and  for  the 
remainder  of  the  term  of  its  existence. 

Having  taken  their  seats  as  Members  of  the  Fortieth  Congress,  it  was  not  in  the  power  of  the  conven- 
tion of  Georgia  to  extend  their  term  so  as  to  include  the  Forty-first  Congress.  The  ofiice  of  Representa- 
tive to  the  Fortieth  Congress  is  entirely  distinct  from  that  of  Representative  in  the  Forty-first  Congress, 
and  made  so  by  the  Constitution  of  the  United  States. 

It  is  not  pretended  that  there  was  anything  in  the  conduct  of  the  election  of  April  20. 1868,  or  in  the 
action  of  the  voters,  which  indicated  a  purpose  to  choose  for  more  than  a  single  Congress,  and  the  ordi- 
nance of  the  convention  can  not  affect  the  result.  Indeed  an  examination  of  the  ordinance  will  show 
that  it  was  the  State  officers,  and  not  Members  of  Congress,  the  duration  of  whose  offices  was  attempted 
to  be  regulated  by  that  act. 

The  conclusion  of  the  committee,  therefore,  is  that  the  force  of  the  election  of  April  20,  1868,  was 
exhausted  when  these  gentlemen  were  admitted  Members  of  the  Fortieth  Congress,  and  they  therefore 
recommend  the  adoption  of  the  following  resolution: 

"Resolved,  That  the  claimants  to  seats  in  the  Forty-first  Congress  of  the  United  States  from  the 
State  of  Georgia,  under  the  election  held  in  that  State  on  the  20th  day  of  April,  1868,  are  not  entitled  to 
such  seats." 

On  January  28,  1870,^  the  report  was  explained,  but  not  opposed,  and  the 
resolution  was  agreed  to  without  division. 

389.  The  Senate  election  case  of  Jones  and  Garland  v.  McDonald  and 
Rice,  from  Arkansas,  in  the  Fortieth  Congress. 

A  State  having  been  in  secession,  the  Senate  admitted  as  Senator  the 
person  chosen  after  the  State  had  conformed  to  conditions  prescribed  by 
law.  and  refused  to  admit  one  chosen  prior  to  such  conformity. 

Instance  wherein  the  Senate  gave  immediate  prima  facie  effect  to 
informal  credentials,  although  other  claimants  presented  credentials  tech- 
nically conforming  to  law. 

Instance  wherein  the  Senate  admitted  persons  chosen  before  Con- 
gress had  admitted  a  reconstructed  State  to  representation. 

From  the  outbreak  of  the  civil  war  until  1868  the  State  of  Arkansas  was  without 
representation  in  the  Senate  of  the  United  States.  On  November  24,  1866,  the 
legislature  of  Arkansas  elected  as  Senators  John  T.  Jones  for  the  vaeancy  in  the  term 
beginning  March  4,  1865,  and  Augustus  H.  Garland  for  the  term  commencing  March 
4,  1867.  Neither  of  these  Senators-elect  were  admitted;  but  by  the  act  of  July  19, 
1867,'  Congress  declared  the  governments  then  existing  in  several  Southern  States, 
including  Arkansas,  illegal.  Previously,  by  the  law  of  March  2,  1867,^  Congress 
had  prescribed  the  conditions  on  which  the  States  lately  in  secession  might  be  read- 

'  Journal,  p.  222;  Globe,  pp.  853,  854.  - 15  Stat.  L.,  p.  14.  ^  14  gjat.  L.,  p.  428. 


342  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  389 

mitted  to  representation,  but  leaving  it  for  a  future  law  to  eflfect  such  readmission. 
Arkansas  proceeded,  under  the  law  of  March  2,  1867,  to  form  a  new  State  govern- 
ment, and  the  legislature  of  that  new  government  on  April  15,  1868,  chose  two 
Senators,  Alexander  McDonald  for  the  term  beginning  March  4,  1865  (that  for 
which  Mr.  Jones  had  been  elected),  and  Benjamin  F.  Rice  for  the  term  beginning 
March  4,  1867  (that  for  which  Mr.  Garland  had  been  elected).  But  it  was  not  until 
June  22,  1868,'  that  Congress  by  law  formally  admitted  Arkansas  "  to  representa- 
tion in  Congress  as  one  of  the  States  of  the  Union."  So  Messrs.  McDonald  and  Rice 
were  chosen  before  Arkansas  was  actually  admitted. 

On  Jime  23,  1868,^  the  day  after  the  act  of  admission  had  become  a  law,  Mr. 
John  M.  Thayer,  of  Nebraska,  presented  the  credentials  of  Messrs.  McDonald  and 
Rice  in  the  Senate.     They  were  in  form  as  follows: 

State  of  Arkansas,  to  wit: 

The  general  assembly  of  the  State,  assembled  under  the  provisions  of  section  2  of  Article  V of  the 
constitution  as  adopted  by  the  convention  on  the  11th  day  of  February,  A.  D.  1868,  a  copy  of  which 
is  hereto  annexed,  having,  on  the  15th  day  of  April,  A.  D.  1868,  in  pursuance  of  an  act  of  Congress  entitled 
"An  act  to  regulate  the  times  and  manner  of  holding  elections  for  Senators  in  Congress,"  approved  July 
25,  1866,  chosen  Benjamin  F.  Rice  a  Senator  of  the  United  States  for  the  term  ending  on  the  4th  day  of 
March,  A.  D.  1873. 

Therefore  we,  John  N.  Sarber,  president  pro  tempore  of  the  senate,  and  John  G.  Price,  speaker  of 
the  house  of  representatives,  do  hereby  certify  the  same  to  the  Senate  of  the  United  States. 
Given  under  our  hands,  this  15th  day  of  April,  A.  D.  1868. 

John  N.  Sarbbr, 
President  Senate  pro  tempore. 
John  G.  Price, 
Speaker  Ilouse  of  Representatives. 

As  soon  as  these  credentials  had  been  read,  Mr.  Garrett  Davis,  of  Kentucky, 
offered  the  credentials  of  Messrs.  Jones  and  Garland,  which  were  in  regular  form, 
signed  by  "  Isaac  Murphy,  governor,"  attested  by  the  seal  of  the  State,  and  counter- 
signed by  the  secretary  of  state. 

Mr.  Davis  claimed  that  this  title  was  the  older  and,  from  the  standpoint  of  prima 
facie  authority,  the  better.  He  also  contended  that  constitutionally  Messrs.  Jones 
and  Garland  had  the  better  title ;  and  proposed  a  reference  of  all  the  credentials  to 
the  Judiciary  Committee  for  investigation. 

Mr.  Davis's  proposition  was  not  taken  seriously  by  the  majority  of  the  Senate, 
who  considered  the  reconstruction  legislation  as  conclusive  on  this  point. 

But  Mr.  Lyman  Trumbidl,  of  Illinois,  suggested  two  questions  on  which  there 
was  extended  debate: 

(1)  That  the  credentials  of  Messrs.  Rice  and  McDonald  were  signed  only  by  the 
president  pro  tempore  of  the  senate  and  speaker  of  the  house,  whereas  the  law  of 
July  25,  1866^  provided: 

That  it  shall  be  the  duty  of  the  governor  of  the  State  from  which  any  Senator  shall  have  been  chosen 
as  aforesaid  to  certify  his  election,  under  the  seal  of  the  State,  to  the  President  of  the  Senate  of  the 
United  States,  which  certificate  shall  be  countersigned  by  the  secretary  of  state  of  the  State. 

'  15  Stat.  L.,  p.  72. 

^  Second  session  Fortieth  Congress,  Globe,  pp.  3.384-3389. 

^  14  Stat.  L.,  p.  244. 


§  390  ELECTORATES  IN  RECONSTRUCTION.  343 

(2)  That  Messrs.  Rice  and  McDonald  had  been  chosen  before  Congress  had 
admitted  Arkansas  to  representation. 

As  to  the  first  point,  it  was  explained  that  the  governor  had  not  given  credentials 
because  the  legislature  did  not  recognize  the  old  governor  and  the  new  governor 
was  not  in  possession  of  the  office  and  was  simply  a  governor-elect.  Wliile  admit- 
ting the  informality  of  the  credentials,  the  general  opinion  of  the  Senate  seemed  to 
concur  in  the  views  expressed  by  Messrs.  Oliver  P.  Morton,  of  Indiana,  and  Reverdy 
Johnson,  of  Maryland,  tliat  the  law  was  -merely  directory  as  to  the  governor  and 
that  the  authentication  of  the  credentials  in  this  case  was  sufficient.  Mr.  Johnson, 
however,  thought  it  well  that  the  credentials  should  be  referred  to  a  committee, 
that  a  general  rule  might  be  established  for  the  future. 

As  to  the  second  point,  Mr.  Trumbull  recalled  that  it  had  been  an  established 
practice  for  new  States  to  organize  and  elect  Senators  before  their  admission  to  the 
Union.  And  when  Congress  subsequently  recognized  the  State  government  it  had 
been  construed  to  have  relation  back  to  the  time  when  the  organization  took  place 
and  the  Senators  had  been  admitted  to  their  seats.  Mr.  Johnson,  in  support  of  this 
view,  recalled  the  case  of  California. 

Mr.  Davis,  insisting  on  liis  view  that  Messrs.  Jones  and  Garland  were  the  only 
constitutionally  elected  Senators,  moved  that  the  credentials  be  referred  to  the 
Judiciary  Committee;  but  the  motion  was  negatived  without  division. 

Then  the  motion  that  Messrs.  Rice  and  McDonald  be  sworn  was  agreed  to; 
and  they  appeared  and  took  the  oath. 

390.  The  Senate  election  case  of  Marvin  v.  Osborn,  from  Florida,  in 
the  Fortieth  Congress. 

A  State  having  been  in  secession,  the  Senate  admitted  as  Senator  the 
person  chosen  after  the  State  had  conformed  to  conditions  prescribed  by 
law  and  refused  to  admit  one  chosen  prior  to  such  conformity. 

Instance  wherein  immediate  prima  facie  effect  was  given  to  creden- 
tials of  a  Senator-elect  from  a  reconstructed  State. 

On  June  30,  1868,'  in  the  Senate,  Mr.  Timothy  O.  Howe,  of  Wisconsin,  presented 
the  credentials  of  Thomas  W.  Osborn,  as  Senator  from  Florida  to  fill  the  term  expir- 
ing on  March  3,  1873.  Florida  had  been  without  representation  since  the  secession 
of  the  State;  but  Congress,  by  the  act  of  July  25,  1868,  had  provided  that  Florida 
and  certain  other  secession  States  should  be  admitted  to  representation  when  they 
should  have  compHed  with  certain  conditions. 

Mr.  Howe  also  presented,  as  evidence  that  the  State  had  complied  with  the 
conditions,  her  ordinances  ratifying  the  thirteenth  and  fourteenth  amendments  to 
the  Constitution  of  the  United  States. 

The  credentials  of  Mr.  Osborn  showed  his  election  on  June  18,  1866,  and  that  it 
was  in  accordance  with  the  act  of  July  25,  1866.  The  State  had  completed  the 
ratification  of  the  amendments  on  June  11,  1868,  seven  days  prior  to  Mr.  Osborn's 
election. 

While  Mr.  Osborn's  credentials  were  under  consideration  Mr.  Jonathan  Doolittle, 
of  Wisconsin,  offered  credentials  signed  by  David  S.  Walker  as  governor  of  Florida, 

'  Second  session  Fortieth  Congress,  Globe,  pp.  3598-3607. 


344  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   391 

dated  November  30,  1866,  and  showing  the  election  of  William  Marvin  as  Senator 
on  November  28,  1866,  a  considerable  time  before  the  ratification  of  the  amendments. 

Mr.  Doolittle  contended  that  Florida  had  never  been  out  of  the  Union;  that 
as  soon  as  the  power  of  the  secession  armies  vanished  she  became  entitled  to  repre- 
sentation again,  and  that  as  Mr.  Marvin  had  always  been  a  loyal  man  he  should  be 
seated.  For  this  reason  Mr.  Doolittle  opposed  the  pending  motion,  which  was  that 
the  oath  be  administered  to  Mr.  Osborn. 

A  considerable  diversity  of  opinion  arose  as  to  whether  the  case  should  not  be 
referred  to  the  Judiciary  Committee  for  examination  before  the  administration  of 
the  oath.  This  appears  not  to  have  been  because  Mr.  Marvin's  claim  was  generallj' 
treated  as  serious,  but  because  of  doubts  as  to  whether  the  act  of  the  legislature  of 
Florida  in  ratifying  the  amendments  had  been  properly  conducted  and  authenticated. 

Finally,  by  a  vote  of  yeas  34,  nays  6,  the  motion  that  Mr.  Osborn  be  permitted 
to  take  the  oath  was  agreed  to. 

391.  The  Senate  election  case  of  Whiteley  and  Farrow  v.  Hill  and 
Miller,  from  Georgia,  in  the  Fortieth  and  Forty-first  Congresses. 

The  Senate  declined  to  give  prima  facie  effect  to  credentials  impeached 
by  charges  that  a  State  was  not  fulfilling  in  good  faith  the  conditions  of 
reconstruction. 

The  Senate  finally  seated  persons  elected  by  a  legislature  in  a  recon- 
structed State,  although  after  the  intervention  of  Congress  other  persons 
had  been  elected. 

Instance  wherein  a  special  law  was  passed  prescribing  the  form  of 
oath  to  be  taken  by  a  Senator-elect. 

On  December  7,  1868,'  in  the  Senate,  Mr.  John  Sherman,  of  Ohio,  presented 
the  credentials  of  Joshua  Hill,  Senator-elect  from  the  State  of  Georgia,  to  serve  the 
unexpired  term  ending  March  4,  1873. 

At  this  time  Georgia  was  without  representation  in  the  Senate.  By  the  act  of 
Congress  of  June  25,  1868,  the  provisional  governor  of  Georgia,  Rufus  B.  Bullock, 
appointed  as  such  on  July  4,  1868,  by  General  Meade,  military  commander  of  the 
district,  called  a  provisional  legislature,  which  convened  on  July  20.  Mr.  Hill  was 
elected  on  July  28. 

As  soon  as  Mr.  Hill's  credentials  were  read  to  the  Senate,  ^Mr.  Charles  D.  Drake, 
of  Missouri,  objected  to  the  administration  of  the  oath  of  office,  and  moved  that 
the  credentials  be  referred  to  the  Committee  on  the  Judiciary.  The  reason  for  the 
objection  appeared  in  two  papers  presented  to  the  Senate  at  this  time — the  first,  a 
letter  from  Governor  Bullock,  alleged  that  certain  persons  lacking  the  qualifications 
of  loyalty  had  been  permitted  to  take  seats  in  the  legislature,  contrary  to  the  letter 
and  spirit  of  the  law  of  Congress;  and  second,  a  memorial  of  colored  citizens  of 
Georgia,  reciting  that  the  white  members  of  the  legislature  had  expelled  from  that 
body  29  duly  elected  members  because  they  were  persons  of  color  and,  as  Avas 
claimed,  ineligible  to  office  under  the  constitution  and  laws  of  Georgia.  It  appeared 
that  this  act  of  expulsion  occurred  after  Mr.  Hill  had  been  elected  Senator,  and  Mr. 
Sherman  urged  that  it  should  not  be  charged  against  him. 

'  Third  session  Fortieth  Congress,  Globe,  pp.  1-5. 


§  391  ELECTORATES  IN  BECONSTKDCTION.  345 

But  Mr.  John  M.  Thayer,  of  Nebraska,  and  others  urged  that  the  neglect  of  the 
legislature  to  purge  itself  of  disloyal  men  cast  suspicion  on  the  effectiveness  of  the 
reconstruction  of  the  State,  and  that  Senators  should  not  be  admitted  while  this 
doubt  existed,  in  spite  of  the  fact  urged  by  Mr.  Sherman  that  Georgia  had  been 
recognized  by  the  Senate  and  House  of  Representatives  as  a  State  in  the  Union. 

On  December  10,'  on  motion  of  Mr.  Sherman,  the  credentials  were  referred  to 
the  Committee  on  the  Judiciary,  no  attempt  being  made  to  have  the  oath  adminis- 
tered to  ilr.  Hill  at  this  time. 

On  January  11,  1869,^  ilr.  Lyman  Trumbull,  of  Illinois,  presented  the  creden- 
tials of  H.  V.  M.  Miller,  Senator-elect  from  Georgia,  to  fill  the  unexpired  term  com- 
mencing March  4,  1865.  These  credentials  were  referred  to  the  Judiciary  Commit- 
tee without  question,  no  proposition  to  administer  the  oath  being  made. 

On  January  25^  Mr.  William  M.  Stewart,  of  Nevada,  presented  the  report  of 
the  committee  on  the  case  of  Mr.  Hill.  Apparently  Messrs.  George  F.  Edmunds, 
of  Vermont,  and  Benjamin  F.  Rice,  of  Arkansas,  concurred  with  Mr.  Stewart  in  the 
report,  while  Messrs.  Roscoe  Conkhng,  of  New  York,  and  Frederick  T.  Frehnghuysen, 
of  New  Jersey,  concurred  in  the  conclusion  of  the  report,  that  Mr.  Hill  should  not 
be  seated.  Mr.  Lyman  Trumbull,  of  Illinois,  submitted  minority  views  favorable 
to  the  seating  of  !Mr.  Hill,  and  the  remaining  member  of  the  committee,  Mr.  Thomas 
A.  Hendricks,  of  Indiana,  dissented  from  the  majority  conclusion,  but  did  not  pre- 
sent views. 

In  the  report  of  the  majority  the  condition  of  affairs  in  Georgia  is  thus  set  forth: 

On  the  21st  of  May,  1868,  the  President  transmitted  to  Congress  a  proposed  constitution  for  the  State 
of  Georgia,  which  had  been  framed  by  a  convention  assembled  under  the  reconstruction  acts  of  Congress 
and  ratified  by  the  people.  On  the  25th  June  following  Congress  passed  an  act  which,  among  other 
things,  provided  for  the  admission  of  Georgia  to  representation  upon  compliance  with  certain  conditions 
therein  named,  the  most  important  of  which  was  that  the  legislature  of  Georgia  should  duly  ratify  the 
amendment  to  the  Constitution  of  the  United  States  known  as  the  fourteenth  amendment.  The  act 
further  provides  that  after  compliance  with  the  required  conditions  "the  officers  of  said  State  duly 
elected  and  qualified  under  the  constitution  hereof  shall  be  inaugurated  without  delay;  but  no  person 
prohibited  from  holding  office  under  the  United  States  or  any  State  by  section  3  of  the  proposed  amend- 
ment to  the  Constitution  of  the  United  States  known  as  article  14  shall  be  deemed  eligible  to  any  office 
in  said  State  unless  relieved  from  disability  as  provided  in  said  amendment." 

The  obvious  design  of  this  provision  was  to  prevent  the  new  organization  from  falling  under  the 
control  of  enemies  of  the  United  States,  so  as  to  defeat  the  reconstruction  of  the  State. 

The  right  of  Mr.  Hill  (if  regularly  elected)  to  a  seat  in  the  Senate  depends  upon  three  important 
considerations: 

First.  Did  the  legislature  of  Georgia,  regularly  organized  in  accordance  with  the  Constitution  of 
the  United  States,  the  laws  of  Congress,  and  the  constitution  of  Georgia,  duly  ratify  the  fourteenth  amend- 
ment and  comply  with  the  various  conditions  imposed  by  the  act  of  June  25,  1868? 

Second.  Have  the  legislature  and  people  of  Georgia,  subsequent  to  such  compliance  with  said  acts 
of  Congress,  committed  such  acts  of  usurpation  and  outrage  as  to  place  the  State  in  a  condition  unfit  to 
be  represented  in  Congress? 

Third.  Whether,  on  the  whole  case,  taking  the  action  of  Georgia  both  before  and  since  the  pre- 
tended ratification  of  the  fourteenth  amendment,  a  civU  government  has  been  established  in  that 
State  which  Congress  ought  to  recognize? 

These  questions  must  be  answered  by  the  law  and  the  facts. 

'  Globe,  p.  43. 

2  Globe,  p.  273. 

'  Globe,  p.  568,  Senate  Report  No.  192,  third  session  Fortieth  Congress. 


346  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §  391 

After  reviewing  the  failure  of  the  legislature  to  purge  itself  of  disloyal  members, 
the  report  continues: 

Your  committee  are  of  opinion  that  the  act  of  June  25,  1868,  which  required  that  the  constitu- 
tional amendment  should  be  duly  ratified,  must  be  held  to  mean  that  it  must  be  ratified  by  a  legislature 
which  has  in  good  faith  substantially  complied  with  all  the  requirements  of  law  providing  for  its  organi- 
zation. It  is  true  that,  after  this  pretended  investigation  by  the  two  houses  of  the  eligibility  of  their 
members,  the  district  commander  recognized  the  validity  of  their  proceedings  and  permitted  the  State 
officers  to  be  inaugurated  and  the  State  government  to  go  into  operation.  On  the  21st  day  of  July  the 
legislature  passed  a  resolution  of  ratification  of  the  fourteenth  amendment  and  the  other  resolution 
required  by  the  act  of  June  25,  1868. 

On  the  28th  of  July,  1868,  the  legislature  went  into  joint  convention  for  the  election  of  United 
States  Senators.  Joshua  Hill  received  110  votes;  Joseph  E.  Brown,  94  votes,  and  A.  H.  Stevens,  3  votes, 
whereupon  Mr.  Hill  was  declared  elected  United  States  Senator  for  the  term  ending  March  3,  1873. 

It  is  quite  probable  that  Mr.  Hill  received  votes  of  persons  who  were  not  qualified  to  hold  seats  in 
the  legislature  more  than  sufficient  to  constitute  his  majority  and  secure  his  election,  but  yoiu-  committee 
do  not  propose  to  investigate  that  question.  The  election  and  qualification  of  members  of  the  legisla- 
ture, where  the  existence  of  any  legislature  authorized  to  act  as  such  is  not  involved,  can  not  be  inquired 
into  by  the  Senate  in  determining  the  right  of  a  Senator  to  his  seat.  Your  committee  holds  that  the 
question  involved  in  this  case  is  not  whether  persons  not  entitled  to  seats  in  the  legislature  were  received 
by  that  body  and  allowed  to  vote  upon  the  election  of  a  Senator,  but  whether  the  body  assuming  to  be 
the  legislature  violated  the  conditions  upon  which  it  was  allowed  to  organize  by  permitting  disloyal  per- 
sons to  participate  in  its  proceedings.  It  may  be  contended  that  although  the  matters  hereinbefore  set 
forth  constitute  a  faUure  on  the  part  of  the  State  of  Georgia  to  comply  in  every  respect  with  the  recon- 
struction acts,  yet  Congress  ought  to  waive  these  slight  departures  and  admit  their  representatives.  But 
an  examination  into  the  subsequent  proceedings  of  the  legislature  of  Georgia,  and  the  disorganized  con- 
dition of  society  in  that  State,  leads  your  committee  to  the  conclusion  that  all  these  violations  of  law 
were  in  pursuance  of  a  common  purpose  to  evade  the  law  and  resist  the  authority  of  the  United  States. 

The  report  next  recites  the  expulsion  of  the  colored  members  of  the  legislature, 
and  says : 

Your  committee  are  of  opinion  that  under  the  constitution  of  Georgia  there  is  no  distinction  in 
the  right  to  hold  office  on  account  of  race  or  color,  and  they  are  quite  confident  that  such  was  the 
opinion  of  Congress  at  the  time  it  approved  that  constitution. 

This  act  of  injustice  and  oppression  denied  the  right  of  representation  of  a  whole  race,  constituting 
nearly  one-half  of  the  people  of  Georgia.  It  will  not  be  contended  that  there  is  no  power  in  this  Govern- 
ment to  restrain  in  some  form  an  outrage  of  this  character.  It  certainly  furnishes  a  strong  reason  why 
Congress  should  not  at  this  time  overlook  the  irregularities  in  the  organization  of  the  legislature  of 
Georgia  and  admit  her  Senators  to  representation.  And  this  is  not  all.  Your  committee  have  examined 
the  official  reports  of  the  various  officers  connected  with  the  Freedmen's  Bureau  in  Georgia,  and  find 
reported  336  cases  of  murders  and  assaults  with  intent  to  murder  upon  colored  persons  by  the  whites, 
from  January  1,  1868,  to  Novemlier  15  of  same  year.  For  all  of  which  there  has  been  no  legal  redress 
and  scarcely  any  effort  whatever  on  the  part  of  the  authorities  to  punish  the  criminals.  And  it  is  stated 
by  these  officers  that  they  are  unable  to  report  fully  as  to  the  number  and  character  of  these  outrages 
on  account  of  intimidation  of  witnesses,  which  is  practiced  by  the  perpetrators  of  crime.  Your  com- 
mittee have  no  source  of  official  information  as  to  outrages  committed  upon  loyal  whites,  but  it  is  repre- 
sented by  various  and  numerously  signed  petitions  and  memorials  from  the  loyal  people  of  Georgia 
that  they  are  constantly  exposed  to  violence,  and  are  without  protection  of  law.  It  is  a  matter  of  public 
notoriety  that  loyal  white  men  are  persecuted,  murdered,  and  driven  from  their  homes.  Several  mem- 
bers of  the  legislature  have  been  compelled  to  take  refuge  at  the  capital  of  the  State  where  the  national 
troops  are  stationed  to  avoid  the  violence  of  the  enemies  of  the  United  States.  The  unlawful  and  vin- 
dictive conduct  of  the  legislature  tend  to  confirm  these  statements  and  reports,  and  exclude  all  hope 
that  the  new  civil  government  will  afford  adequate  protection  to  life  and  property.  Since  the  with- 
drawal of  the  military,  crime  has  greatly  increased  while  punishment  for  crime  has  diminished. 


§  391  ELECTORATES  IN  RECONSTRUCTION'.  347 

And  the  report  concludes : 

Wherefore  your  committee  feel  called  upon  to  recommend  that  Mr.  Hill  be  not  allowed  to  take 
a  seat  in  the  Senate  for  the  reason  that  Georgia  is  not  entitled  to  representation  in  Congress,  and  submit 
the  accompanjdng  resolution. 

'■Resolved,  That  Joshua  Hill,  claiming  to  be  Senator-elect  from  Georgia,  ought  not  now  to  be  per- 
mitted to  take  a  seat  in  this  body." 

Mr.  Trumbull  favored  the  seating  of  Mr.  Hill,  saying  in  minority  views : 

The  undersigned,  being  unable  to  agree  with  the  majority  of  the  committee  in  their  report  upon 
the  credentials  of  Joshua  HUl,  claiming  to  have  been  duly  elected  and  entitled  to  a  seat  in  the  Senate 
from  the  State  of  Georgia,  begs  leave  to  present  the  reasons  for  his  dissent.  That  HUl  possesses  all  the 
qualifications  for  a  Member  of  the  Senate  of  the  United  States  required  by  the  Constitution ;  that  he  is 
one  of  the  few  prominent  men  residing  in  a  rebel  State  who  remained  true  to  the  Union  during  the 
war;  that  he  is  now  and  has  been  at  all  times  thoroughly  loyal  to  the  Union;  that  he  is  in  everj-  respect 
personally  unobjectionable;  that  he  was  duly  elected  by  the  legislature  of  Georgia,  and  that  his  cre- 
dentials are  in  due  form  is  not  questioned  by  anyone.  If  he  is  not  entitled  to  his  seat,  it  must  be 
either  because  the  State  of  Georgia  was  not  in  a  condition  to  entitle  her  to  representation  at  the  time 
of  his  election  or  because  the  body  which  elected  him  was  not  the  legislature  of  that  State. 

The  former  of  these  propositions,  whether  Georgia  was  or  is  in  a  condition  to  entitle  her  to  repre- 
sentation, is  not  a  question  for  the  Senate  to  decide.  The  unfortunate  disagreement  which  has  existed 
for  some  years  between  the  President  and  Congress  has,  in  part,  been  owing  to  a  disagreement  upon 
this  very  point,  the  President  insisting  that  it  was  for  each  House  of  Congress  to  determine  for  itself 
in  the  admission  of  Members  whether  a  State  was  entitled  to  representation,  and  Congress  insisting 
that  it  was  for  Congress  to  determine  in  the  first  instance  whether  a  State  was  entitled  to  representation, 
and  that  question  being  affirmatively  settled  it  was  then  for  each  House  to  judge  for  itself  of  the  election, 
returns,  and  qualifications  of  its  own  Members.  This  controverted  point  was  settled  by  Congress  in 
March,  1866,  by  the  passage  through  both  Houses  of  the  following  concurrent  resolution: 

" Resolved  hy  the  House  of  Representatives  {the  Senate  coTU-urring),  That,  in  order  to  close  agitation 
upon  a  question  which  seems  likely  to  disturb  the  action  of  the  Government,  as  well  as  to  quiet  the 
uncertainty  which  is  agitating  the  minds  of  the  people  of  the  eleven  States  which  have  been  declared 
to  be  in  insurrection,  no  Senator  or  Representative  shall  he  admitted  into  either  branch  of  Congress 
from  any  of  said  States  until  Congress  shall  have  declared  such  State  entitled  to  such  representation." 

The  reconstruction  acts,  since  indorsed  by  the  people  at  a  popular  election,  declare  that  "until 
the  people  of  said  rebel  States  shall  be  by  law — not  by  the  action  of  each  House — admitted  to  repre- 
sentation in  the  Congress  of  the  United  States,  any  civil  governments  which  may  exist  therein  shall 
be  deemed  pro\Tsional  only;"  which  is  equivalent  to  a  declaration  that  when  admitted  to  representation 
by  law  they  shall  be  no  longer  pro%'isional. 

The  supplementary  act  of  March  23,  1867,  declares  that  when  the  requirements  of  the  reconstruction 
acts  shall  have  been  complied  with  by  any  of  the  rebel  States  in  the  formation  of  a  constitution,  and 
"said  constitution  shall  be  approved  by  Congress,  the  State  shall  be  declared  entitled  to  representation, 
and  Senators  and  Representatives  shall  be  admitted  therefrom,  as  therein  provided."  This  action  of 
Congress,  indorsed  by  the  people,  determined  that  neither  House  of  Congress  was  authorized  by  itself  to 
admit  Senators  or  Representatives  from  any  of  the  rebel  States  till  Congress  should  determine  by  law 
that  such  State  was  entitled  to  representation.  The  converse  of  the  proposition  was  also  equally  deter- 
mined— that  it  would  be  the  duty  of  each  House  to  admit  duly  elected  and  qualified  Senators  and  Repre- 
sentatives from  each  of  said  States  whenever  Congress  shall  have  determined  by  law  that  such  State 
was  entitled  to  representation. 

After  quoting  the  act  of  June  25,  1868,  and  other  documents,  Mr.  Trumbull 
continues  : 

The  foregoing  extract,  together  with  copies  of  official  correspondence  between  Major-General  Meade 
and  General  Grant,  hereto  attached,  establish  the  fact  that  the  legislature  of  Georgia  fully  complied 
with  the  requisitions  of  the  act  of  June  25,  1868,  and  the  fact  of  her  ratification  of  the  fourteenth 
amendment  was  duly  proclaimed  by  the  President,  as  also  appears  by  a  copy  of  the  proclamation,  hereto 
attached. 


348  PRECEDENTS    OF    THE    HOUSE    OF    BEPRFSENTATIVES.  §   391 

Congress  having  decided  that  Georgia  was  entitled  to  representation  through  the  State  govern- 
ment organized  under  the  reconstruction  acts,  on  complying  with  the  conditions  therein  named,  it  is 
not  competent  for  either  House,  now  that  the  conditions  have  been  complied  with,  to  refuse  admission  to 
Members  on  the  ground  that  the  State  is  not  entitled  to  representation.  For  either  House  to  do  so  would 
be  for  such  House  to  set  aside  a  solemn  act  of  Congress,  passed  by  both  Houses,  and  to  repudiate  the 
principle  on  which  it  differed  with  the  President  and  went  before  the  people  in  the  popular  elections. 
The  House  of  Representatives,  conforming  to  the  law  of  Congress,  has  admitted  to  seats  the  Represent- 
atives from  Georgia  against  whom  no  personal  objection  was  made,  without  any  further  inquiry  than 
whether  Georgia  had  complied  with  the  conditions  of  the  act  of  June  25,  1868.  No  attempt  was  made 
in  that  body  to  revise  the  decision  of  Congress. 

The  assumption  that  the  constitutional  amendment  was  not  adopted  in  good  faith  is  not  sustained 
by  a  particle  of  evidence  before  the  committee,  and  is  contradicted  by  the  official  report  of  Governor 
Bullock  to  General  Meade,  by  the  orders  of  General  Meade,  and  those  emanating  from  the  General  in 
Chief,  by  the  proclamation  of  the  President,  made  in  pursuance  of  law,  by  the  action  of  the  House  of 
Representatives  in  passing  upon  the  admission  of  Members  to  that  body,  and  by  the  acquiescence  of 
all  the  departments  of  Government  from  July  until  now.  H  one  branch  of  Congress  is  at  liberty  to  deny 
a  State  representation  on  the  ground  that  it  did  not  act  in  good  faith  in  agreeing  to  the  conditions  pre- 
scribed by  Congress,  what  is  to  prevent  either  House  of  any  other  Congress,  acting  on  a  like  assumption, 
from  denying  admission  to  Members  from  any  other  of  the  reconstructed  States?  Ic  is  well  known 
that  a  large  political  party  in  the  country  believe  the  reconstruction  acts  unconstitutional.  Should 
that  party  hereafter  obtain  ascendency  in  either  House  of  Congress,  is  it  to  be  at  liberty  to  overturn 
the  State  governments  which  have  been  established  in  pursuance  of  law  and  to  quote  as  a  precedent 
the  action  of  the  Senate  in  this  case?  When  are  we  to  have  peace  and  civil  governments  established 
in  the  late  rebel  States  under  such  a  policy?  The  question  has  been  asked,  If  one  pereon  disqualified 
by  the  fourteenth  amendment  could  be  permitted  to  act  as  a  member  of  the  Georgia  legislature,  why 
not  all;  and  if  all,  would  it  be  pretended  that  it  was  a  legislature  organized  in  accordance  with  the 
reconstruction  acts?  Probably  not;  and  the  same  question,  with  the  same  force,  may  be  asked  in 
reference  to  Congress  or  any  other  legislative  body  in  the  land.  If  a  disqualified  person  or  several  such 
were  permitted  to  act  as  Members  of  Congress  or  a  State  legislature,  does  anybody  pretend  that  the 
action  of  the  body  would  be  vitiated  thereby;  and  yet  who  would  not  admit  that  if  a  body  of  men  were 
to  assemble  and  undertake  to  act  as  the  Congress  or  the  legislature  of  a  State,  all  of  whom  were  dis- 
qualified from  acting  as  such,  that  their  action  would  have  any  validity?  No  such  case  is  to  be  presumed, 
and  no  legislative  body  is  justified  or  safe  in  basing  its  action  on  supposititious  cases  which  never  have 
and  are  not  likely  ever  to  occur.  No  such  state  of  facts  is  presented  in  the  case  of  Georgia.  Not  one 
in  ten  of  the  members  of  the  senate,  after  deducting  those  from  whom  the  disabilities  had  been  removed 
by  Congress,  and  not  one  in  fifty  of  the  members  of  the  house  were  found  disqualified  by  even  the 
minority  of  the  committee  who  investigated  this  subject,  and  each  house  decided  all  its  members  to 
be  qualified.  The  constitution  of  Georgia,  which  was  accepted  by  Congress,  like  that  in  all  the  other 
States,  and  like  the  Constitution  of  the  United  States,  in  regard  to  Congress,  leaves  to  each  house  the 
exclusive  right  to  judge  for  itself  of  the  election  and  returns  of  its  own  members,  and  that  judgment, 
when  pronounced,  is  conclusive  everywhere.  There  was  not  a  shadow  of  anything  deserving  the 
name  of  evidence  before  the  committee  to  show  that  either  house  of  the  legislature  of  Georgia  acted 
comiptly  or  fraudulently  in  passing  upon  the  right  of  members  to  their  seats  under  the  fourteenth 
amendment. 

The  Senate  has  no  right,  in  the  opinion  of  the  undersigned,  to  revise  the  action  of  Congress,  disregard 
its  laws,  and  refuse  Hill  his  seat,  because  in  its  opinion  Georgia  is  not  entitled  to  representation,  when 
Congress  has  decided  otherwise,  and  the  Executive  and  the  General  in  Chief  have  acted  on  that  decision. 
It  being  admitted  that  Hill  is  entitled  to  his  seat  if  Georgia  is  entitled  to  be  represented  in  the  Senate, 
and  it  being  shown  that  Georgia  has  been  declared  by  law  to  be  entitled  to  representation  on  certain 
conditions,  which  are  shown  to  have  been  complied  with,  the  conclusion  would  seem  to  be  irresistible 
that  Hill  was  entitled  to  take  his  seat.  That  it  is  competent  for  the  Senate,  in  passing  upon  the  elections, 
returns,  and  qualifications  of  its  Members,  to  inquire  whether  the  body  by  which  a  Senator  was  elected 
was  the  legislature  of  the  State  is  not  disputed;  but  it  is  not  pretended  that  Georgia  had  any  other  legisla- 
tive assembly  than  the  one  which  elected  Mr.  Hill  claiming  to  be  a  legislature.     The  legislative  body 


§  391  ELECTORATES  IN  RECONSTRUCTION.  349 

which  elected  him  was  the  one  which  was  convened  by  the  governor  in  pursuance  of  an  act  of  Congress; 
the  one  which  ratified  the  fourteenth  amendment  to  the  Constitution  as  proclaimed  both  by  the  Presi- 
dent and  Secretan.-  of  State,  in  accordance  with  the  requirements  of  law;  and  the  one,  and  the  only 
one,  which  has  been  elected  and  assembled  in  said  State  under  the  constitution  formed  in  pursuance 
of  the  reconstruction  acts  and  approved  by  Congress.  The  legislature  of  Georgia,  under  its  constitution, 
consists  of  44  senators  and  175  representatives,  and  the  complaint  is,  not  that  the  persons  properly 
chosen  and  qualified  would  not  and  did  not  constitute  the  legislature,  but  that  "there  were  a  number 
of  persons  holding  seats  in  both  branches  of  the  l^islature  that  were  and  are  not  eligible  under  the 
fourteenth  constitutional  amendment." 

Each  house  appointed  committees,  who  investigated  the  question  of  the  eligibility  of  the  members 
of  their  respective  houses  under  that  amendment;  and,  on  their  report,  each  house  decided  that  all 
its  sitting  members  were  entitled  to  seats.  ^Miether  these  decisions  were  correct  or  not  is  not  material 
to  Hill's  right  to  a  seat,  as  it  Ls  not  pretended,  even  by  the  minority  of  the  committees  appointed  to 
investigate,  that  more  than  4  senators  out  of  44,  omitting  those  whose  disabilities  had  been  removed  by 
act  of  Congress,  and  3  representatives  out  of  175,  were  disqualified  by  the  foiu-teenth  amendment. 

No  evidence  was  taken  by  the  Judiciarj'  Conunittee  to  ascertain  how  many  or  whether  any  of  the 
members  of  either  house  were  ineligible. 

The  statements  of  letter  writers  and  memorialists  can  not  surely  be  treated  as  evidence  upon  which 
to  overthrow  a  State  government.  The  only  reliable  information  the  committee  had  on  that  subject  is 
contained  in  the  official  report  of  ilajor-General  Meade  and  the  journal  of  the  legislature,  as  published 
in  a  newspaper.  From  these  it  appears  that  only  4  senators  and  3  representatives  were  complained 
against  by  any  one  in  the  legislature  as  disqualified  by  the  fourteenth  amendment. 

If  it  were  admitted  that  the  decision  of  each  house  was  wrong  in  regard  to  the  eligibility  of 
the  members  complained  against  it  would  not  \atiate  the  proceedings  of  the  legislature. 

As  to  the  expulsion  of  the  colored  members,  ilr.  Tnmibiill  said: 

Another  objection  urged  against  Mr.  Hill's  right  to  a  seat  is  the  fact  that  the  legislatiu'e  of  Georgia 
unjustly  denied  the  right  of  certain  colored  members  to  seats.  However  unjust  this  denial  may  have 
been,  it  did  not  take  place  till  more  than  a  month  after  HUl's  election.  He  was  elected  July  28,  and 
the  colored  members  participated  in  all  legislation  till  September  3. 

It  is  difficult  to  perceive  how  an  act  subsequent  to  the  election  could  affect  its  validity.  If  the 
legislature  was  properly  organized  when  it  elected  Hill,  the  fact  that  it  subsequently  became  disorgan- 
ized ought  not  to  affect  his  election. 

On  February  17  Mr.  Stewart,  from  the  Judiciary  Committee,  submitted  a 
report  against  the  admission  of  ilr.  ililler,  whose  case  was  similar  to  that  of  Mr. 
Hill. 

The  Senate  did  not  decide  either  of  these  cases  at  this  session. 

On  March  9,  1869,^  at  the  beginning  of  the  next  Congress,  the  credentials  of 
Messrs.  Hill  and  Miller  were  again  referred  to  the  Judiciary  Conmiittee,  and  on 
March  17,  1869,  ilr.  Trumbull  reported  from  that  committee  the  credentials,  with 
the  recommendation  that  they  lie  on  the  table  imtil  action  should  be  taken  on  a 
bill  to  enforce  the  fourteenth  amendment  and  the  laws  of  the  United  States  in  the 
State  of  Georgia  and  to  restore  to  that  State  the  repubhcan  government  elected 
under  its  new  constitution.'  Mr.  Trumbull  said  he  was  opposed  to  the  recommen- 
dation of  the  conmiittee,  and  thought  the  credentials  should  be  acted  on  at  once. 
But  no  further  action  was  taken  at  this  sessif)n  of  Congress. 

'  First  session  Forty-first  Congress,  Globe,  pp.  31,  102. 

^  Such  a  law  was  passed  and  approved  December  22, 1869  (16  Stat.  L.,  p.  59),  and  provided  forsum- 
moning  the  legislature  and  testing  their  loyalty  by  oath,  and  also  forbade  the  exclusion  of  members 
because  of  color. 


350  PKECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §  391 

At  the  next  session,  on  J'ebruary  14,  1870,'  the  credentials  of  Messrs.  Miller 
and  Hill  were  again  taken  from  the  files  and  referred  to  the  Judiciary  Committee. 

On  July  15,  1870,^  Mr.  Stewart  presented  the  credentials  of  Richard  H.  White- 
ley,  elected  to  fill  the  term  for  wliich  Mr.  Miller  was  a  claimant,  and  of  Henry  P. 
Farrow,  elected  to  fill  the  term  for  which  Mr.  Hill  was  a  claimant.  These  creden- 
tials were  laid  on  the  table. 

On  December  13,  1870,  at  the  next  session,  the  credentials  of  Messrs.  Whiteley 
and  Farrow  were  referred  to  the  Committee  on  the  Judiciary,  and  on  January  23, 
1871,^  Mr.  Trumbull  submitted  a  report  from  that  committee.  Five  members, 
Messrs.  Trumbull,  Edmunds,  Conkling,  Matt  H.  Carpenter,  of  Wisconsin,  and  Allan 
G.  Thurman,  of  Ohio,  concurred  in  the  report.  Two,  Messrs.  Stewart  and  Rice, 
signed  minority  views. 

Messrs.  Farrow  and  Whiteley  had  been  elected  in  1870  by  the  same  legislature 
that  had  elected  Messrs.  Hill  and  Miller  in  1868.  But  between  the  two  acts  the 
legislature  had  been  purged  in  accordance  with  the  terms  of  the  act  of  Congress  of 
December  22,  1869,  disloyal  members  being  excluded  and  the  wrongfully  excluded 
colored  members  being  restored.  The  cjuestion  before  the  Judiciary  Committee 
in  this  instance  was  whether  Messrs.  Hill  and  J^Iiller  were  to  be  seated,  or  Messrs. 
Farrow  and  Whiteley.  The  majority  of  the  committee  decided  in  favor  of  seating 
Mr.  Hill,  and  found  that  Mr.  Miller  would  be  entitled  to  a  seat  when  his  disabilities 
should  be  removed. 

The  report  of  the  committee  recites  the  history  of  reconstruction  in  Georgia, 
and  gives  the  details  as  to  the  purging  of  the  legislature,  quoting  from  a  report  of 
the  Senate  Judiciary  Committee  to  show  that  steps  unwarranted  by  law  were 
taken  in  the  course  of  that  process.  The  history  of  the  elections  of  the  two  sets  of 
Senators  is  also  given,  with  conclusion  as  follows : 

The  general  aesembly  was  organized  in  July,  1868,  in  prima  facie  accordance  with  the  constitution 
of  the  State,  the  reconstruction  acts  of  Congress,  and  the  orders  of  the  military  department.  It  complied 
in  form  with  all  the  requirements  necessary  to  entitle  the  State  to  representation  in  Congress,  and  Mem- 
bers were  accordingly  admitted  into  the  House  of  Representatives  of  the  United  States  in  1868.  Whether 
either  or  both  houses  of  the  general  assembly  of  Georgia  admitted  persons  to  sit  as  members  in  their 
respective  bodies  who  were  disqualified  by  the  third  section  of  the  fourteenth  article  of  the  Constitution 
was  at  the  time  a  disputed  question;  but  each  house  appointed  a  committee  to  consider  that  question, 
after  whose  report  it  was  voted  by  each  house  that  all  its  members  were  qualified.  These  reports  and 
the  action  upon  the  same  appear  in  the  appendix  to  the  report  made  to  the  Senate  by  this  committee,  by 
Mr.  Stewart,  at  the  third  session  of  the  Fortieth  Congress,  and  are  hereto  annexed,  marked  "  Exhibit  G." 
The  general  assembly  thus  organized  not  only  elected  Senators  of  the  United  States,  but  it  also  elected, 
as  required  by  the  State  constitution,  State  officers,  to  wit,  a  secretary  of  state,  a  comptroUer-general, 
and  a  State  treasurer,  all  of  whom  have  since  been  discharging  the  duties  of  their  respective  offices  with- 
out question.  At  the  same  session  judges  of  the  various  courts  throughout  the  State  were  appointed  by 
the  governor,  by  and  with  the  advice  and  consent  of  the  senate,  who  have  since  been  and  are  now  pre- 
siding in  the  various  courts  of  the  State.  The  legislature  thus  organized  passed  laws  authorizing  the 
borrowing  of  money  and  affecting  the  general  interests  of  the  State,  none  of  which  have  ever  been  held 
or  supposed  to  be  invalid  for  the  reason  that  the  legislature  which  enacted  them  was  not  properly  organ- 
ized. The  reason  for  the  passage  of  the  act  of  Congress  of  December  22,  1869,  requiring  a  reorganization 
of  the  general  assembly  is  to  be  found  in  the  wrongful  expulsion  by  the  general  assembly  in  September, 

'  Second  session  Forty-first  Congress,  Globe,  p.  1247. 

''  Globe,  p.  5634. 

^  Senate  Beport  No.  308,  third  session  Forty-first  Congress. 


§  391  ELECTORATES  IN  KECONSTRUCTION,  351 

1868,  of  its  colored  members,  in  the  seating  of  the  minority  candidates  in  their  places,  and  in  continuing 
in  their  seats  members  believed  to  be  disqualified,  and  in  the  general  disorder  and  violence  which  pre- 
vailed in  the  State.  That  act  did  not  declare  the  general  assembly  as  organized  in  July,  1868,  to  have 
been  illegal,  or  its  acts,  other  than  those  referred  to  in  the  act  itself,  invalid;  but  it  provided  for  correct- 
ing the  wrongful  and  revolutionary  acts  which  had  been  done  by  it  as  organized  in  July,  1868.  It  is  not 
believed  that  the  act  of  December  22, 1869,  would  ever  have  been  passed  had  the  colored  members  been 
permitted  to  retain  their  seats  and  the  peace  of  the  State  been  preserved. 

The  body  of  the  general  assembly  as  organized  in  July,  1868,  and  as  reorganized  in  January,  1870, 
is  not  essentially  different.  Of  the  44  senators  and  173  members  declared  elected  by  General  Meade, 
only  5  senators  and  19  representatives  who  participated  in  the  organization  of  July,  1868,  were  excluded 
or  failed  to  participate  in  the  reorganization  in  January,  1870,  and  21  minority  candidates  were  improp- 
erly admitted  to  seats  in  the  general  assembly,  as  reorganized,  in  their  places.  The  general  assembly 
as  organized  in  July,  1868,  and  at  the  time  of  the  election  of  Hill  and  Miller,  contained  in  each  house  a 
constitutional  quomm  of  legal  members.  All  the  contestants  maintained  the  position  before  the  com- 
mittee that  the  ineligibility  or  disqualification  of  individual  members  of  either  house,  not  sufficiently 
numerous  to  affect  its  constitutional  quorum,  was  an  immaterial  issue.  Your  committee  have  not,  there- 
fore, deemed  it  necessary  to  discuss  that  question  further  than  to  state  the  facts  in  regard  to  it.  Three 
of  the  claimants— Joshua  Hill,  W.  P.  Farrow,  and  R.  H.  Whiteley— have  had  their  political  disabilities 
removed  by  act  of  Congress  of  June  25  and  July  20,  1868.  H.  V.  M.  Miller  never  labored  under  any  of 
the  political  disabilities  imposed  by  the  third  section  of  the  fourteenth  amendment  to  the  Constitution 
of  the  United  States;  but  it  is  admitted  that  he  acted  as  a  surgeon  in  the  rebel  army  under  an  appoint- 
ment from  a  colonel  of  a  rebel  regiment,  and  having  thus  given  aid  to  persons  in  hostility  to  the  United 
States,  can  not  take  the  oath  required  by  the  act  of  July  2,  1862. 

The  act  of  July  11, 1868,  prescribes  a  qualified  oath  to  be  taken  by  persons  elected  or  appointed  to 
office  from  whom  political  disabilities  have  been  removed.  Yoiir  committee  are  of  opinion  that  Joshua 
Hill  was  duly  elected  by  a  legislature  having  authority  to  elect  Senators,  and  is  entitled  to  take  his  seat 
on  taking  the  oaths  required  by  the  Constitution  and  laws.  Miller,  however,  is  not  relieved  from  taking 
the  oath  prescribed  by  the  act  of  July  2,  1862,  and  in  the  opinion  of  your  committee  is  not  entitled  to 
take  his  seat;  and  it  follows  from  the  conclusion  of  the  committee  as  to  the  proceedings  in  the  election  of 
Hill  and  Miller  that  neither  Farrow  nor  \\'hitely  is  entitled  to  a  seat. 

The  committee  recommend  for  adoption  the  following  resolution: 

Resolved,  That  Joshua  Hill  has  been  duly  elected  Senator  of  the  United  States  by  the  legislature 
of  the  State  of  Georgia,  and  is  entitled  to  take  his  seat  on  taking  the  oaths  required  by  the  Constitution 
and  laws. 

In  the  minority  views,  which  favored  the  seating  of  Messrs.  Farrow  and  White- 
ley,  Mr.  Stewart  argued  that  the  act  of  June  25,  186S,  provided  that  Georgia,  with 
certain  other  States,  should  be  admitted  to  representation  in  Congress,  when  they 
had  comphed  with  certain  conditions.  And  he  held  that  the  conduct  of  the  Georgia 
legislature  had  been  violative  of  those  conditions.     He  says  in  the  minority  views : 

We  have  been  able  to  find  no  case  in  the  history  of  the  Government  where  Senators  have  been 
admitted  from  a  State  not  entitled  to  representation  in  Congress  at  the  time  of  their  election. 

There  are  many  cases  in  which  this  legislative  declaration  was  not  made  until  after  the  election 
of  Senators.  This  has  occurred  in  the  admission  of  new  States  where  the  organization  of  the  State  and 
the  election  of  Senators  had  occurred  previous  to  the  admission.  But  in  those  cases  the  act  of  admis- 
sion was  an  approval  of  the  organization  that  had  preceded  it,  and  amounted  to  a  legislative  declaration 
that  the  State  at  the  time  of  the  election  of  Senators  was  entitled  to  representation.  In  each  of  these 
cases  the  loyal  status  of  the  State  was  unquestioned,  and  the  act  of  Congress  admitting  such  State  was 
construed  to  relate  back  to  the  election  of  Senators  and  to  amount  to  a  legislative  declaration  that  the 
State  at  the  time  of  the  election  was  entitled  to  representation.  This  principle  can  not  help  the  case  of 
Hill  and  Miller,  for  at  the  time  the  declaration  was  made  by  the  act  of  July  15,  1870,  that  the  State 
of  Georgia  was  entitled  to  representation,  the  status  of  things  had  been  changed  in  Georgia  by  the 
reorganization  of  the  legislature.    This  declaration  related  to  the  then  existing  condition  of  the  State. 


352  PRECEDENTS    OF   THE   HOUSE   OF   EEPEESENTATIVES.  §  391 

Congress  has  already  in  effect  decided  that  the  necessary  legislative  declaration  that  Georgia  was 
entitled  to  representation  was  not  made  prior  to  the  election  of  Hill  and  Miller.  The  act  of  December 
22,  1869,  "to  promote  the  reconstruction  of  Georgia,"  can  be  justified  upon  no  other  theory  than  that 
reconstruction  in  that  State  was  not  then  an  accomplished  fact.  After  a  compliance  with  this  act, 
and  not  before,  we  have  the  declaration  in  the  act  of  July  15,  1870,  that  "it  is  hereby  declared  that 
the  State  of  Georgia  is  entitled  to  representation  in  the  Congress  of  the  United  States."  If  this  act 
relates  back  to  the  date  of  the  election  of  Hill  and  Miller,  their  exclusion  from  seats  in  this  body  from 
July,  1868,  until  now  is  wholly  without  justification,  and  the  act  of  December  22,  1869,  was  an  exercise 
of  power  over  a  State  entitled  to  representation  for  which  there  is  no  precedent  and  which,  if  exercised 
in  the  case  of  Massachusetts  or  Ohio,  would,  to  say  the  least,  be  open  to  grave  constitutional  doubts. 
It  directs  the  governor  to  convene  the  persons  originally  elected  to  the  legislature,  and  requires  those 
persons,  as  a  qualification  for  seats  in  that  body,  to  take  and  subscribe  to  an  oath  hitherto  unknown  to 
the  laws  of  the  State  of  Georgia  or  of  the  United  States;  and  it  also  required  them  to  reorganize  the 
legislature  by  electing  oflicere,  who  shall  also  be  required  to  take  the  same  oath.  It  requires  the  legis- 
lature to  ratify  the  fifteenth  amendment  before  Senators  and  Representatives  shall  be  admitted  to  seats 
in  Congress,  and  prescribes  various  other  matters,  all  pertaining  to  the  reconstruction  of  a  rebel  State, 
and  never  applied  to  a  loyal  State  whose  practical  relations  to  the  Union  were  not  disturbed.  We 
venture  to  affirm  that  the  Senate  and  House  of  Representatives  in  voting  for  that  act  did  so  upon  the 
theory  that  they  were  reconstructing  a  rebel  State,  and  not  upon  the  theory  that  they  were  dealing 
with  a  State  whose  practical  relations  with  the  United  States  had  never  been  disturbed,  or  which, 
having  been  disturbed,  were  then  fully  restored.  It  seems  clear  that  the  requirement  alone  that  the 
legislature  should  ratify  the  fifteenth  amendment  before  Senators  and  Representatives  should  be 
admitted  from  Georgia  was  in  itself  a  declaration  that  Georgia  was  not,  on  the  22d  of  December,  1869, 
entitled  to  representation.  But  after  the  reorganization  of  the  legislature  under  this  act,  the  whole 
matter  was  again  submitted  to  Congress,  and  Congress  accepted  the  State  as  then  organized.  The  act 
of  July  15,  1870,  was  a  legislative  declaration  that  the  State  was  then  entitled  to  representation  under 
the  organization  of  the  legislature  as  then  existing,  and  related  back  to  the  commencement  of  the  then 
existing  state  of  things,  namely,  the  reorganization  of  the  legislatiire  in  January,  1870.  This  was  a 
declaration  that  Georgia  was  entitled  to  representation  at  the  time  of  the  election  of  Farrow  and  Whiteley. 

The  language  of  the  act  of  July,  1870,  is  "that  the  State  of  Georgia,  having  complied  with  the  recon- 
struction acts,  and  the  fourteenth  and  fifteenth  articles  of  admendments  to  the  Constitution  of  the 
United  States  having  been  ratified  in  good  faith  by  a  legal  legislature  of  said  State,  it  is  hereby  declared 
that  the  State  of  Georgia  is  entitled  to  representation  in  the  Congress  of  the  United  States." 

How  can  it  be  claimed  that  this  language  refers  to  the  organization  in  1868,  in  view  of  the  facta 
in  this  case?    Had  the  State  of  Georgia  complied  with  the  reconstruction  acts  at  that  date? 

If  this  be  so,  Congress  stultified  itself  in  passing  the  act  of  the  22d  of  December,  1869,  to  promote 
the  reconstruction  of  Georgia,  eighteen  months  after  she  had  fully  complied  with  the  reconstruction 
acts  under  which  the  other  States  were  admitted. 

It  seems  clear  that  this  language  embraced  all  the  reconstruction  laws  with  which  Georgia  was 
required  to  comply,  including  the  act  of  December,  1869.  It  is  evident  that  Congress  intended  to 
declare,  and  did  declare,  that  after  the  compliance  with  the  last-named  act,  and  not  before,  Georgia 
was  entitled  to  representation. 

It  is  too  late  to  question  the  propriety  of  these  acts  by  either  House,  acting  separately,  upon  the 
credentials  of  its  Members,  for  it  is  too  well  established  that  Congress  must  determine  when  a  State  is 
entitled  to  representation.  After  that  determination  has  been  made,  neither  House,  acting  alone,  can 
question  its  validity,  but  each  House  is  confined,  in  passing  upon  the  credentials  of  its  Members,  to 
matters  of  election  and  qualification. 

We  have  shown  that  Hill  and  Miller  were  not  elected  from  a  State  which  at  the  time  was  entitled 
to  representation  by  any  act  of  Congress,  from  which  it  follows  that  they  are  not  entitled  to  seats  in  the 
Senate. 

We  have  also  shown  that  Farrow  and  Whiteley  were  elected  by  a  legislature  of  a  State  which 
Congress  recognized  as  duly  organized  by  declaring  the  State  entitled  to  representation. 

The  election  of  these  gentlemen  seems  to  have  been  regular  and  a  substantial  compliance  with 
law,  and  we  therefore  conclude  that  they  are  entitled  to  their  seats. 

******* 


§  392  ELECTORATES    IN    KECONSTRUCTlOIf.  353 

It  is  suggested  that  there  is  some  doubt  about  the  regularity  of  the  election  of  Mr.  Farrow,  for  the 
reason  that  there  was  no  quorum  present  in  the  house  of  representatives  at  the  time  of  his  election. 
The  records  show  that  the  house,  when  reorganized,  and  disloyal  members  excluded,  consisted  of  154 
members,  and  Mr.  Fan-ow  alleges  that  1  member,  Robert  Lumpkin,  who  had  been  sworn  in,  died  before 
the  Senatorial  election,  leaving  the  number  153.  A  quorum  of  this  number  would  be  77.  The  number 
of  persons  present  and  voting  was  82,  of  which  Mr.  Farrow  received  80.  But  it  is  said  that  minority 
men  were  improperly  admitted.  We  might  answer  this  by  saying  they  were  admitted  by  the 
legislature,  and  that  the  Senate  wUl  not  ordinarily  review  the  action  of  that  body  in  deciding  upon  the 
qualification  of  its  own  members. 

But  if  the  Senate  would  enter  upon  such  an  investigation  under  any  circumstances  (which  on 
mature  reflection  we  now  think  may  be  open  to  some  doubt)  it  can  not  be  called  upon  to  do  so  in  this 
case.  The  question  of  the  proper  organization  of  the  legislature  in  January,  1870,  was,  at  the  last  ses- 
sion, under  investigation  in  both  Houses,  on  the  passage  of  the  act  of  July  15,  1870.  The  report  of  the 
Judiciarj-  Committee  of  the  2d  of  March  last,  printed  as  a  part  of  the  majority  report,  recommends  that 
no  further  legislation  be  had  to  perfect  the  organization  of  the  legislature  of  Georgia  as  it  then  existed, 
and  Congress,  acting  on  that  report,  decided  it  to  be  a  legal  legislature. 

But  admitting  that  the  minority  men  were  improperly  received,  the  result  would  be  the  same. 

The  number  of  members  declared  elected  in  General  Meade's  order,  who  were  allowed  to  qualify 
and  retain  their  seats,  leaving  out  of  the  calculation  those  who  are  known  as  "minority  men, "  was  141. 

Deducting  Mr.  Lumpkin,  who  is  alleged  to  have  died  before  the  Senatorial  election,  and  we  have 
140.  Necessary  to  a  quorum,  71.  Number  of  persons  present  and  voting  on  the  election  of  Mr.  Farrow, 
71.  Of  this  number  Mr.  Farrow  received  69.  Thus  it  appears  in  either  case  a  quorum  was  present, 
and  Mr.  Farrow  had  a  majority  of  that  quorum. 

All  other  matters  in  regard  to  the  election  of  Messrs.  Farrow  and  Whiteley  we  believe,  are 
admitted  to  have  been  regular. 

We  therefore  recommend  for  adoption  a  resolution  declaring  Henry  P.  Farrow  and  Richard  H. 
Whiteley  elected,  and  entitled  to  seats  in  the  Senate  on  taking  the  oaths  required  by  law. 

The  report  was  debated  at  length  on  January  30  and  31  and  February  1.'  On 
January  30  -  an  amendment  offered  by  Mr.  Stewart  declaring  Alessrs.  Farrow  and 
Whiteley  entitled  to  take  seats  upon  taking  the  oath,  was  disagreed  to — yeas  19, 
nays  36.  On  February  P  an  amendment  striking  out  the  name  of  Joshua  Hill  in 
the  resolution  of  the  majority  and  inserting  the  name  of  Hemy  P.  Farrow  was 
disagreed  to — yeas  19,  nays  36.  Then  the  resolution  seating  Mr.  Hill  was  agreed 
to  without  division,  and  he  appeared  and  took  the  oath. 

On  February  24,*  after  a  bill  prescribing  the  form  of  oath  to  be  taken  by  him 
had  been  passed  by  the  House  and  signed  by  the  President  ^  Mr.  Miller  appeared 
and  took  the  oath. 

392.  The  Senate  election  case  of  Hart  v.  Gilbert,  from  Florida,  in  the 
Forty-first  Congress. 

Instance  wherein  the  Senate  admitted  a  person  chosen  before  Con- 
gress had  admitted  a  reconstructed  State  to  representation. 

Construction  of  the  law  specifying  the  time  when  a  legislature  shall 
proceed  to  the  election  of  a  Senator. 

The  Senate  has  declined  to  permit  a  contestant  to  be  heard  on  the 
floor  of  the  Senate  in  his  own  case. 


'  Globe,  pp.  816-830,  848-851,  871-874.  ■•  Globe,  p.  1632. 

^Globe,  p.  822.  '16  Stat.  L.,  p.  703. 

^  Globe,  p.  871. 

5994— vol.  1—07 23 


354  PRECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §  392 

On  April  1,  1870/  in  the  Senate,  Mr.  Thomas  W.  Osborn,  of  Florida,  presented 
the  credentials  of  Ossian  B.  Hart  as  Senator-elect  from  Florida  for  the  term  for 
which  Mr.  Abijah  Gilbert  was  already  occupying  a  seat.  Accompanying  the 
certificate  was  a  memorial  of  Mr.  Hart,  setting  forth  the  reasons  on  which  he  based 
his  claim  to  Mr.  Gilbert's  seat.  On  motion  of  Mr.  Osborn  the  papers  were  referred 
to  the  Judiciary  Committee. 

On  April  13,  1870,^  Mr.  Lyman  Triunbull,  of  Illinois,  submitted  the  report  of 
the  committee,  as  follows: 

In  consequence  of  the  rebellion  the  State  of  Florida  was  without  representation  in  the  Senate  of  the 
United  States  from  1861  till  1868.  In  pursuance  of  a  constitution  framed  and  adopted  under  what  are 
known  as  the  reconstruction  acts,  a  legislature  convened  in  Florida,  Monday,  June  8,  1868,  the  members 
of  the  assembly  and  half  of  the  senate  having  been  elected  for  two  years  and  the  other  half  of  the  senate 
for  four  years. 

This  legislature,  on  the  16th  day  of  June,  1868,  being  the  second  Tuesday  after  its  meeting  and 
organization,  proceeded,  in  accordance  with  the  act  of  Congress  of  July  25,  1866,  "regulating  the  times 
and  manner  of  holding  elections  for  Senators  m  Congress,"  to  take  action  for  the  election  of  two  United 
States  Senators  to  fill  the  then  existing  vacancies  for  the  terms  expiring  on  the  3d  of  March,  1869,  and 
the  3d  of  March,  1873.  On  Wednesday,  the  day  following  that  on  which  each  house  had  separately,  but 
without  result,  voted  for  Senators  to  fill  the  two  existing  vacancies,  the  members  of  the  two  houses,  con- 
vened in  joint  assembly,  elected  a  Senator  to  fill  the  vacancy  expiring  March  3,  1869,  and  adjourned 
till  the  next  day,  when  they  again  assembled  and  elected  a  Senator  for  the  term  expiring  March  3,  1873, 
and  adjourned  without  date. 

The  next  day  (Friday)  the  members  of  the  two  houses,  each  house  having  previously  concurred  in  a 
resolution  to  that  effect,  assembled  again  in  joint  convention  for  the  election  of  a  Senator  to  succeed  the 
one  whose  term  would  expire  on  the  3d  of  March,  1869,  when  Abijah  Gilbert,  the  present  sitting  Member 
was  elected. 

The  petitioner  was  chosen  by  the  same  legislature  in  January,  1870,  to  represent  the  State  in  the 
Senate  for  the  term  commenncing  March  4,  1869,  and  now  claims  the  seat  occupied  by  Mr.  Gilbert. 

The  elections  of  1868  all  took  place  before  the  passage  of  the  act  of  June  25, 1868,  which  declared 
Florida  entitled  to  representation  in  Congress. 

Two  objections  are  taken  to  the  election  of  the  sitting  Member: 

1.  That  he  was  chosen  by  the  legislature  of  a  State  not  at  the  time  recognized  as  entitled  to  repre- 
sentation in  Congress. 

2.  That  he  was  not  elected  in  conformity  with  the  act  of  July  25,  1860. 

The  first  objection  is  answered  by  the  fact  that  the  subsequent  recognition  of  the  State  as  entitled 
to  representation  under  the  Constitution,  in  pursuance  of  which  the  legislature  was  elected  and 
organized,  related  back  to  and  made  valid  its  acts  from  the  time  of  its  organization.  Senators  and 
Representatives  from  several  of  the  reconstructed  States  have  been  chosen  before  the  States  were  declared 
entitled  to  representation,  and  no  one  has  ever  questioned  their  right  to  seats  when  Congress  subsequently 
recognized  the  government  under  which  they  were  chosen  as  entitled  to  representation. 

The  only  ground  for  the  other  objection  arises  from  the  fact  that  the  legislature  failed  to  take  action 
on  the  "second  Tuesday  after  its  organization"  in  regard  to  the  third  Senator  who  was  to  be  elected, 
but  it  took  action  on  the  subject  of  electing  Senators  and  actually  voted,  though  unsuccessfully,  on 
that  day  for  persons  to  fill  the  two  existing  vacancies. 

The  object  of  the  act  of  Congress  was  to  insure  the  election  of  Senators  by  the  proper  legislature, 
and  to  fix  a  time  when  proceedings  for  that  purpose  should  be  commenced  and  continued  till  the 
elections  were  effected. 

The  legislature  by  which  the  sitting  Member  was  elected  was  the  one  chosen  next  preceding  the 
term  which  would  commence  on  the  4th  of  March,  1869,  and  was  therefore  the  proper  legislature  to 
elect.     "The  second  Tuesday  after  the  meeting  and  organization  of  the  legislature"'  was  the  time  pre- 

'  Second  session  Forty-first  Congress,  Globe,  pp.  2330,  2331. 
2  Senate  Report  No.  101,  ^  Globe,  p.  2639. 


§   393  ELECTORATES    IN    RECONSTRtJCTION.  355 

scribed  by  the  act  of  Congress  for  initiating  the  election  of  Senators,  and  that  was  the  time  when  the 
legislature  proceeded  to  that  business.  There  being  three  Senators  to  elect,  it  took  action  on  that  day 
only  in  reference  to  two  of  them.  Did  its  failure  to  take  action  on  that  day  and  the  two  subsequent 
days  (which  were  occupied  in  electing  the  first  two  Senators)  in  reference  to  the  third  Senator  render 
his  election,  in  all  other  respects  regular,  invalid?    The  committee  think  not. 

The  language  of  the  law  is:  "In  case  no  person  shall  receive  such  majority  on  the  first  day,  the 
joint  assembly  shall  meet  at  12  o'clock  meridian  of  each  succeeding  day  during  the  session  of  the 
legislature  and  take  at  least  one  vote  tUl  a  Senator  shall  be  elected."  Xo  formal  adjournment  from 
day  to  day  by  vote  of  the  joint  assembly  was  necessarj',  but  it  was  the  duty  of  the  members  of  each 
house  to  meet  in  joint  assembly  at  noon  of  each  day  and  vote  at  least  once  till  all  the  Senators  whom 
the  legislature  had  the  right  to  elect  were  chosen.     This  is  exactly  what  the  legislature  did. 

In  no  view  which  the  committee  can  take  would  the  petitioner  be  entitled  to  a  seat  in  the  Senate, 
for  if  the  election  of  the  sitting  Senator  was  irregular,  that  of  the  petitioner,  by  the  same  legislature  at  a 
subsequent  session,  was  equally  so. 

The  committee  recommend  for  adoption  the  following  resolution: 

Resolved,  That  Abijah  Gilbert  was  duly  elected  a  Senator  from  the  State  of  Florida  for  the  term 
commiencing  March  4,  1869,  and  is  entitled  to  hold  his  seat  as  such. 

On  April  15,  1870/  Mr.  Trumbull  presented  the  memorial  of  Mr.  Hart,  who 
prayed  that  he  might  be  permitted  to  address  the  Senate  on  the  subject  of  his 
claim,  as  he  conceived  that  the  report  did  not  take  what  he  considered  the  correct 
view  of  the  case.  The  application  was  debated  briefly,  and  it  was  stated  that  in 
the  other  House  contestants  were  frequently  heard,  and  that  in  a  previous  case 
from  Florida  the  Senate  itself  had  set  such  a  precedent.  But  the  general  opinion 
of  the  Senate  concurred  in  the  view  expressed  by  Mr.  Roscoe  Conkling,  of  New 
York,  that  the  merits  of  the  case  could  not  fail  to  be  tried  searchingly  without 
the  introduction  of  new  talent.     Therefore  Mr.  Hart's  petition  was  laid  on  the  table. 

On  April  28,-  the  report  came  up,  but  was  not  debated  except  for  the  reading 
of  a  brief  written  argument,  wTitten  by  Mr.  Hart,  but  presented  by  Mr.  Timothy  O. 
Howe,  of  Wisconsin,  and  read  in  his  time. 

The  resolution  confirming  Mr.  Gilbert's  title  to  the  seat  was  then  agreed  to 
without  division. 

393.  The  Senate  election  cases  relating  to  Goldthwaite,  Blodgett,  and 
Norwood,  from  Alabama  and  Georgia,  in  the  Forty-second  Congress. 

The  Senate  declined  to  give  immediate  prima  facie  effect  to  regular 
credentials  impeached  by  a  memorial  alleging  irregularities  in  constitu- 
tion of  the  State  legislature  and  suggesting  personal  disqualifications  of 
the  bearer. 

On  Februan,-  8,  1871,^  in  the  Senate,  Mr.  George  E.  Spencer,  of  Alabama,  pre- 
sented the  credentials  of  George  Goldthwaite,  elected  a  Senator  by  the  legislature 
of  Alabama,  for  the  term  of  six  years  conmiencing  March  4,  1871. 

On  March  4,  1871/  at  the  time  of  swearing  in  Senators-elect,  Mr.  Goldthwaite 
appeared  to  take  the  oath,  when  Mr.  Jolin  Sherman,  of  Ohio,  presented  the  fol- 
lowing protest,  signed  by  45  members  of  the  legislature  of  Alabama: 

'  Globe,  pp.  2705,  2706. 

-Globe,  pp.  305.3,  3054. 

^  Third  session  Forty-first  Congress,  Globe,  p.  975. 

*  First  session  Forty-second  Congress,  Globe,  pp.  1-4. 


356  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   393 

Montgomery,  Ala.,  January  2fi,  1871. 

To  the  Senate  of  the  United  States: 

The  subscribers,  members  of  the  senate  and  house  of  representatives  of  the  State  of  Alabama,  respect- 
fully represent: 

That  they  protest  against  the  admission  of  Hon.  George  Goldthwaite  to  the  Senate  of  the  United 
States  as  a  Senator  from  Alabama,  on  the  grounds  that  he  was  not  elected  by  a  majority  of  the  legal 
votes  of  the  joint  meeting  of  the  legislature.  He  was  declared  elected  by  the  following  vote:  For  George 
Goldthwaite,  65  votes;  for  Willard  Warner,  50;  for  William  J.  Haralson,  14  votes.  It  will  be  seen  that 
65  votes  constitute  a  majority  of  the  votes  cast,  and  that  number  of  legal  votes  are  necessary  to  an  election. 

We  represent  that  Hon.  George  Goldthwaite  did  not  receive  that  number  of  legal  votes,  as  B.  M. 
Henry,  claiming  to  be  a  representative  from  Russell  County,  in  said  State,  who  voted  for  Hon.  George 
Goldthwaite,  was  not  elected  by  the  people  of  said  county,  did  not  have  a  certificate  of  his  election, 
as  is  required  by  our  laws,  but  was  defeated  at  the  polls  by  several  hundred,  and  was  not  legally  entitled 
to  vote  for  a  United  States  Senator  in  said  joint  meeting  of  the  legislature,  which,  if  said  illegal  votes 
had  been  rejected,  would  have  been  sufficient  to  prevent  the  announcement  of  the  election  of  Hon. 
George  Goldthwaite  to  a  seat  in  your  honorable  body. 

Saul  Bradford,  of  Talladega  County,  who  had  been  rejected  by  the  people  at  the  ballot  box,  was 
permitted  to  vote  for  said  Hon.  George  Goldthwaite,  when  in  our  opinion  his  vote  should  have  been 
rejected,  as  he  had  never  been  legally  elected  a  member  of  the  legislature. 

In  the  counties  of  Greene,  Sumter,  Lee,  and  other  counties,  the  representatives  of  which  all  voted 
for  Hon.  George  Goldthwaite,  we  have  every  reason  to  believe  that  the  elections  of  said  representa- 
tives were  procured  by  intimidating  the  voters,  and  in  several  instances  fraud  added  thereto,  and  that 
the  gentlemen  claiming  to  be  representatives  of  these  counties  were  not  legally  elected  by  the  people 
of  said  counties,  are  not  their  legal  representatives,  and  were  not  entitled  to  vote  tor  United  States 
Senator  at  the  joint  meeting  of  the  general  assembly. 

We  are  informed  that  some  of  the  members  of  the  legislature  who  voted  for  Hon.  George  Goldthwaite 
are  laboring  under  political  disabilities  imposed  by  the  fourteenth  amendment  of  the  Constitution  of 
the  United  States,  and  it  is  an  inquiry  worthy  the  consideration  of  the  Senate  of  the  United  States 
whether  Hon.  George  Goldthwaite  is  not  laboring  under  the  same  disabilities  for  his  actions  during 
the  recent  rebellion  of  the  Southern  States. 

Believing,  therefore,  that  Hon.  George  Goldthwaite  is  not  legally  elected  Senator  from  Alabama, 
we  respectfully  pray  that  the  Senate  of  the  United  States  may  so  decide,  and  declare  his  seat  vacant. 

It  appeared  that  Mr.  Goldthwaite's  credentials  were  in  regular  form,  signed  by 
the  acknowledged  governor,  under  the  seal  of  the  State,  and  that  there  was  no 
question  that  the  legislature  which  had  elected  was  the  rightful  legislature. 

In  the  debate  Mr.  Allen  G.  Thurman,  of  Ohio,  urged  that  the  memorial  made 
no  case  against  the  Senator-elect.  The  Senate  had  never  undertaken  to  canvass 
the  question  of  the  eligibility  of  the  members  of  a  legislature. 

Mr.  Sherman  replied  that  the  memorial  related  to  much  more  than  an  inquiry 
whether  one  person  or  another  was  elected  to  the  legislature.  It  showed  that  an 
intruder  had  cast  a  deciding  vote,  and  also  that  in  several  counties  of  the  State 
the  right  of  the  electors  had  beSn  denied  by  force  and  fraud.  In  large  portions  of 
the  State  a  quasi  war  had  existed.  There  was  a  question  also  as  to  whether  or 
not  the  claimant  was  qualified. 

The  matter  was  debated  at  considerable  length  on  this  day,  and  then  the  cre- 
dentials and  protest  were  temporarily  tabled.  During  the  debate  the  Ehode  Island 
case  of  Asher  Robbins  was  frequently  referred  to. 

On  the  same  day,  March  4,'  the  Vice-President  laid  before  the  Senate  the  cre- 
dentials of  Foster  Blodgett,  Senator-elect  from  Georgia.     These  credentials  were  in 

'  Globe,  p.  4. 


§  394  ELECTORATES    IN    KECONSTRDCTION.  357 

due  form,  but  there  had  been  filed  a  memorial  of  certain  members  of  the  late  gen- 
eral assembly  of  the  State  of  Georgia  protesting  against  the  admission  of  Mr.  Blod- 
gett  to  a  seat  for  the  following  reasons: 

That  the  election  was  not  held  in  accordance  with  the  law  of  Congress  approved  July  26,18GG,  in 
that  the  legislature  was  not  the  body  chosen  "next  preceding  the  expiration  of  the  time  for  which" 
said  Blodgett  was  elected  to  represent  said  State  in  Congress.  The  legislature  which  elected  him  was 
elected  in  April,  1868,  and  another  legislature  was  chosen  in  December  last,  previous  to  the  occurrence 
of  the  vacancy,  upon  whom,  under  the  law,  devolves  the  duty  of  electing  the  Senator. 

That  at  the  time  said  Blodgett  was  elected  the  constitution  of  said  State  required  that  the  legis- 
lature to  be  elected  in  the  fall  of  1870  should  assemble  on  the  second  Wednesday  in  January,  1871, 
prior  to  the  occurrence  of  the  vacancy;  but  that  the  day  of  meeting  was  wrongfully  changed  to  Novem- 
ber, 1871,  with  a  view,  as  we  believe,  of  creating  a  pretended  necessity  for  an  election  of  Senator  by 
the  old  legislature.  This  change  was  not  made  until  after  the  election  of  said  Blodgett,  thereby  by  a 
mere  trick  defeating  an  expression  of  the  voice  of  the  people  in  accordance  with  the  laws  of  the  United 
States. 

That  the  election  is,  furthermore,  illegal  in  this,  that  at  the  time  said  Blodgett  was  elected  a  quorum 
of  the  house  of  representatives  of  said  general  assembly  was  not  present,  as  is  shown  bv  the  journals 
of  that  body. 

For  which  reasons  we  pray  that  said  election  be  not  recognized  by  youi  honorable  body,  and  that 
the  legislature  elected  next  preceding  the  occurrence  of  said  vacancy,  which  will  assemble  in  November 
next,  be  allowed  to  elect  a  Senator  to  represent  this  State  in  your  honorable  body,  as  provided  by  the 
law  of  Congress,  etc. 

The  credentials  and  memorial  were  temporarily  laid  on  the  table. 

On  March  13,  1871,'  the  papers  in  the  eases  of  Messrs.  Goldthwaite  and  Blodgett 
were  referred  to  the  Committee  on  Privileges  and  Elections. 

394.  The  Senate  election  case  relating  to  Goldthwaite  and  others,  con- 
tinued. 

The  Senate  failed  to  follow  its  committee  in  giving  prima  facie  effect 
to  regular  credentials  impeached  by  allegations  that  the  legislature  had 
been  elected  in  violation  of  the  provisions  of  Federal  law. 

Senate  decision  as  to  the  time  when  a  legislature  should  fill  a  vacancy 
in  the  United  States  Senate. 

An  instance  wherein  a  Senate  committee  reported  in  a  single  resolu- 
tion their  conclusions  as  to  the  election  cases  of  claimants  from  different 
States. 

A  Senate  ruling  that  the  division  of  a  question  depends  on  grammat- 
ical structure  rather  than  on  the  substance  involved. 

On  March  20  ^  Itlr.  William  M.  Stewart,  of  Nevada,  submitted  the  following 
report : 

That  said  credentials  are  in  due  form  and  prima  facie  entitle  said  Goldthwaite  and  Blodgett  to 
their  seats  upon  taking  the  oath  prescribed  by  the  Constitution  and  laws,  neither  of  them  being  under 
any  disability. 

The  grounds  on  which  their  right  to  seats  are  contested  have  not  been  fully  considered  by  the  com- 
mittee for  want  of  time,  nor  will  there  be  sufficient  time  at  this  session  to  consider  them.  In  the  opinion 
of  your  committee  it  would  be  unjust  to  those  States  and  gentlemen  to  keep  the  latter  out  of  their  seats 
until  such  investigation  can  be  had. 

'  Globe,  p.  74.  "  Senate  Report  No.  3. 


358  PRECEDENTS   OF   THE    HOUSE   OF   KEPRESENTATIVES.  §  394 

The  committee  therefore  report  the  following  resolution: 

Resolved,  That  George  Goldthwaite  and  Foster  Blodgett  be  permitted  to  take  seats  in  this  body 
upon  taking  the  proper  oath;  and  that  the  Committee  on  Privileges  and  Elections  proceed  hereafter  to 
consider  the  grounds  on  which  their  rights  to  seats,  respectively,  are  contested,  and  hereafter  make 
reports  to  the  Senate  thereon. 

\Vm.  M.  Stewart. 
O.  P.  Morton. 
H.  Hamlin. 
B.  F.  Rice. 


We  concur  in  the  foregoing  as  to  Goldthwaite,  but  not  as  to  Blodgett. 


Joshua  Hill. 
A.  G.  Thurman. 


On  March  22'  the  resolution  was  taken  up  for  consideration,  and  at  once  Mr. 
Joshua  Hill,  of  Georgia,  raised  a  question  that  the  cases  of  the  two  claimants  should 
be  passed  on  separately,  and  proposed  a  division  of  the  question. 

The  Vice-President '  held,  however,  that  the  resolution  was  not  divisible,  as  it 
did  not  conform  to  the  rule  which  required  that  after  the  division  each  portion 
should  present  a  substantive  proposition. 

Mr.  Thurman  dissented  from  this  decision,  holding  that  it  was  the  subject  and 
not  the  grammar  which  should  control.  But  the  Vice-President  adhered  to  his 
decision,  and  in  the  subsequent  proceedings  the  Senate  separated  the  two  propo- 
sitions by  amendment. 

Mr.  Joshua  Hill,  of  Georgia,  in  order  to  separate  the  two  propositions,  moved 
to  strike  out  the  words  "and  Foster  Blodgett." 

The  questions  involved  in  the  resolution  and  amendment  were  debated  on 
March  25  and  April  6  and  10.'  It  was  objected  that  the  case  of  Mr.  Blodgett 
differed  materially  from  the  case  of  Mr.  Goldthwaite.  It  does  not  appear  that  there 
was  opposition  to  the  swearing  in  of  the  latter.  But  there  was  opposition  to  the 
administration  of  the  oath  to  Mr.  Blodgett  on  the  ground  that  there  was  a  question 
as  to  the  competency  of  the  legislature.  Mr.  Thurman  insisted  that  this  question 
was  essentially  part  of  the  prima  facie  case.  The  Senate  sitting  in  a  case  like  this 
was  bound  like  every  court  to  take  notice  of  the  laws  and  constitution  of  a  State  in 
regard  to  its  legislature. 

On  behalf  of  the  majority  it  was  urged  that  the  Senate  was  accustomed  to 
seat  persons  bearing  credentials  regular  in  form  except  in  cases  where  there  was  a 
question  as  to  the  right  of  a  State  to  representation  or  as  to  the  qualifications  of 
the  person  bearing  the  credentials.  The  question  as  to  the  legislature  of  Georgia 
was  a  law  question,  and  one  that  might  well  be  exanuned  and  decided  after  the 
bearer  of  the  credentials  had  been  sworn  in  on  his  prima  facie  title. 

On  April  11  *  the  subject  was  tabled  to  make  way  for  other  business,  by  a  vote 
of  19  yeas  to  17  nays. 

At  the  next  session  of  the  Congress,  on  December  4,  1871,  '*  Mr.  Thurman  pre- 
sented the  credentials  of  Thomas  M.  Norwood  as  Senator  from  Georgia  for  the  six 

'  Globe,  pp.  218,  219. 

-Schuyler  Colfax,  of  Indiana,  Vice-President. 

^  Globe,  pp.  272,494,  540. 

*  Globe,  p.  566. 

*  Second  session  Forty-second  Congress,  p.  1. 


§  394  ELECTORATES  IN  EECONSTKUCTION.  359 

years  commencing  March  4,  1871.     On  December  11'  the  credentials  were  referred 
to  the  Committee  on  Privileges  and  Elections. 

On  December  18^  Mr.  Matt.  H.  Carpenter,  of  Wisconsin,  submitted  a  report  as 
follows : 

The  Committee  on  Privileges  and  Elections,  to  whom  were  referred  the  credentials  of  Foster  Blodgett 
and  Thomas  M.  Norwood,  each  claiming  a  seat  as  Senator  from  the  State  of  Georgia  for  the  term  which 
commenced  March  4.  1871,  respectfully  submit  the  following  report: 

The  Senate  being  a  branch  of  the  Government  of  the  United  States,  the  right  to  elect  a  Senator  is 
conferred  and  its  exercise  regulated  by  the  Constitution  of  the  United  States,  and  no  law  or  regulation 
of  a  State  touching  such  election  has  any  validity  beyond  the  authority  conferred  upon  the  State  by  the 
Constitution  of  the  United  States. 

The  Constitution,  Article  I,  section  3,  provides  that  Senators  shall  be  chosen  by  the  legislatures  of 
the  respective  States.     Section  4  of  the  same  article  provides: 

"The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives  shall  be 
prescribed  in  each  State  by  the  legislatiu'e  thereof;  but  the  Congress  may  at  any  time,  by  law,  make  or 
alter  such  regulations,  except  as  to  the  places  of  choosing  Senators." 

The  first  clause  of  this  section  commits  to  the  legislatures  of  the  States  primarily  the  whole  subject 
of  electing  Senators  and  Representatives,  and  authorizes  them  to  make  such  regulations  upon  the  subject 
as  they  may  deem  proper.  The  phrase  "the  times,  places,  and  manner  of  holding  such  elections  for 
Senators  and  Representatives  "  embraces  the  whole  subject  of  election  of  Senator  except  that  the  election 
must  be  made  by  the  legislature  of  the  State,  as  provided  in  the  third  section.  The  legislattu-e  may 
therefore  provide  that  a  Senator  shall  be  elected  by  the  legislature  to  be  chosen  next  before  the  expira- 
tion of  a  term  or  next  after  its  commencement.  The  second  clause,  quoted  from  the  fourth  section, 
confers  upon  Congress  the  same  power  and  absolute  control  over  the  subject,  to  be  exercised  in  the  dis- 
cretion of  Congress,  except  that  Congress  can  not  fix  a  place  for  holding  the  election  different  from  that 
fixed  by  the  State  legislature. 

In  the  exercise  of  this  undoubted  constitutional  power  Congress  passed  an  act  regulating  the  elec- 
tion of  Senators,  approved  July  25,  1866  (14  Stat.  L.,  p.  243),  which  provides: 

"The  legislature  of  each  State  which  shall  be  chosen  next  preceding  the  expiration  of  the  time  for 
which  any  Senator  was  elected  to  represent  said  State  in  Congress  shall,  on  the  second  Tuesday  after  the 
meeting  and  organization  thereof,  proceed  to  elect  a  Senator  in  Congress  in  place  of  such  Senator  so  going 
out  of  office." 

Foster  Blodgett  claims  to  have  been  elected  on  the  15th  day  of  February,  A.  D.  1870,  by  the  legisla- 
ture then  existing  and  in  session.  He  received  the  requisite  number  of  votes,  and  his  credentials  are  in 
due  form.  The  question,  therefore,  is  whether  it  was  competent  for  that  legislature  to  elect  a  Senator  to 
serve  during  the  term  before  mentioned .  If  this  question  can  be  answered  in  the  affirmative,  Mr.  Blodgett 
is  entitled  to  the  seat ;  if  not,  his  pretended  election  was  an  absolute  nullity.  The  answer  to  this  question 
depends  upon  the  true  construction  of  the  act  of  Congress  before  quoted.  It  is  claimed  by  Mr.  Blodgett 
that  chosen  and  elected  mean  different  things ;  that  legislators  are  elected  by  the  people,  but  that  legisla- 
tors are  not  the  legislature,  and  that  the  legislature  is  not  chosen  until  the  members  elected  assemble 
as  provided  by  law  and  organize  as  a  legislature  by  determining  what  persons  elected  or  claiming  to  be 
elected  are  entitled  to  seats.  That  is,  the  people  elect  the  legislators,  and  the  legislators  after  their 
election  choose  the  legislature,  and  hence  the  legislature  which  was  in  fact  organized  next  preceding 
tne  expiration  of  the  term  of  office  is  the  one  authorized  to  elect  a  successor  without  regard  to  the  time 
when  the  members  of  such  legislature  were  elected  by  the  people. 

This  refinement  of  reasoning  does  not  meet  the  approbation  of  your  committee.  The  question  is, 
What  was  the  intention  of  Congress  in  passing  this  act?  The  legislature  designated  by  the  act  is  the  one 
"which  shall  be  chosen  next  preceding  the  expiration  of  the  time,"  etc.  There  is  no  such  thing  as  choos- 
ing a  legislature  except  by  choosing  its  members.  The  Constitution  declares  that  Senators  shall  be  elected 
by  the  l^islature  of  each  State.  Hence  the  act  of  Congress  employs  the  same  phrase.  But  your  commit- 
tee can  not  doubt  that  it  was  the  intention  of  Congress  to  provide  that  the  legislature  whose  members 

'  Globe,  p.  55.  ^  Globe,  p.  171;  Senate  Report  No.  10. 


360  PRECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §    394 

should  be  elected  next  preceding  the  expiration  of  the  Senatorial  term  should  elect  the  successor.  The 
distinction  sought  to  be  established  between  the  words  elected  and  chosen  derives  no  support  from  popular 
or  legal  lexicography.  Elected  is  defined  chosen  and  chosen  is  defined  elected,  and  the  words  are  used  as 
synonymous  in  the  Constitution  of  the  United  States,  the  constitution  of  every  State,  in  all  our  statutes,  * 
and  in  all  popular  literature.  It  is  a  universal  rule  of  construction,  applicable  to  constitutions  and  stat- 
utes, that  words  are  to  be  understood  in  their  popular,  commonly  received  meaning,  and  to  force  upon 
this  statute  so  unnatural  a  construction  would  defeat  the  intention  of  Congress,  manifest  in  the  act  itself, 
and  violate  the  fundamental  principle  of  free  government  which  doubtless  inspired  the  passage  of  the  act. 

The  legislature  which  was  in  session  on  the  15th  day  of  February,  1870,  when  Mr.  Blodgett  claims  to 
have  been  elected,  was  chosen  in  April,  1868.  By  the  constitution  and  laws  of  Georgia  then  in  force  it 
was  provided  that  another  legislature  should  be  elected  on  Tuesday  after  the  first  Monday  in  November, 
1870,  and  that  the  legislature  so  to  be  elected  should  meet  and  organize  on  the  second  Wednesday  in 
January,  1871.  Thus  it  will  be  seen  that  at  the  time  Mr.  Blodgett  claims  to  have  been  elected  there  was 
to  be  another  legislature  elected  and  organized  prior  to  the  expiration  of  the  term  for  which  Mr.  Blodgett 
claims  to  have  been  elected  to  serve.  Therefore,  as  the  case  then  stood,  the  action  of  that  legislature  in 
the  premises  was  without  authority  and  directly  in  contravention  of  the  act  of  Congress  upon  that  subject. 
It  is  not  claimed  that  Mr.  Blodgett  was  elected  at  any  other  time  or  by  any  other  legislature.  The  validity 
of  his  election  must  depend  upon  the  state  of  case  then  existing.  If  the  legislature  had  no  authority  to  elect 
him  at  that  time,  their  pretending  to  do  so  conferred  upon  him  no  right  to  claim  this  seat.  If  he  has  any 
rights  they  vested  by  that  election,  and  were  perfect  as  soon  as  the  election  was  completed.  His  election 
was  either  valid  or  void;  if  valid,  no  subsequent  action  of  the  legislature  could  impair  his  rights;  if  void, 
no  subsequent  action  of  the  legislature,  short  of  another  election,  could  entitle  him  to  this  seat. 

Subsequently  to  Mr.  Blodgett's  pretended  election  the  legislature  provided  by  law,  as  it  was  author- 
ized to  do  by  the  constitution  of  the  State,  that  the  legislature  which  was  to  be  elected  in  November,  1870, 
and  organized  in  January,  1871,  as  required  by  law  at  the  time  of  Blodgett's  pretended  election,  should 
not  be  elected  until  December,  1870,  and  should  not  convene  and  organize  until  November,  1871.  But 
if  your  committee  are  right  in  their  construction  of  the  act  of  Congress,  the  legislature  which  convened  in 
November,  1871,  was  the  legislature  chosen  next  preceding  the  expiration  of  the  Senatorial  term,  and, 
consequently,  that  legislature  was  the  one  which  was  authorized  to  elect  the  successor;  and  this  legisla- 
ture did,  in  fact,  elect  Mr.  Norwood.  The  fact  that  the  State  for  months  after  the  expiration  of  the  former 
term,  March  4,  1871,  was  without  full  representation  in  the  Senate  is  not  the  fault  of  the  act  of  Congress. 
The  legislature  authorized  under  the  act  of  Congress  to  make  this  election  would  have  been  elected  in 
November,  1870,  and  convened  in  January,  1871,  and  might  have  elected  a  Senator  prior  to  the  expiration 
of  the  former  term  but  for  the  action  of  the  State  in  postponing  the  election  and  organization  of  the  legis- 
lature authorized  to  elect  the  successor.  The  State  can  not  complain  of  its  own  act,  nor  ask  the  Senate  to 
disregard  the  act  of  Congress,  because  the  State  has  intentionally  omitted  to  comply  with  the  act  of  Con- 
gress, and  avail  itself  of  its  provisions. 

Therefore,  Mr.  Norwood  having  been  duly  elected  at  the  first  session  of  the  legislature  which  was 
chosen  prior  to  the  expiration  of  the  former  term,  your  committee  respectfully  recommend  the  adoption 
of  the  following  resolution : 

Resolved,  That  Thomas  M.  Norwood  is  entitled  to  a  seat  in  the  Senate  as  a  Senator  from  the  State  of 
Georgia  for  the  term  commencing  March  4, 1871,  and  that  he  be  admitted  to  the  same. 

On  December  19'  the  Senate  agreed  to  the  resolution  and  Mr.  Norwood 
appeared  and  took  the  oath. 

On  December  21  ^  Mr.  Thurman  submitted  the  following  resolution  for  con- 
sideration : 

Resolved,  That  George  Goldthwaite  be  permitted  to  take  a  sejt  in  this  body  as  a  Senator  from  the 
State  of  Alabama,  upon  taking  the  oath,  and  that  the  Committee  on  Privileges  and  Elections  proceed 
hereafter  to  consider  the  grounds  on  which  his  right  to  a  seat  is  contested,  and  hereafter  make  report  to 
the  Senate  thereon. 

'  Globe,  p.  211.  ^Second  session  Forty-second  Congres,s,  Globe,  p.  261. 


§  395  ELECTORATES    IX   EECONSTRCTCTION.  361 

Mr.  Thurman  urged  that,  as  Mr.  Goldthwaite  had  credentials  regular  in  form, 
he  was  entitled  to  the  seat  by  prima  facie  title.  He  had  examined  all  the  prece- 
, dents  from  the  beginning  of  the  Government,  and  had  not  found  a  single  case 
where  a  Member-elect  with  such  a  title  had  been  denied  the  seat.  Had  it  not  been 
for  the  complication  ^vith  the  case  of  ]Mr.  Blodgett,  ilr.  Goldthwaite  would  have 
been  seated  long  since. 

Mr.  Oliver  P.  Morton,  of  Indiana,  said  that  so  far  as  the  alleged  election  of 
members  of  the  legislature  by  fraud  was  concerned,  and  the  alleged  participation 
of  an  intruder  were  concerned,  those  were  questions  to  be  determined  by  the  legis- 
lature. The  question  as  to  whether  or  not  members  of  the  legislature  were  under 
disabilities  imposed  by  the  Constitution  of  the  United  States  was  one  which  the 
Senate  had  a  right  to  inquire  into. 

On  January  9'  Mr.  Thurman  called  up  the  report  of  the  committee  on  Mr. 
Goldthwaite's  case,  and  proposed  this  substitute  for  the  resolution  therein  presented: 

amend  the  resolution  by  striking  out  all  after  the  word  "resolved,"  and  in  lieu  thereof  inserting: 

"That  George  Goldthwaite  be  permitted  to  take  a  seat  in  this  body  as  a  Senator  from  the  State  of 
Alabama  upon  taking  the  proper  oath;  and  that  the  Committee  on  Privileges  and  Elections  proceed 
hereafter  to  consider  the  grounds  on  which  his  right  to  a  seat  is  contested,  and  hereafter  make  report 
to  the  Senate  thereon." 

It  was  determined  in  the  affirmative;  and  on  the  question  to  agree  to  the 
resolution  as  amended,  it  was  determined  in  the  affirmative.  So  the  resolution  as 
amended  was  agreed  to. 

On  January-  l.i  Mr.  Goldthwaite  appeared  and  took  the  oath. 

395.  The  Senate  election  case  of  Reynolds  v.  Hamilton,  of  Texas,  in 
the  Forty-second  Congress. 

Conflicting  credentials  being  presented,  and  a  question  of  law  appear- 
ing, the  Senate  swore  in  neither  contestant  until  after  examination  by  a 
committee. 

Decision  by  the  Senate  as  to  authority  of  a  legislature  to  elect  Sena- 
tors before  the  date  when  the  State  became  entitled  to  representation. 

On  July  1.3,  1870,^^  in  the  Senate^  the  credentials  of  Morgan  C.  Hamilton,  as 
Senator  from  Texas  for  the  term  of  six  years,  commencing  on  March  4,  1871,  were 
presented. 

On  March  3,  1871,^  the  credentials  of  Joseph  J.  Reynolds,  as  Senator  for  the 
same  State  and  the  same  term,  were  also  presented. 

On  March  4,  1871,*  at  the  time  of  swearing  in  Senators-elect,  Mr.  Oliver  P. 
Morton,  of  Indiana,  presented  a  joint  resolution  of  the  legislature  of  Texas  relating 
to  the  cases  affected  by  the  credentials.  Mr.  Morton  also  stated  that  the  credentials 
of  Mr.  Reynolds  did  not  bear  the  signature  of  the  governor,  it  having  been  omitted 
by  inadvertence,  evidently.  The  seal  of  the  State  had  been  placed  thereon  and 
they  were  certified  in  proper  form  by  the  secretary  of  state. 

The  papers  were  laid  on  the  table  for  inquiry. 

'Globe,  pp.  319,  376. 

^  Second  session  Forty-first  Congress,  Globe,  p.  5527. 
'Third  session  Forty-first  Congress,  Globe,  p.  1979. 
*  First  session  Forty-second  Congress,  Globe,  p.  4. 


362  PRECEDENTS   OF   THE   HOUSE   OP   REPRESENTATIVES.  §  395 

On  March  13,  1871,'  on  motion  of  Mr.  Henry  B.  Anthony  of  Rhode  Island: 

Ordered,  That  the  credentials  of  Joseph  J.  Reynolds  and  the  credentials  of  Morgan  C.  Hamilton, 
with  the  resolution  of  the  legislature  of  Texas,  declaring  the  election  of  said  Hamilton  on  the  22d  of 
February,  1870,  as  Senator  from  that  State  for  six  years  from  March  4,  1871,  illegal,  be  referred  to  the 
Committee  on  Privileges  and  Elections. 

On  March  15,*  the  Vice-President  laid  before  the  Senate  the  credentials  of 
J.  J.  Reynolds,  elected  a  Senator  in  Congress  by  the  legislature  of  the  State  of  Texas 
for  the  term  of  six  years,  commencing  on  the  4th  day  of  March,  1871. 

The  credentials  were  read. 

The  letter  accompanying  the  credentials  states  that  inadvertently  the  governor 
had  not  signed  the  credentials  presented  March  3. 

On  March  18^  Mr.  William  M.  Stewart,  of  Nevada,  submitted  the  report  of 
the  Committee  on  Privileges  and  Elections,  as  follows : 

That  in  pursuance  of  the  several  acts  of  Congress  for  the  reconstruction  of  the  State  of  Texas  the 
legislature  convened  on  the  8th  and  completed  its  organization  on  the  10th  of  February,  1870.  On  the 
22d  of  Februaiy,  1870,  second  Tuesday  after  its  organization,  the  legislature  elected  the  Hon.  Morgan 
C.  Hamilton  a  Senator  of  the  United  States  for  the  term  commencing  on  the  4th  of  March,  1871. 

The  same  legislature  on  the  same  day  elected  the  Hon.  J.  W.  Flanagan  a  Senator  of  the  United 
States  for  the  term  ending  March  3,  1875,  and  the  Hon.  Morgan  C.  Hamilton  for  the  term  ending  Jilarch  3, 
1871.  These  last  two  elections  were  to  fill  vacancies  then  existing,  and  both  of  these  Senators  were 
admitted  to  their  seats. 

By  the  constitution  of  Texas  there  was  another  session  of  the  .same  legislature  held  in  Texas  after 
the  election  of  Mr.  Hamilton  and  before  the  expiration  of  his  term.  This  session  commenced  on  the  10th 
of  January,  1871,  and  on  the  second  Tuesday  after  its  organization  proceeded  to  the  election  of  a  Senator 
for  the  term  commencing  on  the  4th  of  March,  1871,  the  same  term  for  which  Mr.  Hamilton  had  been 
elected  at  the  preceding  session. 

Gen.  J.  J.  Reynolds  is  represented  to  have  been  elected,  although  the  certificate  referred  to  the 
committee  is  not  signed  by  the  governor. 

The  reasons  assigned  for  the  election  of  General  Reynolds  are  that  the  legislature  had  no  authority 
to  elect  Mr.  Hamilton  at  the  time  of  his  election,  first,  because  the  State  had  not  at  that  time  been  recog- 
nized as  entitled  to  representation  in  Congress;  and,  secondly,  because  there  was  another  session  of  the 
legislature  after  the  election  of  Mr.  Hamilton  and  before  the  commencement  of  the  term  for  which  he 
was  elected. 

The  case  of  Hon.  Abijah  Gilbert,  Senator  from  Florida,  is  precisely  in  point  upon  both  of  these 
questions. 

The  act  of  Congress  of  July  25,  1866,  declares  "that  the  legislature  of  each  State  which  shall  be 
chosen  next  preceding  the  expiration  of  the  time  for  which  any  Senator  was  elected  to  represent  said 
State  in  Congress  shall,  on  the  second  Tuesday  after  the  meeting  and  organization  thereof,  proceed  to 
elect  a  Senator  in  Congress  in  the  place  of  such  Senator  so  going  out  of  office,  in  the  following  manner." 

The  fact  that  the  State  was  not  admitted  to  representation  until  after  the  election  of  Mr.  Hamilton 
is  immaterial.  The  act  admitting  Texas  to  representation  related  back  to  the  organization,  and  ratified 
the  proceedings  of  the  legislature. 

The  committee  therefore  recommend  that  Mr.  Hamilton  be  permitted  to  take  his  seat  on  taking  the 
oath  prescribed  by  the  Constitution  and  the  laws. 

Therefore  the  committee  recommended  this  resolution: 

"Resolved,  That  Morgan  C.  Hamilton  was  duly  elected  a  Senator  from  the  State  of  Texas  for  the 
term  commencing  March  4,  1871,  and  is  entitled  to  take  his  seat  as  such  upon  taking  the  required  oaths." 

This  resolution  was  agreed  to  without  division.* 

On  March  20^  Mr.  Hamilton  appeared  and  took  the  oath. 

' Globe,  p.  74.  =  Senate  Report  No.  2.  'Globe,  p.  169. 

»  Globe,  p.  109.  *  Globe,  p.  168. 


Chapter    XII. 

ELECTORATES  IN  NEW  STATES  AND  TERRITORIES. 


1.  Admission  of  Members  after  passage  of  act  admitting  State.     Sections  396-399. 

2.  Delegates  from  portions  of  the  Northwest  Territory.     Sections  400-401. 

3.  Delegates  admitted  after  portion  of  Territory  becomes  a  State.     Sections  402-404. 

4.  Territory  must  be  organized  to  justify  admission  of  Delegates.     Sections  405-412. 

396.  The  House  declined  to  admit  the  Member-elect  from  Illinois 
until  the  State  had  been  formally  admitted  to  the  Union. 

The  Speaker  asked  the  decision  of  the  House  when  a  Member-elect 
from  a  State  not  yet  admitted  to  the  Union  presented  himself  to  be  sworn. 

On  November  19,  1818/  Mr.  John  McLean,  Representative  from  Illinois, 
being  in  attendance,  the  Speaker  stated  to  the  House  a  difficulty  which  he  felt  in 
deciding  whether  or  not  to  administer  the  oath  to  Mr.  McLean,  in  the  absence  of 
action  by  Congress  on  the  admission  of  the  State. 

Objection  was  made,  especially  by  Mr.  Timothy  Pitldn,  of  Connecticut,  who 
thought  that  before  admitting  a  Representative  to  a  seat,  the  question  whether 
the  people  who  elected  him  were  a  State  ought  to  be  decided. 

The  question  being  put,  it  was  decided  that  the  Speaker  should  not  administer 
the  oath.  Then  the  House  ordered  the  constitution  of  Illinois  referred  to  a  select 
committee. 

On  the  following  day  that  committee  reported  a  joint  resolution  declaring 
the  admission  of  the  State  of  Illinois  into  the  Union,  on  an  equal  footing  with  the 
original  States.  This  was  passed  by  the  Senate,  and  on  December  4  a  message 
was  received  from  the  President  announcing  his  signature. 

Thereupon  Mr.  McLean  produced  his  credentials,  and  the  oath  was  administered 
to  him. 

397.  The  House  declined  to  admit  the  Member-elect  from  Michigan — 
except  as  a  spectator — until  the  act  admitting  Michigan  to  the  Union  had 
become  a  law. 

It  is  not  necessary  that  a  State  be  admitted  to  the  Union  before  it  may 
elect  a  Representative  to  Congress. 

'  Second  session,  Fifteenth  Congress,  Journal,  pp.  22,  25,  61;  Annak,  pp.  296,  297,  306-311,  342. 

363 


364  PRECEDENTS   OF    THE    HOUSE   OF   KEPRESENTATIVES.  §   397 

On  December  16,  1835/  the  Speaker  submitted  to  the  House  the  following 
communication : 

Washington,  December  15,  1835. 
Sir:  Inclosed  is  a  certificate  of  my  election  as  a  Representative  of  the  State  of  Michigan  in  the 
Congress  of  the  United  States.     It  is  my  desire  that  the  same  may  be  presented  to  the  consideration 
of  the  body  over  which  you  have  the  honor  to  preside. 
I  am,  with  great  respect,  your  obedient  servant, 

Isaac  E.  Crary. 
Hon.  James  K.  Polk, 

Speaker  of  the  House  of  Representatives. 

As  the  question  of  the  admission  of  Miclugan  into  the  Union  was  still  pending, 
a  question  was  raised  and  the  consideration  of  the  subject  went  over  until  December 
28,  when  Mr.  Samuel  Beardsley,  of  New  York,  under  suspension  of  the  rules,  oflPered 
this  resolution: 

Resolved,  That  Isaac  E.  Crary,  who  claims  to  have  been  duly  elected  a  member  of  this  House,  be 
admitted  as  a  spectator,  within  the  hall,  during  the  sittings  of  the  House. 

Mr.  Beardsley  stated  that  this  resolution  was  in  accordance  with  the  precedent 
at  the  time  when  the  admission  of  the  State  of  Tennessee  was  pending. 

The  resolution  was  agreed  to  by  the  House. 

On  January  27,  1837,^  the  bill  entitled  "An  act  to  admit  the  State  of  Michigan 
into  the  Union  on  an  equal  footing  with  the  original  States,"  passed  by  the  two 
Houses  of  Congress,  having  been  approved  and  signed  bj'^  the  President  of  the  United 
States,  and  the  certificate  of  the  election  of  Isaac  E.  Crarj^  as  Representative  from 
the  State  of  Michigan  in  this  House  having  been  communicated  to  the  House  at  the 
last  session  of  Congress,  to  wit,  on  the  17th  of  December,  1835,  and  the  said  Isaac 
E.  Crary  being  in  attendance.  A  motion  was  made  by  Mr.  Francis  Thomas,  of 
Maryland,  that  the  oath  appointed  by  law  to  be  taken  by  Members  of  the  House  of 
Representatives  be  administered  to  the  said  Isaac  E.  Crary;  and  that  he  thereupon 
take  his  seat  as  a  Representative  of  the  State  of  Michigan  in  this  House. 

A  motion  was  made  by  Mr.  John  Robertson,  of  Virginia,  that  this  motion, 
together  with  the  whole  subject  of  the  legality  of  the  election  of  a  Member  of  the 
House  from  the  State  of  Michigan,  be  referred  to  the  Committee  of  Elections. 

Mr.  Robertson  said  that  the  election  by  which  Mr.  Crary  claimed  his  seat  took 
place  in  October,  1835.  At  that  time  Michigan  was  a  Territory,  and  she  continued 
to  be  such  until  yesterda}',  when  she  was  admitted  into  the  Union.  In  this  matter 
subsequent  recognition  of  Michigan  as  a  State  could  not  stand  in  the  place  of  previous 
consent,  because  the  boimdaries  of  Michigan  were  uncertain  until  fixed  by  Congress. 
That  was  a  preliminary  act,  necessary  before  Michigan  could  lawfullj'  frame  a  State 
government.  Under  the  ordinance  of  1787,  Michigan  must  of  necessity  remain  a 
Territory  until  admitted  as  a  State,  therefore,  remaining  a  Territory  until  admission 
as  a  State,  there  was  no  right  to  representation  at  the  time  of  the  election  of  Mr. 
Crary,  and  his  election  could  not  be  valid. 

'  First  session.  Twenty-fourth  Congress,  Journal,  pp.  71,  120,  121;  Debates,  pp.  1964,  2102,  2103 
-Second  session  Twentj'-fourth  Congress,  Journal,  pp.  290,  291;  Debates,  pp.  1504-1509. 


§  398 


ELECTORATES    IN    NEW    STATES   AND   TERRITORIES.  365 


The  previous  question  being  ordered,  the  amendment  of  Mr.  Robertson  fell,^ 
and  ^Ir.  Thomas's  motion  was  agreed  to,  yeas  150,  nays  32. 
ilr.  Crary  was  thereupon  sworn,  and  took  his  seat. 

398.  The  Senate  declined  to  admit  the  persons  bearing  credentials 
as  Senators-elect  from  Tennessee  until  that  State  had  been  admitted  to 
the  Union. — On  June  1,  170G,-  the  Senate  decHned  to  admit  William  Blount  and 
William  Cocke,  who  produced  credentials  as  Senators  from  the  State  of  Tennessee. 
That  State  had  not  yet  been  admitted  to  the  Union. 

399.  The  Senate  election  case  of  James  Shields,  of  Minnesota,  in  the 
Thirty-fifth  Congress. 

The  Senate  declined  to  admit  a  Senator-elect  from  Minnesota  until  a 
formal  act  of  admission  had  been  passed  by  Congress. 

On  February  25,  1858,^  in  the  Senate,  ilr.  Jolm  J.  Crittenden,  of  Kentucky,  pre- 
sented the  following  letter: 

Washingtok,  February  24,  1858. 

Sir:  I  beg  leave  to  offer  a  few  reasons  to  show  that  MinneBota  is  one  of  the  sovereign  States  of  this 
Union.  My  first  proposition  is  that  there  are  only  two  forms  of  political  organization  under  which  a 
community  of  .American  citizens  can  legitimately  exist  within  the  jurisdiction  and  under  the  Constitu- 
tion of  the  United  States.  The  one  is  the  organization  of  a  Territory  of  the  Union;  the  other  that  of  a 
State  of  the  Union.  These  are  the  only  determinate  shapes  into  which  political  communities  can  be 
molded  under  our  Constitut  ion.  Each  has  its  appropriate  place  in  our  federal  system.  A  community  of 
American  citizens  living  under  a  Territorial  organization  is  in  direct  and  legitimate  connection  with  the 
Federal  Government.  That  same  community,  transformed  into  a  State,  is  also  in  direct  legitimate  con- 
nection with  the  Federal  Government.  In  the  transition  from  a  Territory  to  a  State,  there  is  no  point  of 
time  at  which  this  connection  can  by  any  possibility  be  broken.  The  Territorial  government  continues 
in  full  force  until  it  is  superseded  by  a  State  government;  and  whenever  the  people  constitute  themselves 
lawfully  into  a  State,  it  is,  lo  instanti,  a  State  of  the  Union.  There  is  no  such  political  anomaly  as  a 
State  out  of  the  Union,  or  not  yet  in  the  Union.  These  erroneous  terms  have  been  applied  so  vaguely 
to  communities  whose  condition  is  not  easily  determined  that  the  public  begin  to  think  tliere  must  be 
some  intermediate  provisional,  probationary  state,  in  which  communities  are  sometimes  kept  on  their 
passage  from  the  condition  of  Territories  to  that  of  sovereign  States  of  the  Union.  California  was  denom- 
inated not  many  years  ago  a  State  out  of  the  Union.  Minnesota  is,  I  suppose,  at  present  considered  by 
some  a  State  not  yet  in  the  Union,  or,  perhaps,  a  provisional  State.  Certainly  the  Representatives  of 
Minnesota  are  at  present  in  a  provisional  dilemma,  not  knowing  whether  they  represent  a  State  in  the 
Union  or  out  of  the  Union. 

I  now  beg  leave  to  refer  you  to  the  law  of  1857  *  authorizing  the  people  of  Minnesota  to  form  a  State 
government.  The  first  section  contains  the  following  language:  "The  inhabitants  of  Minnesota  are 
hereby  authorized  to  form  for  themselves  a  constitution  and  State  government  by  the  name  of  Minnesota, 
and  to  come  into  the  Union  on  an  equal  footing  with  the  original  States,  according  to  the  Federal  Constitu- 
tion. ' '  Here  the  authority  is  absolute  and  unconditional,  first,  to  form  a  constitution  and  State  government; 
secondly,  to  come  into  the  Union  on  an  equal  footing  with  the  original  States — authority  to  make  a  State 
and  authority  to  come  into  the  Union.  No  language  could  be  more  positive;  no  authority  could  be 
more  plenary;  no  act  could  be  more  determinate.  The  people  have  performed  their  engagements  in 
good  faith,  and  they  have  a  right  to  expect  a  like  compliance  on  the  part  of  Congress.  These  engage- 
ments, too,  affect  the  most  sacred  of  all  political  rights — the  constitutional  rights  of  a  sovereign  State. 
The  third  section  of  the  Minnesota  enabling  act  strengthens  and  corroborates  this  position.  It  provides 
that  a  convention  of  delegates  shall  assemble  at  the  capital  of  said  Territory  on  the  second  Monday  of 
July  next  (1857),  and  first  determine  by  a  vote  whether  it  is  the  wish  of  the  people  of  the  proposed  State 

'  This  was  the  effect  of  the  previous  question  on  a  pending  amendment  at  that  time. 
^  First  session  Fourth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  868. 
3  First  session  Thirty-fifth  Congress,  Globe,  pp.  861-867. 
*  Act  approved  February  26,  1857,  11  Stat.  L.,  p.  166. 


366  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  399 

to  be  admitted  into  the  Union  "at  that  time."  Mark  the  language — not  thereafter;  not  upon  the  hap- 
pening of  any  futm'e  contingency,  but  "  at  that  time,"  to  wit,  on  the  second  Monday  in  July,  1857; 
"and  if  so," — that  is,  if  they  shall  so  determine — "shall  proceed  to  form  a  constitution  and  to  take  all 
necessary  steps  for  the  establishment  of  a  State  government  in  conformity  with  the  Federal  Constitution, 
subject  to  the  approval  and  ratification  of  the  people  of  the  proposed  State." 

Here  two  things  are  to  be  specially  observed:  First,  the  determination  to  become  a  State  at  that 
time;  not  the  determination  at  that  time  to  become  a  State,  but  a  State  at  that  time.  Second,  the  sub- 
mission to  the  approval  and  ratification  of  the  people.  When  was  Minnesota  to  become  a  State?  At 
that  time.  How  was  her  constitution  to  be  ratified?  By  submission  to  the  people.  She  has  complied 
with  every  requirement.  She  entered  the  Union  at  the  time  prescribed;  her  constitution  is  ratified  in 
the  manner  prescribed;  and  yet  she  is  now  as  completely  postponed  and  ignored  as  if  she  had  disregarded 
all  her  obligations.  Permit  me  to  cite  two  precedents,  which  I  hope  will  prove  conclusive  in  this  case. 
In  1802  an  enabling  act  was  passed  for  Ohio  somewhat  similar  to,  but  not  so  decisive  as,  the  Minnesota 
act.  The  authority  given  was  to  form  a  constitution  and  State  government,  and  then  follows  this  language : 
"The  State,  when  formed,  shall  be  admitted  into  the  Union  on  the  same  footing  with  the  original  States." 
This  was  then  considered  an  authorized  admission  of  the  State,  and  the  only  act  of  admission  that  ever 
took  place  in  the  case  of  Ohio,  and  that  State  is  now  in  the  Union  under  and  by  virtue  of  the  authority 
of  that  enabling  act. 

The  enabling  act  in  the  case  of  Indiana  contains  the  following  language:  "The  State,  when  formed, 
shall  be  admitted  into  the  Union."  Mark  the  difference  in  the  two  acts.  In  the  case  of  Minnesota 
authority  is  given  to  come  in  at  the  present  time.  In  the  case  of  Indiana  a  promise  is  given  for  her 
admission  at  some  future  time:  under  the  law  Indiana  adopted  a  constitution  and  elected  Representa- 
tives, as  Minnesota  has  done. 

On  the  2d  December,  1816,  Mr.  Hendricks,  Representative  from  the  new  State,  presented  his 
credentials  in  the  House  of  Representatives,  was  sworn  in,  was  appointed  on  a  committee,  and  was 
allowed  to  vote  and  act  as  a  Member  of  that  body;  and  yet  it  was  not  until  ten  days  afterwards  (on  the 
12th  of  the  same  month)  that  a  joint  resolution  was  passed  by  both  branches  of  Congress  formally  admit- 
ting Indiana.  This  kind  of  resolution  was  then  considered  form — nothing  but  mere  form — something 
which  Congress  has  the  power  to  observe  or  omit  at  pleasure,  but  something  with  which  the  State  has 
no  concern,  and  which  can  not  affect  its  right.  This  was  then  the  opinion  fif  John  C.  Calhoun,  at  that 
time  a  Member  of  the  other  House;  and  this,  we  may  fairly  presume,  woxdd  Ije  his  opinion  if  he  were  a 
Member  of  the  Senate  now.  WTien  the  precedent  was  established  Daniel  Webster  was  also  a  Member 
of  the  House,  and  gave  it  the  weight  of  his  authority.  But  Minnesota  stands  upon  far  stronger  grounds 
than  Ohio  or  Indiana — the  ground  of  Congressional  authority.  If  this  authority  is  good,  Minnesota  can 
not  fail.  This  is  a  great  question — a  question  of  constitutional  right,  of  national  faith.  Congressional 
faith,  I  sincerely  hope,  will  be  held  sacred  and  inviolate  in  the  case  of  Minnesota  by  the  prompt  admis- 
sion of  her  Representatives.  My  sense  of  duty  to  my  constituents  compels  me,  through  you,  to  make 
this  appeal  to  the  Senate. 

I  have  the  honor  to  be,  your  obeaient  servant, 

James  Shields, 
Senator  from  Minnesota. 

Hon.  John  J.  Crittenden. 

Mr.  Crittenden  also  presented  credentials  in  due  form,  showing  the  election  of 
Mr.  Shields  by  the  legislature  of  Minnesota  on  December  19,  1857. 

A  discussion  arose  as  to  whether  or  not  Minnesota  was  a  State  in  the  Union 
by  virtue  of  the  enabling  act,  or  whether  an  act  of  admission  would  be  necessary. 
Mr.  Crittenden,  in  arguing  that  there  had  been  no  act  of  admission,  cited  the  case 
of  Louisiana  in  addition  to  those  of  Ohio  and  Indiana  quoted  by  Mr.  Shields. 

A  motion  that  the  subject  lie  on  the  table  was  disagreed  to — yeas  22,  nays  26. 

Then,  after  lengthy  debate,  the  Senate,  on  motion  of  Mr.  Robert  Toombs,  of 
Georgia,  agreed  to  the  following: 

Resolved,  That  the  question  of  the  admission  of  James  Shields  to  a  seat  in  this  body,  as  a  Senator 
from  the  State  of  Minnesota,  be  referred  to  the  Judiciary  Committee,  with  instructions  to  inquire  whether 
or  not  Minnesota  is  a  State  of  the  Union  under  the  Constitution  and  laws. 


§   400  ELECTORATES    IN    NEW    STATES    AND    TERRITORIES.  367 

The  Judiciary  Committee  consisted  of  Messrs.  James  A.  Bayard,  of  Delaware; 
Robert  Toombs,  of  Georgia;  George  E.  Pugh,  of  Ohio;  Judah  P.  Benjamin,  of 
Louisiana;  James  S.  Green,  of  Missouri;  Jacob  Collamer,  of  Vermont;  and  Lyman 
Trumbull,  of  Illinois.  On  March  4,  1S5S,'  Mr.  Bayard  submitted  the  following 
report : 

Having  coMidered  the  question  as  to  which  they  were  by  the  the  foregoing  resolution  instructed 
to  inquire,  the  committee  have  unanimously  adopted  the  following  resolution: 

Resolved,  That  Minnesota  is  not  a  State  of  the  Union  under  the  Constitution  and  laws. 

Minnesota  was  admitted  into  the  Union  by  the  act  approved  May  11,  1858,' 
and  thereupon  her  Senators-elect  were  admitted. 

400.  The  election  case  of  James  White,  Delegate  from  the  Territory- 
south  of  the  Ohio,  in  the  Third  Congress. 

In  1794  the  House  admitted  a  Delegate  on  the  theory  that  it  might 
admit  to  the  floor  for  debate  merely  anybody  whom  it  might  choose. 

The  office  of  Delegate  was  established  by  an  ordinance  of  the  Conti- 
nental Congress,  confirmed  by  a  law  of  Congress. 

The  House  decided  in  1794  that  the  oath  should  not  be  administered 
to  a  Delegate. 

The  legislation  as  to  the  privileges  of  the  Delegate  was  enacted  after 
the  House  had  recognized  the  office. 

In  1794  the  Delegate  seated  by  the  House  w^as  elected  by  the  legisla- 
ture of  the  Territory  and  not  by  the  people. 

On  November  11,  1794,^  the  credentials  of  James  White  as  a  Representative 
of  the  Territory  of  the  United  States  south  of  the  river  Ohio,  were  laid  before  the 
House  and  referred  to  a  select  committee,  who,  on  November  14,  made  the  following 
report: 

That,  by  the  ordinance  for  the  government  of  the  Territory  of  the  United  States  northwest  of  the 
river  Ohio,  section  9,  it  is  provided  "that,  so  soon  as  there  shall  be  five  thousand  free  male  inhabitants  of 
full  age  in  the  district,  upon  giving  proof  thereof  to  the  governor,  they  shall  receive  authority  to  elect 
representatives  to  represent  them  in  a  general  assembly,"  and  by  the  twelfth  section  of  the  ordinance, 
"as  soon  as  a  legislature  shall  be  formed  in  the  district,  the  council  and  house,  assembled  in  one  room, 
shall  have  authority,  by  joint  ballot,  to  elect  a  Delegate  to  Congress,  who  shall  have  a  seat  in  Congress, 
with  a  right  of  debating,  but  not  of  voting,  during  this  temporary  government."  Full  effect  is  given  to 
this  ordinance  by  act  of  Congress  August  7,  1789. 

That,  by  the  deed  of  cession  of  the  Territorj- south  of  the  river  Ohio  to  the  United  States,  in  the 
fourth  article,  it  is  also  provided  "that  the  inhabitants  of  the  said  Territory  shall  enjoy  all  the  privi- 
leges, benefits,  and  advantages  set  forth  in  the  ordinance  of  the  late  Congress  for  the  government  of  the 
Western  Territory' — that  is  to  say,  Congress  shall  assume  the  government  of  the  said  Territory,  which  they 
shall  execute  in  a  manner  similar  to  that  which  they  support  in  the  Territory  west  of  the  Ohio,  and  shall 
never  bar  or  deprive  them  of  any  privilege  which  the  people  in  the  Territorj'  west  of  the  Ohio  enjoy." 

The  cession,  on  these  conditions,  was  accepted  by  act  of  Congress  on  the  2d  of  April,  1790. 

By  an  act  passed  the  26th  of  May,  1790,  for  the  government  of  the  Territorj'  of  the  United  States 
south  of  the  river  Ohio,  it  is  enacted  "that  the  inhabitants  shall  enjoy  all  the  privileges,  benefits,  and 
advantages  set  forth  In  the  ordinance  of  the  late  Congress  for  the  government  of  the  Territory  of  the  United 
States  northwest  of  the  river  Ohio.    And  the  government  of  the  said  Territory  south  of  the  Ohio  shall  be 

1  Globe,  p.  957,  Senate  Report  No.  104. 

2  11  Stat.  L.,  p.  285. 

^  Second  session  Third  Congress,  contested  elections  in  Congress  from  1789  to  1834,  p.  85. 


368  PRECEDENTS   OF    THE    HOUSE   OF   KEPEESENTATIVES.  §  401 

similar  to  that  which  is  now  exercised  in  the  Territory  northwest  of  the  river  Ohio,  except  so  far  as  is 
otherwise  pro\'ided  in  the  conditions  expressed  in  an  act  of  Congress  of  the  present  session,  entitled 
'An  act  to  accept  a  cession  of  the  claim  of  the  State  of  North  Carolina  to  a  certain  district  of  western 
territory.' " 

The  committee  are  of  opinion  that  James  White  has  been  duly  elected  as  Delegate  from  the  Terri- 
tory of  the  United  States  south  of  the  Ohio,  on  the  terms  of  the  foregoing  acts.  They  therefore  submit 
the  following  resolution : 

Resolved,  That  James  White  be  admitted  to  a  seat  in  this  House  as  a  Delegate  from  the  Territory 
of  the  United  States  south  of  the  river  Ohio,  with  a  right  of  debating,  but  not  of  voting. 

This  resolution  gave  rise  to  considerable  debate,  it  being  tirged  in  opposition 
that  the  Constitution  provided  for  no  such  admission  to  the  House,  and  that  it 
would  be  more  proper  to  admit  him  to  the  Senate.  It  was  said,  also,  that  he  should 
be  admitted  only  in  accordance  with  a  law  of  Congress.  In  opposition  it  was  main- 
tained that  the  House  might  admit  and  give  the  right  of  debating  to  whomsoever 
it  might  please,  as  it  might  admit  an  advocate  to  plead  in  any  particular  case,  and 
that  a  law  was  not  necessary,  since  they  need  not  and  ought  not  to  consult  the 
Senate  in  such  a  matter. 

On  November  18  the  House  agreed  to  the  report  of  the  committee. 

A  question  then  arose  as  to  whether  or  not  the  oath  should  be  administered  to 
Mr.  Smith. 

The  question  being  taken,  it  was  decided — yeas  32,  noes  42 — that  the  Delegate 
should  not  take  the  oath,  the  argument  that  his  inability  to  vote  rendered  the  oath 
unnecessary.' 

During  this  session  a  bill  was  passed  allowing  the  Delegate  pay  and  the  privilege 
of  franking  letters.-  Tliis  legislation  was  in  the  form  of  a  bill  extending  the  franking 
privilege  specifically  to  James  White  and  providing  for  the  same  compensation 
received  by  a  Member. 

401.  The  election  case  of  Narsworthy  Hunter,  Delegate  for  Missis- 
sippi Territory,  in  the  Seventh  Congress. 

In  1801  the  oath  was  administered  as  a  matter  of  course  to  a  Delegate 
from  a  Territory. 

On  December  21,  1801,^  the  House,  on  report  of  the  Committee  on  Elections, 
to  whom  had  been  referred  the  credentials  of  Narsworthy  Hunter  as  Delegate  from 
Mississippi  Territory,  decided  that  the  Territory  was  entitled  to  a  Delegate,  with  a 
right  to  debate,  but  not  to  vote,  and  that  Mr.  Hunter  was  elected  such  Delegate. 
As  in  the  case  of  James  Wliite,  the  title  of  the  territory  to  a  Delegate  was  referred 
back  to  the  ordinance  of  1787,  certain  provisions  of  which  were  by  acts  of  April  7, 
1798,  and  May  10,  1800,  applied  to  Mississippi  Territory. 

Mr.  Hunter  had  appeared  on  December  7,  at  the  time  of  the  organization  of 
the  House,  and  had  taken  the  oath  with  the  Members.* 

'  The  compiler  of  the  election  cases  has  inserted  a  footnote  explaining  that  in  practice  it  was  usual 
(in  1834,  when  the  work  was  published)  for  the  Delegates  to  be  sworn.     See  also  Section  401. 
n  Stat.  L.,  p.  403. 

2  First  session  Seventh  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  120 
*  Journal,  p.  5. 


§  -402  ELECTORATES    IN    NEW    STATES   AND   TERRITORIES.  369 

402.  The  election  case  of  Paul  Fearing,  Delegate  from  the  territory- 
northwest  of  the  river  Ohio,  in  the  Seventh  Congress. 

A  Delegate  was  not  dispossessed  of  his  seat  because  a  portion,  but  not 
all,  of  his  territory  had  been  erected  into  a  State. 

On  January  31,  1803',  the  Committee  on  Elections  reported  on  the  following 
proposition,  wliich  had  been  referred  to  them  previously: 

That  inasmuch  as  the  late  territory  of  the  United  States  northwest  of  the  river  Ohio  have,  by  virtue 
of  an  act  of  Congress  passed  on  the  1st  day  of  May,  1802,'  formed  a  constitution  and  State  government, 
and  have  thereby  and  by  virtue  of  an  act  of  Congress  aforesaid  become  a  separate  and  independent 
State,  by  the  name  of  "Ohio,"  that  Paul  Fearing,  a  Member  of  this  House,  who  was  elected  by  the  late 
territorial  government  of  the  territory  northwest  of  the  river  Ohio,  is  no  longer  entitled  to  a  seat  in  this 
House. 

The  committee  reported  the  following: 

Resolved,  That  Paul  Fearing,  the  Delegate  from  the  territorj'  northwest  of  the  river  Ohio,  is  still 
entitled  to  a  seat  in  this  House. 

The  report  was  laid  on  the  table. 

Mr.  Fearing  has  taken  his  seat  on  the  first  day  of  the  Congress.^  The  Member 
from  the  State  of  Ohio  did  not  appear  until  the  next  Congress.* 

403.  The  election  case  of  Doty  v.  Jones,  from  Wisconsin  Territory,  in 
the  Twenty-fifth  Congress. 

The  term  of  a  Delegate  need  not  necessarily  begin  and  end  with  the 
term  of  Congress." 

In  1839  the  Committee  on  Elections  held  that  the  office  of  Delegate 
ceased  when  the  Territory  ceased  to  exist  as  a  corporation  by  becoming  a 
State. 

At  the  session  of  1838-39°  the  Committee  on  Elections  reported  on  the  case  of 
Doty  V.  Jones,  from  Wisconsin  Territory.  This  case  involved  merely  a  question 
as  to  when  Mr.  Dotj^  should  take  the  seat. 

'  Second  session  Seventh  Congress  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  127; 
Journal,  pp.  297,  313,  314;  Annals,  pp.  413,  448. 

-This  act,  actually  approved  April  30,  1802  (2  Stat.  L.,  p.  174),  did  not  include  in  the  new  State  of 
Ohio  all  the  territory  of  the  ''late  territory  of  the  United  State  northwest  of  the  river  Ohio,"  but  provided 
■'that  all  that  part  of  the  territory  of  the  United  States  northwest  of  the  river  Ohio  heretofore  included 
in  the  eastern  division  of  said  territory  and  not  included  within  the  boundary  herein  prescribed  for  the 
said  State  is  hereby  attached  to  and  made  a  part  of  the  Indiana  Territory  from  and  after  the  formation 
of  the  said  State."  Indiana  had  been  organized  by  act  of  May  7,  1800  (2  Stat.  L.,  p.  58).  Indiana 
was  not  allowed  a  Delegate  until  the  act  of  February  27,  1809  (second  session  Tenth  Congress,  2  Stat. 
L.,  p.  525).  So  it  is  evident  that  Mr.  Fearing  would  remain  as  the  Delegate  for  an  increment  of  popu- 
lation left  out  by  the  new  boundaries  of  Ohio.  The  act  of  May  1,  1802,  provided  that  "the  said  State, 
when  formed,  shall  be  admitted  into  the  Union  upon  the  same  footing  with  tlie  original  States  in  all 
respects  whatsoever." 

^Journal,  p.  5. 

'  First  session  Eighth  Congress,  Journal,  p.  403  (Gales  and  Seaton  ed.). 

^But  since  1848  (9  Stat.  L.,  p.  349)  the  acts  admitting  States  have  required  that  the  term  of  the 
delegate  should  begin  and  end  with  a  single  Congress. 

«  Third  session  Twenty-fifth  Congress,  1  Bartlett,  p.  6;  Rowell's  Digest,  p.  107;  Report  No.  7, 
Journal,  p.  191. 

5904— VOL  1—07 24 


370  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   403 

In  October,  1S35,  Mr.  George  W.  Jones  had  been  elected  Delegate  from  the 
Territory  of  Michigan  for  a  term  extending,  under  the  existing  law  for  Michigan, 
for  two  years  from  the  date  of  his  certificate.  He  took  his  seat  in  December,  1835, 
and  would  naturally  have  served  until  about  that  time  in  1837.  But  by  act  of  June 
15,  1836,  Micliigan  was  admitted  to  the  Union  on  condition  that  she  should  by 
convention  ratify  certain  boundaries^  which  was  done  December  15,  1836.  The 
committee  therefore  considered  that  the  Territory  of  Michigan  ceased  to  be  on  June 
15,  1836,  and  that  Mr.  Jones  ceased  to  be  her  Delegate  on  that  day,  which  was 
about  a  year  and  a  half  before  his  term  would  naturally  have  expired.' 

In  October,  1836,  Mr.  Jones  was  elected  Delegate  from  the  adjacent  Territory 
of  Wisconsin,  which  had  just  been  organized.  The  act  of  organization  provided 
that  he  should  serve  "for  a  term  of  two  years."  Air.  Jones  took  liis  seat  Decem- 
ber 5,  1836,  and  the  term  of  two  years  would,  if  computed  from  the  time  of  election 
or  qualification,  expire  in  October  or  the  1st  of  December,  1838. 

And  so,  naturally,  Mr.  James  D.  Doty,  elected  on  September  10,  1838,  would 
take  his  seat  at  the  December  session  of  1838,  which  was  the  last  and  not  the  first 
or  long  session  of  the  Congress,  and  consequently  would  finish  out  the  current 
Congress  and  sit  for  the  first  half  of  the  next  Congress. 

The  natural  objection  then  arose  that  this  should  not  be,  because  the  term  of 
the  Delegate,  like  the  term  of  the  Member  from  a  State,  should  be  for  the  term 
of  the  Congress,  and  should  not  comprise  a  portion  of  two  Congresses.  In  support 
of  this  contention  a  clause  of  the  act  of  March  3,  1817,  was  cited,  wherein  it  was 
provided  that  Delegates  "shall  be  elected  every  second  year  for  the  same  term  of 
two  years  for  which  Members  of  the  House  of  Representatives  of  the  United  States 
are  elected."  Furthermore,  there  was  a  question  as  to  when  Mr.  Jones's  term  as 
Delegate  from  Michigan  expired,  and  so  that  term  might  work  out  the  time  of 
beginning  for  the  term  of  Mr.  Doty. 

The  committee  did  not  consider  that  the  law  of  1817,  even  supposing  it  not 
to  have  been  modified  by  the  subsequent  act  organizing  Wisconsin  and  providing 
simply  that  the  Delegate  should  "serve  for  a  term  of  two  j^ears,"  necessarily  meant 
that  Delegates  should  serve  the  same  two  years  for  which  Members  of  the  House 
were  elected.  The  committee  would  construe  it  to  mean  that  the  duration  of 
service  should  be  the  same,  but  not  necessarily  contemporaneous.  Although  not 
entirely  confident  of  this  construction,  the  committee  found  it  fortified  by  the  fact 
that  previous  to  that  law  Delegates  were  elected  annually.  The  Constitution  was 
silent  as  to  Delegates,  which  were  mere  creatures  of  law,  whose  terms  of  service 
might  be  long  or  short  and  commence  and  terminate  at  such  periods  as  Congress 
might  dictate.  The  law  organizing  Wisconsin,  unlike  the  Michigan  law,  did  not 
specify  when  the  term  should  begin ;  but  in  cases  where  no  time  is  specified  for  the 
performance  of  a  duty  it  is  common  to  constnie  that  it  is  to  be  performed  forth- 
with. Any  other  construction  would,  when  Mr.  Jones  was  elected  Delegate  from 
Wisconsin,  have  left  the  Territory  iinrepresented  for  part  of  a  Congress,  while  he 

'  Congress  actually  passed  (on  January  26,  1837)  another  act  for  admission  of  Michigan  as  a  State, 
and  Isaac  E.  Crary,  elected  Representative  from  the  State,  was  not  permitted  to  take  his  seat  until 
January  27,  1837  (2d  sess.  24th  Cong.,  Journal,  pp.  288,  290;  Globe,  p.  134.) 


§  404  ELECTORATES    IN    NEW    STATES    AND    TEEKITORIES.  371 

would  have  been  awaiting  the  beginning  of  the  term  of  the  new  Congress  on  March 
4,  1837.  So  the  committee  decided  that  Mr.  Jones's  term  did  not  last  until  March 
4,  18.39,  and  therefore  reported  the  following  resolution,  which  was  agreed  to  by 
the  House — yeas  16-5,  nays  25: 

Resolved,  That  James  Duane  Doty  is  entitled  to  a  seat  in  this  House  as  a  Delegate  from  Wisconsin 
Territory,  and  that  George  W.  Jones  is  not  so  entitled. 

404.  The  election  case  of  Henry  H.  Sibley,  claiming  a  seat  as  Dele- 
gate from  "Wisconsin,  in  the  Thirtieth  Congress. 

The  House  admitted  a  Delegate  from  a  county  left  under  the  old  Ter- 
ritorial laws  after  the  remainder  of  "Wisconsin  Territory  had  become  a 
State. 

By  the  act  of  May  29,  1848,'  Wisconsin,  which  had  been  a  Territory,  with  a 
Territorial  Delegate,  was  admitted  to  the  Union  as  a  State.  But  the  boimdaries 
of  the  new  State  left  out  a  portion  of  the  old  Territory  of  "Wisconsin  lying  beyond 
the  St.  Croix  River,  comprising  a  population  of  about  4,000  and  constituting  what 
had  been  a  judicial  district  of  the  old  Territory,  organized  as  an  entire  coimty. 
The  Delegate  who  had  represented  Wisconsin  Territory  had  resigned  when  the 
State  was  formed.  So  the  people  in  the  portion  left  without  the  State  boundaries 
had  no  representation  in  Congress. 

The  governor  of  the  Territory  having  become  an  United  States  Senator  from 
the  new  State,  the  secretary  of  the  Territory,  upon  whom  under  the  law  of  the 
Territory  the  duties  devolved,  removed  to  the  region  beyond  the  St.  Croix  and 
assumed  the  duties  of  governor.  He  issued  his  proclamation  as  acting  governor, 
ordering  a  special  election  to  fill  the  vacancy  caused  by  the  resignation  of  the 
Delegate  who  had  represented  the  whole  Territory  of  Wisconsin.  And  in  piu"- 
suance  of  that  proclamation  the  people  beyond  the  St.  Croix  elected  Henry  H. 
Sibley,  who  in  due  time  presented  his  certificate  of  election,  under  the  hand  of  the 
acting  governor  and  with  the  seal  of  the  "Territory  of  Wisconsin"  attached. 

On  December  4,  1848,'  at  the  beginning  of  the  second  session  of  the  Congress, 
Mr.  Sibley's  credentials  were  presented  to  the  House,  but  objection  was  made  to 
swearing  him  in  on  his  prima  facie  showing,  and  the  credentials  were  referred  to 
the  Committee  of  Elections. 

The  majority  of  the  committee  reported  a  resolution  that  Mr.  Sibley  be  admitted 
to  a  seat  as  Delegate  of  the  Territory  of  Wisconsin.  They  argued  that  these  people 
as  part  of  the  old  Territory  of  Wisconsin  had  once  enjoyed  the  right  of  representa- 
tion and  that  they  were  still  entitled  to  it  by  natural  right  as  well  as  by  the  usages 
of  the  Government.  The  act  of  Congress  admitting  the  State  of  Wisconsin  had 
left  them  outside  its  benefits,  but  had  not  abrogated  any  of  the  old  law  organizing 
the  Territory,  and  they  were  therefore  entitled  to  all  theb  rights  tmder  the  terms 
of  the  law  organizing  the  original  Territory  of  Wisconsin.  Those  rights  had,  more- 
over, been  guaranteed  by  the  ordinance  of  1787,  which  had  been  reaffirmed  by 
Congress.  The  omission  of  Congress  to  repeal  the  law  organizing  the  Territory 
of  Wisconsin,  as  well  as  the  failure  to  make  any  other  law  for  the  government  of 

'  Second  session  Thirtieth  Congress,  House  Report  Xo.  10;  1  Bartlett,  p.  102;  Rowell's  Digest,  j).  127. 
=  Globe,  p.  2. 


372  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   405 

the  people  beyond  the  St.  Croix,  were  proof  conclusive  that  the  old  Territorial  law 
was  intended  to  operate  in  the  residuum  of  the  Territory.  Moreover,  acting  on 
the  authority  of  the  State  Department,  the  officers  of  the  present  Territory  were 
holding  the  offices  under  the  original  appointments  made  before  the  State  of  Wis- 
consin was  formed.  The  committee  cited  the  case  of  Delegate  Paul  Fearing,  from 
the  Territory  of  Ohio. 

The  minority  of  the  committee  contended  that  the  formation  of  the  State  of 
Wisconsin  annulled  by  implication  the  whole  political  organization  of  the  Territory 
of  Wisconsin.  A  special  repealing  clause  was  not  necessary  and  had  not  been 
inserted  in  the  laws  organizing  other  States.  Neither  had  it  been  usual  to  grant 
Delegates  to  Territories  in  the  fu-st  stages  of  their  existence.  When  the  people 
had  become  numerous  enough  to  entitle  them  to  legislative  assemblies  it  had  been 
usual  to  allow  them  Delegates  in  Congress.  The  authority  of  the  precedent  of 
Paul  Fearing  was  denied.  The  fact  that  the  people  of  the  residuum  county  would 
be  left  without  laws  might  be  a  matter  to  be  remedied  by  law,  but  was  not  such  as 
to  require  the  interposition  of  the  House  in  the  manner  proposed. 

On  January  15,  by  a  vote  of  124  to  62,  the  House  agreed  to  the  resolution 
admitting  Mr.  Sibley  as  the  Delegate  of  the  Territory  of  Wisconsin.' 

405.  Tlie  election  cases  of  Hugh.  N.  Smith  and  William  S.  Meservey, 
claiming  seats  as  Delegates  from  New  Mexico  in  the  Thirty-first  Con- 
gress. 

The  House  declined  to  admit  a  Delegate  from  New  Mexico  before  the 
organization  of  the  Territory  had  been  authorized  by  law. 

The  House  declined  to  give  prima  facie  effect  to  the  credentials  of  a 
Delegate  elected  by  a  convention  in  an  unorganized  Territory. 

The  House  held  that  there  should  be  prior  legislation  by  Congress 
before  the  admission  of  a  Delegate. 

On  February  4,  1850,^  the  credentials  of  Hugh  N.  Smith,  as  Delegate  from  the 
Territory  of  New  Mexico,  were  presented  to  the  House.  The  credentials  were  in 
the  following  form: 

Be  it  remembered  that  in  the  convention  of  delegates  chosen  from  the  seven  different  counties  of 
New  Mexico  to  assemble  in  the  city  of  Santa  Fe  on  the  24th  day  of  September,  A.  D.  1849,  for  the  pur- 
pose of  forming  and  proposing  the  basis  of  a  government  which  the  people  of  Kew  Mexico  desire  should 
be  granted  to  them  by  the  Congress  of  the  United  States,  and  for  the  purpose  of  choosing  a  Delegate  to 
represent  New  Mexico  in  the  House  of  Representatives  of  the  Thirty-first  Congress  of  the  United  States, 
Hugh  N.  Smith  was  chosen  by  a  majority  of  all  the  convention,  and  declared  duly  elected  said  Delegate. 

Given  under  our  hands,  at  Santa  Fe,  this  twenty-sixth  day  of  September,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  forty-nine. 

Antonio  Jose  Martinez, 
Presidente  de  la  Convensione. 

James  H.  Quinn,  Secretary. 

The  House  did  not  swear  in  the  Delegate  on  this  prima  facie  showing,  but 
referred  the  credentials  to  the  Committee  on  Elections. 

This  committee  reported  on  April  4.  It  was  ascertained  that  New  Mexico  was 
acquired  by  the  treaty  of   Guadaloupe-Hidalgo;  that  previously  it   had  been  a 

'  Globe,  p.  260. 

2  First  session  Thirty-first  Congress,  Journal,  p.  463;  Globe,  pp.  279,  412;  1  Bartlett,  p.   109. 


§  405         ELECTORATES  IN  NEW  STATES  AND  TERRITORIES.  373 

department  of  Mexico,  governed  by  its  o\vn  legislature  and  having  representation  in 
the  National  Congress.  But  when  acquired  by  the  United  States  it  came  as 
territor}-  only,  not  retaining  its  old  political  organization.  An  army  officer  was 
stationed  there  as  mihtarv'  commander,  but  there  was  no  pohtical  organization  known 
to  the  laws.  The  convention  which  chose  Mr.  Smith  Delegate  was  summoned  by 
proclamation  of  the  army  officer  in  command. 

The  further  fact  appeared  that  the  larger  portion  of  the  Territory  was  claimed 
by  the  State  of  Texas  and  had  been  so  claimed  since  1836.  This  claim  still  existed 
although  not  admitted  by  the  Executive  of  the  United  States.  Mr.  Smith,  the 
Delegate-elect,  was  himself  a  resident  of  the  portion  claimed  by  Texas,  as  were  the 
larger  portion  of  his  constituents. 

Without  considering  the  claim  of  Texas,  for  the  time  being,  the  majoritv  of  the 
committee  came  to  the  conclusion  that  Delegates  admitted  by  the  House  had  in 
every  case  been  chosen  in  accordance  with  laws  enacted  by  Congress.  The  case 
of  Mr.  Sibley,  of  Wisconsin,  was  not  an  exception,  since  he  was  admitted  on  the 
theory  that  a  Territory  of  Wisconsin  still  existed.  The  admission  of  Mr.  Smith 
would  be  construed  as  a  quasi  recognition  of  New  Mexico  as  an  organized  govern- 
ment, a  proceeding  not  within  the  constitutional  power  of  the  House.  To  admit 
Mr.  Smith  simply  as  the  representative  of  the  inhabitants  would  be  anomalous  and 
unwise. 

The  minority  of  the  committee  contended  that  the  privilege  of  citizens  of  a 
Territory  or  portion  of  the  Union  not  organized  into  a  State  to  have  a  Delegate 
depended  neither  on  the  Constitution  nor  law,  but  on  the  pleasure  of  the  House 
alone.  The  discretion  of  the  House  should  be  exercised  in  favor  of  the  right  of 
representation.  New  Mexico  was  a  populous  region,  whose  people  had  enjoyed  an 
organized  pohtical  existence  under  the  former  sovereignty.  While  her  former 
condition  could  not  be  considered  as  estabhshing  her  claim  to  representation,  yet  it 
showed  her  capacity  for  self-government  and  constituted  a  strong  argument  to 
control  the  discretion  of  the  House,  so  that  she  might  not  be  kept  in  a  worse  situation 
than  she  was  in  before. 

As  to  the  justness  of  the  claim  of  Texas  the  majority  passed  no  opinion.  If  it 
was  just  certainly  the  people  were  already  represented,  and  might  not  be  further 
represented.  Whether  just  or  not  the  claim  existed,  and  it  was  not  the  part  of  the 
House  to  express  judgment  on  it  by  admitting  Mr.  Smith.  The  minority  held  that 
the  claim  of  Texas  might  be  admitted  as  just,  and  yet  Mr.  Smith  might  be  admitted 
properly  as  representing  a  residuum  of  people  without  the  boundaries  claimed  by 
Texas.  Furthermore,  Texas  had  not  enforced  her  claim  and  exercised  no  authority 
over  the  disputed  territory ;  and  New  Mexico  should  not  be  neglected  because  of  the 
mere  claim  of  Texas. 

The  majority  of  the  committee  recommended  the  following: 

Resolved,  That  it  is  inexpedient  to  admit  Hugh.  N.  Smith,  esq.,  to  a  seat  in  this  House  as  a  Dele- 
gate from  New  Mexico. 

The  minority  proposed  the  following: 

Resolved,  That  the  said  Hugh  X.  Smith  be  admitted  to  a  seat  in  the  House  of  Representatives 
of  the  United  States  as  a  Delegate  from  New  Mexico. 


374  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   406 

The  report  was  debated  at  length  on  May  22  and  July  15-18.'  Besides  the 
merits  of  the  case,  there  seems  to  have  developed  some  considerations  relating  to 
the  question  of  slavery  and  a  disposition  to  resort  to  dilatory  tactics.  Finally, 
on  July  19,  the  whole  subject  was  laid  on  the  table,  by  a  vote  of  105  yeas,  94  nays. 

406.  On  December  10,  1850,^  the  credentials  of  William  S.  Meservey  as  Dele- 
gate from  the  Territory  of  New  Mexico  were  presented  and  referred  to  the  Com- 
mittee on  Territories,  no  motion  being  made  to  swear  in  Mr.  Meservey.  Later 
the  reference  was  changed  to  the  Committee  on  Elections,  which  reported  on  Feb- 
ruary 6,  1851.^  On  May  25,  1850,  before  a  decision  had  been  reached  by  the  House 
in  the  case  of  Mr.  Smith,  another  convention  had  assembled  at  Santa  Fe  and  estab- 
lished a  constitution  for  a  State  government.  On  June  20,  1850,  the  voters  of  the 
Territory  ratified  the  constitution  and  elected  officers,  including  a  Representative 
in  Congress.  Mr.  Meservey  was  chosen  to  this  office.  The  State  officers  issued 
a  credential  to  Mr.  Meservey  as  a  "Representative,"  but  he  claimed  a  seat  as  a 
"Delegate."  The  committee,  after  commentmg  on  this  fact,  went  on  to  argue 
that  it  would  be  a  dangerous  precedent  to  admit  a  Delegate  not  provided  for  by 
law  of  Congress  and  would  overrule  the  usages  of  sixty  years.  Moreover,  there 
was  now  in  force  an  act  of  Congress  providing  for  a  Territorial  Delegate  from  New 
Mexico.  This  act  became  a  law  on  September  9,  1850,  after  the  decision  in  IVIr. 
Smith's  case.  So  the  committee  reported  against  the  admission  of  Mr.  Meservey. 
The  report  was  not  acted  on  by  the  House. 

407.  The  election  case  of  Almon  W.  Babbitt,  claiming  a  seat  as  a  Dele- 
gate from  the  so-called  State  of  Deseret,  in  the  Thirty-first  Congress. 

The  House  decided  it  inexpedient  to  admit  a  Delegate  chosen  by  a  com- 
munity not  yet  made  a  Territory  by  law. 

On  April  4,  1850,''  the  Committee  on  Elections  reported  on  these  credentials: 

Provisional  State  of  Deseret,  ss  : 

I  hereby  certify  that,  pursuant  to  a  joint  resolution  passed  by  both  houses  of  the  general  assembly 
of  this  State,  Almop  W.  Babbitt,  esq.,  was  on  the  5th  day  of  July,  1849,  elected  by  both  branches  of 
the  general  assembly  a  Delegate  to  the  Congress  of  the  United  States,  to  present  the  memorial  of  said 
general  assembly  and  otherwise  represent  the  interests  of  the  inhabitants  of  this  State  in  Congress. 

Given  under  my  hand  and  the  great  seal  of  the  State  of  Deseret,  at  the  city  of  the  Great  Salt  Lake, 
this  twenty-fifth  day  of  July,  1849. 

[seal.]  Willabd  Richards, 

Secretary  of  Slate. 

Mr.  Babbitt  had  not  attempted  to  take  a  seat  on  these  credentials  in  the  first 
instance,  and  after  examination  the  committee  found  that  the  naemorial  presented 
did  not  ask  the  admission  of  the  Delegate  imtil  "some  form  of  government"  had 
been  adopted.  Moreover,  the  so-called  State  of  Deseret  had  been  formed  by  an 
irregularly  called  convention  of  citizens  representing  a  region  not  yet  organized 
by  law  of  Congress.  To  admit  Mr.  Babbitt  would  be  for  the  House  to  give  a  quasi 
recognition  of  the  legal  existence  of  the  State  of  Deseret  and  an  implied  ratffication 

'  Journal,  pp.  1142,  1150;  Globe,  pp.  1038,  1375,  1383,  1386,  1392,  1399,  1411. 

^  Second  session  Thirty-first  Congress,  Globe,  p.  22. 

n  Bartlett,  p.  148;  RoweU's  Digest,  p.  135. 

■•First  session  Thirty-first  Congress,  1  Bartlett,  p.  116;  RoweU's  Digest,  p.  130. 


§  408  ELECTOKATES    IN    NEW    STATES    AND    TEERITOEIES.  375 

of  its  constitution.     Such  recognition  and  ratification  were  within  the  power  of 
Congress  alone. 

So  the  committee  recommended  this  resolution : 

Resolved,  That  it  is  inexpedient  to  admit  Almon  W.  Babbitt,  esq.,  to  a  seat  in  this  body  as  a  Dele- 
gate from  the  alleged  State  of  Deseret. 

On  July  18,  19,  and  20  ^  the  resolution  was  debated  in  Committee  of  the  Whole. 
There  were  arguments  in  favor  of  admitting  a  representative  of  the  people  of  Deseret 
and  the  position  of  the  committee  as  to  the  matter  of  recognition  was  combatted. 
The  slavery  question  also  had  some  bearing  on  the  result. 

Finally,  by  a  vote  of  yeas  104,  naj's  78,  the  resolution  was  laid  on  the  table. 

408.  The  election  case  of  Fuller  v.  Kingsbury,  from  the  Dakota  por- 
tion of  the  old  Territory  of  Minnesota,  in  the  Thirty-fifth  Congress. 

Duty  of  the  Speaker  as  to  recognition  of  a  Delegate  after  the  Territory 
has  been  admitted  as  a  State. 

On  May  27,  1858,-  several  days  after  the  Representatives  from  the  State  of 
Minnesota  had  been  qualified,  one  of  them,  Mr.  James  M.  Cavanaugh,  rising  to  a 
question  of  privilege,  offered  this  resolution: 

Resolved,  That  the  Conunittee  on  Elections  be  authorized  to  inquire  into  and  report  upon  the  right 
of  W.  W.  Kingsbury  to  a  seat  upon  this  floor  as  Delegate  from  that  part  of  the  Territory  of  Minnesota 
outside  the  State  limits. 

In  the  debate  a  question  was  raised  as  to  recognition  of  Mr.  Kingsbmy,  and 
the  Speaker^  said  he  had  continued  to  recognize  him  as  Delegate  in  accordance 
with  past  precedents. 

Thereupon  an  amendment  was  adopted  providing: 

And  in  the  meantime  no  person  shall  be  entitled  to  occupy  a  seat  as  a  Delegate  from^  said  Territory. 

This  amendment  was  adopted,  and  the  resolution  as  amended  was  agreed  to. 

On  Jime  3,*  when  the  committee  had  reported  in  favor  of  allowing  Mr.  Kings- 
bury to  retain  his  seat,  a  motion  was  proposed  to  lay  the  report  on  the  table,  and 
a  question  arose  as  to  the  effect  of  agreeing  to  the  motion. 
The  Speaker  said: 

The  resolution  referring  the  subject  to  the  Committee  of  Elections  provided  that  the  committee 
be  authorized  to  inquire  into  and  report  upon  the  right  of  W.  W.  Kingsbury  to  his  seat  upon  this  floor 
as  Delegate  from  that  portion  of  the  Territory  of  Minnesota  outside  of  the  State  limits,  and  that  in  the 
meantime  no  person  should  be  entitled  to  occupy  a  seat  as  Delegate  from  the  said  Territory.  The  Chair 
is  of  opinion  that  when  the  committee  submitted  a  report  to  the  House  the  proviso  ceased  to  operate, 
and  the  Chair,  following  the  precedents,  without  intimating  whether  the  Chair  thinks  the  precedents 
right  or  wrong,  would  recognize  the  Delegate  from  Minnesota. 

409.  The  election  case  of  Fuller  v.  Kingsbury,  continued. 

After  the  admission  of  Minnesota  as  a  State,  the  House  declared  por- 
tions of  the  old  Territory  outside  the  limits  of  the  State  not  entitled  to  a 
Delegate. 

'Journal,  pp.  11-53,  1155;  Globe,  pp.  1413,  1418,  1423. 

*  First  session  Thirty-fifth  Congress,  Journal,  p.  932;  Globe,  p.  2428. 

^  James  L.  Orr,  of  South  Carolina,  Speaker. 

'  Globe,  pp.  2677,  2678. 


376 


PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES. 


§  409 


The  State  of  Minnesota  being  admitted,  the  House  suspended  the 
functions  of  the  Delegate  from  the  old  Territory. 

On  May  29,  1858/  the  Committee  on  Elections  reported  in  the  case  of  Fuller  v. 
Kingsbury,  of  the  portion  of  the  former  Territorj^  of  Minnesota  not  included  witliin 
the  limits  of  the  new  State.  The  conunittee,  after  quoting  from  the  law  establish- 
ing the  Territory,  and  citing  the  fact  that  the  Territory  of  Minnesota  had  been  rep- 
resented without  interruption,  by  a  Delegate  elected  in  conformity  with  law,  say : 

It  further  appears  that  William  W.  Kingsbury  was  regularly  elected  on  the  13th  day  of  October,  1857, 
as  such  Delegate,  and,  in  that  capacity,  was,  at  the  opening  of  the  present  session  of  Congress,  admitted 
to,  and  has  held,  a  seat  in  the  House  of  Representatives  until  the  passage  of  the  act  of  May,  1858,  for 
the  admission  of  the  State  of  Minnesota  into  the  Union,  when  his  right  to  retain  it  was  brought  in  ques- 
tion. Of  the  legality  of  the  election  of  Mr.  Kingsbury  as  the  Delegate  from  the  Territory  of  Minnesota 
there  seems  to  be  no  doubt.  *  *  *  The  number  of  inhabitants  in  the  Territory  not  included  in  the 
bounds  of  the  State  is  not  very  clearly  settled,  but,  as  far  as  can  be  learned,  it  amounts  to  several  thou- 
sands, and  is  said  to  be  rapidly  increasing.  There  were  five  counties  established  by  law,  and  two  of 
them  fully  organized,  with  the  proper  officers  for  regular  municipal  government.     *    *    * 

Does  the  admission  into  the  Union  of  a  State  formed  out  of  a  part  of  the  original  Territory  of 
Minnesota  annul  the  election  of  the  Delegate,  repeal  or  set  aside  the  law  creating  the  Territory,  and  all 
other  laws;  deprive  the  people  inhabiting  that  part  of  the  Territory  not  included  in  the  limits  of  the  new 
State  of  the  right  or  privilege  of  being  heard  in  the  House  of  Representatives  by  an  agent  or  Delegate; 
substitute  anarchy  for  a  government  of  law,  and  resolve  society  into  its  original  elements?  Such  is  not 
the  opinion  of  your  committee.  There  is  nothing  in  the  act  authorizing  the  people  of  Minnesota  to  form 
a  constitution  and  State  government,  nor  in  the  act  for  the  admission  of  the  State  of  Minnesota  into  the 
Union,  which  repeals  in  anywise  the  law  creating  the  Territory,  or  deprives  the  people  inhabiting  that 
part  not  included  in  the  new  State  of  any  rights  or  privileges  to  which  they  were  entitled  under  any 
laws  existing  at  the  time  of  the  admission  of  that  State.  It  matters  not  whether  one  State  or  half  a  dozen 
have  been  carved  out  of  an  organized  Territory;  if  a  portion  remains,  and,  more  especially,  if  inhabited, 
and  counties  and  towns,  with  their  corporate  governments,  exist,  created  by  law,  it  would  seem  to  be 
a  most  violent  presumption  to  hold  that  they  became  eo  instante  upon  the  admission  of  the  State  a  dis- 
franchised people — a  mere  mob  or  rabble.  The  fact  that  the  admitted  State  bears  the  same  name  as  the 
Territory  may  lead  to  some  confusion  of  ideas,  but  it  does  not  alter  the  fact.  The  existence  of  the  State 
of  Minnesota  does  not  destroy  the  existence  of  the  Territorj'  of  Minnesota,  nor  deprive  the  inhabitants 
of  such  Territory  of  any  of  their  rights.  No  such  result  can  be  by  implication.  The  Territorial  law  must 
be  repealed  before  such  consequences  could  follow,  and  even  then  a  grave  question  would  arise  here  how 
far  such  repeal  could  operate  upon  the  rights  of  the  people. 

The  committee  then  cite  the  cases  of  Delegates  Fearing  and  Sibley  in  support 
of  their  view. 

As  to  the  memorial  of  A.  G.  Fuller  and  his  certificate  of  election  under  the 
hands  of  the  county  officers  of  Midway  County,  in  the  Temtory  of  Dakota,  the 
majority  say  that  there  is  no  Territory  of  Dakota  authorized  to  elect  a  Delegate. 
The  region  named  as  Dakota  is  admitted  to  be  the  residue  of  the  Territory  of  Min- 
nesota, already  represented  by  Mr.  Kingsbury. 

Therefore  the  majority  of  the  committee  reported  resolutions  that  Mr.  Kings- 
bury be  allowed  to  retain  his  seat  "as  a  Delegate  from  the  Territorj-  of  Minnesota." 

The  minority  of  the  committee  base  their  argument  on  a  question  of  fact  which 
is  disputed.     The  majority  of  the  conunittee  had  said : 

The  committee  are  informed,  on  what  they  consider  good  authority,  that  *  *  *  at  the  election 
for  Delegate  to  Congress,  the  people  of  this  so-called  Territory  of  Dakota,  or  a  part  of  them,  did  vote  for 
Mr.  Kingsbury  for  their  Delegate,  and  they  so  claim  him  to  be,  notwithstanding  the  admission  of  the 
State  of  Minnesota  into  the  Union. 


'  First  session  Thirty-fifth  Congress,  1  Bartlett,  p.  251;  Rowell's  Digest,  p.  1-55. 


§  409  ELECTORATES   IN    NEW    STATES    AND   TERRITORIES.  377 

The  minority  take  issue  on  this  point,  saying: 

On  the  said  13tli  day  of  October,  1857,  the  people  resident  in  the  limits  of  the  State  voted  entirely 
to  themselves.  They  elected  a  Delegate  (Mr.  Kingsburj-),  who  had  opposition;  also  elected  Representa- 
tives. On  the  same  day  the  inhabitants  outside  said  State  limits  held  a  separate  election  for  themselves 
and  elected  A.  G.  Fuller  their  Delegate,  said  Fuller  also  having  an  opponent.  The  people  outside  the 
State  limits  acted  and  voted  separately  and  independently;   so  did  the  inhabitants  within  the  State. 

Section  14  of  the  act  organizing  the  Territorj'  of  Minnesota,  approved  March  3, 1849,  provides  that  a 
Delegate  to  the  House  of  Representatives  of  the  United  States  may  be  elected  by  the  voters  qualified  to 
elect  members  of  the  legislative  assembly.  The  election  for  governor.  State  officers,  members  of  assem- 
bly, and  Representatives,  as  well  as  Delegates,  was  confined  to  the  voters  within  the  limits  of  the  proposed 
State.     No  polls  were  opened  for  these  elections  to  the  people  outside  the  limits  of  the  proposed  State. 

When  the  reports  were  debated,  on  June  2  and  3,'  there  was  controversy  over  the 
point,  and  letters  were  presented  from  Territorial  officers  sho-\ving  that  votes 
were  cast  for  Mr.  Kingsbury  in  the  portion  of  the  Territory  outside  the  limits  of  the 
proposed  State.  But  this  fact  was  not  settled  so  conclusively  that  it  could  be  said 
to  be  established. 

The  minority  alleged  that  yir.  Kingsbury  was  not  a  resident  of  the  portion  of 
Minnesota  or  Dakota  which  he  sought  to  represent,  but  that  he  lived  within  the 
limits  of  the  new  State.  In  reply  to  this  it  was  declared  that  there  was  no  provision 
of  law  requiring  a  Delegate  to  be  a  resident  of  the  Territory  he  represented. 

The  minority  further  urged : 

We  further  find  and  report  that  the  people  residing  out  of  the  limits  of  the  proposed  State,  after 
being  separated,  in  anticipation  of  a  separate  Territorial  organization  for  the  remaining  Territory,  under 
the  new  name  of  Dakota,  held  an  election  for  a  Delegate  on  the  13th  of  October,  A.  D.  1857,  as  stated  in 
the  memorial  of  A.  G.  Fuller,  when  the  said  A.  G.  Fuller  received  a  large  majority  of  the  legal  voters 
resident  in  the  said  Territory',  and  he  holds  the  best  evidence  thereof  which  the  present  imperfect  legal 
provisions  in  the  Territory  wUl  admit  of;  and,  according  to  the  precedent  in  the  case  of  H.  H.  Sibley, 
from  Wisconsin,  would  be  entitled  to  his  seat  as  a  Delegate  representing  the  resident  citizens  on  the 
remaining  Territory',  who  voted  for  him,  and  who  were  not  by  law  allowed  to  vote  for  or  against  W.  W. 
Kingsbury. 

Therefore  the  minority  recommended  that  Mr.  Fuller  be  admitted  in  place  of 
Mr.  Kingsbury. 

On  June  2  and  3  ^  the  question  was  debated  at  length,  the  doubt  as  to  whether 
Mr.  Kingsbury  had  been  voted  for  by  the  people  outside  the  limits  assigned  for  the 
new  State  figuring  prominently. 

Finally,  by  a  vote  of  yeas  120,  nays  80,  the  House  amended  the  proposition  of 
the  majority  of  the  conunittee  by  substituting  the  following: ' 

Resolved,  That  the  admission  of  the  State  of  Minnesota  into  the  Union  with  the  boundaries  pre- 
scribed in  the  act  of  admission  operates  as  a  dissolution  of  the  Territorial  organization  of  Minnesota;  and 
that  so  much  of  the  late  Territory  of  Minnesota  as  lies  without  the  limits  of  the  present  State  of  Minnesota 
is  without  any  distinct  legally  organized  government,  and  the  people  thereof  are  not  entitled  to  a  Delegate 
in  Congress  until  that  right  is  conferred  on  them  by  statute. 

The  resolution  as  amended  was  then  agreed  to. 

'  Globe,  pp.  2660,  2679. 

2  Globe,  pp.  2660,  2677-2679. 

'Journal,  p.  1007. 


378  PHECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   410 

410.  The  election  case  of  J.  S.  Casement,  claiming  a  seat  as  Dele- 
gate from  Wyoming,  in  the  Fortieth  Congress. 

The  House  declined  to  give  prima  facie  effect  to  credentials  from  a 
Territory  not  yet  organized. 

After  the  passage  of  the  act  organizing  the  Territory  of  Wyoming, 
but  before  the  actual  organization,  the  House  declined  to  admit  a  Dele- 
gate elected  before  the  passage  of  the  act. 

On  January  12,  1869,'  Mr.  Henry  L.  Dawes,  of  Massachusetts,  claiming  the 
floor  for  a  question  of  privilege,  presented  the  credentials  of  Mr.  J.  S.  Casement, 
claiming  to  be  Delegate-elect  from  the  Territory  of  Wyoming,  and  asked  that  he 
be  sworn  in. 

A  question  being  raised,  it  was  admitted  that  the  Territory  had  not  been 
organized,  and  that  Mr.  Casement  had  not  been  regularly  elected.  Thereupon, 
after  debate,  the  credentials  were  referred  to  the  Committee  on  Elections,  and  Mr. 
Casement  was  not  sworn  in. 

On  February  23  ^  Mr.  Burton  C.  Cook,  of  Illinois,  presented  the  report  of  the 
committee,  as  follows : 

The  Territory  is  not  yet  organized.  Section  17  of  the  act  to  provide  for  the  temporary  government 
for  the  Territory  of  Wyoming,  approved  July  25,  1868,  is  as  follows: 

"This  act  shall  take  effect  from  and  after  the  time  when  the  executive  and  judicial  officers  herein 
provided  for  shall  have  been  duly  appointed  and  qualified:  Provided,  That  all  general  Territorial  laws 
of  the  Territory  of  Dakota  in  force  in  any  portion  of  said  Territory  of  Wyoming  at  the  time  this  act 
shall  take  effect  shall  be  and  continue  in  force  throughout  the  said  Territory  until  repealed  by  the 
legislative  authority  of  said  Territory,  except  such  laws  as  relate  to  the  possession  or  occupation  of  mines 
or  mining  claims." 

Section  13  of  the  same  act  provides  as  follows: 

"A  Delegate  to  the  House  of  Representatives  of  the  United  States,  to  serve  during  each  Congress 
of  the  United  States,  may  be  elected  by  the  voters  qualified  to  elect  members  of  the  legislative  assembly. 
The  first  election  shall  be  held  at  such  times  and  places  and  be  conducted  in  such  manner  as  the  gov- 
ernor shall  appoint  and  direct,  and  at  all  subsequent  elections  the  times,  place,  and  manner  of  holding 
elections  shall  be  prescribed  by  law.  The  person  having  the  greatest  number  of  votes  of  the  qualified 
voters,  as  hereinbefore  provided,  shall  be  declared  by  the  governor  elected,  and  a  certificate  thereof 
shall  be  accordingly  given." 

The  election  at  which  J.  S.  Casement  claims  to  have  been  elected  was  held  on  the  8th  day  of  October, 
A.  D.  1867.  The  bill  above  referred  to  was  passed  July  25,  1868,  and  has  not  yet  taken  effect,  for  the 
reason  that  the  executive  and  judicial  officers  provided  for  in  said  act  have  not  been  duly  appointed 
and  qualified.     The  election  laws  of  Dakota  are  still  in  force  in  that  Territory. 

The  election  held  on  the  8th  day  of  October,  A.  D.  1867,  was  not  held  in  pursuance  of  any  law, 
but  was  held  in  pursuance  of  a  call  made  by  a  mass  meeting,  at  which  certain  commissioners  were 
appointed  to  make  arrangements  for  holding  a  general  election.  It  is  apparent  that  this  election  had 
none  of  the  safeguards  provided  by  law  to  secure  the  purity  of  elections;  no  one  could  be  punished  for 
illegal  voting,  or  for  receiving  illegal  votes,  or  for  excluding  legal  votes,  or  for  making  false  returns; 
no  qualifications  of  voters  had  been  prescribed  by  law;  not  even  a  residence  in  the  Territory  was 
required;  no  voting  precincts  had  been  established  by  law.  Three  persons,  who  sign  their  names  as 
commissioners  of  elections,  have  made  a  certificate  that  the  election  was  held,  and  that  J.  S.  Casement 
was  elected  Delegate  to  Congress.     A  copy  of  this  certificate  is  hereto  annexed,  marked  "A." 

The  only  other  evidence  adduced  before  the  committee  in  support  of  the  claim  was  an  affidavit 
of  J.  H.  Hayfer,  a  copy  of  which  is  hereto  annexed,  marked  "B." 

It  is  not  contended  that  there  is  any  law  entitling  the  claimant  to  a  seat  as  a  Member  of  this  House, 

'Third  session  Fortieth  Congress,  Journal,  p.  142;  Globe,  pp.  310,  311. 

2 House  Report  No.  30;  2  Bartlett,  p.  516;  Rowell's  Digest,  p.  229;  Globe,  p.  1400. 


§  411  ELECTOKATES    IN    NEW    STATES    AND   TERRITORIES.  379 

and  it  is  apparent  that,  according  to  law,  the  first  election  must  be  holden  in  a  very  different  manner 
and  the  certificate  be  given  by  the  governor;  but  it  is  insisted  that  it  is  a  matter  within  the  discretion 
of  the  House,  and  that  there  are  precedents  which  would  justify  the  admission  of  the  claimant  to  a 
seat;  and  the  admission  of  Members  of  Congress  from  Arkansas  who  were  elected  before  the  State  con- 
stitution was  approved  by  Congress  or  the  State  admitted  as  one  of  the  States,  is  cited. 

This  precedent  is  not  in  point  for  the  reason  that  Arkansas  was  a  State  in  the  Union  at  the  time 
when  the  first  Representatives  from  that  State  were  admitted  to  seats  in  Congress,  and  the  committee 
find  no  precedent  for  the  admission  of  a  Member  from  a  State  or  a  Delegate  from  a  Territory  which 
was  not  organized  at  the  time  the  Member  or  Delegate  was  sworn  and  admitted  to  his  seat.  The  Ter- 
ritory of  Wyoming  is  not  now  organized,  and  no  reason  can  be  given  for  the  admission  of  the  claimant 
in  this  case  which  would  not  be  equally  good  to  sustain  the  claim  of  a  Delegate  from  Alaska  should 
a  mass  meeting  be  convened  at  Sitka  and  a  Delegate  be  elected  by  such  meeting. 

Therefore  the  committee  recommended  the  adoption  of  a  resolution  declaring 
that  Mr.  Casement  was  not  entitled  to  a  seat. 

This  report  was  not  acted  on  by  the  House. 

411.  The  election  case  of  Mottrom  D.  Ball,  claiming  a  seat  as  Dele- 
gate from  Alaska,  in  the  Forty-seventh  Congress. 

The  House  declined  to  admit  a  Delegate  from  an  unorganized  Terri- 
tory, although  by  treaty  the  people  were  entitled  to  the  rights  of  citizens. 

A  proposition  relating  to  the  admission  of  a  Delegate  from  an  unor- 
ganized Territory  was  held  not  to  be  a  question  of  privilege. 

On  December  21, 1881  /  Mr.  Horace  F.  Page,  of  California,  by  unanimous  consent, 
presented  the  memorial  of  certain  citizens  of  Alaska,  together  with  a  certificate  of 
the  election  of  Mottrom  D.  Ball  as  Delegate  to  the  House  of  Representatives  from 
the  Territory'  of  Alaska.     These  were  referred  to  the  Committee  on  Elections. 

On  February  28, 1882,^  Mr.  William  H.  Calkins,  of  Indiana,  reported^  from  the 
committee  this  resolution,  which  was  referred  to  the  Committee  on  Territories: 

Resolved,  That  M.  D.  Ball  be  not  admitted  to  a  seat  in  the  Forty-seventh  Congress  as  a  Delegate 
from  the  Territory  of  Alaska  until  the  Committee  on  Territories  shall  report  thereon,  and  that  the  matter 
be  continued  until  that  time  for  further  action. 

The  minority  of  the  committee  proposed  with  their  views  this  resolution: 

Resolved,  That  M.  D.  Ball  be  admitted  to  a  seat  in  the  Forty-seventh  Congress  as  a  duly  elected 
Delegate  from  the  Territory  of  Alaska,  with  all  the  rights  and  privileges  of  Delegates  from  other  Terri- 
tories of  the  United  States. 

The  majority  did  not  make  an  argument,  but  the  minority  went  at  length  into 
reasons  for  seating  Mr.  Ball.  They  recited  that  under  the  treaty  by  which  Alaska 
had  been  ceded  it  had  been  stipulated  that  the  inhabitants,  except  the  imcivilized 
natives,  should  be  "admitted  to  the  enjoyment  of  all  the  rights,  advantages,  and 
immunities  of  citizens  of  the  United  States." 

As  Congress  had  passed  no  act  in  fulfillment  of  this  obligation,  the  people  of  the 
district  had  met  m  election  and  chosen  delegates,  who  in  convention  adopted  a 
memorial  and  elected  a  Delegate.  Reference  was  made  to  the  case  of  James  White, 
in  1794,  who  was  seated  as  a  Delegate  from  the  territory  south  of  the  Ohio  River. 
The  minority  summarized  as  follows  the  reasons  for  admitting  Mr.  Ball:  (1)  Rep- 
resentation is  one  of   certain   rights  and   advantages   to   which   this   people   are 

'  First  session  Forty-seventh  Congress,  Joiu^al,  p.  193;  Record,  p.  243. 

^Journal,  p.  685. 

^  House  Report  No.  .560. 


380  PRECEDENTS   OF   THE   HOUSE    OF   KEPRESENTATIVES.  §  412 

entitled  and  were  entitled  at  the  time  of  their  action;  (2)  having  the  vested  title  to 
the  present  enjoyment  of  this  right,  they  were  debarred  from  its  possession  through 
the  failure  of  the  partj^  obligated  to  its  accordance  to  furnish  the  means  whereby 
they  might  attain  it;  (3)  being  so  wrongfully  debarred  of  an  essential,  a  guaran- 
teed, and  an  inherent  right,  by  the  fault  of  the  authority  that  should  have  extended 
it,  they  set  about  its  acquisition  through  the  exercise  of  means  recognized  as  authori- 
tative under  similar  circumstances;  (4)  imder  such  a  condition  of  fact  it  is  the  duty 
of  this  House  to  ratify  their  act  and  make  it  legal  and  valid  to  the  end  desired;  (5) 
not  only  is  this  duty  plain,  but  the  honor  and  good  faith  of  our  Government  is 
involved  in  this  recognition.  And  it  is  further  shown  to  be  advisable  on  the  mere 
ground  of  expediency. 

On  March  28,  1882,'  Mr.  William  H.  Calkins,  of  Indiana,  as  a  question  of  privi- 
lege, proposed  to  call  up  the  report  of  the  Committee  on  Elections  in  the  case  of  the 
claim  of  M.  D.  Ball  to  a  seat  in  this  House  as  a  Delegate  from  the  Territory  of 
Alaska. 

Mr.  J.  Proctor  Knott,  of  Kentucky,  made  the  point  of  order  that  the  said  report 
and  subject  was  not  a  question  of  privilege,  there  being  no  law  authorizing  Alaska 
to  send  a  Delegate  to  Congress  or  authorizing  an  election  for  that  purpose  to  be 
held  in  said  Territory. 

After  debate  on  the  point  of  order,  the  Speaker  ^  sustained  the  same,  on  the 
groimd  that  said  report,  with  an  accompanying  resolution,  providmg  that  M.  D. 
Ball  be  not  admitted  to  a  seat  in  the  Forty-seventh  Congress  as  a  Delegate  from  the 
Territory  of  Alaska  imtil  the  Committee  on  the  Territories  shall  report  thereon, 
was  referred  to  the  Committee  on  the  Territories,  which  committee  had  not  reported 
thereon. 

At  the  second  session  of  this  Congress  an  attempt  was  made,  on  February  19, 
1883,'  to  set  a  time  for  considering  this  report  and  also  the  bill  and  reports  of  the 
Committee  on  Territories,  but  it  failed.     The  matter  ended  thus. 

412.  The  election  case  of  Owen  G.  Chase,  claiming  a  seat  as  Delegate 
from  the  Territory  of  Cimmaron,  in  the  Fiftieth  Congress. 

The  House  declined  to  admit  a  Delegate  from  a  Territory  not  organ- 
ized by  law. 

On  December  12,  1887,^  ^Mr.  WilUam  M.  Springer,  of  Illinois,  presented  the 
petition  of  Owen  G.  Chase,  claiming  to  be  elected  a  Delegate  from  the  Territory  of 
Cimmaron,  and  also  a  resolution  referring  the  petition  and  certificate  of  election  to 
the  Committee  on  Territories  and  allowing  Mr.  Chase  the  privileges  of  the  floor 
pending  the  consideration  of  the  organization  of  a  Territorial  government. 

Mr.  Springer  urged,  in  behalf  of  his  resolution,  the  precedent  of  California. 
On  the  other  hand,  it  was  urged  that  the  more  recent  action  of  the  House  in  the 
case  of  the  proposed  Delegate  from  Alaska  was  the  better  precedent. 

On  motion  of  Mr.  S.  S.  Cox,  of  New  York,  the  resolution  and  petition  were 
laid  on  the  table,  ayes  157,  noes  53. 


'  First  session  Forty-seventh  Congress,  Journal,  pp.  923,  924;  Record,  pp.  2343-2345. 

^  J.  Warren  Keifer,  of  Ohio,  Speaker. 

'Second  session  Forty-seventh  Congress,  Journal,  p.  444;  Record,  p.  2954. 

<  First  session  Fiftieth  Congress,  Journal,  p.  42;  Record,  pp.  38-40. 


Chapter  XIII* 
THE  QUALIFICATIONS  OF  THE  MEMBER. 


1.  Provision  of  the  Constitution.     Section  413.' 

2.  State  may  not  prescribe.     Sections  415-417.- 

3.  Age.     Section  418. 

4.  Citizenship  in  the  United  States.     Sections  419-427. 

5.  Principles  deduced  from  Senate  decisions  as  to  citizenship.     Sections  428-430. 

6.  Citizenship  of  Delegates.     Section  431. 

7.  Inhabitancy.     Sections  432-436.' 

8.  Principles  deduced  from  Senate  decisions  as  to  inhabitancy.     Sections  437-440. 

413.  The  Constitution  provides  that  a  Member  shall  fulfill  certain 
conditions  as  to  age,  citizenship,  and  inhabitancy. — Section  J  of  Article  I  of 
the  Constitution  provides; 

No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of  twenty-five  years,  and 
been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

414.  The  election  case  of  William  McCreery,  of  Maryland,  in  the 
Tenth  Congress. 

A  question  arising  in  1807  as  to  the  right  of  a  State  to  prescribe 
qualifications  for  Representatives,  the  House,  while  inclining  manifestly 
to  the  view  that  the  States  did  not  have  the  right,  avoided  an  explicit 
declaration. 

Discussion  of  the  three  constitutional  qualifications  as  exclusive  of 
others. 

On  October  30,  1807,^  Joshua  Barney  presented  a  memorial  contesting  the  elec- 
tion of  William  McCreery,  of  Maryland.  On  November  9  the  Committee  of  Elections 
made  a  report  showing  the  following  facts : 

The  law  of  Maryland  (act  of  1790)  required  the  Member  to  be  an  inhabitant  of 
his  district  at  the  time  of  his  election,  and  to  have  resided  therein  twelve  calendar 
months  immediately  before. 

*  See  Volume  VI,  Chapter  CLVI. 

'  Many  decisions  that  disqualification  of  the  majority  candidate  does  not  give  title  to  the  minority 
candidate.  (See  sees.  323,  326,  424,  43-5,  4-50,  4.)9,  460,  467,  469,  473,  621,  807.)  Also  an  elaborate  Senate 
discu-ssion.     (Sec.  463  of  this  volume.) 

^  Senate  case  of  Lucas  r.  Faulkner.     (Sec.  632  of  this  volume.) 

^  See  also  cases  of  Upton  (sec.  366  of  this  volume)  and  Pigott  (sec.  369  of  this  volume). 

*  Firstsession  Tenth  Congress,  Contested  Elections  in  Congress,  1789  to  1834,  p.  167.  Reports,  Xo.  1; 
Annals,  p.  870;  Journal,  p.  44.     Mr.  McCreerj-  had  already  taken  the  oath  without  question;  Journal,  p.  6. 

381 


382  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  414 

The  law  of  Maryland  (act  of  1802)  provided  that  Baltimore  town  and  county 
should  be  a  district  entitled  to  send  two  Representatives  in  Congress,  one  to  be  a 
resident  of  Baltimore  City  and  the  other  a  resident  of  Baltimore  County. 

At  the  election  the  poll  resulted,  6,164  votes  for  Nicholas  P.  Moore,  indisputably 
a  resident  of  Baltimore  County;  3,559  votes  for  William  McCreery,  whose  claim  to 
the  required  residence  in  Baltimore  City  is  questioned;  2,063  votes  for  Joshua  Bar- 
ney, indisputably  a  resident  in  Baltimore  City,  and  who  contests  the  seat  of  Mr. 
McCreery;  353  votes  for  John  Seat,  a  resident  of  Baltimore  City. 

The  committee  reported  the  conclusion  that  the  law  of  Maryland  prescribing 
the  quahfications  of  Members  was  unconstitutional,  and  therefore  reported  a  resolu- 
tion that  William  McCreery,  who  imquestionably  had  a  majority  of  votes  for  the 
Baltimore  City  seat,  was  entitled  to  the  seat.  The  committee  did  not  attempt  to 
ascertain  whether  or  not  Mr.  McCreery  had  the  residence  requirements  of  the  law  of 
Maryland. 

This  report  was  the  subject  of  exhaustive  debate  in  the  House,  lasting  horn 
November  12  to  19.' 

It  was  urged,  in  behalf  of  the  report,  that  the  qualifications  of  the  National 
Legislature  were  of  a  national  character  and  should  be  uniform  throughout  the 
nation  and  be  prescribed  exclusively  by  the  national  authority.  The  people  had 
delegated  no  authority  either  to  the  States  or  to  Congress  to  add  to  or  diminish  the 
qualifications  prescribed  by  the  Constitution.  In  denying  the  right  of  the  States  to 
add  qualifications,  the  Congress  was  only  protecting  the  rights  of  their  citizens 
against  encroachments  on  their  liberties  by  their  own  State  legislatures,  wliich  were 
corporate  bodies  not  acting  by  natural  right,  but  restrained  by  both  Federal  and 
State  constitutions.  The  reserved  power  of  the  States  could  operate  only  when, 
from  the  nature  of  the  case,  there  could  be  no  conflict  with  national  power. 
Congress  had  the  power  under  the  Constitution  to  collect  taxes.  From  the  nature 
of  the  case  the  same  power  was  reserved  to  the  States.  Congress  had  power  to 
"establish  post-offices  and  post-roads."  From  the  nature  of  the  case  the  States 
would  not  reserve  this  power.  In  the  same  way  the  States  could  not  reserve  a 
power  to  add  to  the  qualifications  of  Representatives.  If  they  could  do  tlus,  any 
sort  of  dangerous  qualification  might  be  established — of  property,  color,  creed,  or 
political  professions.  The  Constitution  prescribed  the  qualifications  of  President,  as 
it  did  of  Representatives.  Did  anyone  suppose  that  a  State  could  add  to  the 
qualifications  of  the  President?  In  the  case  of  Spaulding  i\  Mead,  the  House  had 
decided  that  a  State  law  could  not  render  void  returns  made  after  a  certain  time. 
Qualifications  for  Representatives  should  be  firm,  steady,  and  unalterable.  The 
National  Legislature  must  have  the  power  to  preserve  from  encroachment  the 
national  sovereignty.  A  part  of  the  Union  could  not  have  power  to  fix  the  quali- 
fications for  the  Members  of  the  Assembly  of  the  Union.  It  is  presumed  that 
written  documents  say  all  they  mean.  Had  the  makers  of  the  Constitution 
meant  that  there  might  be  other  qualifications,  they  would  have  said  so.  The 
people  had  a  natural  right  to  make  choice  of  their  Representatives,  and  that  right 
should  be  limited  only  by  a  convention  of  the  people,  not  by  a  legislature.     The 

'Annals,  pp.  870-950. 


§   414  THE    QUALIFICATIONS    OF    THE    MEMBER.  383 

powers  of  the  House  were  derived  from  the  people,  not  from  the  States.  The 
power  to  prescribe  qualifications  had  been  given  neither  to  Congress  nor  the  States. 
The  States  might  establish  districts,  but  they  might  not  prescribe  that  Represent- 
atives should  be  confined  to  the  districts.  The  Constitution  had  carefully  pre- 
scribed in  what  ways  the  States  might  interfere  in  the  elections  of  Congressmen. 
They  might  prescribe  the  "times,  places,  and  manner"  of  holding  elections,  reserv- 
ing to  Congress  the  right  to  "make  or  alter"  such  regulations.  Tliis  was  all  the 
Constitution  gave  to  the  States.  It  had  been  urged  that  the  language  of  the  clause 
prescribing  the  qualifications  was  negative,  but  so  also  was  the  language  of  the 
clause  prescribing  the  qualifications  of  the  President.  The  qualifications  of 
Representatives  did  not  come  within  the  range  of  powers  granted,  but  rather  were 
the  means  of  exercising  those  powers.  The  powers  reserved  to  the  States  were 
reserved  to  them  as  sovereignties,  but  the  cjualifications  of  the  Members  of  the 
House  of  Representatives  of  the  nation  never  belonged  to  those  sovereignties, 
but  flowed  from  the  people  of  the  United  States. 

It  was  urged  against  the  report  that  the  positive  qualifications  assumed  by  the 
Constitution  did  not  contain  a  negative  prohibition  of  the  right  of  the  States  to 
impose  other  qualifications.  The  State  by  annexing  the  provision  for  a  residence  in 
a  district  did  not  interfere  with  the  constitutional  requirement  of  residence  in  the 
State.  Whatever  rights  were  not  expressly  delegated  to  the  United  States  were 
reserved  to  the  States  themselves  or  to  the  people.  A  right  could  not  be  delegated 
absolutely  wliich  could  be  exercised  conjointly.  For  the  House  to  declare  a  long- 
existing  State  law  unconstitutional  would  be  a  dangerous  act.  In  prescribing  the 
qualifications  of  the  voters  the  Constitution  was  positive,  but  in  prescribing  the 
qualifications  of  the  Representatives  in  Congress  the  language  was  significantly 
negative.  The  Constitution  did  not  fix  the  qualifications;  it  simply  enumerated 
some  disqualifications  within  which  the  States  were  left  to  act.  The  power  contended 
for  by  Maryland  must  be  included  in  the  common  and  usual  powers  of  legislation, 
and  not  being  delegated  to  the  General  Government  must  reside  in  the  States. 
Because  the  House  was  constituted  the  judge  of  the  qualifications  of  its  Members, 
it  did  not  follow  that  it  could  constitute  or  enact  qualifications.  The  functions  were 
distinct.  No  harm  could  come  from  the  exercise  by  the  States  of  the  power  to 
prescribe  cjualifications,  since  the  power  would  be  used  with  discretion. 

In  the  course  of  the  debate  a  resolution  that  "William  McCreery  is  duly  elected 
according  to  the  laws  of  Maryland  and  is  entitled  to  his  seat  in  this  House"  was 
negatived  by  a  large  vote. 

Then  a  resolution  was  offered  declaring  that  neither  Congress  nor  the  State 
legislatures  could  add  to  or  take  away  from  the  qualifications  prescribed  by  the 
Constitution,  that  the  law  of  Maryland  was  void,  and  that  William  McCreery  was 
entitled  to  his  seat.  This  resolution  did  not  come  to  a  vote,  as  the  committee  rose 
after  it  was  offered,  and  on  the  next  day,  November  19,  the  House  discharged  the 
Committee  of  the  Whole  from  the  subject  and  recommitted  it  to  the  Committee  on 
Elections.' 

On  December  7  ^  the  committee  reported,  presenting  evidence  at  length  on  the 

'  Journal,  p.  36. 
2  Annals,  p.  1059. 


1 


384  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   415 

subject  of  Mr.  McCreery's  residence,  but  expressing  no  opinion  on  that  subject,  and 
recommending  the  adoption  of  the  following  resolution: 

Resolved,  That  William  McCreery,  having  the  greatest  number  of  votes,  and  being  duly  qualified 
agreeably  to  the  Constitution  of  the  United  States,  is  entitled  to  his  seat  in  this  House. 

On  December  23  this  resolution  was  debated  in  Committee  of  the  Whole,  where 
a  disinclination  to  come  to  a  decision  on  the  rights  of  the  States  was  manifest.  This 
finally  took  form  in  the  adoption  of  the  following  amendment,  offered  by  Mr.  Robert 
Marion,  of  South  Carolina : 

Strike  out  all  the  portion  relating  to  votes  and  qualifications,  so  that  the  resolution  reads  as  follows: 
Resolved,  That  William  McCreery  is  entitled  to  his  seat  in  this  House. 

The  Committee  of  the  Whole  agreed  to  this  amendment,  which,  being  reported 
to  the  House,  was  agreed  to  by  a  vote  of  yeas  70,  nays  37.  Both  Mr.  William  Findley, 
of  Pennsylvania,  who  had  supported  the  original  report,  and  Mr.  John  Randolph, 
of  Virginia,  who  had  made  the  main  argument  in  opposition,  voted  against  the 
amendment.' 

The  amendment  of  the  Committee  of  the  Whole  having  been  agreed  to,  Mr. 
John  Randolph,  of  Virginia,  moved  a  further  amendment  by  inserting  after  the 
word  McCreery  the  following: 

By  having  the  qualifications  prescribed  by  the  laws  of  Maryland. 

Mr.  Randolph  explained  that  he  wished  to  bring  the  constitutionality  of  the 
law  of  Maryland  before  the  House.  On  December  24  the  question  was  taken  on 
Mr.  Randolph's  amendment,  and  it  was  decided  in  the  negative — yeas  8,  navs  92. 

The  question  then  being  taken  on  the  adoption  of  the  resolution: 

Resolved,  That  WUliam  McCreery  is  entitled  to  his  seat  in  this  House. 

And  it  was  agreed  to — yeas  89,  nays  18. 

Mr.  Randolph  was  one  of  those  voting  nay.' 

415.  The  Illinois  cases  of  Turney  v.  Marshall  and  Fouke  v.  Trum- 
bull in  the  Thirty-fourth  Congress. 

In  1856  the  House  decided  that  a  State  might  not  add  to  the  quali- 
fications prescribed  by  the  Constitution  for  a  Member. 

The  governor  of  a  State  having  declined  to  issue  credentials  to  rival 
claimants,  the  House  seated  the  one  shown  prima  facie  by  official  state- 
ment to  have  a  majority  of  votes.     (Footnote.) 

An  instance  wherein  a  contest  was  maintained  against  a  Member- 
elect  who  had  not  and  did  not  take  the  seat. 

Discussion  of  the  three  constitutional  qualifications  as  exclusive  of 
others. 

In  1856  the  House  considered  and  decided  a  question  as  to  the  quali- 
fications of  a  Member  who  had  already  been  seated  on  his  prima  facie 
showing. 


'  Journal,  p.  91;  Annals,  p.  1231. 

-  Journal,  pp.  93-95;  Annals,  p.  1238. 


§  415  THE  QUALIFICATIONS  OF  THE  MEMBER.  385 

On  June  24,  1856/  Mr.  John  A.  Bingham,  of  Ohio,  from  the  Committee  on  Elec- 
tions, reported  in  the  two  Ilhnois  contested  election  cases  of  Turney  t'.  Marshall 
and  Fouke  v.  Trumbull.  Each  of  these  cases  arose  out  of  the  following  clause  in 
the  constitution  of  Illinois: 

The  judges  of  the  supreme  and  circuit  courts  shall  not  be  eligible  to  any  other  office  or  public  trust 
of  profit  in  this  State,  or  the  United  States,  during  the  term  for  which  they  are  elected,  nor  for  one  year 
thereafter.  All  votes  for  either  of  them,  for  any  elective  office  (except  that  of  judge  of  the  supreme  or 
circuit  court),  given  by  the  general  assembly  or  the  people,  shall  be  void. 

Both  Messrs.  Marshall  and  Trumbull  were  indisputably  under  tliis  disqualifica- 
tion, and  the  contestants  claimed  the  seats  on  the  ground  that  the  votes  cast  for 
them  "were  null  and  void." 

Thus  was  presented  the  question  whether  a  State  might  superadd  to  the  quali- 
fications prescribed  by  the  Constitution  of  the  United  States  for  a  Representative  in 
Congress. 

After  quoting  Chancellor  Kent's  saying  "the  objections  to  the  existence  of  any 
such  power  appear  to  me  too  palpable  and  weighty  to  admit  of  any  discussion," 
the  report  proceeds: 

And  Mr.  Justice  Story,  upon  the  same  question,  says  that  "the  States  can  exercise  no  powers 
whatsoever,  which  exclusively  spring  out  of  the  existence  of  the  National  Government,  which  the 
Constitution  does  not  delegate  to  them.  They  have  just  as  much  right,  and  no  more,  to  prescribe 
new  qualifications  for  a  Representative  as  they  have  for  a  President.  Each  is  an  officer  of  the  Union, 
deriving  his  powers  and  qualifications  from  the  Constitution,  and  neither  created  by,  dependent  upon, 
nor  controllable  by  the  States.  It  is  no  original  prerogative  of  State  power  to  appoint  a  Represen- 
tative, or  Senator,  or  President  for  the  Union.     (Story's  Commentaries,  vol.  ii,  page  101.) 

The  second  section  of  the  first  article  of  the  Constitution  of  the  United  States  provides  that  the 
people  of  the  several  States  shall  choose  their  Representatives  in  Congress  every  second  year,  and 
prescribes  the  qualifications  both  of  the  electors  and  the  Representatives. 

The  qualification  of  electors  is  as  follows: 

"The  electors  in  each  State"  (who  shall  choose  Representatives  in  Congress)  "shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch  of  the  State  legislature." 

The  qualifications  of  a  Representative,  under  the  Constitution,  are  that  he  shall  have  attained 
the  age  of  25  years,  shall  have  been  seven  years  a  citizen  of  the  United  States,  and,  when  elected,  an 
inhabitant  of  the  State  in  which  he  shall  be  chosen.  It  is  a  fair  presumption  that,  when  the  Constitution 
prescribes  these  qualifications  as  necessary  to  a  Representative  in  Congress,  it  was  meant  to  exclude 
all  others.  And  to  your  committee  it  is  equally  clear  that  a  State  of  the  Union  has  not  the  power  to 
superadd  qualifications  to  those  prescribed  by  the  Constitution  for  Representatives,  to  take  away  from 
"the  people  of  the  several  States"  the  right  given  them  by  the  Constitution  to  choose,  "every  second 
year,"  as  their  Representative  in  Congress,  any  person  who  has  the  required  age,  citizenship,  and 
residence.  To  admit  such  a  power  in  any  State  is  to  admit  the  power  of  the  States,  by  a  legislative 
enactment,  or  a  constitutional  provision,  to  prevent  altogether  the  choice  of  a  Representative  by  the 
people.  The  assertion  of  such  a  power  by  a  State  is  inconsistent  with  the  supremacy  of  the  Consti- 
tution of  the  United  States,  and  makes  void  the  provision  that  that  Constitution  "shall  be  the  supreme 
law  of  the  land,"  anj'thing  in  the  constitution  or  laws  of  any  State  to  the  contrary  notwithstanding. 

Your  committee  submit  that  the  position  assumed  by  those  who  claim  for  the  States  this  power, 
that  its  exercise  in  nowise  conflicts  with  the  Constitution,  or  the  right  of  the  people  under  it  to  choose 
any  person  having  the  qualifications  therein  prescribed,  has  no  foundation  in  fact. 


'  First  session  Thirty-fourth  Congress,  I  Bartlett,  p.  166;  RoweU'e  Digest,  p.  141;  House  Report 
Xo.  194. 

5994— VOL  1—07 25 


386  PRECEDENTS  OF  THE  HOUSE  OF  KEPRESENTATIVES.         §  415 

By  the  Constitution  the  people  have  a  right  to  choose  as  Representative  any  person  having  only 
the  qualifications  therein  mentioned,  without  superadding  thereto  any  additional  qualifications  what- 
ever. A  power  to  add  new  qualifications  is  certainly  equivalent  to  a  power  to  vary  or  change  them. 
An  additional  qualification  imposed  by  State  authority  would  necessarily  disqualify  any  person  who 
had  only  the  qualifications  prescribed  by  the  Federal  Constitution. 

Your  committee  can  not  assent  to  the  averment  of  the  memorialist,  Mr.  Fouke,  that  "the  question 
presented  is  not  one  of  qualification  of  a  Member  of  Congress  arising  under  the  Constitution  of  the 
United  States,  but  a  question  of  election  arising  under  the  constitution  and  laws  of  the  State  of  Illinois." 

It  is  not  intimated  either  by  the  memorialist,  or  any  one  else,  that  the  persons  who  voted  at  said 
election  in  said  several  districts  were  not  qualified  electors  and  legally  entitled  to  vote,  nor  is  it  inti- 
mated that  said  election  was  not  conducted  in  all  respects  as  required  liy  law.  In  short,  the  only 
point  made  by  the  memorialist  is  that  Mr.  Marshall,  who  received  a  large  majority  of  all  the  votes  cast 
in  said  Ninth  district,  and  Mr.  Trumbull,  who  received  a  large  majority  of  all  the  votes  cast  in  the  said 
Eighth  district,  were  each  of  them  ineligible  to  a  seat  in  Congress,  not  because  either  of  them  lacked 
any  qualification  prescribed  by  the  Constitution  of  the  United  States,  but  because  each  of  them  was 
disqualified  by  operation  of  the  provisions  of  the  constitution  of  the  State  of  Illinois.  If  the  respective 
terms  for  which  those  two  gentlemen  had  been  elected  judges  of  the  said  State  had  expired  more  than 
one  year  before  the  7th  of  November,  1854,  we  would  have  had  no  intimation  that  the  votes  cast  for 
each  of  them  were  in  contemplation  of  law  no  votes;  their  election  would,  under  these  circimistances, 
have  been  conceded,  because  they  would  have  been  acknowledged  as  not  disqualified  to  hold  the 
office  under  and  by  virtue  of  the  constitution  of  the  State  of  Illinois.  If  the  State  of  Illinois  may  thus 
disqualify  any  class  of  persons  possessing  all  the  qualifications  required  by  the  Federal  Constitution  for 
a  Representative  in  Congress  for  a  period  of  ten  years,  and  another  class  for  a  period  of  five  years,  what 
is  there  to  restrain  that  State  from  imposing  like  disabilities  upon  all  citizens  of  the  United  States  residing 
within  her  territory,  and  thus  take  away  from  the  people  the  right  to  choose  Representatives  in  Con- 
gress every  second  year,  declaring,  in  effect,  that  only  every  fifth  or  tenth  year  shall  the  people  choose 
their  Representatives?  It  is  no  answer  to  say  that  these  disabilities  are  self-imposed  by  the  majority 
of  the  people  of  the  State.  The  majority  of  the  people  within  the  several  States  have  not  the  power 
to  impair  the  rights  of  the  minority  guaranteed  by  the  Constitution  of  the  United  States  and  exer- 
cised under  its  authority. 

By  the  plain  letter  of  the  Constitution  Congress  may  prescribe  the  time,  place,  and  manner  of 
holding  elections  for  Representatives,  and  at  such  time  and  place,  and  in  the  manner  thus  prescribed — 
every  second  year — the  people  of  each  State  may  choose  as  Representative  in  Congress  any  person 
having  the  qualifications  enumerated  in  that  Constitution.  The  power  attempted  to  be  asserted  by 
the  State  of  Illinois  in  the  cases  before  us  is  in  direct  contravention  of  the  letter,  as  also  of  the  spirit, 
true  intent,  and  meaning  of  these  provisions  of  the  Federal  Constitution,  and  absolutely  subversive 
of  the  rights  of  the  people  under  that  Constitution.  Your  committee,  therefore,  conclude  that  the 
said  tenth  section  of  the  fifth  article  of  the  constitution  of  the  State  of  Illinois  is  inoperative  in  the 
premises;  that  the  said  Trumbull  and  Marshall  were  each  eligible  to  the  office  of  Representative  in 
Congress  at  the  time  of  said  election,  it  being  conceded  that  on  that  day  they  possessed  all  the  qual- 
ifications for  that  office  required  under  the  Constitution  of  the  United  States;  and  that  the  votes  given 
to  each  of  them  were  not  void,  as  alleged,  because  they  were  given  by  electors  having  the  qualifications 
prescribed  by  the  Constitution  of  the  United  States,  and  at  the  time  and  place  and  in  the  manner 
prescribed  by  law. 

On  April  7  and  April  10*  the  report  was  debated  in  the  House.  Mr.  Trumbull 
had  never  taken  his  seat  in  the  House,  having  been  elected  to  the  Senate.  So  in 
the  contest  in  his  case,  the  committee  tested  the  question  before  the  House  with 
the  following  resolution: 

Resolved,  That  the  Hon.  P.  B.  Fouke,  who  has  presented  to  this  House  his  memorial  claiming  to 
represent  the  Eighth  district  of  Illinois  in  the  Thirty-fourth  Congress,  was  not  duly  elected  as  claimed 
by  him,  and  is  not  entitled  to  a  seat  in  this  House,  and  that  said  seat  is  vacant. 

This  resolution  was  agreed  to — yeas  135,  nays  5. 

■Journal,  pp.  805-808;  Globe,  pp.  829,  864. 


§  416  THE  QUALIFICATIONS  OF  THE  MEMBER.  387 

Then  a  resolution  declaring  that  Mr.  Tumey  was  not  elected  and  that  Samuel  S. 
Marshall/  the  sitting  Member,  was  entitled  to  the  seat,  was  agreed  to  without 
division. 

416.  In  1856  the  Senate  decided  that  a  State  might  not  add  to  the 
qualifications  prescribed  by  the  Constitution  for  a  Senator. 

In  the  Senate  in  1856  a  Senator-elect  was  sworn  on  his  prima  facie 
right,  although  his  qualifications  were  questioned. 

In  1856  the  Senate  considered  and  decided  a  question  as  to  the  quali- 
fications of  a  Member  who  had  already  been  seated  on  his  prima  facie 
showing. 

On  Februar}-  27,  1856,^  the  Senate  Judiciary  Committee  reported  on  the  right 
of  Mr.  Lyman  Trumbull,  of  Illinois,  to  a  seat  in  the  Senate.  A  provision  of  the 
constitution  of  Illinois  provided  that  certain  judges  of  that  State  should  not  be 
eligible  to  any  other  office  of  the  State  or  United  States  during  the  term  for  which 
they  were  elected  nor  for  one  year  thereafter.  Mr.  Trumbull  had  been  a  judge  and 
came  within  the  prohibitions  of  the  constitution.  Hence  a  question  arose  as  to 
the  effect  of  qualifications  imposed  by  a  State  in  addition  to  the  qualifications 
imposed  by  the  Constitution. 

On  December  3,  1855,^  when  Mr.  Trumbull  appeared  to  take  the  oath,  a  protest 
reciting  the  facts  was  filed,  but  no  objection  was  offered  to  his  taking  the  oath, 
which  he  accordingly  did. 

On  February  20  and  27,^  and  March  3  and  5,^  1856,  the  question  was  debated 
at  length,  and  on  the  latter  day,  by  a  vote  of  yeas  35,  nays  8,  Mr.  Trumbiill  was 
declared  entitled  to  the  seat. 

417.  The  Kansas  election  case  of  Wood  v.  Peters  in  the  Forty-eighth 
Congress. 

In  1884  the  House  reaffirmed  its  position  that  a  State  may  not  add  to 
the  qualifications  prescribed  by  the  Constitution  for  a  Member. 

Discussion  as  to  whether  or  not  a  Member  is  an  officer  of  the  Govern- 
ment. 

On  March  18,  1884,"  Mr.  Mortimer  F.  Elliott,  of  Pennsylvania,  from  the  Com- 
mittee on  Elections,  presented  the  report  of  the  majority  of  the  committee  in  the 
Kansas  case  of  Wood  v.  Peters. 

The  sitting  Member  had  received,  on  the  general  ticket,  99,866  votes,  and 
contestant  83,364.  The  contestant  claimed  the  seat  on  the  sole  ground  that  Mr. 
Peters  was  ineligible  at  the  time  he  was  voted  for. 

'  The  Journal  and  Globe  show  that  Mr.  Marshall's  name  was  on  the  roll  when  the  House  first  met, 
and  that  on  February  4,  after  the  Speaker  was  finally  chosen,  he  was  sworn  in  without  objection.     (Joiu-- 
I  nal,  pp.  7,  448;  Globe,  pp.  2,  353.)    But  from  the  debate  (Mr.  Orr's  speech,  Globe,  p.  831)  it  appears 

that  the  governor  of  Illinois  had  declined  to  issue  credentials  to  any  of  the  four,  but  sent  them  all  with  a 
statement  of  facts.     Mr.  Marshall  was  seated  on  his  prima  facie  showing  of  a  majority  of  votes.     For  a 
copy  of  governor's  statement,  which  was  really  a  duly  authenticated  certificate,  see  Globe,  page  865. 
^  First  session  Thirty-fourth  Congress,  1  Bartlett,  p.  618. 
I  'Globe,  p.  1. 

I  *  Globe,  pp.  466,  514. 

'  Globe,  pp.  547-552,  579-584. 

'First  session  Forty-eighth  Congress,  House  Report  No.  794;  Mobley,  p.  79. 


388  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   417 

The  constitution  of  Kansas  provided  that  judges  of  the  supreme  and  district 
courts  of  the  State  should  not  ' '  hold  any  office  of  profit  or  trust  under  the  authority 
of  the  State  or  the  United  States  during  the  term  of  office  for  which  said  justices 
or  judges  shall  be  elected." 

It  was  conceded  that  Mr.  Peters  came  within  this  prohibition,  and  the 
majority  say: 

It  is  clear  that  Peters  falls  within  the  inhibition  of  the  constitution  of  Kansas,  and  if  a  State 
possesses  the  power  to  add  to  the  qualifications  prescribed  by  the  Constitution  of  the  United  States  for 
Representatives  in  Congress,  then  he  was  ineligible  at  the  time  he  was  voted  for,  and  is  not  entitled 
to  a  seat  in  this  House. 

Article  I,  section  2,  of  the  Constitution  of  the  United  States  provides  that — 

"No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of  25  years  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  the 
State  in  which  he  shall  be  chosen." 

The  Constitution,  by  prescribing  certain  qualifications  enumerated  in  the  section  just  quoted, 
according  to  a  well-settled  rule  of  construction,  excludes  all  others. 

The  States  have  no  power  to  superadd  other  qualifications,  for  the  reason  that  such  power  can 
not,  in  the  nature  of  things,  be  found  among  the  reserved  rights  of  the  States,  and  no  such  power 
is  delegated  to  them  by  the  Federal  Constitution. 

Congress  is  the  creature  of  the  Constitution  of  the  United  States,  and  the  right  of  the  people  of 
the  several  States  to  representation  therein  is  derived  wholly  from  that  instrument,  and  the  States  could 
not  have  reserved  the  right  to  prescribe  qualifications  of  Members  of  Congress,  when  the  right  to  elect 
them  at  all  grew  out  of  the  formation  of  the  National  Government. 

The  question  involved  in  this  contest  is  not  a  new  one.  It  has  been  too  well  settled  to  require 
further  elaboration,  and  the  committee  will  content  themselves  with  a  reference  to  a  few  of  the  author- 
ities on  the  subject: 

"Now,  it  may  properly  be  asked,  where  did  the  State  get  the  power  to  appoint  Representatives 
in  the  National  Government?  Was  it  a  power  that  existed  at  all  before  the  Constitution  was  adopted? 
If  derived  from  the  Constitution,  must  it  not  be  derived  exactly  under  the  qualifications  established 
by  the  Constitution,  and  none  others?  If  the  Constitution  has  delegated  no  power  to  the  States  to  add 
new  qualifications,  how  can  they  claim  any  such  power  by  the  mere  adoption  of  that  instrument,  which 
they  did  not  before  possess? 

"The  truth  is  that  the  States  can  exercise  no  powers  whatsoever,  which  exclusively  spring  out  of 
the  existence  of  the  National  Government,  which  the  Constitution  does  not  delegate  to  them.  They 
have  just  as  much  right,  and  no  more,  to  prescribe  new  qualifications  for  a  Representative  as  they  have 
for  a  President.  Each  is  an  officer  of  the  Union,  deriving  his  powers  and  qualifications  from  the  Con- 
stitution, and  neither  created  by,  dependent  upon,  nor  controllable  by  the  States.  It  is  no  original 
prerogative  of  State  power  to  appoint  a  Representative,  a  Senator,  or  President  for  the  Union.  (Story 
on  the  Constitution,  vol.  1,  sees.  626  and  627.) 

"  The  question  whether  the  individual  States  can  superadd  to  or  vary  the  qualifications  prescribed 
to  the  Representative  by  the  Constitution  of  the  United  States  is  examined  in  Mr.  Justice  Story's 
Commentaries  on  the  Constitution,  volume  1,  pages  99  to  103,  but  the  objections  to  the  existence 
of  any  such  power  appears  to  me  to  be  too  palpable  and  weighty  to  admit  of  any  discussion.  (1  Kent's 
Commentaries,  p.  228,  note  F.)" 

To  same  effect,  Paschal's  Annotated  Constitution,  page  305. 

The  precise  question  presented  in  this  case  was  determined  by  this  House  in  the  cases  of  Tumey 
V.  Marshall,  and  Fouke  v.  Trumbull,  of  Illinois.  (Bartlett's  Contested  Election  Cases  from  1834  to 
1865,  p.  167.) 

The  tenth  section  of  the  fifth  article  of  the  constitution  of  the  State  of  Illinois,  which  was  adopted 
on  the  6th  day  of  March,  1848,  is  in  the  words  following: 

"The  judges  of  the  supreme  and  circuit  courts  shall  not  be  eligible  to  any  other  office  or  public 
trust  of  profit  in  this  State  or  the  United  States  during  the  term  for  which  they  were  elected,  nor  for 
one  year  thereafter.  All  votes  for  either  of  them  for  any  elective  office  (except  that  of  judge  of  the 
supreme  or  circuit  courts),  given  by  the  general  assembly  or  the  people,  shall  be  void." 


§   418  THE    QUALIFICATIONS    OF    THE    MEMBER.  389 

Marshall  and  Trumbull  had  been  judges  of  Illinois,  and  at  the  time  they  were  elected  Members 
of  Congress  were  clearly  within  the  prohibitory  provisions  of  the  constitution  of  that  State. 

The  Committee  on  Elections,  in  their  report  to  the  House  on  these  cases,  state  the  questions  to 
be  determined  as  follows: 

'This  presents  the  question  whether  a  State  may  superadd  to  the  qualifications  prescribed  to 
the  Representative  in  Congress  by  the  Constitution  of  the  United  States." 

The  committee  reached  the  conclusion  that  a  State  could  not  add  to  the  qualifications  prescribed 
by  the  Constitution  of  the  United  States,  and  reported  that  Trumbull  and  JIarshall  were  entitled  to 
their  seats.     The  report  of  the  committee  was  sustained  by  the  House  by  a  decisive  vote. 

Trumbull's  case,  determined  by  the  United  States  Senate  in  1856,  is  also  directly  in  point. 
(Election  Cases  from  1834  to  1865,  p.  618.) 

The  authorities  cited  place  the  question  involved  in  this  case  beyond  the  realm  of  doubt.  It  is 
very  clear  that  S.  R.  Peters  was  duly  elected  a  Member  of  the  Forty-eighth  Congress  from  the  State 
of  Kansas  at  large,  and  that  he  possessed  all  the  qualifications  requisite  to  entitle  him  to  take  his  seat. 

The  committee,  therefore,  submit  the  following  resolution  and  recommend  its  adoption; 

Resolved,  That  S.  R.  Peters  was  duly  elected  a  Member  of  Congress  from  the  State  of  Kansas,  and 
is  entitled  to  his  seat. 

Mr.  R.  T.  Bennett,  of  North  Carolina,  filed  minority  views  ia  which  he  argued 
at  length,  with  an  abimdant  citation  of  precedents,  and  an  elaborate  review  of  the 
Constitution,  that  the  State  had  the  right  to  prescribe  the  additional  qualification. 
He  also  argued  that  Senators  and  Representatives  were  not  "ofBcers"  of  the 
General  Government. 

Assuming  that  Mr.  Peters  was  disqualified,  he  next  argued  elaborately,  with 
a  review  of  precedents,  that  the  minority  candidate  was  entitled  to  be  seated. 
ThLs  argument  was  replied  to  by  Mr.  Elliott  in  the  course  of  the  debate.' 

The  minority  proposed  resolutions  declaring  Mr.  Peters  ineligible,  and  seating 
Mr.  Wood. 

The  report  was  debated  April  23,-  and  on  that  day  the  minority  proposition 
declaring  ^Ir.  Peters  ineligible  was  disagreed  to;  ayes  20;  noes  106.  The  next 
proposition  declaring  Mr.  Wood  entitled  to  the  seat  was  disagreed  to. 

Then  the  majority  resolution  confirming  the  title  of  Mr.  Peters  was  agreed  to 
without  division. 

418.  A  Member-elect  whose  credentials  were  in  due  form,  but  whose 
age  was  not  sufficient  to  meet  the  constitutional  requirement,  was  not 
enrolled  by  the  Clerk. 

A  Member-elect  not  being  of  the  required  age,  the  taking  of  the  oath 
was  deferred  until  he  was  qualified. 

On  December  5,  1859,^  among  the  Members-elect  appearing  with  credentials 
was  Mr.  John  Young  Brown,  of  Kentucky.  His  name  appears  in  the  list  of  Members- 
elect  in  the  Congressional  Globe  of  that  date,  but  does  not  appear  in  the  Joimial  on 
the  roll  of  Members-elect  called  by  the  Clerk. 

In  this  Congress  there  was  a  contest  for  Speaker  lasting  from  December  5,  1859, 
until  February  1,  1860,  when,  on  the  forty-fourth  vote,  a  Speaker  was  elected.  Mr. 
Brown  does  not  appear  among  those  voting  in  this  contest,  nor  was  he  sworn  in  on 

'  Record,  p.  3298. 

2  Record,  pp.  3296-3303;  Appendix,  p.  75;  Journal,  pp.  1115-1117. 

'First  session  Thirty-sixth  Congress,  Journal,  p.  7;  Globe,  p.  2. 


390  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   419 

February  1  /  when  the  oath  was  administered  to  the  Members  of  the  House  by  the 
Speaker. 

At  the  beginning  of  the  next  session,  on  December  3,  1860/  Mr.  Brown  was 
sworn  in. 

No  explanation  was  given  on  any  of  the  above  dates  of  the  delay  of  Mr.  Brown 
in  taking  the  oath. 

The  reason  for  the  delay  appears  incidentally  in  a  debate  on  June  18,  I860,' 
when  !Mr.  John  W.  Stevenson,  of  Kentucky,  explained  that  Mr.  Brown  was  under 
the  constitutional  age,  and  had  not  been  sworn  in,  although  the  State  authorities 
of  Kentucky  had  Issued  a  certificate  to  him.^ 

419.  The  Constitution  defines  what  shall  constitute  citizenship  of 
the  United  States  and  of  the  several  States. — Section  1  of  Article  XIV  of  the 
Constitution  provides : 

Section  1.  All  persons  bom  or  naturalized  in  the  United  States,  and  subject  to  the  jiu-isdiction 
thereof,  are  citizens  of  the  United  States  and  of  the  State  wherein  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without  due  process  of  law;  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws.* 

420.  The  South  Carolina  case  of  William  Smith,  the  first  election  case 
in  the  First  Congress. 

A  native  of  South  Carolina,  who  had  been  abroad  during  the  Revolu- 
tion and  on  his  return  had  not  resided  in  the  country  seven  years,  was 
held  to  be  qualified  as  a  citizen. 

The  House  decided  a  Member-elect  entitled  to  a  seat  on  his  prima  facie 
right,  although  knowing  that  his  qualifications  were  under  examination. 

In  the  first  election  case  the  Committee  on  Elections  were  directed  to 
take  proofs,  but  not  to  present  any  opinion  thereon. 

A  Member  whose  qualifications  were  questioned  was  permitted  to  be 
present  before  the  committee,  cross-examine,  and  offer  counter  proofs. 

Instance  of  an  inquiry  as  to  a  Member-elect's  qualifications  instituted 
by  petition. 

As  to  whether  or  not  a  disqualified  Member  who  has  taken  the  oath 
may  be  excluded  by  a  majority  vote. 

As  to  the  effect  of  absence  from  the  country  on  the  question  of  citi- 
zenship. 

The  First  Congress  assembled  on  March  4,  1789,  and  a  quorum  not  being 
present  the  House  met  and  adjourned  daily  until  April  1,  when  a  quorum  appeared 

'Journal,  p.  166;  Globe,  p.  655. 

^Second  session  Thirty-sixth  Congress,  Journal,  p.  7;  Globe,  p.  2. 

^  First  session,  Thirty-sixth  Congress,  Globe,  p.  3125. 

*  William  C.  C.  Claiborne,  of  Tennessee,  said  to  have  been  born  in  1775,  took  his  seat  in  the  House 
on  November  23,  1797,  without  question,  although  if  the  date  of  his  birth  is  correct  he  was  only  22  years 
of  age.     (Second  session  Fifth  Congress,  Journal,  p.  84;  Vol.  IV,  New  International  Encyclopaedia. ) 

'This  portion  of  the  Constitution  was  declared  ratified  July  21,  1868. 


§  420  THE  QUALIFICATIONS  OF  THE  MEMBER.  391 

and  a  Speaker  was  elected.  On  April  13'  Mr.  William  Smith,  of  South  Carolina, 
appeared  and  took  his  seat.  On  April  15-  a  petition  of  David  Ramsay,  of  the 
State  of  South  Carolina,  was  presented  to  the  House  and  read,  setting  forth  that 
Mr.  Smith  was  at  the  time  of  his  election  inehgible  and  came  witliin  the  disquali- 
fication of  the  third  paragraph  of  the  Constitution,  which  declared  that  no  person 
should  be  a  Representative  who  should  not  have  been  seven  years  a  citizen  of  the 
United  States.^  This  petition  was  referred  to  the  Committee  on  Elections  with 
instructions  to  report  "a  proper  mode  of  investigating  and  deciding  thereupon." 
This  Elections  Committee,  which  had  already  been  chosen,  consisted  of  Messrs. 
George  Clymer,  of  Pennsylvania;  Fisher  Ames,  of  Massachusetts;  Egbert  Benson, 
of  New  York;  Daniel  Carroll,  of  Maryland;  Alexander  White,  of  Virginia;  Ben- 
jamin Huntington,  of  Connecticut;   and  Nicholas  Oilman,  of  New  Hampshire. 

On  April  IS,*  in  accordance  with  a  usage  then  established  and  continued  in 
several  Congresses,  the  Committee  on  Elections  reported  a  list  of  the  Members 
whose  credentials  were  "sufficient  to  entitle  them  to  take  seats  in  this  House,"  and 
the  House  agreed  to  the  report.  The  name  of  WilUam  Smith,  of  South  Carolina, 
was  on  this  list. 

On  the  same  day,  and  very  soon  thereafter,  the  Committee  on  Elections  reported 
as  to  the  case  of  Mr.  Smith,  the  report,  after  amendment  by  the  House,  being  as 
follows : 

That  in  this  case  it  will  be  sufficient,  in  the  first  instance,  that  a  committee  take  such  proofs  as  can 
be  obtained  in  this  city  respecting  the  facts  stated  in  the  petition,  and  report  the  same  to  the  House; 
that  Mr.  Smith  be  permitted  to  be  present  from  time  to  time  when  such  proofs  are  taken  to  examine  the 
witnesses,  and  to  offer  counter  proofs,  which  shall  also  be  received  by  the  committee  and  reported  to 
the  House;  that  if  the  proofs,  so  to  be  reported,  shall  be  declared  by  the  House  insufficient  to  verify  the 
material  facts  stated  in  the  petition,  or  such  other  facts  as  the  House  shall  deem  proper  to  be  inquired 
into,  it  will  then  be  necessary  for  the  House  to  direct  a  further  inquiry,  especially  the  procuring  what- 
ever additional  testimony  may  be  supposed  to  be  in  South  Carolina,  as  the  case  may  require;  that  all 
questions  arising  on  the  proofs  be  decided  by  this  House,  without  any  previous  opinion  thereon  reported 
by  a  committee. 

The  report  having  been  considered  on  April  29,  and  amended  by  the  House  to 
read  as  above  shown  ,^  it  was — 

Resolved,  That  this  House  doth  agree  to  the  said  report,  and  that  it  be  an  instruction  to  the  Com- 
mittee of  Elections  to  proceed  accordingly. 

On  May  16°  a  yea-and-nay  vote  occurred  in  the  House  and  Mr.  Smith  is 
recorded  as  voting,  showing  conclusively  that  he  had  taken  the  oath  while  the 
question  as  to  his  qualifications  was  pending. 

'  First  session  First  Congress,  Journal,  p.  12.  It  is  a  fair  presumption  that  Mr.  Smith  took  the  oath 
when  he  took  his  seat,  as  on  April  6  the  House  had  agreed  on  a  form  of  oath  which  was  on  April  8  admin- 
istered to  those  present.  Other  Members  came  in  and  took  seats  after  that,  and  undoubtedly  took  the 
oath.     The  record  of  Mr.  Smith's  appearance  is  the  same  as  that  of  others. 

-Journal,  p.  14. 

"  See  section  413  of  this  chapter. 

*  Journal,  pp.  16,  17,  23. 

'Journal,  p.  23;  Annals,  p.  232;  American  State  Papers  (miscellaneous),  p.  1.  The  amendments 
made  by  the  House  are  not  specified. 

"  Journal,  p.  37. 


392  PRECEDENTS    OF    THE    HOUSE    OP    REPRESENTATIVES.  §   "120 

On  May  12 '  the  committee  submitted  their  report,  which  was  taken  up  for 
consideration  on  May  21.     The  report^  stated: 

That  Mr.  Smith  appeared  before  them,  and  admitted  that  he  had  subscribed,  and  had  caused  to  be 
printed  in  the  State  Gazette  of  South  Carolina,  of  the  24th  of  November  last,  the  publication  which 
accompanies  this  report,  and  to  which  the  petitioner  doth  refer  as  proof  of  the  facts  stated  in  his  petition; 
that  Mr.  Smith  also  admitted  that  his  father  departed  this  life  in  the  year  1770,  about  five  months  afte-- 
he  sent  him  to  Great  Britain;  that  his  mother  departed  this  life  about  the  year  1760,  and  that  he  was 
admitted  to  the  bar  of  the  supreme  court  in  South  Carolina  in  the  month  of  January,  1784. 

The  committee  also  submitted  certain  counter  proofs,  mostly  copies  of  acts  of 
South  Carolina. 

On  May  21  and  22^  the  House  considered  the  report,  and  in  the  debate  the 
following  facts  were  stated  and  admitted: 

That  Mr.  Smith  was  born  in  South  Carolina,  of  parents  whose  ancestors  were  the  first  settlers  of  the 
colony,  and  was  sent  to  England  for  his  education  when  about  12  years  of  age.  In  1774  he  was  sent  to 
Geneva  to  pursue  his  studies,  where  he  resided  until  1778.  In  the  beginning  of  that  year  he  went  to 
Paris,  and  resided  two  months  as  an  American  gentleman;  was  received  in  that  character  by  Doctor 
Franklin,  Mr.  Adams,  and  Mr.  Arthur  Lee,  the  American  commissioners  to  the  Court  of  France.  In 
January,  1779,  he  left  Paris  for  London,  to  procure  from  the  guardian  appointed  by  his  father  the  means  of 
his  return  to  America.  He  was  disappointed,  however,  of  the  expected  aid,  and  was  obliged  to  remain 
in  England  till  he  could  get  remittances  from  Charleston.  In  the  interval  the  State  of  South  Carolina 
fell  into  the  hands  of  the  enemy,  and  this  rendered  it  impossible  at  that  time  to  return.  He  remained 
in  England,  and  embraced  the  opportunity  to  acquire  a  knowledge  of  the  English  law,  but  could  not 
be  admitted  to  the  practice  of  it  because  he  had  not  taken  the  oath  of  allegiance  to  Great  Britain, 
which  is  a  necessary  qualification.  Having  obtained  the  necessary  funds,  he  left  London  in  October 
or  November,  1782,  with  a  view  of  returning  to  America,  but  avoided  taking  passage  for  Charleston, 
because  it  was  then  in  possession  of  the  British,  but  traveled  over  to  Ostend,  and  there  embarked  in  a 
neutral  vessel  for  St.  Kitts,  with  the  intention  of  receiving  the  first  opportunity  of  reaching  the  American 
camp.  In  January  he  sailed  from  Ostend,  but  was  shipwrecked  on  the  coast  of  England  and  obliged 
to  return  to  London  in  order  to  procure  another  passage,  and  was  thus  prevented  from  reaching  the 
United  States  till  1783.  That  on  his  arrival  in  Charleston  he  was  received  by  his  countr>TQen  as  a 
citizen  of  the  State  of  South  Carolina,  and  elected  by  their  free  suffrages  a  member  of  the  legislature,  and 
was  subsequently  elected  to  several  honorable  posts,  and  finally,  in  1788,  to  the  seat  in  Congress,  which 
is  the  subject  of  this  contest. 

The  constitution  of  South  Carolina  was  silent  as  to  citizenship;  but  certain 
laws  had  from  time  to  time  been  passed,  both  with  regard  to  those  absent  from  the 
country  for  purposes  of  education  and  with  regard  to  aliens.  The  constitution  also 
prescribed  certain  qualifications  of  residence  for  those  holding  certain  offices. 

It  was  shown  that  in  Mr.  Smith's  public  career  in  his  owti  State  it  had  uni- 
formly been  assumed  that  he  was  a  citizen  of  the  State  during  the  time  he  resided 
abroad;  and  no  questions  were  raised,  although  he  was  disqualified  for  some  of  those 
positions  under  the  law,  if  it  was  to  be  assumed  that  he  was  not  a  citizn  while  abroad. 

After  debate,  the  House,  on  May  22,  1789,^  agreed  to  the  following  resolution 
by  a  vote  of  36  yeas  to  1  nay: 

Resolved,  That  it  appears  to  this  House,  upon  mature  consideration,  that  William  Smith  had  been 
Beven  years  a  citizen  of  the  United  States  at  the  time  cf  his  election. 

1  Journal,  pp.  33,  39. 

^Journal,  p.  33;  American  State  Papers  (miscellaneous),  p.  8. 

3  Journal,  pp.  39,  40;  Annals,  pp.  397^08. 

■•Journal,  p.  39. 


§  -iSl  THE    QUALIFICATIONS    OF   THE    MEMBER.  393 

It  does  not  appear  that  any  question  was  raised  in  the  debate  as  to  the  right 
of  the  House  to  decide  by  majority  vote  on  the  title  of  a  Member  to  his  seat  should  he 
be  found  disqualified. 

421.  The  Michigan  election  case  of  Biddle  v.  Richard  in  the  Eight- 
eenth Congress. 

An  alien  naturalized  by  a  State  court  not  expressly  empowered  by  the 
United  States  Statutes  so  to  do  was  yet  held  to  be  qualified  as  a  citizen. 

A  person  who  had  resided  in  a  Territory  one  year  as  a  person,  but  not 
as  a  citizen,  was  held  to  be  qualified  as  a  Delegate  under  the  law  requir- 
ing a  residence  of  one  year. 

A  discussion  as  to  whether  or  not  a  Delegate  should  have  the  same 
qualifications  as  a  Member. 

The  office  of  Delegate  was  created  by  ordinance  of  the  Continental 
Congress. 

On  Januarj-  13,  1824,'  the  Committee  on  Elections  reported  on  the  contested 
election  case  of  Biddle  v.  Richard,  from  Michigan  Territorj-.  Mr.  Richard  was 
objected  to  on  the  ground  that  he  was  an  alien,  his  naturalization  before  a  Michigan 
court  being  alleged  to  be  invalid;  and  on  the  groimd,  should  the  naturahzation  be 
held  valid,  he  was  still  disqualified,  as  the  naturalization  had  not  taken  place  a  year 
previous  to  the  election. 

The  committee  in  this  case  first  noticed  the  subject  of  the  qualifications  of  a 
Delegate,  and  called  attention  to  the  fact  that  the  office  was  not  one  provided  for  bv 
the  Constitution,  but  grew  out  of  the  ordinance  of  Congress  for  the  government  of  the 
Northwest  Territors*.  passed  before  the  adoption  of  the  Constitution.  Neither 
by  the  terms  of  that  ordinance  nor  by  the  laws  of  the  United  States  were  qualifica- 
tions required  of  a  person  elected  Delegate.  Unless  a  rule  could  be  deduced  from 
the  principles  of  the  Constitution  there  was  nothing  to  prevent  an  alien  from  hold- 
ing a  seat  in  Congress  as  Delegate  from  a  Territory.  But  the  committee  expressly 
disclaim  any  intention  of  pronouncing  a  decision  on  this  point,  since  the  case  did  not 
render  it  absolutely  necessary. 

The  sitting  Member  had  been  naturalized  in  a  county  court  in  Michigan,  and 
while  the  naturalization  law  of  the  United  States  did  not  in  terms  include  such  coiirt 
among  those  authorized  to  naturalize  aliens,  yet  the  committee  concluded  that  by 
impUcation  the  intention  to  authorize  such  a  court  was  plainly  shown. 

As  to  the  <5econd  objection,  it  was  shown  that  the  law  prescribed  a  residence  of 
one  year  "next  preceding  the  election"  as  a  qualification  needed  to  make  a  person 
eligible  to  any  office  in  said  Territory.  Even  admitting  the  office  of  Delegate  to  be 
included  in  this  prescription,  it  was  to  be  observed  that  it  was  not  the  citizen  but  the 
person  who  was  required  to  reside  in  the  Territorj'  one  year.  Therefore  the  com- 
mittee overruled  the  objection  tliat  the  naturalization  had  not  taken  place  a  year 
before  the  election. 

The  committee  concluded  tha.t  Gabriel  Richard  was  entitled  to  the  seat. 

On  February  2,  1824,  the  House  practically  concurred  in  tliis  conclusion  by 
ordering  that  John  Biddle  have  leave  to  withdraw  his  petition  and  documents. 

'  First  session  Eighteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  18.34,  p.  407. 


394  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   422 

422.  The  Florida  election  case  of  David  Levy  in  the  Twenty-seventh 
Congress. 

An  instance  of  citizenship  conferred  by  treaty  stipulations. 

In  determining  citizenship  a  committee  ruled  that  the  domicile  of  the 
father  is  considered  the  domicile  of  the  son  during  the  minority  of  the  son 
if  he  be  under  the  control  and  direction  of  the  father. 

In  1841-42,*  the  Committee  on  Elections  twice  examined  the  qualifications  of 
David  Levy,  sitting  as  Delegate  from  Florida. 

By  the  treaty  ceding  Florida  to  the  United  States,  it  was  provided: 

The  inhabitants  of  the  territories  which  his  Catholic  Maj  esty  cedes  to  the  United  States  by  this  treaty 
shall  be  incorporated  in  the  Union  of  the  United  States  as  soon  as  may  be  consistent  with  the  principles 
of  the  Federal  Constitution,  and  admitted  to  the  enjoyment  of  all  the  privileges,  rights,  and  immunities 
of  the  citizens  of  the  United  States. 

This  treaty  was  signed  February  22,  1819,  and  ratified  February  22,  1821.  The 
majority  of  the  Committee  of  Elections  foimd  that  the  formal  transfer  began  at 
St.  Augustine  on  July  10,  1821,  and  was  completed  at  Pensacola  July  17,  and  that  on 
the  latter  day  Governor  Jackson  issued  his  proclamation  of  American  sovereignty, 
in  accordance  with  the  directions  of  the  Government  at  Washington.  The  minority 
of  the  committee  found  that  East  Florida  (there  being  two  provinces)  was  transferred 
July  10,  and  preferred  that  date  to  July  17. 

David  Levy  was  not  an  inhabitant  of  Florida  on  either  the  10th  or  17th  of  July 
1821 .  He  had  been  bom  on  the  island  of  St.  Thomas  (then  a  possession  of  Denmark) 
on  June  2,  1810,  his  father  being  a  subject  of  the  King  of  Denmark.  David  Levy 
came  to  Norfolk,  Va.,  in  1819,  and  attended  school  and  worked  there  until  1827. 
He  did  not  go  to  Florida  to  reside  until  1827.  It  is  evident,  therefore,  that  he  was 
not  an  inhabitant  of  Florida,  in  his  own  right,  at  the  time  of  the  transfer  of  the 
Territory. 

The  committee,  in  the  course  of  the  investigation,  adopted  the  principle  "that 
the  domicil  of  the  father  is  the  domicil  of  the  son  during  the  minority  of  the  son,  if 
the  son  be  under  the  control  and  direction  of  the  father." 

Therefore  the  question  turned  on  whether  or  not  Moses  Levy,  father  of  David 
Levy,  was  an  "inhabitant"  of  Florida  at  the  time  of  the  transfer  of  sovereignty. 
Moses  Levy  was  bom  in  Morocco,  but  at  the  time  of  the  birth  of  his  son  was  a  sub- 
ject of  the  King  of  Denmark.  In  the  early  part  of  1821  he  came  to  Philadelphia 
and  took  out  his  declaration  to  become  an  American  citizen.  He  then  went  to 
Florida,  and  the  cjuestion  turns  principally  on  whether  he  was  there  at  the  time  of 
the  transfer,  although  the  minority  contended  that,  not  being  a  subject  of  the  King 
of  Spain,  the  treaty  did  not  operate  on  him.  In  their  first  report  the  committee 
found  that  Moses  Levy  was  not  an  inhabitant  of  Florida  at  the  time  of  the  transfer, 
and  that,  had  he  been,  the  King  of  Spain  might  not  have  transferred  his  allegiance 
to  the  United  States,  since  he  was  a  Danish  subject. 

'  First  session  Twenty-seventh  Congress,  House  Report  No.  10;  Second  session,  Report  No.  450;  1 
Bartlett,  p.  41;  Rowell's  Digest,  p.  114. 


§  423  THE  QUALIFICATIONS  OF  THE  MEMBER.  395 

423.   The  Florida  election  case  of  David  Levy,  continued. 

A  Delegate  who,  though  an  alien  by  birth,  had  lived  in  the  United 
States  from  an  early  age,  and  whose  father  had  been  a  resident  for  twenty 
years,  was  not  disturbed  on  technical  objections  as  to  his  citizenship. 

The  House  has  the  same  authority  to  determine  the  right  of  a  Dele- 
gate to  his  seat  that  it  has  in  the  case  of  a  Member. 

A  committee  held  that  the  strongest  reasons  of  public  policy  require  a 
Delegate  to  possess  qualifications  similar  to  those  required  of  a  Member. 

A  committee  held  that  under  the  principles  of  the  common  law  an 
alien  might  not  hold  a  seat  as  a  Delegate. 

A  committee  denied  the  binding  effect  of  a  decision  of  a  Territorial 
court  on  a  question  of  fact  concerning  the  qualifications  of  a  Delegate. 

An  instance  of  the  admission  of  ex  parte  testimony  in  an  election 
case. 

Later  additional  evidence  was  presented,  and,  although  objected  to  by  the 
minority  of  the  committee  as  inadmissible  because  taken  ex  parte,  was  admitted. 
This  testimony  shows,  among  other  things,  that  Moses  Lev^'  was  recorded  as  an 
inhabitant  in  a  registry"  established  by  General  Jackson.  This  proceeding  appeared 
undoubtedly  to  have  been  ultra  vires;  but  there  was  other  evidence  as  to  the  time 
of  the  arrival  of  Moses  Levy  in  Florida,  and  the  majority  of  the  committee  finally 
concluded  that  as  the  Delegate  had  lived  in  the  LTnited  States  from  an  early  age, 
as  liis  father  had  been  a  resident  of  the  United  States  for  more  than  twenty  years 
and  had  twice  taken  the  oaths  of  abjuration  and  allegiance,  the  "spirit  of  the 
naturalization  policy  of  the  country"  had  been  fidly  satisfied.  This  idea  seems  to 
have  been  of  considerable  weight  in  determining  the  committee  to  reverse  its  first 
report,  and  decide  that  Mr.  Levy  was  entitled  to  the  seat.  This  reversal  of  conclu- 
sion was  barely  made,  four  of  the  nine  members  of  the  committee  dissenting  and 
a  fifth  giving  only  a  qualified  assent. 

The  House  did  not  act  on  the  report;  but  Mr.  Levj'  retained  the  seat  ^vithout 
confirmation  of  the  report  by  the  House,  since  he  had  originally  been  admitted  to 
the  seat. 

In  the  course  of  the  consideration  of  this  case  the  committee  came  to  certain 
conclusions  bearing  vitally  on  the  case. 

1.  It  was  urged  that  the  House  of  Representatives  had  no  jurisdiction  to  try 
or  determine  the  ehgibility  of  a  Territorial  Delegate.  The  committee  concluded 
that  the  House  had  plenary  authority  to  investigate  and  decide  upon  all  questions 
touching  the  right  of  a  Delegate  to  hold  a  seat  in  that  body.  Such  authority  seemed 
absolutely  essential  to  the  existence  of  a  well-regulated  legislative  body,  which  must 
have  the  power  to  prevent  the  intrusion  of  improper  persons,  or  guard  its  own  rights 
fBom  violation.     And  the  House  had  so  determined  in  many  cases  from  1794  to  1838. 

2.  That  citizenship  was  not  one  of  the  qualifications  of  a  Delegate  in  the  acts 
of  Congress  under  which  he  was  appointed;  and  that,  therefore,  the  House  of  Rep- 
resentatives could  not  make  it  a  test  of  eligibility.  The  committee  agreed  that  wliile 
the  original  ordinance  of  1787  for  the  government  of  the  Northwest  Territory  was 
silent  in  reference  to  the  (lualifications  of  a  Delegate,  yet  must  have  assumed  certain 


i\ 


396  PRECEDENTS   OF   THE    HOUSE    OF   REPKESENTATIVES.  §   424 

ones.  Wliile  not  strictly  or  technically  a  Representative,  yet,  considering  the  dig- 
nity and  importance  of  the  office,  the  strongest  reasons  of  public  policy  would 
require  that  he  should  possess  quahfications  similar  to  those  required  by  a  Repre- 
sentative. Even  if  the  letter  and  spirit  of  the  Constitution  might  not  give  hght, 
yet  the  well-settled  principles  of  common  law  would  prevent  an  alien  from  holding 
a  seat  in  the  House  of  Representatives.  Chancellor  Kent  had  enunciated  the  propo- 
sition that  an  alien  might  not  hold  any  civil  office,  or  take  any  active  share  in  the 
administration  of  the  Government.  The  committee  therefore  were  confident  that 
an  alien  might  not  exercise  the  office  of  a  Delegate  to  Congress. 

3.  That  the  rights  of  David  Levy  under  the  treaty  had  been  the  subject  of 
recent  adjudication  by  the  liighest  judicial  tribunal  of  Florida,  constituted  of  judges 
appointed  and  commissioned  by  the  United  States  Government,  and  that  such  adju- 
dication, if  not  conclusive,  was  persuasive  evidence,  and  that  the  committee  ought 
not  to  look  behind  it.  The  committee  denied  that  the  court  in  question  was  one  of 
concurrent  jurisdiction,  or  that  the  decision  in  question  was  directly  upon  the  point. 
Furthermore,  it  was  not  between  the  same  parties. 

424-  The  Indiana  election  case  of  Lowry  v.  White  in  the  Fiftieth 
Congress. 

A  Member  who  had  long  been  a  resident  of  the  country,  but  who 
could  produce  neither  the  record  of  the  court  nor  his  final  naturalization 
paper,  was  nevertheless  retained  in  his  seat  by  the  House. 

The  House,  overruling  its  committee,  admitted  parol  evidence  to  prove 
the  naturalization  of  a  Member  who  could  produce  neither  the  record  of 
the  court  nor  his  certificate  of  naturalization. 

Determination  by  a  divided  Elections  Committee  that  the  disqualifi- 
cation of  a  sitting  Member  does  not  entitle  the  contestant,  who  had 
received  the  next  highest  number  of  votes,  to  the  seat.' 

On  January-  30,  1888,^  ilr.  F.  G.  Barrj-,  of  Mississippi,  from  the  Committee  on 
Elections,  submitted  the  report  of  the  majority  of  the  committee  in  the  Indiana 
case  of  Lowry  v.  White.  The  sitting  Member  had  been  returned  by  a  majority  of 
2,484  votes  over  contestant,  and  also  a  clear  majority  of  all  the  votes  polled  at  the 
election. 

The  questions  of  importance  in  this  case  all  arose  out  of  the  alleged  disquali- 
fication of  the  sitting  Member,  it  being  alleged  that  he  had  not  been  on  the  4th 
of  March,  1887,  a  citizen  of  the  United  States  for  a  period  of  seven  years  prior 
thereto,  as  required  by  the  Constitution. 

(1)  The  majority  state  the  first  question: 

(1)  Was  the  contestee  a  naturalized  citizen  of  the  United  States,  and  had  he  been  for  seven  years 
previous  to  the  4th  of  March,  1887,  and  if  he  was,  can  he  prove  that  fact  by  parol? 

The  majority  report  thus  answers  tlus  question: 

The  second  paragi-aph  of  section  2,  Article  I,  of  the  Constitution  of-the  United  States  says: 

"  No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of  twenty-five  years  and 

been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 

that  State  in  which  he  shall  be  chosen." 


1  See  also  Section  417  of  this  volume  for  reference  to  an  elaborate  discussion  of  this  point. 
^  First  session  Fiftieth  Congress,  House  Report  No.  163;  Mobly,  p.  623. 


§424 


THE   QUALIFICATIONS    OF   THE   MEMBEB.  397 


In  the  eighth  section  of  the  Constitution  of  the  United  States  power  is  conferred  on  Congress  "to 
establish  an  uniform  rule  of  naturalization."  This  power  Ls  exclusively  in  Congress.  (2  Wheaton,269.) 
The  existing  legislation  of  Congress  on  that  subject  is  contained  in  the  thirtv-third  chapter  of  the  Revised 
Statutes,  1878. 

It  is  admitted  that  contestee  is  a  native  of  Scotland,  and  that  he  arrived  in  the  United  States  on 
the  8th  of  August,  1854.  Your  committee  believe  that  in  claiming  to  be  a  naturalized  citizen  of  this 
country  he  fails  to  bring  himself  within  the  provision  of  said  statute.  His  original  status  is  presumed 
to  continue  untQ  the  contrary  be  shown.  (Hauenstein  r.  Lynhom,  100  U.  S.,  483.)  In  the  opinion 
of  your  committee  contestee  has  failed  to  remove  this  presumption. 

It  is  proven  and  not  disputed  that  contestee  went  through  the  final  forms  of  naturalization  and 
admission  to  citizenship  at  Warsaw,  Kosciusko  County,  Ind.,  on  Monday,  November  1,  1886,  in  a  court 
of  record,  on  the  ground  that  the  doctrine  of  relation  might  apply  to  his  declaration  of  intention  which 
is  duly  entered  of  record  on  the  24th  day  of  July,  1858,  in  the  circuit  court  of  Allen  County,  Ind. 

To  say  the  least  of  it,  this  is  an  unfavorable  admission  on  the  part  of  the  contestee.  It  is  not  con- 
tended by  the  learned  counsel  that  the  doctrine  of  relation  will  apply  in  this  case.  Contestee,  however, 
claims  to  have  been  admitted  to  citizenship  in  the  coiu-t  of  common  pleas  of  Allen  Cotmty,  Ind.,  on 
February  28,  1865,  which  is  the  vital  point  of  contention  in  this  case. 

It  is  admitted  that  there  is  no  record  of  such  proceedings,  nor  a  trace  of  such  a  record  in  any  court; 
but  contestee  now  claims  that  a  certificate  of  naturalization  was  then  is.sued  to  him  which  he  can  not 
now  produce,  nor  does  he  or  any  one  know  what  became  of  it. 

If  contestee  were  natiu^ized  in  Februarj-,  1865,  can  he  prove  it  by  parol?  A  thorough  examination 
of  the  authorities  convince  your  committee  that  he  can  not.  Contestee,  in  his  brief,  holds  that  parol 
evidence  may  be  received  to  prove  the  fact  of  natiu^lization;  that  it  is  the  oath  of  fidelity  to  the  Gov- 
ernment which  makes  an  alien  a  citizen,  and  that  fact  can  be  proven  by  parol  in  the  absence  of  the 
record  of  the  court. 

There  are  set  forth  in  the  printed  record  of  this  case  contemporaneous  entries  of  naturalization  in 
said  Allen  County,  which  are  claimed  by  contestee  to  be  in  duplicate  of  the  certificate  issued  to  natu- 
ralized persons  about  the  period  he  claims  to  have  been  natmalized,  and  from  this  it  is  assumed  by 
contestee  he  held  such  a  certificate. 

■Whatever  weigHV  might  be  given  to  this  alleged  missing  certificate,  even  if  produced  in  evidence, 
it  is  unnecessary  to  discuss,  and  we  forbear  an  opinion  on  that.  It  is  sufficient  to  say  that  such  an 
attempt  to  prove  it  or  its  contents  is  a  species  of  evidence  too  speculative  and  inferential  to  be  enter- 
tained, especially  when  it  is  sought  to  establish  the  solemn  proceedings  of  a  court  of  record.  No  author- 
ity in  support  of  such  a  rule  of  evidence  has  been  fmnished  this  committee,  and  we  do  not  think  there 
is  one  in  existence. 

As  the  able  counsel  for  the  contestee  tersely  stated  the  proposition  in  theur  brief, '  'Can  parol  evidence 
be  received  to  prove  the  fact  of  naturalization?  "  We  answer,  it  can  not;  certainly  not  in  the  absence  of 
any  record  whatever,  or  even  a  certificate  of  naturalization,  as  is  admitted  in  this  case.  The  authorities 
therein  cited  to  the  effect  that  the  contents  of  a  lost  record  may  be  proven  by  parol,  is  a  principle  too 
familiar  to  discuss.  But  we  have  not  found  a  single  adjudicated  case  in  which  oral  evidence  is  admitted 
to  prove  a  record  which  never  existed. 

Not  one  witness  testifies  to  having  read  the  alleged  certificate,  and  none  but  contestee  says  he  ever 
saw  it,  and  he  does  not  attempt  to  state  its  contents.  There  are  only  two  witnesses,  Isaac  Jenkinson 
and  William  T.  Pratt,  who  profess  to  have  been  present  at  the  alleged  naturalization  of  contestee  in 
February,  1858,  besides  the  contestee  himself.  Pratt  says  nothing  of  seeing  such  certificate,  and  Isaac 
Jenkinson  says: 

"I  have  no  recollection  of  any  papers  being  drawn  up  or  signed  or  sworn  to  on  that  occasion.' - 
(Record,  p.  190,  question  41.) 

In  Shseffer  v.  Kreutzer  (G  Binn.,  430),  which  is  relied  on  by  contestee.  Justice  Yates  says: 

'It  [the  verdict]  is  no  evidence  of  the  fact  having  been  legally  decided,  for  the  j  udgment  may  have 
been  arrested  and  a  new  trial  granted.  Here  a  foi-mer  action  of  ejectment  was  brought  for  the  same  land 
by  persons  to  whom  the  present  parties  are  privies,  and  the  verdict  given  therein  was  offered  to  introduce 
the  collateral  fact  of  pajTnent  of  the  cost  of  that  suit,  and  to  account  for  the  defendant  in  thi.^  action 
coming  into  possession,  and  of  the  plaintiff's  acquiescence  in  the  adverse  title." 


398  PKECEDENTS    OF   THE    HOUSE    OF   KEPRESENTATIVES.  §  424 

Conteatee  also  relies  on  Campbell  v.  Gordon.  (6  Cranch,  176.)  This  was  a  bill  to  rescind  contract 
for  sale  of  land.     There  was  a  memorandum  on  the  minutes  of  the  court  as  follows: 

"At  a  district  court  held  at  Suffolk,  William  Currie,  native  of  Scotland,  migrated  into  the  Common- 
wealth, took  the  oath,  etc." 

There  was  also  a  certificate  of  naturalization  of  appellee's  father.  Judge  Spears,  in  discussing  that 
case,  said  not  only  the  certificate  of  the  clerk  but  the  minutes  of  the  court  were  produced;  besides,  the 
certificate  had  appended  to  it  these  words:  "A  copy:  test,  Jno.  C.  Littlepage,"  who  it  appeared  in 
evidence  was  clerk.     (See  Green's  Son,  Federal  Reporter,  July,  1887,  vol.  31,  p.  110.) 

In  Dryden  v.  Swinburne  the  court  discusses  the  case  of  Campbell  r.  Gordon  at  length,  and  says: 

"When  the  court  say,  'The  oath  when  taken  confers  upon  him  the  right  of  citizenship'  it  is  obvious 
that  they  meant  when  the  record  showed  the  oath  was  taken  it  would  suffice,  and  it  would  be  presumed 
that  it  was  not  administered,  or  at  least  an  entry  was  not  made  of  it,  till  all  the  other  requisites  of  the 
statutes  were  complied  with.  It  would  be  an  utter  distortion  of  this  language  and  decision  to  hold  that 
the  taking  of  the  oath  by  parol  testimony,  when  the  record  was  produced,  and  it  failed  to  show  any  natu- 
ralization or  attempt  at  naturalization."     (Dryden  v.  Swinburne,  20  W.  Va.,  125.     See  also  18  Ga.,  239.) 

Any  other  construction  would  be  in  direct  violation  of  the  Revised  Statutes  of  the  United  States 
upon  the  subject  of  naturalization.     Section  2165  says: 

' '  An  alien  may  be  admitted  to  become  a  citizen  of  the  United  States  in  the  following  manner,  and 
not  otherwise:" 

It  subsequently  says, ' '  which  proceedings  shall  be  recorded  by  the  clerk  of  the  court."  It  distinctly 
provides  that  the  naturalization  proceedings  must  be  in  a  court  of  record.  Hence  Justice  Marshall 
says; 

"Thev  ]the  courts  of  record]  are  to  receive  testimony,  to  compare  it  with  the  law,  and  to  judge  of 
both  law  and  fact.  The  judgment  is  entered  on  record  as  the  judgment  of  the  coiu-t.  It  seems  to  us, 
if  it  be  in  legal  form,  to  close  all  inquiry;  and  like  everj'  other  judgment,  to  be  the  complete  evidence 
of  its  own  validity." 

In  this  extract  that  great  jurist  was  discussing  the  proceedings  in  naturalization. 
Contestee  relies  also  on  Stark  v.  Insurance  Company  (7  Cranch,  420).  This  was  an  action  of  covenant 
upon  a  policy  of  insurance.  The  goods  insured  were  warranted  to  be  American  property.  The  record 
entries  are  complete,  with  a  formal  judgment  of  admission  to  citizenship,  but  fail  to  show  that  Stark,  the 
naturalized  alien,  had  filed  a  previous  declaration  of  intention.  It  was  held  that  the  judgment  was 
conclusive  as  to  antecedent  matters  in  the  cause. 

Contestee  also  cites  91  United  States  Reports,  page  245  (Insurance  Co.  v.  Tesdale).  Suit  was  brought 
by  plaintiff,  who  was  administratrix  of  her  deceased  husband,  in  her  individual  character,  against 
defendant,  upon  a  policy  of  insurance  on  the  life  of  her  husband.  The  sole  question  was,  could  letters 
of  administration  be  admitted  to  prove  the  death  of  a  third  person  where  the  right  of  action  depends 
upon  the  death  of  such  person;  and  the  court  held  that  it  could  not  be  done. 

The  question  of  naturalization  was  in  noway  involved,  but  the  court  says,  incidentally,  that  a  certi- 
ficate of  naturalization  is  good  against  all  the  world  as  a  judgment  of  citizenship,  from  which  may  follow 
the  right  to  vote  and  hold  property;  but  it  can  not  be  introduced  as  evidence  of  residence,  age,  or  char- 
acter.    (91  U.  S.  R.,  245.) 

Mr.  Calkins,  in  his  very  able  and  ingenious  argument  before  the  committee,  relied  with  great 
emphasis  on  the  case  of  Coleman  on  habeas  corpus  (15  Blatchford,  406),  in  which  the  court  says,  speaking 
of  the  Revised  Statutes  concerning  naturalization  proceedings: 

"The  provisions  for  recording  proceedings  at  the  close  of  the  second  condition  and  the  provisions 
for  recording  the  renunciation  mentioned  in  the  fourth  condition  are  introduced  in  such  form  that  they 
may  very  well  be  regarded  as  merely  directory." 

This  was  a  criminal  proceeding,  highly  penal  in  its  nature,  the  offense  with  which  Coleman  was 
charged  being  a  felony,  under  Revised  Statutes  of  the  United  States,  section  5426. 

Coleman  held  a  certificate  of  naturalization,  and  the  only  question  presented  was:  (1)  Had  the 
certificate  been  unlawfully  issued  or  made;  and  (2)  did  Coleman  know  that  when  he  so  issued  it? 

Coleman  was  arraigned  for  having  so  used  said  certificate  for  the  purpose  of  registering  himself  as 
a  voter,  knowing  it  was  unlawfully  issued.  There  were  papers  on  file  in  the  clerk's  office,  from  whence 
the  certificate  issued,  setting  forth  the  necessary  proceedings  of  Coleman's  naturalization.  His  name 
was  also  entered  in  the  naturalization  index.  The  certificate  was  signed  by  the  clerk  of  the  superior 
court,  attested  by  the  seal  of  the  court,  certifying  that  the  copy,  before  set  forth,  of  the  entry  in  regard 


§424 


THE    QUALIFICATIONS    OF    THE    MEMBER.  399 


to  Coleman  in  such  naturalization  index,  "is  a  true  extract  from  the  record  of  naturalizations  of  this 
court,  remaining  in  my  office  to  date." 

Judge  Blatchford  held  that  Coleman  was  duly  and  l^ally  admitted  to  citizenship,  and  that  he 
should  be  discharged. 

It  can  not  be  contended  that  in  a  matter  so  highly  penal  any  evidence  that  would  go  toward  acquit- 
tal would  be  sufficient  to  establish  citizenship  and  clothe  an  alien  with  all  the  political  powers  and 
privileges  of  a  citizen.     What  would  be  sufficient  in  one  case  might  be  wholly  insufficient  in  the  other. 

In  such  a  prosecution  the  criminal  intent  or  the  guilty  knowledge  of  using  an  unlawful  certificate 
would  be  the  governing  question.  In  such  a  case  even  a  reasonable  doubt  would  discharge  the  defend- 
ant. A  naturalized  citizen  is  a  mere  creature  of  the  law.  He  derives  his  existence  as  such  from  the 
law,  and  if  he  fail  to  follow  its  essential  provisions  he  can  not  be  clothed  with  those  high  privileges  such 
a  law  confers. 

But  the  court  says  in  the  Coleman  case  that  propositions  are  announced  the  accuracy  of  which 
can  not  be  questioned — such  as  the  admission  of  an  alien  to  citizenship  is  a  judicial  act  (15  Blatchford, 
p.  420) — and  at  furthest  the  partial  committal  of  the  court  in  the  Coleman  case,  that  the  statute  requiring 
the  record  or  proceedings  may  very  well  be  regarded  as  directory,  can  only  be  considered  as  a  dictum, 
as  it  was  held  in  that  case  there  was  complete  and  sufficient  record  of  naturalization. 

Contestee  also  relies  on  7  Hill,  X.  Y.,  137-141,  but  in  that  case,  it  will  be  observed,  the  court  says: 

"The  proceedings  of  naturalization  are  strictly  judicial  (p.  138).  The  right  of  citizenship  is  finally 
conferred  by  the  judgment  of  the  court  (p.  141)." 

He  also  cites  McCarty  r.  Marsh  (5  N.  Y.,  263)  as  liberal  to  the  naturalization  of  foreigners. 

In  that  ease  Justice  Foot  says: 

"The  simple  question,  then,  is  whether  the  record  is  conclusive  evidence  of  the  fact  that  a  prior 
declaration  of  intention  was  made  in  due  form  of  law.  The  weight  of  authority  is  decidedly  in  the 
affirmative.     (Citing  6  and  7  Cranch,  supra,  Spratt  v.  Spratt,  4  Peters,  and  a  large  number  of  cases.)" 

Contestee  also  relies  on  the  case  of  The  Acorn  (2  Abbott,  U.  S.  Reports,  p.  434)  as  liberal  concerning 
the  naturalization  of  foreigners.  This  was  a  libel  of  information  and  seizure  for  forfeiture  for  aU^ed 
violation  of  registry  laws.  One  of  the  causes  alleged  is,  that  when  David  Muir  took  the  oath  he  was 
not  a  citizen  of  the  United  States,  as  his  oath  alleged. 

Muir  introduced  in  evidence  an  exemplified  copy  of  the  record  of  his  naturalization.  So  far  as  the 
question  of  naturalization  is  concerned  in  that  case.  Judge  Longyear  decided  that  the  judgment  natural- 
izing Muir  was  conclusive  as  to  the  preliminary  proceedings  necessary  to  give  the  naturalizing  court 
jurisdiction — a  familiar  principle  that  runs  through  aU  adjudicated  cases  on  that  point.  This  judge 
also  says  in  his  opinion: 

"The  proceeding  to  obtain  naturalization  is  clearly  a  judicial  one.     (Ibid.,  p.  444.) 

"A  hearing  is  required  to  be  had  in  open  court,  and  the  right  can  be  conferred  only  by  the  judg- 
ment of  the  court,  and  upon  satisfactorj'  proof.     (Ibid.,  p.  444.)" 

Contestee  relies  in  his  brief  on  the  following  extract  from  Morse  on  Citizenship,  page  84: 

"  In  case  of  an  individual  claiming  to  be  a  citizen  by  naturalization,  the  certificate  or  letter  of 
naturalization  is  the  usual  and  orderly  proof  which  is  offered,  but  is  not  exclusive.  If  the  letter  or 
certificate  is  lost  and  the  record  can  not  be  discovered,  secondary  evidence  to  establish  citizenship  would 
be  admissible.  (Citing  Field's  International  Code,  p.  136,  note,  and  the  opinion  of  Attorney-General 
Black,  vol.  9,  p.  64.)" 

The  last-named  author,  under  the  subject  of  allegiance,  cites  Attorney-General  Black,  who  simply 
says: 

"The  fact  of  renunciation  is  to  be  established  like  any  other  facts  for  which  there  is  no  prescribed 
form  of  proof  by  e\adence  which  will  convince  the  judgment." 

This  was  a  case  of  a  Bavarian,  once  naturalized  here,  claiming  renunciation  of  his  citizenship  as  a 
citizen  of  this  countrj-;  and  how  and  where  the  author  of  the  above  quotation  got  his  law  your  committee 
are  at  a  loss  to  determine.  In  international  affairs  such  a  principle  might  apply,  when  the  question  of 
citizenship  is  a  matter  of  dispute  and  the  liberty  or  property  of  a  subject  are  involved.  But  there  are 
no  authorities  holding  such  a  doctrine  in  this  country  when  an  alien,  claiming  to  be  naturalized,  seeks 
to  establish  that  fact  bj'  parol  proof. 

The  case  of  Dryden  v.  Swinburne  (22  W.  Va.)  is  a  remarkable  parallel  case  to  this  in  all  of  its  salient 
features.  Judge  Green  in  that  case,  in  an  elaborate  opinion,  discusses  the  subject  in  the  most  learned 
manner. 


400  PRECEDENTS   OF   THE   HOUSE   OF   KEPBESENTATIVES.  §   424 

The  following  extracts  from  the  syllabus  in  that  case  is  a  dear  statement  of  the  decision  on  this  point: 

"The  law  requires  that  an  alien  should  be  naturalized  in  a  court  of  record,  and  his  admission  to  citi- 
zenship must  be  a  judgment  of  such  court;  and  therefore  if  it  is  claimed  in  any  case  that  an  alien  has 
been  naturalized  in  a  certain  court,  and  it  be  shown,  that  if  naturalized  at  all,  he  was  naturalized  in  that 
court,  and  the  records  of  such  court  are  produced,  and  an  examination  of  them  shows  that  no  entry  was 
made  on  the  records  of  such  court  naturalizing  such  alien,  it  can  not  be  proven  by  parol  evidence  that  he 
was  admitted  to  citizenship  in  such  court,  but  that  by  inadvertence,  or  any  other  reason,  there  was  no 
entry  made  of  it;  nor  can  the  citizenship  of  an  alien,  under  such  circumstances,  be  presumed  by  proof 
of  his  having  held  real  estate  or  of  his  having  voted  or  held  office  or  by  other  circumstances." 

The  same  doctrine  is  announced  in  the  case  of  Chae.  Green's  Son  and  others  v.  Salas  (3  Federal  Law 
Reporter,  July  26,  1887);   also  in  Rutherford  v.  Crawford  (53  Ga.,  138). 

In  these  last  two  cases  a  certificate  was  presented  by  the  persons  claiming  to  have  been  naturalized, 
which  was  held  insufficient  in  each. 

In  Andrews  v.  Inhabitants  of  Boylston  (110  Mass.,  214)  it  is  held,  if  the  records  of  a  town  meeting 
fail  to  show  a  two-thirds  vote  to  reestablish  a  school-district  system,  parol  evidence  is  inadmissable  to 
show  it,  even  though  the  record  shows  that  the  town  voted  to  reestablish  the  school-district  system. 

The  omission  in  a  record  can  not  be  supplied  by  parol  proof.     (2  Pickering,  397.) 

The  court  says  "it  would  be  dangerous  to  admit  of  such  proof."  (2  Pickering,  397.  See  also  125 
Mass.,  553;  117  Mass.  469;  58  Iowa,  503;  Wharton's  Evidence,  987;  18  Maine,  344;  3  Blackford,  125;  23 
Maine,  123.) 

In  Slade  v.  Minor  (2  Cranch,  Circuit  Court  Reports,  D.  C,  139),  the  point  was  distinctly  presented, 
and  the  case  was  decided  upon  it,  in  which  the  court  held  that  the  naturalization  of  Charles  Slade  could 
not  be  proved  by  parol. 

Certificates  of  naturalization  issued  by  the  clerk  of  a  court,  without  any  hearing  before  the  judge 
in  open  court,  are  void,  and  confer  no  right  of  citizenship  upon  the  holder.  (McCrary  on  Elections, 
see.  56.) 

Starkie  in  his  work  on  evidence,  page  648,  says: 

' '  In  the  first  place,  parol  evidence  is  never  admissible  to  supersede  the  use  of  written  evidence  where 
written  proof  is  required  by  law.  Where  the  law,  for  reasons  of  policy,  requires  written  evidence,  to 
admit  oral  evidence  in  its  place  would  be  to  subvert  the  rule  itself. 

"  To  admit  oral  evidence  as  a  substitute  for  instruments  to  which,  by  reason  of  their  superior  author- 
ity and  permanent  qualities,  an  exclusive  authority  is  given  by  the  parties,  would  be  to  substitute  the 
irierior  for  the  superior  degree  of  evidence ;  conjecture  for  fact,  and  presumption  for  the  highest  degree  of 
legal  authority ;  loose  recollections  and  uncertainty  of  memory  for  the  most  sure  and  faithful  memorials 
which  human  ingenuity  can  devise  or  the  law  adopt;  to  introduce  a  dangerous  laxity  and  uncertainty 
as  to  all  titles  to  property,  which,  instead  of  depending  on  certain  fixed  and  unalterable  memorials, 
would  thus  be  made  to  depend  upon  the  frail  memories  of  witnesses,  and  be  perpetually  liable  to  be 
impeached  by  fraudulent  and  corrupt  practices." 

And  he  thus  lays  down  the  rule : 

"In  the  first  place,  written  evidence  has  an  exclusive  operation  in  many  instances,  by  virtue  of 
peremptory  legislative  enactments.  So  it  has  in  all  cases  of  written  contracts.  So  also  in  all  cases  where 
the  acts  of  a  court  of  justice  are  the  subject  of  evidence.  Courts  of  record  speak  by  means  of  their  record 
only,  and  even  where  the  transactions  of  courts  which  are  not,  technically  speaking,  of  record,  are  to  be 
proved,  if  such  courts  preserve  written  memorials,  are  the  only  authentic  means  of  proof  which  the  law 
recognizes." 

Wharton,  in  his  Law  of  Evidence,  section  1302,  says: 

"A  court  of  record  is  required  to  act  exactly  and  minutely,  and  to  have  record  proof  of  all  its 
important  acts.     If  it  does  not,  these  acts  can  not  be  put  in  evidence." 

The  proceedings  of  a  court  of  record  can  be  shown  only  by  the  records,  unless  they  are  lost  or 
destroyed.     (Rutherford  v.  Crawford,  53  Ga.) 

The  minority  views,  signed  by  Mr.  J.  H.  Rowell,  of  Indiana,  and  five  other 
members  of  the  committee,  held: 

It  is  contended  by  contestant,  and  held  by  the  majority  of  the  committee,  that  no  matter  what 
the  fact  is,  unless  there  is  a  record  remaining  in  the  court,  or  unless  there  was  a  record  made  and  retained 


§   424  THE    QUALIFICATIONS    OF   THE    MEMBER.  401 

from  which  a  transcript  could  be  made,  parol  proof  is  not  admissible  to  establish  the  fact  of  naturaliza- 
tion and  of  the  issue  of  a  certificate  thereof. 

It  is  claimed  that  no  naturalization  is  complete  so  as  to  invest  the  applicant  with  citizenship  until 
a  record  of  the  proceeding  is  made  in  the  court  where  the  judgment  was  rendered  and  the  oath  admin- 
istered. 

We  hold  the  law  to  be  that  parol  testimony  is  admissible  to  prove  naturalization  under  circum- 
stances such  as  are  shown  to  exist  in  this  case. 

We  hold  further  that  the  making  out  of  a  certificate  of  naturalization,  reciting  all  the  requisite  facts, 
under  the  seal  of  the  court,  is  an  entry  of  record  of  the  proceedings,  even  though  that  certificate  is  carried 
away  from  the  court,  instead  of  being  left  with  the  clerk. 

We  hold  that,  having  done  all  that  the  statute  requires  of  him,  and  having  obtained  his  certificate 
of  naturalization  in  due  form,  with  all  proper  recitals  from  a  competent  court,  the  person  is  from  that 
time  invested  with  citizenship  without  reference  to  any  further  act  to  be  performed  by  the  clerk  of  the 
court. 

We  hold  that  the  certificate  so  obtained  is  original  evidence  and  conclusive  of  citizenship  in  all 
collateral  proceedings,  without  proof  of  any  record  remaining  in  court  and  whether  such  a  record  exists 
or  not. 

The  minority  quote  Morse  on  Citizenship,  the  case  of  Acorn  (2  Abb.  U.  S. 
Reports,  434-4.37),  Wharton's  International  Law  Digests  (sec.  174),  Campbell  v. 
Gurden  (6  Cranch,  179),  Stark  v.  Insurance  Co.  (7  Cranch,  420),  Insurance  Co.  v. 
Tesdall  (91  U.  S.  Reports,  245),  In  re  Coleman  (15  Black,  406),  and  after  discussing 
these  cases  say: 

There  can  be  no  doubt  that  parol  proof  is  admissible  to  establish  the  contents  of  lost  deeds  and 
papers  and  records.  (Greenleaf  on  Ev.,  vol.  1,  sec.  509;  Whalen's  Ev.,  vol.  1,  sec.  136;  Wood's  Prac. 
Ev.,  sec.  7  et  seq.;  Ashly  r.  Johnson,  74  111.,  392.) 

Had  contestee  been  able  to  produce  this  certificate,  would  anyone  venture  to  question  his  citizen- 
ship? And  yet  the  case  stands  in  proof  precisely  the  same  as  if  he  had  done  so.  Everything  necessary 
to  admit  parol  proof  of  existence  and  loss  of  certificate  was  given  in  evidence.  (Record,  p.  256.)  The 
book  of  blank  certificates  in  use  in  the  court  at  the  time  is  in  evidence.  (Record,  pp.  214,  272-273, 
383.) 

Contestee  proved  that  he  was  in  fact  naturalized;  that  no  other  record  of  the  proceedings  was  made 
so  far  as  could  be  ascertained  than  the  certificate  issued  to  him;  that  he  received  his  final  certificate; 
that  it  is  lost;  that  he  is  the  identical  person  who  was  naturalized,  and  the  contents  of  certificates 
universally  in  use  at  that  time.  By  just  such  proof  the  courts  of  the  country  are  constantly  ascertaining 
the  contents  of  lost  papers  involving  the  title  to  property;  the  contents  of  most  solemn  records  are  so 
proven. 

Life  and  liberty  are  put  into  the  scales  upon  the  same  kind  of  proof.  If  every  other  right  of  the 
citizen  may  be  thus  established,  we  are  at  a  loss  to  know  why  this  contestee  is  to  be  deprived  of  like 
rights  and  like  application  of  unquestioned  rules  of  law. 

He  was  chosen  to  the  Congress  by  the  very  emphatic  voice  of  the  legal  voters  of  his  district.  He 
has  for  more  than  thirty  years  been  an  inhabitant  of  the  countrj-,  deporting  himself  in  such  a  way  as  to 
meet  the  approval  of  his  fellowmen. 

For  more  than  twenty  years  he  has  been  recognized  as  a  citizen  of  the  United  States,  and  as  such 
was  chosen  a  Representative  to  the  Fiftieth  Congress  from  the  Twelfth  Congressional  district  of  Indiana. 

If  the  report  of  the  majority  of  the  committee  is  to  be  sustained,  an  unparalleled  injustice  will  be 
done  to  those  who  elected  him  and  to  contestee  himself;  not  because  of  any  fault  or  neglect  on  his  part, 
but  because  of  the  neglect  of  a  clerk  who  is  proven  to  have  been  negligent  of  duty  and  careless  of  the 
rights  cf  others. 

Courts  will  invoke  the  aid  of  technical  rules  to  prevent  gross  injustice,  but  it  is  the  boast  of  all 
modem  courts  that  mere  technical  rules  of  law  are  not  permitted  to  stand  in  the  way  of  doing  equal  and 
exact  justice,  unless  of  such  rigid  character  and  so  firmly  embedded  in  the  law  as  to  compel  adhesion  to 
them.     Doubts  on  such  questions  are  always  resolved  in  favor  of  justice  and  against  wrong. 
5994— VOL  1—07 26 


402  PRECEDENTS   OF    THE   HOUSE    OF   KEPRESENTATIVES.  §   424 

The  majority  of  the  committee  have  adopted  a  rule  which,  while  some  authority  may  be  found  in 
favor  of  it,  is  rejected  by  other  and  weightier  authority — a  rule  opposed  to  sound  reason  and  the  best 
canons  of  construction. 

They  have  invoked  this  bare  technicality  not  to  prevent  wrong,  but  to  enable  the  House  to  commit 
an  outrage  upon  the  rights  of  contestee  and  the  people  of  his  district. 

(2)  The  second  question: 

(2)  If  he  can  prove  it  by  oral  evidence,  does  the  testimony  disclose  sufficient  proof  to  establish  that 
fact? 

The  majority  review  the  parol  proof  and  give  arguments  to  show  its  fragile 
character. 

The  minority  consider  it  sufficient,  and  thus  review  it: 

Contestee  is  a  native  of  Scotland.  He  came  to  this  country  in  1854,  and  has  been  a  resident  of 
the  State  of  Indiana  almost  continuously  since  1857,  most  of  that  time  in  the  city  of  Fort  Wayne,  his 
present  home.  He  was  a  captain  in  the  Thirtieth  Regiment  of  Indiana  Infantry  Volunteers  and  was 
dangerously  wounded  at  the  battle  of  Shiloh. 

In  1858  he  declared  his  intention  to  become  a  citizen  of  the  United  States,  as  appears  of  record  in 
the  clerk's  oiTice  of  Allen  County,  Ind.,  the  certificate  issued  to  him  having  been  lost. 

In  February,  1865,  about  the  28th  of  that  month,  he  appeared  in  the  court  of  common  pleas  of 
Allen  County,  Ind.  (a  court  having  common-law  jurisdiction,,  a  clerk  and  a  seal),  and  produced  two 
credible  witnesses  in  open  court,  viz,  John  Brown  and  Isaac  Jenkson,  who  were  also  sworn  in  open 
court  as  his  witnesses  to  complete  his  naturalization.  He  took  the  oath  of  allegiance  to  the  United 
States  and  of  renunciation,  which  was  administered  to  him  by  the  judge  of  the  coiirt. 

The  clerk  then  and  there  issued  to  him  a  final  certificate  of  naturalization,  under  the  seal  of  the 
court,  the  contents  of  which  certificate  is  shown  by  the  proof  of  the  only  form  of  final  certificates  used 
in  that  court.  This  certificate  with  other  important  papers  of  contestee  has  been  lost,  as  conclusively 
shown  by  the  evidence. 

The  clerk  of  the  court  negligently  omitted  to  receive  the  oath  of  allegiance  and  its  recitals,  but 
gave  to  Mr.  White  the  record  of  the  proceedings  then  made  in  the  form  of  a  certificate  of  naturalization, 
such  as  is  usually  issued  to  foreigners  on  being  naturalized,  and  almost  universally  accepted  as  con- 
clusive evidence  of  citizenship. 

On  pages  286,  287,  and  288  of  the  record  will  be  found  a  list  of  about  one  hundred  and  fifty  persons 
naturalized  during  the  years  between  1860  and  1870  in  Allen  County,  of  which  naturalization  the 
only  record  remaining  is  a  duplicate  of  the  certificate  issued  to  the  person  naturalized,  from  which  it 
appears  that  the  common  way  of  recording  naturalization  proceedings  in  those  courts  was  to  make  dupli- 
cate certificates,  reciting  all  the  facts  necessary  to  complete  naturalization,  signed  by  the  clerk  and 
sealed  with  the  seal  of  the  court,  retaining  one  in  the  clerk's  office  and  giving  the  other  to  the  person 
naturalized. 

In  some  cases  the  clerk  neglected  to  fill  up  the  duplicate  blank  kept  in  the  office,  only  filling  out 
one  blank  and  giving  that  to  the  person  so  naturalized,  such  certificate  being  the  only  record  made  by 
the  clerk. 

As  showing  the  negligent  manner  of  keeping  the  records  by  the  clerk  of  that  court,  the  evidence 
discloses  several  instances  of  making  a  record  of  naturalization  years  after  the  fact. 

This  same  clerk  was  in  the  habit  of  writing  up  judgments  in  divorce  cases  when  the  minutes  of  the 
judge  did  not  show  that  any  divorce  had  been  granted,  and  in  four  or  five  cases  records  were  found 
written  up  in  which  the  several  cases  had  not  been  even  docketed,  in  which  there  was  nothing  to  show 
that  such  divorces  had  ever  been  granted  by  the  court. 

In  addition,  it  is  proper  to  state  that  many  other  persons  are  similarly  situated.  Persons  who  claim 
to  have  been  in  fact  naturalized  in  Allen  County,  who  have  moved  away,  have  frequently  written  and 
in  some  cases  returned  to  get  proof  of  citizenship  and  found  no  trace  of  a  record. 

The  fact  of  Mr.  White's  naturalization  in  the  courts  and  at  the  time  claimed  is  established  to  a 
moral  certainty.  See  testimony  of  Isaac  Jenkins  (R.,  pp.  187-195),  of  James  B.  White  (R.,  p.  229), 
and  of  William  T.  Pratt,  Democratic  sheriS  at  the  time  (R.,  p.  196).    The  testimony  is  positive. 


§  424  THE    QUALIFICATIONS    OF   THE    MEMBER.  403 

specific,  uncontradicted,  and  unimpeached.  Its  conclusiveness  will  hardly  be  questioned  by  any  fair- 
minded  man.  The  absence  of  a  record  remaining  in  the  clerk's  office  in  no  way  casts  a  doubt  upon 
it,  taken  in  connection  with  the  evidence  of  the  unreliability  of  these  records  as  kept  by  the  clerk,  or 
rather  by  the  deputy. 

Mr.  White  has  passed  all  the  years  of  his  manhood  in  this  country.  He  has  made  the  greatest 
sacrifice  that  one  can  make  for  his  country — the  offer  of  his  life  in  its  defense.  He  has  held  office  in  the 
city  where  he  resides,  and  has  established  such  a  character  that  his  fellow-citizens  elected  him  to  Con- 
gress by  nearly  2,500  plurality  in  a  district  where  the  party  with  which  he  affiliates  is  in  the  minoritj' 
by  some  3,000. 

Thousands  of  foreign-bom  citizens  are  in  like  situation  with  him,  the  evidence  of  their  citizenship 
resting  upon  duly  authenticated  certificates  issued  by  competent  courts  and  without  complete  records 
thereof  remaining. 

Many  of  them  hold  responsible  positions  in  public  life;  all  of  them  exercise  the  right  of  suffrage 
at  every  recurring  election.     Large  property  interests  depend  upon  their  citizenship. 

It  may  safely  be  said  that  the  right  to  seats  in  the  House  of  many  Members  depends  upon  the 
validity  of  citizenship  resting  upon  just  such  evidence. 

In  the  debate  the  majority  laid  stress  on  the  fact  that  neither  the  record  of  the 
court  nor  the  naturalization  papers  could  be  produced. 

(3)  The  conclusion  wliich  the  majority  proposed  raised  another  question: 

(3)  If  contestee  is  ineligible,  is  contestant,  having  received  the  next  highest  number  of  votes, 
entitled  to  the  seat? 

We  answer  the  first  in  the  negative. 

The  majority  say: 

Now,  with  regard  to  the  last  proposition,  of  seating  contestant. 

The  universal  weight  of  authority  in  the  United  States  and  the  numerous  decisions  in  both 
branches  of  the  Congress  thereof  render  an  extended  discussion  on  this  point  quite  unnecessary.  With 
the  exception  of  the  State  of  Indiana,  where  the  rule  is  established  by  the  supreme  court,  holding 
that,  where  a  candidate  who  receives  the  highest  number  of  votes  is  ineligible,  the  candidate  receiving 
the  next  highest  number  of  votes  is  entitled  to  the  office,  there  is  perhaps  not  another  State  in  the 
Union  where  such  a  doctrine  prevails. 

The  authorities  cited  by  contestant  which  discuss  the  control  of  suffrage  as  residing  in  the  States, 
subject  to  the  limitation  imposed  in  the  fifteenth  amendment  of  the  Federal  Constitution,  in  our 
opinion,  wholly  fail  to  establish  his  position,  that  the  issue  on  this  point  stands  and  appends  wholly 
upon  Indiana  law. 

To  suffer  a  Member  to  be  seated  from  one  State  in  pursuance  of  this  view  and  forbid  the  same 
right  on  the  part  of  a  Member  from  another  State  would  destroy  that  equality  and  harmony  in  the 
membership  of  our  National  Legislature  which  the  founders  of  our  Government  obviously  intended  to 
establish. 

The  Federal  Constitution  says  the  Members  of  the  Honse  shall  be  chosen  every  second  year  by 
the  people  of  the  several  States,  and  that  the  electors  of  each  State  shall  have  the  qualifications 
requisite  for  electors  in  the  most  numerous  branch  of  the  State  legislature. 

It  is  a  cardinal  idea  in  our  political  system  that  this  is  a  people's  government  and  that  the 
majority  rule.  In  the  convention  which  framed  our  common  Constitution,  when  it  was  proposed  to 
strike  out  people  in  the  clause  above  referred  to,  and  insert  legislatures,  thus  giving  the  legislatures 
the  power  to  elect  Representatives,  there  were  only  three  votes  in  the  affirmative  and  eight  in  the 
negative.  On  the  final  vote  only  one  State  voted  in  the  aSirmative,  one  was  divided,  and  nine  in  the 
negative. 

Mr.  Jefferson  considered  that  a  wholesome  provision  in  our  organic  law  on  the  ground  that  the 
people  should  be  taxed  only  by  Representatives  chosen  by  themselves.  It  is  true  that  article  4,  section 
I,  of  the  Constitution  of  the  United  States  says,  "Full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other  State,"  and  that  Congress  may  enact 
the  necessary  laws  thereunder. 

This  was  chiefly  intended  to  give  the  same  conclusive  effect  to  judgments  of  all  the  States  and 


404  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §  424 

equal  verity  to  the  public  acts,  records,  and  judicial  proceedings  of  one  State  in  another,  so  as  to  promote 
uniformity,  as  well  as  certainty,  among  them.     (See  Story  on  the  Constitution,  sec.  1307.) 

This  author  adds: 

"It  is,  therefore  [a  foreign  judgment],  put  upon  the  same  footing  as  a  domestic  judgment;  but 
this  does  not  prevent  an  inquiry  into  the  jurisdiction  of  the  court  in  which  the  original  judgment  was 
given  to  pronounce  it  or  the  right  of  the  State  itself  to  exercise  authority  over  the  persons  or  the  subject- 
matter.  We  think  it  can  not  be  assumed  under  this  clause  of  the  Constitution,  to  hold  full  faith  must 
be  given  to  the  opinion  of  every  State  judge  on  mere  matters  of  law;  but  to  the  record  the  judicial 
proceedings  of  a  State  court,  whether  made  as  the  result  of  right  rulings  or  wrong,  that,  where  properly 
authenticated,  such  record  would  be  held  conclusive  as  to  its  own  identity." 

Judge  Cooley  announces  the  law  to  be  in  this  country,  that  if  the  person  receiving  the  highest 
number  of  votes  is  ineligible,  the  opposing  candidate  is  not  elected  and  the  election  fails. 

The  report  then  cites  the  Congressional  cases  supporting  this  view. 

The  view  taken  of  the  case  by  Mr.  Rowell  and  his  minority  associates  did  not 
render  a  decision  of  the  question  necessary;  but  Mr.  J.  H.  O'Neill,  of  Massachusetts, 
filed  individual  views: 

That  the  qualification  of  a  Member  of  Congress — his  eligibility — depends  upon  the  Federal  Consti- 
tution and  the  laws  of  Congress  passed  in  pursuance  thereof. 

That  the  election  of  a  Member  depends  upon  the  voters  of  the  district  he  represents,  expressing  them- 
selves in  the  way  prescribed  by  the  constitution  and  laws  of  the  State  from  which  he  comes.  To  ascer- 
tain whether  eligible  or  not,  we  look  to  the  Constitution  and  laws  of  the  United  States;  to  ascertain 
whether  elected  or  not,  we  look  to  the  constitution  and  laws  of  the  State  whose  electors  send  him  to 
Congress. 

Recognizing  the  first  proposition,  the  majority  of  the  committee  have  found  and  report  that  the 
contestee  does  not  possess  the  qualifications  prescribed.  Disregarding,  however,  the  second  proposition, 
the  committee  report  adversely  to  the  right  of  contestant  to  the  place  to  which,  under  the  laws  of  Indiana, 
and  by  the  voice  of  the  electors  of  the  Twelfth  Congressional  district  of  said  State,  legally  expressed,  he 
was  duly  elected.  In  that  State  the  rule  of  law,  as  held  by  a  long  and  unbroken  line  of  authority,  by  the 
courts  of  last  resort  and  in  the  halls  of  the  legislature,  the  principle  is  well  settled  that  every  vote  given 
by  an  elector  to  an  ineligible  candidate  counts  for  naught;  that  such  vote  is  inefiectual  to  elect  or  to 
defeat.     In  one  of  the  early  cases  in  that  State,  the  supreme  court  of  the  State  say: 

"While  it  is  true  that  the  votes  of  the  majority  should  rule,  the  tenable  ground  appears  to  be  that  if 
the  majority  should  vote  for  one  wholly  incapable  of  taking  the  office,  having  notice  of  such  incapacity, 
or  should  perversely  refuse  or  negligently  fail  to  express  their  choice,  those,  although  in  a  minority,  who 
should  legitimately  choose  one  eligible  to  the  position  should  be  heeded.     *    *    * 

"True,  by  the  constitution  and  laws  of  the  State,  the  voice  of  the  majority  controls  our  elections, 
but  that  voice  must  be  constitutionally  and  legally  expressed.  Even  a  majority  should  not  nullify  a 
provision  of  the  constitution  or  be  permitted  at  will  to  disregard  the  law.  In  this  is  the  strength  and 
beauty  of  our  institutions.     (Gulick  v.  New,  14  Indiana,  p.  93.)" 

In  the  case  Gulick  v.  New,  supra,  the  court  places  the  impotency  of  the  votes  upon  the  question 
of  notice  to  the  voter  of  the  ineligibility  of  the  candidate  for  whom  the  voter  casts  his  ballot.  Later 
cases  refer  to  want  of  force  in  the  vote  without  referring  to  the  question  of  notice.  But  without  referring 
to  those  cases,  it  is  here  asserted  that — 

"The  legal  presumption  in  favor  of  the  nationality  of  birth,  or  domicile  of  origin,  continues  until 
proof  of  change;  that  in  the  absence  of  proof  that  an  alien  has  become  a  citizen  of  the  United  States  his 
original  status  is  presumed  to  continue.     (Howenstine  v.  Lynham,  100  U.  S.  Reports,  p.  483.) 

"A  disqualification  patent  or  notorious  at  once  causes  the  votes  given  for  the  candidate  laboring 
under  the  disqualification  to  be  thrown  away.  The  same  would  probably  be  held  to  be  the  case  where 
the  electors  had  the  means  of  knowledge  or  might  have  ascertained  the  facts  had  they  desired.  (Grant 
on  Corporations,  p.  208.)" 

That  contestee  was  of  foreign  birth,  like  most  foreigners  professed  of  himself,  would  conclusively 
show.  Then,  if  alienage  is  presumed  to  continue  until  citizenship  is  proven,  those  who  voted  for  him 
must  be  presumed  to  have  known.  Everyone  is  bound  to  know  that  seven  years'  citizenship  is  required 
of  a  Member  of  Congress. 


§  425  THE    QUALIFICATIONS    OF   THE    MEMBER.  405 

425.   The  case  of  Lowry  v.  White,  continued. 

In  the  record  of  an  election  case  allegations  and  testimony  relating  to 
nominations  are  out  of  order. 

Personalities  and,  generally,  also  digressions  on  local  politics  are  irrel- 
evant to  the  record  of  an  election  case. 

Motions  to  suppress  testimony  in  an  election  case  already  printed 
under  the  law  were  disregarded  by  the  Elections  Committee. 

An  Elections  Committee  has  ruled  that  the  determination  of  result 
contemplated  by  the  law  governing  notice  of  contest  is  not  reached  until 
returns  have  been  compared  or  certified  as  required  by  law. 

The  Committee  on  Elections  has  apparently  acquiesced  in  the  view 
that  a  contestant,  while  bringing  into  issue  no  ground  that  could  possi- 
bly give  him  the  seat,  is  yet  to  be  treated  as  a  memorialist,  entitled  to 
have  the  question  determined. 

Form  of  resolutions  for  unseating  a  Member  for  disqualifications. 

The  majority  report  determines  certain  preliminary  questions,  incidental  in 
natiu"e : 

(a)  All  of  the  allegations  and  testimony  relating  to  the  nomination  of  contestant  are  foreign  to  the 
merits  of  the  case,  and  are  not  considered  by  the  committee. 

(6)  A  large  portion  of  the  printed  record  in  the  case  is  needlessly  encumbered  with  such  testimony, 
ramifying  and  shaping  itself  into  a  multitude  of  phases  with  reference  to  State,  county,  and  Congressional 
politics.  The  record  is  also  disfigured  with  acrimonious  personalities  between  contestant  and  contestee, 
that  were  brought  into  the  testimony  and  were  developed  by  way  of  objections  to  evidence  in  taking  the 
same — all  of  which  your  committee  dismiss  from  consideration  as  irrelevant  to  the  legitimate  issues 
involved. 

(c)  Motions  were  filed  during  the  consideration  of  the  case  by  the  committee,  by  both  contestant 
and  contestee,  to  suppress  certain  portions  of  the  testimony,  but  your  committee  could  see  no  practical 
purpose  in  entertaining  the  same  otherwise  than  is  involved  in  the  general  consideration  of  the  case,  in 
view  of  the  act  of  Congress  of  March  2,  1887,  under  which  the  record  has  been  printed  and  distributed, 
as  required  by  law,  prior  to  the  hearing  of  the  case. 

Under  the  provisions  of  that  statute  both  parties  could  have  appeared  within  twenty  days,  on  the 
notice  of  the  Clerk  of  the  House,  and  have  agreed  upon  portions  of  the  record  to  be  printed,  or  should 
they  have  failed  to  agree,  it  was  the  duty  of  the  Clerk  of  the  House  to  decide  what  portions  should  be 
printed. 

It  is  to  be  hoped  this  provision  of  the  law  will  be  observed  in  future,  as  it  will  greatly  expedite  a 
consideration  of  contested  cases,  and  relieve  both  the  committee  and  the  House  of  a  great  deal  of  needless 
labor  in  investigating  the  same. 

(d)  The  Revised  Statutes  of  the  United  States,  1878,  section  105,  require  notice  of  contest  to  be 
given  within  thirty  days  after  the  result  of  an  election  shall  have  been  determined. 

Service  was  had  on  the  contestee  on  the  20th  day  of  December,  1886.  The  contestant  swears  that 
he  visited  the  office  of  the  secretary  of  state  of  Indiana  as  late  as  the  23d  or  24th  of  November,  1886,  and 
that  he  was  informed  by  that  official  that  the  election  returns  of  the  district  in  question  had  not  then 
been  compared  or  certified  as  required  by  law.  (See  Lowry's  testimony,  Record,  409.)  This  is  not 
denied;  consequently,  in  legal  contemplation,  the  result  had  not  been  determined,  and  the  contestant 
was  clearly  within  the  statute  requiring  him  to  give  thirty  days'  notice. 

The  minority  views  also  discuss  a  question  which  by  implication  the  majority 
of  the  committee  may  also  have  approved,  since  they  in  fact  did  not  favor  dismissing 
the  contest: 

(e)  It  is  urged  by  contestee  that  inasmuch  as  contestant  abandoned  the  only  ground  of  contest 
which  could  give  him  any  standing  as  a  contestant  for  the  seat  occupied  by  contestee,  the  whole  pro- 


406  PRECEDENTS    OF   THE   HOUSE    OF   REPRESEKTATIVES.  §  426 

ceeding  ought  to  bo  dismissed.  That  even  admitting  the  ineligibility  of  contestee  as  charged, 
contestant  has  no  standing  in  the  case,  because,  having  been  beaten  at  the  polls,  he  can  not  under  any 
proper  view  of  the  case  succeed  to  the  seat  from  which  he  seeks  to  oust  the  sitting  Member. 

That  this  would  be  the  rule  in  judicial  proceedings  will  not  be  denied.  But  inasmuch  as  all  the 
papers  in  the  case  were  before  the  committee  for  their  consideration,  we  are  inclined  to  treat  the  con- 
testant as  a  memorialist,  and  to  examine  the  questions  presented  for  the  purpose  of  reporting  our  conclu- 
sions to  the  House. 

In  accordance  with  their  conclusions,  the  majority  proposed  two  resolutions: 

Resolved,  first,  That  James  B.  White,  not  having  been  a  citizen  of  the  United  States  for  seven  years 
previous  to  the  4th  of  March,  1887,  is  not  entitled  to  retain  his  seat  in  the  Fiftieth  Congress  of  the 
United  States  from  the  Twelfth  Congressional  district  of  Indiana. 

Resolved,  second.  That  Robert  Lowry,  not  having  received  a  majority  of  the  votes  cast  for  Repre- 
sentative in  the  Fiftieth  Congress  from  the  Twelfth  Congressional  district  of  Indiana,  is  not  entitled  to 
a  seat  therein  as  such  Representative. 

The  minority  proposed  this  resolution: 

Resolved,  That  James  B.  White  was  duly  elected  a  Representative  to  the  Fiftieth  Congress  from 
the  Twelfth  Congressional  district  of  Indiana,  and  is  entitled  to  retain  his  seat. 

The  report  was  debated  at  length  on  February  2,  4,  and  6,'  and  on  the  latter 
day  the  resolution  of  the  minority  was  substituted  for  that  of  the  majority  by  a  vote 
of  yeas  186,  nays  105.  Then  the  resolutions  of  the  majority  were  agreed  to  as 
amended.^  So  the  recommendations  of  the  majority  of  the  committee  were  reversed, 
and  sitting  Member  retained  his  seat. 

426.  The  case  relating  to  the  qualifications  of  Anthony  Michalak,  of 
Illinois,  in  the  Fifty-ninth  Congress. 

The  House  considered  a  protest  as  to  the  qualifications  of  a  Member 
after  he  had  taken  the  oath  without  objection. 

Form  of  protest  as  to  the  qualifications  of  a  Member. 

The  House  referred  a  question  as  to  the  qualifications  of  a  Member  to 
an  elections  committee  instead  of  to  a  select  committee. 

On  December  4,  1905,^  at  the  time  of  the  organization  of  the  House,  the  name 
of  Anthony  Michalek  appeared  on  the  Clerk's  roll  among  the  Members-elect  from 
IlHnois.     He  voted  for  Speaker  and  was  sworn  in  without  objection. 

On  December  5,*  Mr.  Henry  T.  Rainey,  of  Ilhnois,  claiming  the  floor  for  a  ques- 
tion of  privilege,  and  being  recognized,  presented  the  following  protest: 

To  the  honorable  the  House  of  Representatives  of  the  Fifty-ninth  Congress  of  the  United  States  of  America: 

The  undersigned  citizens  and  legal  voters  of  the  Fifth  Congressional  district  of  Illinois  respectfully 
represent  unto  your  honorable  body  that  at  the  last  Congressional  election  held  in  said  district  one 
Anthony  Michalek  was  elected  as  a  Member  of  the  Fifty-ninth  Congress;  that  since  said  election  it  has 
come  to  the  notice  of  the  undersigned  that  said  Anthony  Michalek  was  not  at  the  time  he  was  elected 
nor  is  he  now  a  citizen  of  the  United  States. 

Wherefore  we  protest  against  being  represented  in  your  honorable  body  by  one  who  has  not  deemed 
it  worth  while  to  become  a  citizen  of  the  United  States,  and  respectfully  petition  your  honorable  body 

'Record,  pp.  915,  947,  988-1001;  Journal,  pp.  684-686. 

^  The  Journal  omits  to  notice  that  the  resolutions  as  amended  were  agreed  to,  but  the  Record  (p. 
1001)  and  subsequent  proceedings  show  that  the  question  was  in  fact  put  and  agreed  to. 
^  First  session  Fifty-ninth  Congress,  Journal,  p.  3;  Record,  p.  39. 
*  Journal,  p.  68;  Record,  p.  108. 


§  426  THE    QUALIFICATIONS    OF   THE    MEMBER.  407 

tB  cause  an  investigation  to  be  made,  and  if  it  is  found  that  said  Michalek  is  not  a  citizen  of  the 
United  States  to  take  such  action  in  the  premises  as  to  your  honorable  body  shall  seem  fit  and  proper. 

And  in  support  of  this  petition  we  herewith  submit  the  affidavits  of  Julius  M.  Kahn,  Enoch  P.  Mor- 
gan, and  Joseph  Pejsar,  which  affida\-its  are  made  part  of  this  petition,  and  we  offer  to  produce  other 
and  additional  testimony  on  any  hearing  ordered  by  your  honorable  body. 

And  we  will  ever  pray. 

State  op  Illinois,  County  of  Cook,  ss: 

Julius  M.  Kahn,  being  first  duly  sworn,  on  oath  deposes  and  says  that  he  is  an  attorney  at  law,  and 
resides  at  729  East  Fiftieth  place,  in  the  city  of  Chicago;  that  he  is  a  native-bom  citizen  of  the  United 
States,  and  that  he  is  thoroughly  familiar  with  the  records  of  the  courts  of  Cook  County,  in  the  State  of 
Illinois,  and  a  competent  person  to  examine  the  records  of  the  courts;  that  in  said  county  there  are  four 
courts  which  have  the  power  to  naturalize  citizens,  namely:  The  circuit  court,  superior  court,  county 
court,  and  criminal  court,  and  no  other  court  in  said  Cook  County  has  such  power,  and  that  no  other 
court  had  such  power  for  more  than  tliirty  years  last  past;  that  he  has  carefully  examined  the  records 
of  each  and  every  one  of  said  four  courts  for  the  purpose  of  ascertaining  whether  one  Vaclav  Michalek 
ever  became  a  citizen  of  the  United  States;  that  he  carefully  examined  the  records  beginning  with  the 
year  1879  and  ending  with  the  year  1890,  both  inclusive,  and  that  there  is  no  record  in  any  of  said 
courts  showing  that  one  Vaclav  Michalek  became  a  naturalized  citizen  during  said  period  of  time,  and 
that  during  all  of  said  period  of  time  no  one  by  the  name  of  Michalek  became  a  citizen  in  said  Cook 
County,  except  one  Michael  Michalek,  who  became  a  citizen  on  March  26,  1888,  by  naturalization  and 
judgment  of  the  superior  court  of  Cook  County;  that  said  Michael  Michalek,  as  appears  from  said  records, 
was  a  native  of  Germany,  and  not  a  native  of  Bohemia,  Austria,  and  that  he  took  the  oath  renouncing 
allegiance  to  the  Emperor  of  Germany. 

And  this  affiant  says  that  after  a  thorough  investigation  of  the  records  he  finds  that  Vaclav  Mich- 
alek was  never  naturalized  in  the  county  of  Cook  during  said  period  of  time. 

Affiant  further  says  that  under  the  election  laws  of  the  State  of  Illinois  each  voter  must  register 
and  answer  under  oath  certain  questions  in  regard  to  his  qualifications  as  a  voter,  and  that  the  record 
of  each  voter's  answers  is  kept ;  that  this  affiant  examined  the  records  so  kept  in  the  election  commis- 
sioners' office  in  the  city  of  Chicago,  County  of  Cook,  and  State  of  Illinois,  and  finds  that  Anthony 
Michalek,  Congressman-elect  from  the  Fifth  Illinois  district,  registered  in  the  Eighth  precinct  of  the 
Eleventh  ward  in  said  city  in  the  year  1905,  and  that  his  sworn  answers  to  questions  propounded  were 
that  he,  Anthony  Michalek,  was  born  in  Bohemia,  and  that  he  became  a  citizen  of  the  United  States 
by  act  of  Congress. 

And  further  affiant  saith  not. 

Julius  M.  Kahn. 

Subscribed  and  sworn  to  before  me  this  18th  day  of  November,  A.  D.  1905. 

[seal.]  Edw.  R.  Newmann,  Notary  Public. 

State  of  Illinois,  County  of  Cook,  ss: 

Josef  Pejsar,  being  first  duly  sworn,  on  oath  deposes  and  says  that  he  is,  and  for  about  thirty-five 
years  last  past  has  been,  a  citizen  of  the  United  States;  that  he  has  resided  in  the  city  of  Chicago  for 
about  thirty-nine  years  last  past;  that  he  is  a  householder  and  resides,  and  has  resided  for  more  than 
ten  years  last  past,  at  No.  3437  Lowe  avenue,  in  the  city  of  Chicago;  that  he  is  acquainted  with  Anthony 
Michalek,  Congressman-elect  from  the  Fifth  Congressional  district;  that  the  name  of  the  father  of  said 
Congressman-elect  was  Vaclav  Michalek;  that  said  Vaclav  Michalek  was  by  occupation  a  brewer; 
that  this  affiant  was  also  by  occupation  a  brewer;  that  both  of  them  were  natives  of  Bohemia,  Austria,  and 
that  both  of  them  were  employed  by  the  Seipp  Brewing  Company,  in  the  city  of  Chicago,  and  that 
this  affiant  was  well  acquainted  with  said  Vaclav  Michalek,  father  of  said  Congressman-elect;  that 
said  Vaclav  Michalek  arrived  in  this  country  in  1879  as  an  immigrant  from  Bohemia,  and  brought 
said  Anthony  Michalek,  his  son,  with  him;  that  he  came  direct  to  Chicago,  and  remained  here  until 
the  time  of  his  death;  that  he  died  in  the  year  1883,  and  that  he  had  not  been  fully  five  years  in  this 
country  at  the  time  of  his  death,  and  that  at  the  time  of  his  death  the  said  Vaclav  Michalek  was  at 
least  40  years  of  age;  and  that  the  said  Vaclav  Michalek  had  never  been  in  the  United  States  prior 
to  the  year  1879.     That  at  an  election  held  in  the  city  of  Chicago  a  few  months  preceeding  the  death 


408  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   426 

of  said  Vaclav  Michalek  this  affiant  had  a  conversation  with  said  Vaclav  Michalek  in  the  Bohemian 
language,  in  which  conversation  this  affiant  desired  said  Michalek  to  become  interested  in  the  coming 
election,  and  asked  him  to  become  a  citizen  of  the  United  States  and  make  application  for  his  first 
papers;  but  that  said  Vaclav  Michalek  answered  that  elections  could  get  along  without  him,  and  that 
he  was  not  and  did  not  care  to  become  a  citizen  of  the  United  States  for  some  time  to  come. 

And  further  affiant  saith  not. 

JosEP  Pejsar. 

Subscribed  and  sworn  to  before  me  this  21st  day  of  November,  A.  D.  1905. 

[seal.]  Alfar  M.  Eberhardt,  Notary  Public. 

State  of  Illinois,  County  of  Cook,  ss: 

Matous  Sedlacek,  being  first  duly  sworn,  on  oath  deposes  and  says  that  he  is  by  occupation  a  brewer; 
that  he  is  a  citizen  of  the  United  States,  and  resides  at  630  West  Eighteenth  street,  in  the  city  of  Chicago, 
Cook  County,  HI.,  and  that  he  has  been  a  resident  of  the  city  of  Chicago  for  a  period  of  not  less  than 
thirty-four  years;  that  he  was  bom  in  Bohemia,  and  speaks  the  Bohemian  language. 

Affiant  further  says  that  he  became  acquainted  with  one  Vaclav  Michalek  about  the  time  and 
during  the  same  year  that  said  Vaclav  Michalek  arrived  in  this  country  as  an  immigrant  from  Bohemia; 
that  said  Vaclav  Michalek  came  here  with  his  family,  and  was  the  father  of  Anthony  Michalek,  Con- 
gressman-elect from  the  Fifth  Illinois  district;  that  said  Vaclav  Michalek  worked  during  his  lifetime 
at  Seipp  Brewing  Company  and  at  Hauck's  malt  house;  that  for  a  period  of  about  three  years  the  said 
Vaclav  Michalek  and  this  affiant  worked  together  and  often  conversed  with  each  other  in  the  Bohemian 
language. 

Affiant  further  says  that  he  well  remembers  the  time  of  the  death  of  said  Vaclav  Michalek,  and 
that  between  the  time  of  the  arrival  of  said  Vaclav  Michalek  as  an  immigrant  in  this  country  and  the 
time  of  his  death  less  than  five  (5)  years  elapsed. 

And  further  affiant  saith  not.  M.^xous  Sedlacek. 

Subscribed  and  sworn  to  before  me  this  21st  day  of  November,  A.  D.  1905. 

[seal.]  Alfar  M.  Eberhardt,  Notary  Public. 

State  of  Illinois,  County  of  Cook,  ss: 

Enoch  P.  Morgan,  being  first  duly  sworn,  on  oath  deposes  and  says  that  he  resides  at  495  South 
Hermitage  avenue,  in  the  city  of  Chicago,  HI.;  that  he  is,  and  for  the  past  seventeen  years  has  been, 
a  citizen  of  the  United  States,  and  for  more  than  thirteen  years  last  past  has  been  a  resident  of  the 
city  of  Chicago;  that  he  is  a  resident  of  the  Fifth  Congressional  district  and  is  well  acquainted  with 
Anthony  Michalek,  Congressman-elect  from  said  district;  that  during  the  last  Presidential  campaign 
this  affiant  was  one  of  the  Republican  campaign  speakers  in  the  employ  of  the  national  committee; 
that  said  Anthony  Michalek  informed  this  affiant  that  he,  Michalek,  was  born  in  Bohemia,  and  that 
his  father  emigrated  to  this  country  and  brought  said  Anthony  with  him  when  said  Anthony  was  a 
boy  of  tender  years;  that  he,  said  Anthony  Michalek,  was  not  a  citizen  of  the  United  States;  that  the 
said  conversation  took  place  at  the  time  when  said  Anthony  Michalek  was  a  candidate  for  Congress  at 
the  last  national  election;  that  this  affiant  advised  him  that  it  was  his  duty  to  at  once  apply  to  become 
a  citizen  of  the  United  States,  and  told  him  that  he  could  obtain  his  papers  easily,  because  he  came 
to  this  country  when  he  was  under  the  age  of  18  years;  and  that  this  affiant  informed  him  that  he  should 
not  under  any  circumstances  omit  to  perform  that  duty  at  once,  or  that  he  would  surely  get  himself 
in  trouble  if  he  voted  without  being  a  citizen;  that  said  Anthony  Michalek  replied  that  nobody  would 
know  anyway,  and  that  it  would  not  make  any  difference;  that  one  of  his  relations,  who  was  also  not  a 
citizen,  had  held  office,  and  that  he  saw  no  reason  why  he  could  not  hold  office  without  going  to  the 
trouble  of  taking  out  his  papers,  and  that  nobody  would  know  the  difference. 

And  further  affiant  saith  not. 

Enoch  P.  Morgan. 

Subscribed  and  sworn  to  before  me  this  18th  day  of  November,  A.  D.  1905. 

[seal.]  Julius  M.  Kahn,  Notary  Public. 


§  427  THE    QUALIFICATIONS   OF    THE   MEMBER.  409 

The  memorial  having  been  read,  Mr.  Rainey  offered  the  following: 

Resolved,  That  the  protest  of  citizens  of  the  Fifth  Congressional  district  of  Illinois  against  being 
represented  in  Congress  by  Anthony  Michalek,  declared  by  them  to  be  an  alien,  be  referred  to  a  special 
committee  of  five  Members  of  this  House,  to  be  appointed  by  the  Speaker,  for  immediate  investigation. 

To  this  Mr.  James  R.  Mann,  of  Illinois,  offered  an  amendment  as  follows: 

Strike  out  of  the  resolution  the  words  "a  special  committee  of  five  Members  of  this  House,  to  be 
appointed  by  the  Speaker,  for  immediate  investigation"  and  insert  "be  referred  by  the  Speaker  to  the 
appropriate  committee  of  this  House  when  appointed." 

Debate  followed  as  to  the  propriety  of  the  consideration  of  the  subject  by  an 
elections  coromittee  instead  of  a  special  committee,  during  which  Mr.  Marlin  E. 
Olmsted,  of  Pennsylvania,  cited  the  provisions  of  Rule  XI  giving  the  Elections 
Committees  the  right  to  report  at  any  time  on  the  right  of  a  Member  to  a  seat,  and 
Mr.  Mann  recalled  the  fact  that  in  the  First  Congress  a  question  as  to  qualifica- 
tions was  passed  on  by  the  Elections  Committee. 

After  debate  the  amendment  was  agreed  to,  yeas  178,  nays  93.  Then  the 
resolution  as  amended  was  agreed  to. 

427.   The  case  of  Anthony  Michalek,  continued. 

The  House  authorized  its  committee  to  take  testimony  in  a  case 
wherein  the  qualifications  of  a  Member  were  impeached. 

As  to  the  degree  of  testimony  required  to  put  the  burden  of  proof  on 
a  Member  whose  status  as  a  citizen  was  impeached. 

On  January  29,  1906,'  Mr.  H.  Olin  Yoimg,  of  Michigan,  from  the  Conunittee 
on  Elections  No.  1,  submitted  the  following  report: 

The  Committee  on  Elections  No.  1,  to  whom  was  referred  theprotestof  citizens  of  the  Fifth  Congres- 
sional district  of  Illinois,  against  the  right  of  Hon.  Anthony  Michalek,  elected  as  a  Member  of  the  House 
of  Representatives  from  that  district  to  the  Fifty-ninth  Congress,  to  a  seat  in  the  House,  on  the  ground 
that  he  was  not  at  the  time  he  was  elected  a  citizen  of  the  United  States,  beg  leave  to  report  and  recom- 
mend the  passage  of  the  following  resolution: 

"\Miereas,  there  is  now  pending  before  the  House  of  Representatives  a  protest  alleging  that  the 
Hon.  Anthony  Michalek  was  not  at  the  time  of  his  election  as  a  Member  of  this  House,  and  is  not  now,  a 
citizen  of  the  United  States,  and  therefore  is  disqualified  to  be  or  remain  a  Member  of  this  House,  which 
protest  has  been  referred  to  the  Committee  on  Elections  No.  1  for  investigation:  Therefore 

"Resolved  by  the  House  of  Representatives,  That  said  committee  be  empowered  to  take  such  testi- 
mony as  it  deems  necessary  to  a  determination  of  said  matter,  either  before  said  committee  or  before  a 
subcommittee  thereof  or  a  member  of  said  Committee  on  Elections  No.  1  appointed  therefor,  or  any  other 
person  selected  by  said  committee  for  such  purpose,  and  that  the  time,  place,  and  manner  of  taking, 
certifying,  and  returning  said  testimony  be  determined  by  said  committee,  and  that  the  expenses  incurred 
in  taking  said  testimony  be  paid  from  the  contingent  fund  of  the  House  upon  the  order  of  said  Committee 
on  Elections  No.  1." 

The  resolution  was  agreed  to  by  the  House. 

On  March  6,^  Mr.  James  R.  Mann,  of  Illinois,  submitted  the  unanimous  report 
of  the  committee,  wliich  recited  the  petition  protesting  against  the  seating  of  Mr. 
Michalek,  and  said: 

The  petition  purported  to  be  signed  by  John  F.  Joyce,  696  West  Taylor  street,  Chicago,  and  124 
other  persons. 

'  Journal,  p.  356;  Record,  p.  1698. 
2  House  Report  No.  2117. 


410  PRECEDENTS  OF  THE  HOUSE  OF  BEFKESENTATIVES.         §  427 

The  petition  having  been  referred  to  this  committee,  the  House,  on  the  29th  day  of  January,  A.  D. 
1906,  passed  a  resolution  authorizing  this  committee  to  take  testimony  in  order  to  determine  the  right 
of  Mr.  Michalek  to  his  seat. 

The  original  petition  was  supported  by  the  affidavits  of  Julius  M.  Kahn,  Joseph  Pejsar,  Matous 
Sedlacek,  and  Enoch  P.  Morgan,  which  were  attached  to  the  petition  and  formed  a  part  thereof,  as 
presented  to  the  House.  The  affidavit  of  Julius  M.  Kahn  did  not,  on  its  face,  make  any  case  against 
Mr.  Michalek,  because  it  showed  that  while  affiant  stated  he  had  made  search  of  the  records  of  certain 
courts  in  Chicago,  Cook  County,  111.,  to  ascertain  whether  the  father  of  Mr.  Michalek  had  been  natural- 
ized, it  also  showed  that  he  had  made  no  search  for  such  naturalization  in  either  the  United  States 
district  or  circuit  court  in  Chicago,  of  which  courts  this  committee  necessarily  takes  notice. 

The  affidavit  of  Enoch  P.  Morgan  did  not  make  out  a  prima  facie  case  against  Mr.  Michalek,  because 
affiant  simply  stated  what,  at  the  best,  would  be  a  conclusion  as  to  citizenship. 

The  two  affidavits  of  Joseph  Pejsar  and  Matous  Sedlacek,  however,  were  to  the  effect  that  Mr. 
Anthony  Michalek,  the  sitting  Member,  came  to  this  country  when  he  was  a  minor,  with  his  father, 
and  that  the  father,  Vaclav  Michalek,  died  before  he  had  been  in  this  country  a  period  of  five  years. 

The  statements  in  the  affidavits  of  Sedlacek  and  Pejsar  seem  to  justify  the  committee  in  permitting 
the  protestants  to  offer  evidence  in  support  of  their  protest,  and  accordingly  such  evidence  was  taken 
by  a  member  of  the  committee  and  by  direction  of  the  committee  in  Chicago. 

At  the  taking  of  this  testimony  neither  Joseph  Pejsar  nor  Matous  Sedlacek  was  called  upon  to  testify, 
and  it  was  then,  and  is  now,  admitted  that  the  affidavits  of  these  two  men  were  false. 

At  the  taking  of  the  testimony  in  Chicago  not  one  of  the  protestants  appeared  and  not  one  of  them 
testified. 

NECESSITY  FOR   CARE    WHEN   CHARGES   ARE   MADE   AGAINST  THE   RIGHT  OP   A   MEMBER   OP  CONGRESS  TO 

HIS   SEAT. 

The  necessity  for  care  in  considering  and  examining  a  protest  of  this  character  is  well  exemplified 
by  this  particular  case.  Here  are  125  names  signed  to  a  protest  and  on  the  hearing  not  one  of  the  per- 
sons signing  the  protest  appears  to  give  his  reasons  for  making  the  protest.  The  two  persons  who  are 
principally  relied  upon  by  their  affidavits  to  sustain  the  protest  do  not  appear,  and  it  is  admitted  that 
their  affidavits  are  falsehoods.  By  what  right  do  these  125  men  make  a  statement  that  a  Member  of 
this  House  is  not  entitled  to  his  seat  and  then  offer  no  proof  in  support  of  it?  Were  Mr.  John  F.  Joyce 
and  the  other  signers  of  the  protest  simply  dummies  who  were  being  used  by  somebody  else?  Were 
they  the  cat's-paw  to  pull  the  chestnuts  out  of  the  fire  in  the  interest  of  someone  else? 

These  persons  have  trifled  with  the  dignity  of  this  House.  They  have  not  even  had  the  manliness 
to  come  before  the  committee  at  the  hearing  and  state  that  they  were  deceived  by  the  false  affidavits  of 
Pejsar  and  Sedlacek.  We  do  not  wish  to  be  understood  as  criticising  counsel  who  appeared  for  or  in 
support  of  the  position  of  the  protestants.  Counsel  in  behalf  of  the  protestants  were  engaged  as  and 
appeared  as  lawyers.  They  presented  their  case  with  the  utmost  fairness  and  in  a  manner  to  maintain 
their  high  position  as  leaders  among  the  great  bar  at  Chicago. 

ANTHONY    MICHALEK   IS   FOREIGN    BOBN. 

It  appears  Trom  the  evidence  in  the  case  that  Anthony  Michalek,  the  sitting  Member,  came  to  this 
country  with  his  father,  Vaclav  Michalek,  and  his  mother,  Thercse  Michalek,  in  1878,  when  only  a  few 
months  old. 

There  are  five  ways,  in  any  one  of  which  Anthony  Michalek  might  have  become  a  citizen  of  the 
United  States. 

First.  By  the  naturalization  of  his  father,  Vaclav  Michalek,  during  the  minority  of  the  son. 

Second.  By  the  naturalization  of  his  mother,  Therese  Michalek,  after  the  death  of  his  father,  during 
the  minority  of  the  son. 

Third.  By  the  marriage  of  Therese  Michalek  after  the  death  of  Vaclav  Michalek  to  a  citizen  of  the 
United  States  during  the  minority  of  the  son. 

Fourth.  By  the  naturalization  of  Anthony  Michalek  himself  as  a  person  who  came  here  under  the 
age  of  18,  he  having  the  right  under  the  statute  to  receive  his  final  papers  without  taking  out  first  papers. 

Fifth.  In  case  his  father,  Vaclav  Michalek,  took  out  his  first  papers  and  then  died,  by  compliance  on 


§427 


THE   QUALIFICATIONS    OF   THE    MEMBER.  411 


the  part  of  Anthony  Michalek  with  section  2168  of  the  Revised  Stattites,  providing  that  where  a  person 
takes  out  his  first  papers  and  dies  his  widow  and  minor  children  shall  be  considered  as  citizens  and  be 
entitled  to  all  the  rights  and  privileges  as  such  upon  taking  the  oaths  required  by  law. 

It  wiU  be  seen,  therefore,  that  the  sitting  Member  might  have  become  a  citizen  by  reason  of  the 
naturalization  of  his  father  or  of  his  mother  or  of  himself.  In  order  to  make  a  prima  facie  case  against 
him  by  an  examination  of  the  records,  it  would  seem  to  require  an  examination  as  to  all  three  of  these 
persons.  There  are  at  least  six  courts  in  the  city  of  Chicago,  where  these  persons  lived  from  the  time 
they  came  into  the  countr>-,  which  are  authorized  by  law  to  issue  naturalization  papers.  These  are 
foiu-  State  courts  and  two  Federal  courts. 

To  make  a  prima  facie  case  against  the  sitting  Member  it  would  be  necessary  to  examine  the  records 
in  each  of  these  six  courts  for  naturalization  of  Vaclav  Michalek,  Therese  Michalek,  and  Anthony 
Michalek.  This  would  make  at  least  eighteen  separate  examinations  of  records.  As  a  matter  of  fact, 
counsel  for  protestants  offered  testimony  concerning  the  naturalization  of  Vaclav  Michalek,  the  father, 
in  the  four  State  courts.  No  testimony  was  offered  concerning  the  naturalization  of  Vaclav  Michalek 
in  the  two  Federal  courts  and  no  testimony  was  offered  as  to  the  naturalization  of  Therese  Michalek  or 
Anthony  Michalek  in  any  of  the  six  courts. 

The  purpose  of  offering  testimony  at  all  concerning  records  of  the  courts  was  to  shift  the  burden 
of  proof  from  the  protestants  to  the  sitting  Member.  If  any  testimony  be  necessary  concerning  the 
records  in  any  coiuls,  in  order  to  shift  the  burden  of  proof,  then  it  would  seem  that  testimony  ought 
to  be  offered  as  to  all  of  the  courts,  and  if  it  be  necessarj'  to  offer  testimony  concerning  the  naturalization 
of  the  father,  Vaclav  Michalek,  it  would  seem  to  be  also  necessarj-  to  offer  testimony  concerning  the 
records  as  to  Anthony  Michalek,  the  sitting  Member  himself,  as  well  as  his  mother,  Therese  Michalek, 
if  it  be  desired  to  shift  the  burden  of  proof. 

■^Tiile  there  are  six  courts  in  Chicago  having  the  power  to  naturalize,  the  law  also  provides  that 
any  person  living  in  Chicago  may  apply  to  any  court  within  the  State  for  naturalization. 

We  think  it  might  be  fairly  well  contended  that  proof  that  neither  Vaclav  Michalek,  the  father, 
Therese  Michalek,  the  mother,  or  Anthony  Michalek,  the  son,  was  naturalized  in  any  court  in  Cook 
County  would  shift  the  burden  of  proof  to  the  sitting  Member  without  requiring  the  protestants  to 
offer  proof  as  to  the  many  courts  in  Illinois  outside  of  Cook  County,  though  we  do  not  wish  to  be  con- 
sidered as  expressing  any  decided  opinion  upon  that  question,  it  being  wholly  unnecessary  for  the 
decision  of  this  case. 

It  is  perfectly  manifest  in  our  opinion  that  if  evidence  concerning  the  records  of  any  of  the  courts 
as  to  the  naturalization  of  either  the  father,  the  mother,  or  the  son  be  necessary  to  effect  the  shifting 
of  the  burden  of  proof,  then  it  is  necessary  to  off'er  evidence  concerning  all  of  these  local  courts. 

The  evidence  which  was  produced  relating  to  the  naturalization  of  Vaclav  Michalek  in  the  State 
courts  of  Cook  County  was  mainly  evidence  relating  to  an  examination  of  the  indexes  of  natiualization 
and  not  to  an  examination  of  either  the  actual  records  or  the  original  applications.  Counsel  for  prot- 
estants seemed  to  admit  that  an  examination  of  the  indexes  (not  required  by  law  to  be  kept)  might 
be  insufficient  to  prove  the  contents  of  the  records,  and  offered  upon  the  argument  of  this  case  in  com- 
mittee, and  after  the  hearing  and  testimony  had  been  completed,  affidavits  of  various  persons  connected 
with  the  offices  of  the  clerks  of  the  State  courts  in  Chicago  concerning  the  records  themselves. 

Without  expressing  any  opinion  as  to  the  right  of  the  protestants  to  have  these  affidavits  admitted 
in  evidence  without  an  opportunity  on  the  part  of  the  sitting  Member  to  a  cross-examination  of  the 
witnesses,  we  have  considered  the  affidavits  as  evidence  in  the  case,  inasmuch  as  giving  them  the  weight 
of  testimony  has  not  resulted  in  detriment  to  the  sitting  Member,  who  was  deprived  of  the  opportunity 
of  cross-examination. 

The  evidence  in  this  case  shows  that  the  condition  of  the  naturalization  papers  and  records  in 
Cook  County  is  not  very  satisfactory;  that  the  indexes  have  many  mistakes  in  them;  that  all  the  origi- 
nal applications  for  naturalization  have  not  been  entered  of  record  as  required  by  the  statute,  and 
that  the  naturalization  papers  and  records  have  not  been  kept  with  that  degree  of  care  and  accuracy 
which  is  presumed  to  be  used  in  the  keeping  of  ordinary  court  records  and  documents.  It  is  not  likely 
that  the  condition  of  the  naturalization  records  in  Cook  County  is  different  from  the  naturalization 
records  in  other  large  cities.  It  is  well  known,  and  the  evidence  in  this  case  disclosed  the  fact,  that 
naturalization  of  foreign-bom  persons  is  often  carried  on  at  night,  when  applicants  appear  in  large  num- 
bers and  at  the  suggestion  and  expense  of  political  committees.     The  names  of  the  applicants  are  writ- 


412  PEECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   427 

ten  in  the  body  of  the  application  blanks  by  the  clerks  of  the  courts  either  from  the  signature  of  the 
applicants  or  from  the  pronunciation  of  their  names  by  themselves.  It  is  perfectly  manifest  to  every- 
one that  under  such  circumstances  many  errors  creep  into  the  names  as  written  in  the  body  of  the 
applications  and  afterwards  into  the  records. 

In  the  affidavits  filed  with  the  protest  in  this  case  the  name  of  Pejsar  is  not  written,  where  he  signs 
the  affidavit,  in  the  same  manner  as  it  is  written  in  the  body  of  the  affidavit,  nor  would  it  be  possible 
for  the  writer  of  this  report  to  definitely  state  from  his  signature  what  his  name  is.  The  same  is  true 
also  of  the  adaffivit  and  name  of  Sedlacek.  There  are  a  number  of  signatures  attached  to  the  protest 
presented  to  the  House  which  it  is  not  possible  for  a  stranger  to  accurately  read. 

The  Bohemian,  Polish,  and  Russian  names  are  usually  not  familliar  to  the  average  clerk  of  the 
court.  He  does  not  quickly  read  the  name  correctly  when  written  by  the  applicant  in  his  foreign 
handwriting. 

NO   PRIMA    FACIE   CASE    MADE    BY    PROTESTANTS. 

We  are  of  the  opinion  that  the  protestants  have  not  made  a  prima  facie  case  against  Anthony  Micha- 
lek,  the  sitting  Member,  by  the  evidence  offered  in  reference  to  the  naturalization  records  in  Cook 
County.  We  are  further  of  the  opinion  that  the  evidence  of  Enoch  P.  Morgan  does  not  tend  to  make  a 
prima  facie  case  against  Mr.  Michalek.  The  testimony  of  Mr.  Morgan  bears  upon  its  face  so  many  evi- 
dences of  self-contradiction  that  it  is  to  be  looked  at  with  some  careful  scrutiny  before  it  is  accepted  as 
correct.  But,  reduced  to  a  few  words,  the  evidence  of  Mr.  Morgan,  Mrs.  Morgan,  and  their  son  is  to  the 
effect  that  Mr.  Morgan,  prior  to  the  election,  believed  the  sitting  Member  ought  to  take  out  naturalization 
papers  himself,  on  the  theory  that  ho  could  not  take  a  seat  in  Congress  unless  he  had  received  a  naturali- 
zation paper  declaring  him  to  be  a  citizen.  It  seems  evident  to  us  that,  even  if  the  conversations  as  nar- 
rated by  the  Morgans  took  place,  there  was  a  misunderstanding  of  the  meaning  of  the  words  "citizen  "  and 
"native  born."  When,  according  to  Morgan,  he  asked  Mr.  Michalek  if  he  was  a  citizen,  and  Michalek 
said  he  was  bom  in  Bohemia,  and  Morgan  told  Michalek  that  he  must  take  out  his  papers  and  become 
a  citizen  and  Michalek  "laughed,"  Morgan  thought  Michalek  must  take  out  citizenship  papers  in  per- 
son before  he  could  be  elected  to  Congress,  and  Michalek  thought  that  Morgan  believed  a  man  could  not 
be  elected  to  Congress  who  was  foreign  bom  and  not  native  born,  and  that  was  not  worth  discussing. 

MICHALEK    IS    A    CITIZEN    AND    ELICIBLE    FOR   MEMBERSHIP   IN    THE      HOUSE. 

We  find  from  the  evidence  in  the  case,  however,  that  the  sitting  Member,  Anthony  Michalek,  is  and 
has  been  for  more  years  than  required  by  the  Constitution  a  citizen  of  the  United  States;  that  the 
Michalek  family  came  to  this  country  in  1878;  that  while  in  this  country  the  father  was  known  as  by 
his  Bohemian  friends  as  Waclav  or  Vaclav  Michalek,  and  by  his  German  friends  as  Wenzel  or  Wencl 
Michalek;  that  on  the  29th  day  of  October,  1884,  he  applied  for  and  received  his  first  citizenship 
papers  in  the  county  court  of  Cook  County  under  the  name  of  Wenzl  Michalek,  as  written  in  the  body 
of  the  declaration,  or  Wencl  Michalek,  as  written  in  the  signature;  that  on  August  12, 1885,  he  made  a 
contract  for  the  purchase  of  a  lot  in  Chicago,  in  which  contract  he  was  described  in  the  body  of  the 
contract  as  Wenzel  Michalek,  and  which  contract  he  signed  as  Waclav  Michalek;  that  on  March  12,  1887, 
he  made  his  application  for  final  naturalization  in  the  superior  court  of  Cook  County,  and  by  judgment 
of  that  court  became  a  naturalized  citizen  of  the  United  States  under  the  name  of  Vaclav  Michal;  that 
shortly  after  the  issuance  of  the  naturalization  papers  on  March  12, 1887,  to  Vaclav  Michal,  the  father  of 
the  sitting  Member,  while  living  on  De  Koven  street  in  Chicago,  voted  at  the  Chicago  city  election  in 
April,  1887,  and  that  he  also  voted  at  the  fall  election  of  1887  while  living  at  79  Liberty  street,  to 
which  place  he  had  meanwhile  moved  with  his  family. 

The  mother  of  the  sitting  Member,  after  the  death  of  his  father,  in  February,  1898,  was  married  in 
Chicago  to  a  man  who  was  presumably  then  a  citizen. 

CONCLUSION    REACHED   FROM    PROTESTANTS*    TESTIMONY. 

The  foregoing  statements  in  reference  to  the  naturalization  of  Anthony  Michalek,  the  sitting 
Member,  by  reason  of  the  naturalization  of  his  father  and  his  mother,  are  based  upon  the  testimony  of 
witnesses  called  in  behalf  of  protestants. 


§   428  THE    QUALIFICATIONS    OF   THE    MEMBER.  413 

ADDITIONAL  TESTIMONY. 

The  chief  witness  for  the  protestants  was  Mr.  Enoch  P.  Morgan.  Mr.  Morgan  testified  that  during 
the  national  campaign  of  1904  he  was  in  the  employ  of  the  Republican  national  campaign  committee  as  a 
speaker,  and  that  during  the  campaign  he  had  several  conversations  with  Hon.  James  A.  Tawney,  now 
chairman  of  the  Committee  on  Appropriations  of  the  House  of  Representatives,  who  was  in  charge  of  the 
speakers'  bureau  of  the  Republican  national  committee,  and  that  he  informed  Mr.  Tawney  that  Mr. 
Michalek  was  not  a  citizen  of  the  United  States. 

Mr.  Tawney  has  stated  to  the  committee  that  no  such  statement  was  made  to  him  by  Mr.  Morgan 
and  ilr.  Tawney  contradicts  Mr.  Morgan  as  to  various  other  statements  which  Mr.  Morgan  claims  he 
made  to  Mr.  Tawney. 

Your  committee  is  forced  to  the  conclusion  that  Mr.  Morgan  in  his  testimony  is  somewhat  mistaken 
in  his  statement  of  facts. 

TESTIMONY   OF   ANTHONY    MICHALEK.  THE    SITTING    MEMBER. 

Mr.  Michalek  requested  that  he  might  appear  before  the  committee  and  make  a  brief  statement  as 
to  his  position  and  his  claims.  Mr.  Michalek  stated  to  your  committee,  under  oath,  that  he  was  bom  in 
Bohemia ;  that  he  came  to  this  countrj-  with  his  parents,  Vaclav  Michalek  and  Therese  Michalek,  while  an 
infant  in  arms;  that  his  father  died  when  he  was  9  years  of  age;  that  he  had  been  informed  by  his  mother 
and  older  brothers  that  his  father  had  become  a  naturalized  citizen  and  that  he  grew  up  in  that  belief,  and 
immediately  upon  attaining  the  age  of  21  he  registered  as  a  voter  in  the  city  of  Chicago  and  has  since  then 
always  maintained  and  exercised  his  right  to  register  and  vote;  that  he  has  believed  for  many  years  and 
still  believes  himself  to  be  a  citizen  of  the  United  States  by  reason  of  the  naturalization  of  his  father. 

CONCHTSIONS. 

There  neverwas  any  proper  justification  for  the  protect  and  charges  filed  against  Mr.  Michalek.  The 
persons  making  the  protest  did  so  without  knowledge  and  without  evidence.  The  charges  were  reck- 
lessly made  and  untruthfully  made.  They  were  based  upon  false  affidavits.  Proof  in  the  case  offered 
by  the  protestants  makes  out  a  case  for  the  sitting  Member  instead  of  the  protestants. 

SITTING    MEMBER    NOT   CALLED    LTON  TO   ANSWER  THE    CHARGES. 

While  the  committee,  at  the  request  of  Mr.  Michalek,  permitted  him  to  make  a  brief  statement  to  the 
committee,  yet  the  committee  has  not  been  of  the  opinion  that  any  prima  facie  case  was  made  against  Mr. 
Michalek,  and  hence  has  been  of  the  opinion  that  he  should  not  be  put  to  the  trouble  or  expense  of  proving 
by  witnesses  introduced  in  his  behalf  his  title  to  citizenship.  Your  committee  is  of  the  opinion  that 
when  charges  affecting  the  eligibility  of  a  Member  of  Congress  to  his  seat  are  made,  some  proof  should  be 
offered  in  their  support  before  putting  the  sitting  Member  to  the  expense  and  the  burden  of  making  a 
defense. 

The  committee  accordingly  reported  the  following  resolution,  which  was,  on 
March  6,'  agreed  to  by  the  House  without  division: 

Resolved,  That  Anthony  Michalek,  at  the  time  of  his  election  as  a  Member  of  Congress  from  the  Fifth 
Congressional  district  of  Illinois  had  attained  the  age  of  25  years,  and  had  then  been  for  more  than  seven 
years  a  citizen  of  the  United  States,  and  was  then  an  inhabitant  of  the  State  of  Illinois,  in  which  he  was 
elected,  and  that  he  was  elected  a  Member  of  the  Fifty-ninth  Congress  from  the  Fifth  Congressional  dis- 
trict of  the  State  of  Illinois,  and  is  entitled  to  retain  his  seat  therein. 

428.  In  1794  the  Senate  decided  that  Albert  Gallatin  was  disquali- 
fied, not  having  been  a  citizen  nine  years,  although  he  had  served  in  the 
war  of  independence  and  was  a  resident  of  the  country  when  the  Consti- 
tution was  formed. 

The  Senate  by  majority  vote  unseated  Albert  Gallatin  for  disqualifi- 
cation after  he  had  taken  the  oath. 

'  Journal,  p.  600;  Record,  p.  3399. 


414  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    '429 

On  February  28,  1794/  the  Senate,  by  a  vote  of  yeas  14,  nays  12,  voted  that 
the  election  of  Albert  Gallatin  (who  had  already  been  sworn  in  and  was  acting  as 
a  Senator)^  to  be  a  Senator  of  the  United  States  was  void,  he  not  having  been  a 
citizen  of  the  United  States  the  term  of  years  (nine  years)  required  as  a  qualification. 

It  appeared  that  Mr.  Gallatin,  who  was  born  at  Geneva,  January  29,  1761, 
arrived  in  Boston  July  14,  1780.  In  October,  1780,  he  settled  at  Machias,  Me.,  and 
resided  there  a  year,  furnishing  funds  for  and  several  times  acting  as  a  volimteer 
with  the  troops  there.  In  the  spring  of  1782  he  was  chosen  an  instructor  at  Har- 
vard College,  remaining  there  a  year.  In  July,  1783,  he  removed  to  Pemisylvania, 
and  in  November  of  the  same  year  proceeded  to  Virginia,  where  he  purchased 
considerable  land  at  two  different  periods.  In  October,  1785,  he  took  an  oath  of 
allegiance  to  Virginia.  In  December,  1785,  he  purchased  a  plantation  in  Pennsyl- 
vania, where  he  resided  up  to  the  date  of  these  proceedings.  In  October,  1789, 
he  was  elected  a  member  of  the  Pennsylvania  constitutional  convention,  and  in 
October  of  the  years  1790,  1791,  and  1792  was  elected  member  of  the  State  legisla- 
ture.    On  February  28,  1793,  he  was  chosen  Senator  of  the  United  States. 

Mr.  Gallatin  contended  that  everj^  man  who  took  part  in  the  Revolution  was  a 
citizen  according  to  the  great  law  of  reason  and  nature,  and  when  afterwards  posi- 
tive laws  were  made  they  were  retrospective  in  regard  to  persons  in  this  predicament. 
He  was  one  of  the  people  who  formed  the  Constitution,  being  of  the  body  of  people 
who  were  citizens  mutually  before  the  Constitution  was  ratified. 

In  opposition  it  was  denied  that  he  was  one  of  the  mass  of  citizens  at  the  time 
of  the  adoption  of  the  Constitution;  and  it  was  argued  that  the  oath  taken  in 
Virginia  did  not  make  him  a  citizen  of  that  State  because  the  Virginia  law  pre- 
scribed other  formalities  and  qualifications  which  Mr.  Gallatin  had  not  satisfied.  In 
Massachusetts,  also,  certain  requi'-ements  existed  which  he  had  not  conformed 
to.  These  provisions  of  the  laws  of  Virginia  and  Massachusetts  were  cited  as 
insurmountable  barriers  in  the  way  of  Mr.  Gallatin's  occupation  of  the  seat. 

429.  The  Senate  decided  in  1849  that  James  Shields  was  disqualified 
to  retain  his  seat,  not  having  been  a  citizen  of  the  United  States  for  the 
required  time. 

Charges  that  a  Senator-elect  was  disqualified  did  not  avail  to  prevent 
his  being  sworn  in  by  virtue  of  his  prima  facie  right. 

A  Senator  was  unseated  for  disqualification  after  he  had  been  seated 
on  his  prima  facie  right. 

On  March  5,  1849,^  at  the  special  session  of  the  Senate,  Mr.  James  Shields,  of 
Illinois,  appeared  for  the  purpose  of  being  qualified. 

Thereupon  a  resolution  was  proposed  that  his  credentials  be  referred  to  the 
Committee  on  the  Judiciary,  with  instructions  to  inquire  into  the  eligibility  of  Mr. 
Shields  to  a  seat  in  the  Senate. 

'  First  session  Third  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  851.  Journal 
of  Senate,  pp.  18,  29,  34,  37,  39,  40. 

2  Journal,  pp.  3,  20. 

'Second  session  Thirtieth  Congress,  Journal  of  the  Senate,  pp.  353,  357;  Globe,  Appendix,  pp. 
327-329. 


§  430  THE  QCALIFICATIONS  OF  THE  MEMBER.  415 

Mr.  Stephen  A.  Douglas,  of  Illinois,  asked  that  the  oath  be  administered  to 
Mr.  Shields,  leaving  the  question  as  to  his  qualifications  to  be  decided  later.  Mr. 
Douglas  contended  that  ilr.  Shields  had  a  prima  facie  right  to  the  seat,  and  that  in 
similar  cases  the  oath  had  been  administered,  as  in  the  case  of  Mr.  Gallatin,  of  Penn- 
sylvania, Mr.  Smith  of  South  Carolina,  and  ^Ir.  Rich  of  Michigan.  In  a  case  where 
the  governor  of  Connecticut  had  appointed  to  a  vacancy  which  he  had  no  authority 
to  fill,  this  fact  appeared  on  the  face  of  the  credentials,  and  the  appointee  was  not 
sworn  in.  But  in  the  pending  case  the  certificate  showed  the  election,  and  Mr. 
Shields  was  entitled  to  the  seat  until  his  qualifications  were  determined. 

Mr.  John  MacP.  Berrien,  of  Georgia,  made  the  argument  that  the  credentials 
were  prima  facie  evidence  of  the  election,  but  not  of  the  qualification. 

The  Senate,  without  division,  agreed  to  a  motion  submitted  by  Mr.  Douglas 
that  Mr.  Shields  be  sworn  in,  and  the  oath  was  administered  to  him. 

The  Senate  then  referred  to  a  select  committee  the  subject  of  the  eligibility  of 
Mr.  Shields. 

On  March  13  '  the  committee  reported,  and  the  Senate  agreed  on  March  15, 
after  long  debate,  to  a  resolution  declaring  that  the  election  of  Mr.  Shields  "was 
void,  he  not  having  been  a  citizen  of  the  United  States  the  term  of  years  required  as 
a  qualification  to  be  a  Senator  of  the  United  States  at  the  commencement  of  the  term 
for  which  he  was  elected." 

This  resolution  was  adopted  without  division,  it  being  considered  evidently 
that  a  majority  vote  only  was  required  for  the  passage  of  the  resolution. 

430.  In  1870  a  question  was  raised  as  to  the  citizenship  of  Senator- 
elect  H.  R.  Revels,  but  he  was  seated,  the  Senate  declining  to  postpone 
the  administration  of  the  oath  in  order  to  investigate  the  case. 

In  reconstruction  days  the  Senate  deemed  valid  credentials  signed  by 
a  provisional  military  governor. 

On  February  23,  1870,-  ^Ir.  Henry  Wilson,  of  Massachusetts,  presented  in  the 
Senate  the  credentials  of  H.  R.  Revels,  Senator-elect  from  Mississippi.  These  cre- 
dentials were  signed  by  "Adelbert  Ames,  brevet  major-general.  United  States  Army, 
provisional  governor  of  Mississippi,"  attested  by  "James  Lynch,  secretary  of  state," 
and  under  the  great  seal  of  the  State.     Moreover — 

Mr.  Wilson  presented  a  certified  extract  from  the  proceedings  of  the  house  of  representatives  of  the 
State  of  Mississippi;  also  a  certified  extract  from  the  proceedings  of  the  senate  and  house  of  representatives 
of  the  State  of  Mississippi  relative  to  the  election  of  H.  R.  Revels  as  a  Senator  in  Congress. 

Mr.  Willard  Saulsbury,  of  Delaware,  objected  that  the  credentials  were  irregular, 
that  a  "provisional  governor"  was  unknown  to  the  Constitution,  and  that  the  inter- 
ference of  an  officer  in  the  Army  showed  that  a  republican  form  of  government  was 
not  existing  in  Mississippi. 

It  was  vu-ged  in  support  of  the  credential  that  it  was  otherwise  proper  in  form 
imder  the  seal  of  the  State,  and  that  it  had  been  frequent  when  new  States  were 
admitted  for  Senators  to  bear  certificates  technically  irregular  as  to  signature,  since 


'  Senate  Journal,  pp.  361,  365,  366;  Globe,  Appendix,  pp.  332-351;  1  Bartlett,  p.  606. 
2  Election  Cases,  Senate  Document  No.  11,  special  session  Fifty-eighth  Congress,  p.  370;  second 
session  Forty-first  Congress,  Globe,  p.  1503-1506. 


416  PRECEDENTS   OF   THE   HOUSE   OF   REPKESENTATIVES.  §   430 

the  certificates  were  frequently  signed  by  a  governor-elect,  as  was  the  case  with  the 
first  Nebraska  credentials. 

The  Senate  voted,  without  division,  to  receive  the  certificate. 

Thereupon  Mr.  John  P.  Stockton,  of  New  Jersey,  offered  the  following: 

Resolved,  That  the  credentials  of  Hiram  R.  Revels,  who  is  now  claiming  a  seat  in  this  body  as  a 
Senator-elect  from  the  State  of  Mississippi,  be  referred  to  the  Committee  on  the  Judiciary,  who  are  hereby 
requested  to  inquire  and  report  whether  he  has  been  a  citizen  of  the  United  States  for  the  period  of  nine 
years,  and  was  an  inhabitant  of  the  said  State  at  the  time  of  his  alleged  election  in  the  sense  intended 
by  the  third  section  of  the  first  article  of  the  Constitution  of  the  United  States,  and  whether  Adelbert 
Ames,  brevet  major-general  and  provisional  governor  of  Mississippi,  as  appears  by  the  credentials,  was 
the  governor  of  the  State  of  Mississippi  at  the  time,  and  whether  he  was  an  inhabitant  of  the  said  State." 

This  resolution  was  debated  long  and  learnedly  on  February  23,  24,  and  25.' 
It  appeared  that  Mr.  Revels  was  partially  of  negro  descent,  but  was  born  free  and  a 
native  of  the  United  States.  It  was  asserted  that  he  had  voted  in  Ohio  twenty 
years  before  this  date.  It  was  urged,  however,  that  the  States  might  not  natu- 
ralize, and  that  under  the  Dred  Scott  decision  a  person  of  his  descent  could  not  have 
been  a  citizen  nine  years  before  this  date.  Mr.  George  Vickers,  of  Maryland,  thus 
summarized  the  argument,  speaking  of  the  Dred  Scott  case: 

What  were  some  of  the  propositions  of  law  decided  by  that  tribunal? 

1.  That  when  the  Constitution  was  adopted  persons  of  African  descent  were  not  regarded  in  any  of 
the  States  as  members  of  the  community  which  constituted  the  States,  and  were  not  numbered  among 
its  people  or  citizens;  consequently  the  special  rights  and  immunities  guaranteed  to  citizens  did  not 
apply  to  them. 

2.  That  no  State  could  by  any  subsequent  law  make  a  foreigner  or  any  other  description  of  persona 
citizens  of  the  United  States. 

3 .  That  a  State  might  by  its  laws  put  a  foreigner,  or  any  other  description  of  persons,  upon  a  footing 
with  its  own  citizens;  but  that  would  not  make  him  a  citizen  of  the  United  States,  nor  entitle  him  to  sue 
in  its  courts,  nor  to  any  of  the  privileges  and  immunities  of  a  citizen  in  another  State. 

The  disqualification  of  the  African  race  was  as  radical,  fundamental,  and  perfect  as  language  could 
make  it.  This  is  by  a  coordinate  department  of  the  Government,  existing  by  the  same  Constitution  as 
Congress;  in  its  origin,  design,  and  objects  as  thoroughly  constitutional;  in  its  powers  and  jurisdiction 
superior,  because  State  and  national  legislation  is  measured  and  limited  by  the  Constitution  according 
to  its  judgment.     Its  decisions  and  decrees  are  as  binding  as  the  Constitution  itself. 

In  opposition  it  was  urged  that  Mr.  Revels  was  bom  in  the  United  States; 
that  he  never  had  been  a  slave,  and  did  not  conform  to  the  description  of  negro  in 
the  Dred  Scott  case ;  that  that  decision  was  not  authoritative.  Mr.  John  Scott,  of 
Pennsylvania,  said:' 

The  history  of  the  litigation  that  had  occurred  in  various  States,  and  that  finally  got  into  the  Supreme 
Court  of  the  United  States  in  the  Dred  Scott  case,  is  enough  to  show  that  a  question  was  made  as  to 
whether  a  colored  man  was  or  was  not  a  citizen  of  the  United  States.  The  decisions  in  Kentucky,  the 
decisions  in  Connecticut,  the  decisions  in  my  own  State,  the  discussion  which  took  place  upon  the 
admission  of  Missouri  into  the  Union,  the  Dred  Scott  case,  the  universal  discussion  of  this  question  at 
one  period  in  our  history — these  are  enough  to  show  that  the  public  mind  was  not  settled  upon  the 
question.  But  if  it  was  not  settled  then,  could  it  be  more  effectively  settled  than  it  has  been,  first  by 
the  passage  of  the  civil  rights  bill,  and  then,  if  that  was  not  sufficient  as  a  mere  act  of  Congress  to  deter- 
mine the  status  of  citizenship  in  the  face  of  a  decision  of  the  Supreme  Court,  surely  it  will  not  be  con- 


■  Globe,  pp.  1506-1514,  1542-1544,  1557-1568. 
-  Globe,  p.  1565. 


§   431  THE    QUALIFICATIONS    OF    THE    MEMBER.  417 

tended  that  the  fourteenth  cDnstitiitional  amendment,  declaring  that  all  persons  born  within  the  United 
States  are  citizens,  is  not  sufficient  to  settle  it. 

The  civil  rights  bill,  if  its  text  be  turned  to,  and  the  fourteenth  amendment,  if  its  text  be  turned  to, 
will  be  found  to  be  both  declaratorj-.  They  do  not  enact  that  "  from  henceforth  all  persons  bom  within 
the  United  States  shall  be  citizens,"  but  the  present  tense  is  used  in  both:  "all  persons''  "are  citizens  of 
the  United  States."  If  that  be  sufficient  to  settle  the  question,  if  that  be  enough  as  a  declaratory  law 
to  declare  that  all  persons  born  within  the  limits  of  the  United  States  are  citizens  of  the  United  States, 
where  does  this  man  stand  who  now  presents  himself  as  Senator-elect  from  Mississippi? 

It  is  urged  by  gentlemen  on  the  other  side  that  he  became  a  citizen  only  by  virtue  of  one  or  the 
other  of  these  enactments;  but  if  they  turn  to  the  history  of  that  clause  of  the  Constitution  of  the  United 
States  on  which  they  rely  they  will  find  that  it  was  inserted  both  in  reference  to  Senators  and  to  Rep- 
resentatives in  the  other  House  of  Congress,  and  also  in  reference  to  the  President,  because  of  the  appre- 
hension that  was  felt  of  foreign  influences  in  our  Government.  In  the  discussion  which  occurred  in  the 
convention — I  have  it  here,  but  will  not  take  the  time  of  the  Senate  to  read  it — on  fixing  the  qualifications 
of  Senators  it  was  especially  dwelt  upon  that  the  Senate  being  the  body  which  was  to  pass  upon  treaties 
with  foreign  governments,  it  was  particularly  necessary  that  the  period  of  citizenship  should  be  extended 
and  made  longer  for  a  Senator  than  for  a  Member  of  the  House  of  Representatives.  The  discussion  of 
Mr.  Madison  in  the  Federalist  of  this  clause  shows  that  the  purpose,  the  reason,  the  intention  of  this 
clause  in  the  Constitution  of  the  United  States  was  that  persons  who  had  been  born  abroad  should  not 
be  permitted  to  become  Senators  until  after  they  had  been  citizens  a  certain  length  of  time.  That  is 
the  reason,  that  is  the  spirit  of  the  law;  and  it  is  a  maxim  which  I  need  not  quote,  that  the  reason 
ceasing  the  law  ceases  with  it. 

Here,  then,  is  a  man  born  in  the  United  States,  not  an  alien,  not  a  foreigner,  who  comes  here  elected 
by  a  State  legislature.  No  question  is  raised  as  to  his  qualification  as  to  age;  no  question  is  raised  as 
to  his  qualification  in  any  other  respect  than  as  to  whether  he  has  been  a  citizen  of  the  United  States 
for  nine  years.  Now,  even  if  the  doctrine  contended  for  by  the  gentlemen  on  the  other  side  were  true, 
that  he  was  not  a  citizen  until  the  time  of  the  passage  of  the  civil  rights  bill  or  until  the  adoption  of  the 
fourteenth  constitutional  amendment,  still  he  is  not  within  the  meaning  of  that  clause  of  the  Constitution 
which  requires  a  man  to  be  a  citizen  for  nine  years.  The  meaning,  the  spirit  of  that  was,  that  no  man 
should  occupy  this  place  who  had  been  naturalized  as  a  foreigner  until  nine  years  had  elapsed  after 
his  naturalization. 

On  February  25  ^  the  resolution  of  Mr.  Stockton  was  disagreed  to — yeas  8, 
nays  48. 

Then  on  the  question  of  administering  the  oath  to  Mr.  Revels  there  were  yeas 
48,  nays,  S. 

Accordingly,  he  appeared  and  took  the  oath. 

431.  Congress  has  by  law  prescribed  that  the  Delegates  from  certain 
Territories  must  be  citizens  of  the  United  States. — The  act  of  May  9,  1872 
(sec.  1906,  Rev.  Stat.),  provided — 

The  Delegate  to  the  House  of  Representatives  from  each  of  the  Territories  of  Washington,  Idaho, 
and  Montana  must  be  a  citizen  of  the  United  States. - 

432.  The  Maryland  case  of  Philip  B.  Key  in  the  Tenth  Congress. 
Philip  B.  Key,  who  had  inhabited  a  home  in  Maryland  a  brief  period 

before  his  election,  but  had  never  been  a  citizen  of  any  other  State,  was 
held  to  be  qualified. 

Instance  wherein  the  question  of  qualification  was  passed  on  after  a 
Member-elect  had  been  sworn  in  on  his  prima  facie  sho^sring. 

■  Globe,  p.  1568. 

-See  also  sections  421,  422  of  this  chapter. 
5904— \0L  1— (17 27 


418  PRECEDENTS   OF   THE   HOUSE    OF   REPBESENTATIVES.  §  432 

On  October  26,  1807/  at  the  beginning  of  the  Congress,  Pliilip  B.  Key  appeared 
as  a  Representative  from  the  State  of  Maryland  and  took  the  oath  without  ques- 
tion. On  November  4  and  December  7^  memorials  were  presented  relating  to 
Mr.  Key's  qualifications  as  a  resident  of  his  district,  and  as  an  inhabitant  of  Mary- 
land,^ and  on  December  7*  the  report  found  that  as  to  residence  in  the  district 
there  was  no  law  of  Maryland  requiring  such  residence.  As  to  his  inhabitancy  in 
the  State,  the  committee  report  facts  showing  that  Mr.  Key  was  a  native  of  Mary- 
land and  a  citizen  and  resident  of  that  State  at  the  time  of  the  adoption  of  the 
Constitution  of  1787;  that  he  was  never  a  citizen  or  resident  of  any  other  of  the 
United  States;  that  in  1801  he  removed  from  Maryland  to  his  house  in  Georgetown, 
about  2  miles  without  the  boundaries  of  Maryland,  where  he  continued  to  reside 
until  1806,  when,  on  September  18,  he  removed  with  his  family  and  household  to 
a  partially  completed  summer  home  (intended  for  himself  and  not  for  an  overseer), 
which  he  was  building  on  an  estate  in  Maryland  bought  by  him  in  November,  1805, 
and  which  was  part  of  an  estate  owned  many  years  by  Mrs.  Key's  family.  Here 
he  was  residing  October  6,  1806,  the  date  of  his  election.  On  October  20,  1806, 
he  removed  with  his  family  and  household  to  his  house  near  Georgetown,  which 
he  lived  in  until  July,  1807,  when  they  returned  to  the  Maryland  house  and  lived 
in  and  inhabited  it  vmtil  October  23,  1807.  On  that  date  they  returned  to  the 
house  near  Georgetown,  that  he  might  attend  to  his  duties  in  Congress.  It  further 
appeared  that  he  had  continued  the  practice  of  law  in  Maryland  and  had  declined 
practice  in  the  District  of  Columbia;  and  that  in  January,  February,  and  March, 
1806,  he  had  declared  that  he  intended  to  reside  in  Maryland,  and  that  he  bought 
the  land  with  that  intention.  It  was  lu-ged  and  admitted  that  the  Maryland  house 
was  fitted  only  for  a  summer  residence,  and  was  much  inferior  to  the  house  near 
Georgetown;  and  that  the  latter  was  left  practically  with  its  furnishings  complete 
whenever  the  family  went  to  Maryland. 

On  January  21  and  22,  1808,^  the  report  was  discussed,  but  was  recommitted 
because  of  allegations  relating  to  a  matter  not  referred  to  in  the  report  and  not 
related  to  the  question  of  inhabitancy." 

On  March  17  and  18,'  the  report  made  by  the  committee  after  reexamination, 
and  which  was  favorable  to  Mr.  Key,  was  discussed,  the  form  of  the  question  being 
a  resolution  as  follows: 

Resolved,  That  Philip  B.  Key,  having  the  greatest  number  of  votes,  and  being  qualified  agreeably 
to  the  Constitution  of  the  United  States,  is  entitled  to  his  seat  in  this  House. 

A  motion  was  made  to  strike  out  the  words  "having  the  greatest  number  of 
votes,  and  being  qualified  agreeably  to  the  Constitution  of  the  United  States,"  and 
a  division  being  demanded,  the  words  "having  the  greatest  number  of  votes,  and" 
were  stricken  out. 


'  First  session  Tenth  Congress,  Journal,  pp.  2,  6. 

2  Journal,  pp.  16,  68. 

^  Another  feature  of  this  case  is  considered  in  section  441  of  this  volume. 

*  Journal,  p.  68;  House  Report  No.  3;  Annals,  p.  1490. 

'  Annals,  pp.  1490,  1496. 

'  See  section  441  of  this  volume. 

'  Annals,  pp.  1845,  1848.  1849. 


§  433  THE    QUALIFICATIONS    OF   THE    MEMBER.  419 

The  question  then  recurred  on  striking  out  "being  qualified  agreeably  to  the 
Constitution  of  the  United  States." 

It  is  inferable,  although  the  records  of  debate  are  scanty,  that  the  question  as 
to  whether  or  not  Mr.  Key  was  a  pensioner  of  the  British  Government  figured  largely 
in  this  question.     The  House  voted — yeas  79,  nays  28 — to  strike  the  words  out. 

Then,  on  the  question  on  agreeing  to  the  simple  amended  resolution  that  Mr. 
Key  was  entitled  to  his  seat,  a  debate  occurred,  which,  as  the  Annals  state,  "  appeared 
to  be  reduced  to  the  plain  fact  of  residence."  The  House  finally  agreed  to  the 
resolution — yeas  57,  nays  52. 

433.  The  election  case  of  John  Forsyth,  of  Georgia,  in  the  Eighteenth 
Congress. 

Residence  abroad  in  the  service  of  the  Government  does  not  constitute 
a  disqualification  of  a  Member. 

On  March  3,  1824,'  the  Committee  on  Elections  reported  on  the  case  of  John 
Forsyth,  of  Georgia,  that  Mr.  Forsyth  was  elected  a  Member  of  the  present  Con- 
gress during  his  residence  near  the  court  of  Spain,  as  minister  plenipotentiary  of 
the  United  States.  The  committee  were  of  the  opinion  that  there  was  nothing  in 
Mr.  Forsyth's  case  which  disqualified  him  from  holding  a  seat  in  the  House.  The 
capacity  in  which  he  acted  excluded  the  idea  that,  by  performing  his  duty  abroad, 
he  ceased  to  be  an  inhabitant  of  the  United  States.  And,  if  so,  inasmuch  as  he 
had  no  inhabitancy  in  any  other  part  of  the  Union  than  Georgia,  he  must  be  con- 
sidered in  the  same  situation  as  before  the  acceptance  of  the  appointment. 

Therefore  the  committee  asked  leave  to  be  discharged  from  the  further  consid- 
eration of  the  subject. 

This  report  was  pending  in  Committee  of  the  Whole  at  the  time  of  the  con- 
sideration of  Mr.  Bailey's  case,  and  on  March  18,  after  the  decision  in  that  case, 
the  House  discharged  the  Committee  of  the  Whole  from  consideration  of  the  report, 
and  laid  it  on  the  table. 

Thus  ilr.  Forsyth  was  allowed  to  retain  his  seat. 

434.  The  election  case  of  John  Bailey,  elected  from  Massachusetts  to 
the  Eighteenth  Congress. 

One  holding  an  office  and  residing  with  his  family  for  a  series  of 
years  in  the  District  of  Columbia  exclusively  was  held  disqualified  to  sit 
as  a  Member  from  the  State  of  his  citizenship. 

Discussion  of  meaning  of  word  "  inhabitant  "  and  its  relation  to 
citizenship. 

In  the  earlier  years  of  the  House  contested  election  cases  were  pre- 
sented by  petition. 

On  Februarj^  20,  1824,^  the  Committee  on  Elections  reported  on  the  petition 
of  Sundry  Electors  v.  John  Bailey,  of  Massachusetts.  This  case  arose  under  section 
2,  Article  I,  of  the  Constitution  of  the  United  States,  which  provides  "that  no 
person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of  twenty- 
five  3'ears,  and  been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen." 

'  First  session  Eighteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  497. 
'Ibid.,  p.  411. 


420  PRECEDENTS   OP    THE   HOUSE    OF    REPJRESENTATIVES.  §  484 

The  facts  were  ascertained  to  be  as  follows:  On  October  1,  1817,  Mr.  Bailey, 
who  was  then  a  resident  of  Massachusetts,  was  appointed  a  clerk  in  the  Department 
of  State.  He  immediately  repaired  to  Washington  and  entered  on  the  duties  of 
his  position,  and  continued  to  hold  the  position  and  reside  in  Washington  until 
October  21,  1823,  when  he  resigned  the  appointment.  It  did  not  appear  that  he 
exercised  any  of  tlie  rights  of  citizenship  in  the  District,  and  there  was  evidence  to 
show  that  he  considered  Massachusetts  as  his  home  and  his  residence  in  Washing- 
ton only  temporary.  It  was  shown  that  Mr.  Bailey  had  resided  in  Washington  in 
a  public  hotel,  with  occasional  absences  on  visits  to  Massachusetts,  until  his  mar- 
riage in  Wasliington,  at  which  time  he  took  up  his  residence  with  his  wife's  mother. 
The  election  at  which  Mr.  Bailey  was  chosen  a  Representative  was  held  September 
8,  1823,  at  which  time  he  was  actually  residing  in  Washington  in  his  capacity  as 
clerk  in  the  State  Department. 

The  conclusions  of  the  committee  was  embodied  in  the  following: 

1 

,'  Resolved,  That  John  Bailey  is  not  entitled  to  a  seat  in  this  House. 

In  support  of  this  conclusion  the  committee  made  an  elaborate  report,  centering 
entirely  around  the  meaning  of  the  word  "inhabitant." 

After  reviewing  the  circumstances  attending  the  adoption  of  this  clause  of  the 
Constitution,  the  committee  comment  upon  the  fact  that  the  word  "resident"  had 
first  been  proposed,  but  had  been  put  aside  for  "inhabitant,"  as  being  a  "stronger 
term,  intended  to  express  more  clearly  their  intention  that  the  persons  to  be  elected 
should  be  completely  identified  with  the  State  in  which  they  were  to  be  chosen." 

The  word  "inhabitant"  comprehended  a  simple  fact,  locality  of  existence; 
that  of  "citizen"  a  combination  of  civil  privileges,  some  of  which  may  be  enjoyed 
in  any  of  the  States  of  the  Union.  The  word  "citizen"  might  properly  be  con- 
strued to  mean  a  member  of  a  political  society,  and  although  he  might  be  absent 
for  years,  and  cease  to  be  an  inhabitant  of  its  territory,  his  rights  of  citizenship 
might  not  be  thereby  forfeited.  The  committee  quote  Vattel  and  Jacob's  Law 
Dictionary  to  show  that  the  character  of  inhabitant  is  derived  from  habitation  and 
abode,  and  not  from  political  privileges.  The  committee  further  fortified  their 
position  by  an  examination  of  the  State  constitutions  and  the  laws  of  the  United 
States. 

The  committee  denied  that  the  expressed  intention  of  Mr.  Bailey  to  return  to 
Massachusetts  had  any  bearing  on  his  status  as  an  inhabitant.  It  was  true  that 
ambassadors  and  other  agents  did  not  suffer  impairment  of  their  rights  as  citizens 
by  residing  abroad  at  the  government  of  a  foreign  country.  That  which  appertained 
to  ministers  of  the  Government  residing  abroad  could  not  be  supposed  to  attach  to 
those  in  subordinate  employments  at  home.  The  relations  which  the  States  bore 
to  each  other  was  very  different  from  that  which  the  Union  bore  to  foreign  govern- 
ments. The  several  States  by  their  own  constitutions  prescribed  the  conditions  by 
which  citizens  of  one  State  should  become  citizens  of  another,  and  over  this  subject 
the  Government  of  the  Union  had  no  control.  It  would,  therefore,  be  altogether 
fallacious  to  pretend  that  the  bare  holding  of  an  appointment  under  the  General 
Government,  and  residing  for  years  in  one  of  the  States,  should  preclude  the  holder 
from  being  a  citizen  and  inhabitant  of  such  State  when  by  its  constitution  and  laws 


§  434  THE    QUALIFICATIONS    OF   THE    MEMBER.  421 

he  was  recognized  as  such.  Therefore,  as  a  formal  renunciation  of  allegiance  to  the 
State  from  which  he  came  was  not  necessary'  to  being  admitted  to  the  rights  of  citizen- 
sliip  in  the  State  to  which  he  went,  so  the  expression  of  an  intention  to  return  would 
be  of  no  importance.  At  the  time  of  his  election,  and  for  nearty  six  years  before, 
Mr.  Bailey  was  an  inhabitant  of  the  District  of  Columbia.  It  had  been  urged  that 
as  the  District  belonged  to  the  General  Government,  each  State  possessed  a  part,  and 
therefore  a  resident  of  the  District  was  not  out  of  the  jurisdiction  of  his  State.  But 
this  argument  would  apply  equally  to  inhabitants  of  all  the  Territories  of  the  United 
States,  and  was  plainly  more  ingenious  than  conclusive.  Moreover,  Mr.  Bailey  had 
married  a  wife  and  estabhshed  a  family  of  his  ov,n\,  thereby  leaving  his  natural  or 
original  domicile  in  his  father's  house. 

From  March  18  to  26  the  report  was  debated  at  length  in  Conmaittee  of  the 
Whole.  In  support  of  the  committee's  view  the  suggestion  was  made  that  Mr. 
Bailey  had  held  another  Government  office  before  and  after  his  election  to  the  House, 
and  therefore  was  ineligible.  But  in  view  of  the  decision  in  the  Herrick  case  this 
point  was  not  pressed.  In  continuation  of  the  reasoning  of  the  report  the  point  was 
made  that  ^Ir.  Bailey  had  no  domestic  establishment  or  estate  in  Massachusetts, 
unless  exception  be  made  of  certain  books  called  a  "library."  The  construction  put 
on  the  word  "inhabitant"  by  the  various  States  was  not  particularly  pertinent,  as 
it  might  import  a  different  sense  in  different  States.  The  construction  in  the  case 
imder  consideration  called  for  common  sense  merely.  Mr.  Bailey's  residence  was  in 
the  District.  He  was  eligible  for  office  there.  If  the  District  were  entitled  to  a 
Delegate  in  the  House  whose  qualifications  should  be  that  he  should  be  an  inhabitant 
of  the  District,  he  would  certainly  be  eligible  for  that  place.  Therefore,  he  must 
have  lost  his  inhabitancy  in  Massachusetts.  So  far  as  inhabitancy  was  concerned 
the  District  stood  on  the  same  basis  as  the  other  Territories  of  the  United  States. 
If  in  this  case  the  inliabitancy  in  Massachusetts  could  be  maintained,  so  could  all 
the  emigrants  to  the  Territories  retain  inhabitancy  in  the  Stages  from  wliich  they 
came.  A  man  in  one  of  the  States  appointed  to  an  office  in  one  of  the  Territories 
would  be  eligible  to  be  chosen  Delegate  from  that  Territory.  Would  he  still  retain 
his  inhabitancy  in  the  State  from  wliich  he  came?  An  inhabitant  of  one  State  was 
deprived  of  the  right  of  being  elected  in  all  the  other  States.  Was  there  any  reason 
why  the  inhabitants  of  the  District  should  be  more  highly  favored  than  the  inhabit- 
ants of  the  States?  It  was  inevitable  that  in  moving  from  State  to  State  poUtical 
and  even  personal  rights  must  suffer  modification  or  extinction  with  the  changed 
condition  of  law.  So  in  moving  to  the  District  certain  rights  enjoyed  in  the  States 
were  lost.  If  the  residence  of  Mr.  Bailee'  here  had  been  transient  and  not  uniform; 
had  he  left  a  dweUing  house  in  Massachusetts  in  which  his  family  resided  a  part  of 
the  year;  had  he  left  there  any  of  the  insignia  of  a  household  establishment;  there 
would  be  indication  that  his  domicile  in  Massachusetts  had  not  been  abandoned.  It 
had  been  urged  that  the  expressed  intention  to  return  to  Massachusetts  should 
govern.  But  the  law  ascertained  intention  in  such  a  case  by  deducing  from  facts. 
The  danger  of  allowing  the  Executive  to  fumisli  Members  of  Congress  from  the  pubUc 
service  was  discussed  at  length.  The  committee  did  not  contend  that  a  Member 
must  be  actually  residing  in  a  State  at  the  time  of  his  election.  Foreign  ministers 
going  abroad,  but  from  the  nature  of  tlie  case  precluded  fi-om  becoming  citizens  of  a 


422  PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   435 

foreign  power  or  obtaining  the  rights  of  inhabitancy,  did  not  lose  their  inhabitancy 
at  home  by  absence. 

In  support  of  the  sitting  Member  the  arguments  were  urged  that  the  expressed 
will  of  the  people  should  be  set  aside  only  for  conclusive  reasons ;  that  a  liberal  con- 
struction had  always  been  given  in  behalf  of  the  rights  of  the  people  in  such  cases; 
that  the  proceedings  in  the  constitutional  convention  changing  the  word  "resident" 
for  "inhabitant"  showed  that  the  framers  of  the  instrument  considered  that  a 
person  might  be  an  inhabitant  'wathout  actually  being  a  resident.  The  usages  of 
Massachusetts  showed  that  the  word  "inliabitant"  referred  to  a  person  as  a  member 
of  the  political  community,  and  not  as  a  resident.  It  was  probable  that  the  Con- 
stitution meant  that  the  meaning  of  the  word  "inhabitant"  should  be  settled  by 
the  State  usage.  What  decision  could  be  of  more  force  than  that  of  the  electors 
themselves?  A  person  coming  from  a  State  to  the  District,  left  the  direct  juris- 
diction of  his  State,  but  not  its  participant  jurisdiction.  An  ambassador  most  cer- 
tainly became  the  inhabitant  of  the  foreign  coimtry  if  "local  existence"  was  the 
test.  If  "locality  of  existence"  were  the  test,  persons  on  journeys  would  be  con- 
stantly transferring  their  inliabitancy.  The  real  meaning  of  "inhabitant"  was 
one  who  had  a  "permanent  home"  or  domicile  in  a  place.  The  intention  to  return 
constituted  the  pivot  on  which  the  decision  must  turn.  A  man,  citizen  in  one 
State,  going  into  another  to  transact  business,  did  not  cease  to  be  an  inhabitant 
in  the  first  State.  There  must  be  an  intention  to  permanently  settle  to  establish 
inhabitancy  in  the  second  State.  No  one  denied  that  Mr.  Bailey  was  a  citizen  of 
Massachusetts.  If  a  citizen  he  must  be  an  inhabitant.  A  citizen  was  always  an 
inhabitant,  but  an  inhabitant  was  not  always  a  citizen.  No  one  could  be  compelled 
to  renounce  his  native  State,  yet  to  deny  Mr.  Bailey  liis  seat  wovdd  be  in  the  direction 
of  compelling  liim  to  do  it  against  his  own  will  and  the  will  of  his  constituents.  The 
sitting  Member  declared  himself  an  inhabitant  of  Massachusetts,  Ins  constituents 
recognized  him  as  such,  and  the  governor  of  the  State,  in  effect,  had  certified 
him  as  such.  Mr.  Bailey  had  left  an  extensive  and  valuable  library  in  Massachusetts, 
constituting  the  greater  portion  of  his  visible  property.  Why  were  they  not  sold 
or  brought  to  the  District  if  he  intended  to  settle  permanently  here  ?  If  "  locahty  of 
existence"  were  the  test,  the  members  of  the  House  might  all  be  ineligible,  as  they 
were  inhabitants  of  Washington.  Foreign  ministers  did  not  lose  their  inhabitancy 
because  they  never  intended  to  settle  in  the  foreign  country. 

In  Committee  of  the  Whole,  a  motion  to  strike  the  word  "not"  from  the  reso- 
lution was  decided  in  the  negative  by  a  vote  of  105  to  55. 

In  the  House  the  resolution  of  the  committee  was  agreed  to,  yeas  125,  nays  55. 

So  Mr.  Bailey  was  declared  not  entitled  to  the  seat. 

435.  The  Virginia  election  case  of  Bayley  v.  Barbour,  in  the  Forty- 
seventh  Congress. 

A  Member  who  had  resided  a  portion  of  the  year  in  the  District  of 
Columbia,  but  who  had  a  home  in  the  State  of  his  citizenship  and  was 
actually  living  there  at  the  time  of  the  election,  was  held  to  be  qualified. 

The  Elections  Committee  held  that  a  contestant  could  have  no  claim 
to  a  seat  declared  vacant  because  of  the  constitutional  disqualifications 
of  the  sitting  Member. 


§  435  THE    QUALIFICATIONS    OF   THE    MEMBER.  423 

A  suggestion  that  questions  relating  solely  to  qualifications  of  Mem- 
bers should  be  brought  in  by  memorial  rather  than  by  proceedings  in 
contest. 

On  April  12,  1882,'  llx.  Jolm  T.  "Wait,  of  Connecticut,  from  the  Committee  of 
Elections,  submitted  the  report  of  the  committee  in  the  case  of  Bayley  v.  Barboiu-, 
from  Virginia. 

As  to  all  of  the  grounds  of  contest  but  one  the  committee  found  no  evidence 
to  sustain  them.     The  report  says: 

In  disposing  of  these  grounds  of  contest  it  is  only  necessary  to  state  that  there  was  no  evidence  what- 
ever offered  in  support  of  them,  and  that  there  was  no  contention  before  the  committee  that  they  were 
in  point  of  fact  true.  Having  been  abandoned,  it  appears  from  the  record  that  of  the  27,441  legal  votes 
cast  at  said  election  the  said  Bayley,  contestant,  received  only  9,177.  This  leaves  for  the  committee's 
consideration  the  sole  question  raised  by  the  first  ground  set  out  in  the  notice  of  contestant,  to  wit: 

That  the  said  John  S.  Barbour,  at  the  time  of  said  election  for  such  Representative,  was  ineligible 
and  disqualified  to  be  the  Representative  of  said  district  and  State. 

The  said  ineligibility  and  disqualification  consists  in  this,  that  the  said  John  S.  Barbour  was  not  at 
the  time  aforesaid  either  a  bona  fide  resident  or  inhabitant  of  said  State  of  Virginia. 

When  the  contestant  abandoned  the  grounds  of  contest  above  set  forth  he  at  the  same  time  relin- 
quished all  right  or  claim  to  the  seat  of  the  sitting  Member,  even  in  the  event  that  the  same  should  be 
declared  vacant  on  the  ground  of  the  constitutional  ineligibility  and  disqualification  of  its  occupant. 

In  the  case  as  made  up  and  presented  to  the  committee  the  contestant  has  only  that  interest  in  it 
that  is  possessed  by  everj'  other  elector  in  the  district;  yet  there  is  no  petition  or  memorial  from  any 
body  of  the  electors  of  the  district  addressed  to  Congress  setting  forth  any  objection  to  the  right  of  Mr. 
Barbour  to  a  seat  in  the  House  to  which  he  has  been  elected  on  the  alleged  ground  that  he  is  not  possessed 
of  those  qualifications  which,  by  the  Constitution  of  the  United  States,  are  indispensable  to  the  holding 
of  a  seat  in  Congress. 

Both  upon  principle  and  precedent  the  committee  think  that  those  questions  which  relate  solely 
to  the  qualifications  of  Members  of  Congress  should  be  more  appropriately  brought  to  the  attention  of 
Congiess  by  a  memorial  of  the  electors  who  are  alone  interested  in  the  result.  This  practice  could 
work  no  wrong,  and  would  be  productive  of  much  good  in  preventing  troublesome  and  gratuitous 
contests  which  might  be  inspired  by  motives  other  than  the  interests  of  the  electors. 

The  subject  being  one  of  great  importance,  however,  they  have  considered  it  on  the  testimony 
adduced,  which  is  solely  upon  the  question  of  the  qualification  of  Barbour  under  the  Constitution  of 
the  United  States. 

In  support  of  the  voluntarj-  contest  thus  made  by  S.  P.  Bayley  against  the  eligibility  of  the  sitting 
Member  he  proceeded  to  take  the  testimony  of  three  witnesses  in  the  city  of  Alexandria,  namely, 
George  Duffey,  .\ugustus  F.  Idonsen,  and  John  S.  Barbour,  the  last  named  being  the  returned  Member 
himself,  the  object  being  to  show  that  the  said  Barbour  was  not  a  bona  fide  inhabitant  of  the  State  of 
Virginia,  as  required  by  the  Constitution  of  the  United  States.  Mr.  Duffey  was  the  commissioner  of 
revenue  for  the  city  of  Alexandria,  and  Mr.  Idensen  was  clerk  to  the  State  assessor  of  that  city  for  the 
year  1880.  The  contestee,  Barbour,  on  his  own  behalf,  took  no  testimony,  but  submitted  the  case  upon 
the  evidence  of  the  contestant. 

Duffey  testifies  that  it  was  his  duty  to  assess  all  real  and  personal  properties,  incomes,  licenses,  etc., 
also  the  annual  capitation  tax  prescribed  by  law  upon  all  male  inhabitants  of  the  State  abiding  in  the 
city  of  Alexandria  over  21  years  of  age  at  the  time  of  the  assessment. 

That  the  said  Barbour  had  no  real  property  in  the  city  of  Alexandria,  but  that  the  property  of  his 
wife  situated  there  was  assessed  to  her  on  the  property  books  as  an  Alexandrian,  the  law  requiring  the 
residence  of  the  owner  to  be  given.  Idensen  testifies  that  this  was  changed  in  1880,  when  Mrs.  Barbour, 
after  the  election,  was  put  down  as  a  resident  of  Washington,  D.  C,  when  he,  as  the  assessor's  clerk, 
knew  that  John  S.  Barbour  was  an  actual  resident  in  the  city,  and  so  stated  in  his  deposition.  Mr. 
Barbour  testifies  that  he  was  a  native  of  the  State  of  Virginia;  had  always  been  a  citizen  of  said  State; 
never  claimed  to  have  lived  elsewhere  in  a  permanent  sense  or  to  have  exercised  citizenship  in  any 

'  First  session  Forty-seventh  Congress,  House  Report  No.  1040;  2  Ellsworth,  p.  676. 


424  PRECEDENTS  OF  THE  HOUSE  OF  EEPEESENTATIVES.         §  435 

other  State  or  Territory;  that  his  post-office,  business  headquarters,  residence  required  by  statute  for 
the  service  of  legal  process  upon  him,  were  all  in  the  city  of  Alexandria,  and  within  the  limits  of  said 
State,  and  that  while  he  had  a  temporary  winter  residence  in  the  city  of  Washington,  he  had  taken  a 
house  in  Alexandria,  with  his  family,  in  September,  1880,  and  was  so  actually  residing  at  the  date  of 
the  Congressional  election  in  November,  1880,  and  subsequently. 

The  Code  of  Virginia,  ch.  166,  sec.  7,  which  provides  for  the  manner  of  sei"ving  process  against 
corporations,  says: 

"It  shall  be  sufficient  to  serve  any  process  against  or  notice  to  a  corporation  on  its  mayor,  rector, 
president,  or  other  chief  officer,  or  in  his  absence  from  the  county  or  corporation  in  which  he  resides, 
etc.,  *  *  *  and  service  on  any  person  under  this  section  shall  be  in  the  county  or  corporation  in 
which  he  resides;  and  the  return  shall  show  this  and  state  on  wh(jm  and  when  the  service  was,  otherwise 
the  service  shall  not  be  valid." 

Under  this  statute  service  of  process  was  habitually  maile  upon  John  S.  Barbour,  as  president  of  the 
Virginia  Midland  Railway,  as  a  resident  of  Alexandria. 

That  in  July  previous  to  his  nomination  for  Congress  he  had  declined  to  be  listed  by  the  enumerator 
of  Washington  City  as  an  inhabitant  of  that  city,  but  then  stated  that  he  was  an  inhabitant  of  Virginia. 

That  when  traveling  absent  from  the  State  of  Virginia  he  invariably  registered  himself  as  from 
Virginia. 

That  at  the  time  of  the  election  and  before  he  was  actually  residing  in  Alexandria,  without  any 
intention  of  removing  therefrom  permanently.  It  was  contended  on  behalf  of  the  contestant  that 
although  John  S.  Barbour  was  an  actual  resident  of  the  city  of  Alexandria,  Va.,  within  said  district,  at 
and  before  the  time  of  the  election,  he  was  not  an  inhabitant  within  the  meaning  of  the  constitutional 
requirements  to  qualify  him  as  a  Member  of  Congi-ess. 

In  support  of  this  view  the  case  of  John  Bailey  (Clark  and  Hall's  Contested  Election  Cases,  p.  411) 
was  relied  upon.  Bailey  was  chosen  a  Member  of  Congress  from  the  State  of  Massachusetts  on  the  8th 
day  of  September,  1823,  at  which  time  he  was  actually  residing  in  the  city  of  Washington,  in  the  capacity 
of  clerk  in  the  State  Department.  On  the  1st  day  of  October,  1817,  Bailey,  who  was  at  that  time  a 
resident  of  Massachusetts,  was  appointed  by  the  Secretary  of  State  a  clerk  in  the  Department  of  State 
and  immediately  repaired  to  Washington  and  entered  on  the  duties  of  his  appointment.  He  continued 
to  reside  in  the  city  from  that  time  with  his  family — having  in  the  meantime  married — in  the  capacity 
of  a  clerk  in  the  Department  of  State  until  the  21st  day  of  October,  1823,  subsequent  to  the  date  of  his 
election,  at  which  time  he  resigned  his  appointment.  Upon  the  petition  of  certain  citizens  and  electors 
of  the  Norfolk  district,  in  the  State  of  Massachusetts,  the  question  of  his  eligibility  and  qualification 
under  the  Constitution  was  brought  to  the  attention  of  Congress,  and  it  was  contended  on  behalf  of 
Bailey  that,  although  he  had  been  from  the  time  of  his  appointment  in  1817  up  to  and  subsequent  to  his 
election  to  Congress  a  resident  of  Washington,  he  had  retained  his  citizenship  in  the  State  of  Massachu- 
setts, and  by  virtue  of  this  citizenship  it  was  contended  that  within  the  constitutional  requirement  he 
was  qualified  as  a  Member  of  Congress  from  that  State.  The  committee  considered  at  some  length  the 
distinction  between  citizenship  and  inhabitancy,  and  their  report,  which  was  approved  by  Congress, 
against  the  eligibility  of  Bailey  as  a  Congressman  was  based  upon  these  distinctions.  It  was  held  that, 
being  a  citizen  of  the  State,  granting  that  Bailey  was  such,  but  residing  permanently  elsewhere  did 
not  satisfy  the  constitutional  requirements  necessary  to  make  him  eligible  as  a  Member  of  Congress. 
The  committee  say  that  "the  word  'inhabitant'  comprehends  a  simple  fact — locality  of  existence;  that 
'citizen'  comprehends  a  combination  of  civil  privileges,  some  of  which  may  be  enjoyed  in  any  of  the 
States  of  the  Union." 

The  case  of  Barbour  differs  materially  from  that  of  Bailey  in  this,  that  not  only  had  Barbour  con- 
tinued to  be  a  citizen  of  the  State  of  Virginia,  but  that  he  had  always  held  liis  legal  residence  in  said 
State  as  hereinabove  recited.  Added  to  that  was  the  fact  that  previous  to  his  election  as  a  Member 
of  Congress  from  the  Eighth  Congressional  district  of  Virginia  he  had  removed  to  said  State  and  had 
become  an  actual  inhal)itant  thereof,  residing  there  without  any  intention  of  permanently  removing, 
whereas  Bailey  was,  when  elected,  an  actual  inhabitant  and  resident  of  tlie  District  of  Columbia,  not 
claiming  a  residence  or  inhabitancy  actually  in  the  State  of  Massachusetts,  except  constructively  through 
and  by  virtue  of  his  citizenship,  which  he  contended  he  had  never  renounced  in  said  State. 

It  was  contended  further  by  the  contestant  in  this  case  that  the  elective- franchise  in  Virginia  was 
one  of  the  essentials  of  inhabitancy,  and  that  under  the  local  laws  ot  the  State  of  Virginia  a  residence 


§  435  THE    QUALIFICATIONS    OF   THE    MEMBER.  425 

of  twelve  months  within  the  State,  and  a  residence  c.f  three  months  next  preceding  the  election  in  the 
county,  city,  cr  town  where  the  person  offers  to  vote,  was  a  requisite  qualification  of  an  elector,  and 
that  with  these  requisite  qualifications  a  registration  was  also  necessary;  that  John  S.  Barbour  had 
never  registered  as  a  voter,  and  therefore  he  was  not  an  inhabitant  within  the  contemplation  of  the 
Constitution. 

It  was  contended  that  the  word  ''inhabitant"  embraces  citizenship;  that  an  inhabitant  must  be 
entitled  to  all  the  privileges  and  advantages  conferred  by  the  laws  of  Virginia,  and  that  the  elective 
franchise  alone  confers  these;  therefore  an  inhabitant  must  have  a  right  to  vote  and,  further,  that  the 
burdens  of  inhabitancy  were  predicated  upon  the  right  to  vote. 

In  answer  to  this  position,  without  deeming  it  necessary  upon  the  facts  of  this  case  to  enter  into 
the  constitutional  signification  of  inhabitancy,  it  is  only  necessary  to  say  that  the  right  to  vote  is  not 
an  essential  of  inhabitancy  within  the  meaning  of  the  Constitution,  which  is  apparent  from  an  inspec- 
tion of  the  Constitution  itself.  In  Article  I,  section  2,  the  electors  for  Members  of  Congress  "shall 
have  the  qualifications  requisite  for  electors  of  the  most  numerous  branch  of  the  State  legislature," 
but  in  the  succeeding  section,  providing  for  the  qualifications  of  Members  of  Congress,  it  is  provided 
that  he  shall  be  an  inhabitant  of  the  State  in  which  he  shall  be  chosen.  It  is  reasonable  to  conclude 
that  if  the  elective  franchise  was  an  essential  the  word  "elector'^'  would  have  been  used  in  both  sec- 
tions, and  that  it  is  not  used  is  conclusive  that  it  was  not  so  intended. 

In  the  case  of  Philip  Barton  Key  (Clark  and  Hall's  Contested  Election  Cases,  p.  224),  who  was 
elected  a  Member  of  Congress  from  Maryland  on  the  6th  day  of  October,  1806,  and  who  was  seated  as 
such,  the  facts  are  these:  Mr.  Key  was  an  inhabitant  of  the  District  of  Columbia,  and  in  November, 
1805,  he  purchased  about  1,000  acres  of  land  in  Montgomery  County,  Md.,  about  14  miles  from  George- 
town; that  some  time  in  the  summer  of  1806  he  caused  a  dwelling  house  to  be  erected  on  said  lands, 
into  which  he  removed  with  his  family  on  the  18th  September,  1806;  that  he  was  residing  in  said  house, 
which  was  only  partially  completed,  from  that  time  up  to  the  20th  of  October,  1806,  when  he  removed 
back  with  his  family  to  his  seat  in  the  District  of  Columbia,  where  he  remained  till  about  the  28th  of 
July,  1807,  when  they  again  removed  to  his  estate  in  Montgomery  County,  where  they  remained  till 
the  20th  of  October,  1807,  when  they  again  returned  to  his  seat  in  the  District  of  Columbia.  He  was 
only  living  and  inhabiting  within  his  said  district  in  Maryland  for  the  period  of  little  upward  of  a  month, 
during  which  time,  to  wit,  on  the  6th  day  of  October,  1806,  the  election  took  place,  at  which  he  was 
returned  as  a  Representative  to  Congress  from  said  district.  Notwithstanding  this  short  residence, 
and  the  fact  that  Mr.  Key,  before  his  removal  to  Maryland,  had  been  confessedly  a  citizen  and  inhabit- 
ant of  the  District  of  Columbia,  it  was  decided  by  Congress  that  he  was  eligible  and  qualified  under 
the  Constitution  as  a  Member  of  Congress. 

In  further  answer  to  the  position  that  the  elective  franchise  is  necessary  to  qualify  one  as  a  Mem- 
ber of  Congress,  it  will  appear  from  an  inspection  of  the  constitution  of  Maryland  of  1776,  and  in  full 
force  in  1806,  when  Mr.  Key  was  elected  a  Member  of  Congress  from  Maryland,  that  the  qualifications 
for  electors  for  the  most  numerous  branch  of  the  legislature — 

"Shall  be  freemen  above  twenty-one  years  of  age,  with  a  freehold  of  fifty  acres  of  lana  in  the 
county  in  which  they  offer  to  vote,  and  residing  therein,  and  all  freemen  having  property  in  this  State 
above  the  value  of  thirty  pounds  current  money,  and  having  resided  in  the  county  in  which  they 
offer  to  vote  one  whole  year  next  preceding  the  election." 

Therefore,  Mr.  Key,  who  was  deemed  qualified  as  a  Member  of  Congress,  was  not  an  elector  of 
the  State  of  Maryland,  and  could  not  vote  at  the  election  at  which  he  was  returned  as  a  Member. 

Without  resting  this  case,  however,  upon  these  grounds,  the  committee  are  satisfied  from  the  facts 
of  the  case,  as  developed  in  the  testimony,  that  John  S.  Barbour  was,  in  point  of  fact,  before  and  at 
the  time  of  his  election  as  a  Member  of  Congress  from  the  Eighth  Congressional  district  of  Virginia, 
an  actual  inhabitant  of  the  State,  enjoying  all  the  rights  and  subject  to  all  the  burdens  as  such,  and 
that  having  been  duly  elected  as  a  Member  of  Congress  from  said  district  he  is  entitled  to  his  seat. 

Resolved,  That  John  S.  Barbour  was  duly  elected  and  is  entitled  to  his  seat  as  a  Member  of  the 
Forty-seventh  Congress  from  the  Eighth  Congressional  district  of  the  State  of  Virginia. 

The  resolutions  were  agreed  to  by  the  House  on  April  12  Avitiiout  debate  or 
division.' 

'Journal,  p.  1031;  Record,  p.  2811. 


426  PRECEDENTS  OF  THE  HOUSE  OF  EEPRESENTATIVES.  §  436 

436.  The  Virginia  election  case  of  McDonald  v.  Jones,  in  the  Fifty- 
fourth  Congress. 

A  contestant  who  had  his  business  and  a  residence  in  the  District 
of  Columbia  and  had  no  business  or  residence  in  Virginia  was  held 
ineligible  for  a  seat  from  that  State. 

The  legal  time  for  serving  a  notice  of  contest  in  an  election  case  is 
extended  by  the  House  only  for  good  reason,  and  where  there  seems  to 
be  reasonable  ground  for  a  contest. 

On  February  28,  1896,'  the  Committee  on  Elections  No.  1  reported  on  the  case 
of  McDonald  v.  Jones,  from  Virginia.  In  this  case  the  contestant  applied  for  leave 
to  serve  notice  of  contest,  which  he  had  not  served  within  the  time  required  by  the 
statutes.  The  committee  concluded  that  with  reasonable  diligence  the  notice  might 
have  been  served  within  the  prescribed  time.  They  did  not,  however,  rest  their 
rejection  of  the  application  on  this  ground  entirely,  but  reported — 

(1)  That  they  were  convinced  from  the  proofs  presented  at  the  hearing  that 
there  was  no  substantial  ground  for  a  contest  and  that  the  same  could  not  be  main- 
tained successfully  if  the  notice  should  be  authorized. 

(2)  It  also  appeared  that  the  contestant  "at  the  time  of  the  election  in  1894, 
and  prior  to  and  since  that  time,  was  engaged  in  business  and  resided  with  his 
family  in  the  city  of  Washington,  in  the  District  of  Columbia,  and  that  he  had  no 
place  of  business  and  no  business  or  residence  of  any  description  in  the  State  of 
Virginia;  and  the  committee  is  of  opinion  that  he  was  not  an  inhabitant  of  the 
State  of  Virginia  at  or  near  the  time  of  the  election  for  Representatives  in  Congress 
in  the  First  Congressional  district  of  said  State  in  1894;  and  that  he  was  not  eligible 
for  said  office  at  or  near  the  time  of  the  said  election  in  the  year  1894." 

The  House,  without  debate  or  division,  agreed  to  the  resolution  of  the  com.- 
mittee  denying  the  application  of  the  contestant. 

437.  The  Senate  considered  qualified  a  Senator  who,  being  a  citizen 
of  the  United  States,  had  been  an  inhabitant  of  the  State  from  which  he 
was  appointed  for  less  than  a  year. — On  June  2,  1809,-  Stanley  Griswokl,  ap- 
pointed a  Senator  by  the  executive  of  the  State  of  Ohio  to  fill  the  vacancy  occasioned 
by  the  resignation  of  Edward  Tiffin,  was  qualified  and  took  his  seat.  On  June  9 
his  credentials  were  referred  to  the  Committee  on  Elections,  and  on  June  15  Mr. 
James  Hilhouse,  of  Coiuiecticut,  chairman  of  that  committee,  submitted  tliis 
report : 

That  Edward  TifBn,  a  Senator  for  the  State  of  Ohio,  resigned  his  seat  since  the  last  session  of  the 
legislature  of  said  State  and  during  their  recess;  that  on  the  18th  day  of  May  last,  and  during  said  recesa 
of  said  legislature,  said  Stanley  Griswold  was  appointed  by  the  governor  of  said  State  to  fill  the  vacancy 
occasioned  hy  the  resignation  aforesaid;  that  said  Stanley  Griswold,  being  a  citizen  of  the  United 
States,  removed  into  the  said  State  of  Ohio  and  has  there  resided  since  September  last,  but  the  term  of 
residence  or  other  qualifications  necessary  to  entitle  a  person  to  become  an  inhabitant  of  said  State  are 
not,  so  far  as  the  committee  have  been  able  to  discover,  defined  either  by  the  constitution  or  laws  of 
said  State;  but  the  executive  who  made  the  appointment  having  certified  that  said  Stanley  Griswold 
is  a  citizen  of  said  State,  the  committee  submit  the  following  resolution. 

'  First  session  Fifty-fourth  Congress,  House  Report  No.  568;  Journal,  p.  254;  Record,  p.  2281. 
'Election  Cases,  Senate  Document  No.  11,  Fifty-eighth  Congress,  special  session,  p.  174. 


§  438  THE    QUALIFICATIONS    OF   THE    MEMBER.  427 

And  thereupon  the  Senate — 

Resolved,  That  Stanley  Griswold,  appointed  by  the  governor  of  the  State  of  Ohio  as  a  Senator  of  the 
United  States,  to  fill  the  vacancy  occasioned  by  the  resignation  of  Edward  Tiffin,  is  entitled  to  his  seat. 

438.  The  Senate  overruled  its  committee  and  held  as  qualified  Adel- 
bert  Ames,  who,  when  elected  Senator  from  Mississippi,  was  merely  sta- 
tioned there  as  an  army  officer,  but  who  had  declared  his  intention  of 
making  his  home  in  that  State. 

Credentials  unusual  in  form  and  signed  by  the  Member-elect  himself 
as  "  major-general  "  and  "  provisional  governor  "  of  Mississippi,  were 
honored  by  the  Senate. 

On  March  IS,  1870,'  Mr.  Roscoe  Conkling,  of  New  York,  in  the  Senate  sub- 
mitted the  following  report  from  the  Committee  on  the  Judiciary: 

The  Committee  on  the  Judiciary,  to  whom  were  referred  the  credentials  of  Adelbert  Ames,  claim- 
ing to  be  a  Senator-elect  from  the  State  of  Mississippi,  report  the  following  facts  and  conclusions: 

Mr.  Ames  was  bom  in  Maine  in  1835,  and  resided  with  his  parents  in  that  State  until  1856,  when  he 
entered  the  Military  Academy  at  West  Point.  From  1856  he  remained  in  the  military  service  of  the 
United  States  until  he  resigned  his  commission,  which  he  states  was  after  the  passage,  but  before  the 
approval  by  the  President,  of  the  bill  finally  declaring  Mississippi  entitled  to  representation  in  Congress. 

Until  1862  his  parents  continued  to  reside  in  Maine,  and  such  articles  and  papers  of  his  as  would 
naturally  be  kept  at  his  home  remained  at  his  father's  house.  In  1862  liis  parents  removed  to  Minne- 
sota, carrying  with  them  the  effects  of  their  son  in  their  possession,  and  in  subsequent  years  he  occasion- 
ally revisited  Maine,  but  owned  no  land  and  occupied  no  habitation  there  of  his  own. 

In  1868  he  was  ordered  to  Mississippi;  on  the  15th  of  June  in  that  year  he  became  provisional  gov- 
ernor by  appointment  of  General  McDowell,  then  district  commander,  and  in  March,  1869,  he  became 
himself  district  commander  by  assignment  of  the  President  of  the  United  States.  These  relations 
continued,  modified,  if  modified  at  all,  only  as  will  presently  appear. 

The  election  seems  to  have  been  regular,  and  waiving  any  criticism  of  the  form  of  the  certificate, 
no  question  has  been  made  touching  the  right  of  Mr.  Ames  to  take  his  seat,  except  in  regard  to  the 
legal  character  of  his  residence  in  Mississippi. 

The  provision  of  the  Constitution  of  the  United  States  under  which  the  question  arises  is  this: 

"No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years,  and  been 
nine  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  lie  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen. " 

It  will  be  seen  that  to  be  eligible  as  a  Senator  of  the  United  States  a  person,  in  addition  to  other 
qualifications,  must  he  an  inhabitant  of  the  State  fur  which  he  is  chosen,  and  he  must  be  such  an  inhab- 
itant ''when  elected." 

The  election  in  this  instance  occurred  on  the  18th  day  of  January,  1870. 

At  this  time  Mr.  Ames  wa.s  a  military  officer,  stationed  in  Mississippi  by  order  of  superior  military 
authority,  and  acting  as  provisional  governor  by  appointment  from  General  McDowell,  as  already 
stated.  His  presence  in  these  two  characters  comprises  everything  bearing  upon  the  question  of  his 
residence  in  Mississippi  down  to  the  time  when  he  became  a  candidate  for  the  Senate.  The  precise 
date  can  not  be  fixed,  but  not  long  before  the  election  General  Ames  determined  to  allow  his  name  to 
be  submitted  to  the  legislature  as  one  of  those  from  which  the  clioice  of  Senators  might  be  made. 

Having  reached  this  determination,  and  in  connection  with  it.  General  Ames  declared,  as  far  as 
he  did  declare  it,  his  intention  in  regard  to  his  future  residence.  His  language  as  delivered  to  the  com- 
mittee touching  his  declarations  and  acts  is  as  follows: 

"Upon  the  success  of  the  Republican  ticket  in  Mississippi  I  was  repeatedly  approached  to  become 
a  candidate  for  the  United  States  Senate.     For  a  long  time  I  declined — I  wrote  letters  declining.     A 

'  Second  session  Forty-first  Congress,  Senate  Report  No.  75;  Election  Cases,  Senate  Document  No. 
11,  special  session  Fifty-eighth  Congress,  p.  375. 


428  PRECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §  438 

number  of  persons  in  Mississippi  visited  this  city  to  find  arguments  l)y  whicli  I  might  he  influenced  to 
become  a  candidate.  I  hesitated  because  it  would  necessitate  the  abandonment  of  my  whole  military 
life.  Finally,  for  personal  and  public  reasons,  I  decided  to  become  a  candidate  and  leave  the  Army. 
My  intentions  were  publicly  declared  and  sincere.  (The  intentions  thus  declared  were  not  only  to 
become  a  candidate  for  the  Senate,  but  to  remain  and  reside  in  Mississippi.)  I  even  made  arrange- 
ments, almost  final  and  permanent,  with  a  person  to  manage  property  I  intended  to  buy.  This  was 
before  I  left  Mississippi.  My  resignation  was  accepted  l)y  the  President  before  he  signed  the  bill  ti> 
admit  the  State. " 

The  conclusion  of  the  committee  upon  these  facts  is  that  General  Ames  was  not,  when  elected,  an 
iuhaliitant  of  the  State  for  which  he  was  chosen,  and  that  he  is  not  entitled  to  take  his  seat. 

The  committee  therefore  recommend  the  adoption  of  the  following  resolution; 

Resolved,  That  Adelbert  Ames  is  not  eligible  to  the  seat  in  the  Senate  of  the  United  States  to  which 
he  has  been  appointed. 

In  opening  the  debate  in  support  of  the  resolution,  on  March  22/  Mr.  Conkling 
cited  the  definitions  of  "inhabitant"  and  the  precedents  of  the  House  in  the  cases 
of  Jolin  Bailey,  Jennings  Pigott,^  the  British  cases  of  Brown  v.  Smith  and  Cockrell 
V.  Cockrell.  Commenting  on  what  might  be  considered  ambiguous  language  in  the 
report,  Mr.  Conkling  said  that  General  Ames  had  not  been  able  to  afFirm  that  it  was 
his  intention  to  remain  in  Mississippi  in  the  event  that  he  should  not  be  elected  to 
the  Senate.  In  opposition,  however,  it  was  urged'  by  Mr.  Jacob  M.  Howard,  of 
Michigan,  that  General  Ames  had  determined  irrevocably  to  make  Mississippi  his 
home,  and  that  this  was  not  at  all  a  conditional  determination.  Mr.  Howard  also 
cited  the  opinion  of  Chief  Justice  Shaw  as  to  habitancy  (17  Pickering,  234): 

It  is  often  a  question  of  great  difficulty,  depending  upon  minute  and  complicated  circumstances, 
leaving  the  (luestion  in  so  much  doubt  that  a  slight  circumstance  may  turn  the  balance.  In  such  a 
circumstance  the  mere  declaration  of  the  party,  made  in  good  faith,  of  his  election  to  make  the  one 
place  rather  than  the  other  his  home  would  be  sufficient  to  turn  the  scale. 

Against  this,  on  March  23,  was  cited  an  opinion  of  Chief  Justice  Parker  in 
support  of  the  argument  that  General  Ames  did  not  go  to  Mississippi  of  his  own  free 
will,  and,  moreover,  that  he  sustained  no  municipal  relations  as  a  citizen  there,  and 
therefore  that  he  was  not  an  inhabitant. 

The  report  was  debated  at  great  length  on  March  22,  23,  and  31,  and  April  1,' 
and  on  the  latter  day  the  motion  of  Mr.  Charles  Sumner,  of  Massachusetts,  that  the 
word  "not"  be  stricken  out  was  agreed  to — yeas  40,  nays  12.^ 

Then  the  resolution,  as  amended,  was  agreed  to  without  division  and  Mr.  Ames 
took  the  oath. 

A  question  was  also  raised  in  this  case  as  to  the  credentials.  Mr.  Ames,  as 
"brevet  major-general  United  States  Army  and  provisional  governor,"  certified  to 
Ids  own  election  to  the  Senate."  This  point  was  discussed  somewhat  in  the  debate,' 
but  did  not  aff'ect  the  decision. 

'  Globe,  pp.  2127-2129. 

-See  Section  369  of  this  volume. 

'Globe,  p.  2131. 

*  Globe,  pp.  2126-2135,  2156-2169,  2303-2316,  2335-2349. 

■^  Globe,  p.  2349. 

"Globe,  p.  2125. 

'Globe,  p.  2129. 


§  439  THE   <iUAI,IFICATIONS    OF   THE    MEMBER.  429 

439.  A  Senator  -who,  at  the  time  of  his  election,  was  actually  resid- 
ing in  the  District  of  Columbia  as  an  officeholder,  but  who  voted  in  his 
old  home  and  had  no  intent  of  making  the  District  his  domicile,  was  held 
to  be  qualified. — In  18^,'  the  Senate  considered  the  case  of  Nathan  B.  Scott, 
elected  a  Senator  from  the  State  of  West  ^''irginia  for  the  term  beginning  March  4, 
1899.  Before  ilr.  Scott  appeared  to  claim  his  seat  certain  memorials  were  presented 
to  the  Senate  remonstrating  against  the  seating  of  Mr.  Scott.  At  the  beginning  of 
the  first  session  of  the  Fifty-sixth  Congress  Mr.  Scott  was  dulj'  seated  as  a  Senator 
from  the  State  of  West  Virginia,  without  objection  at  the  time.  Afterwards  a 
resolution  was  introduced  in  the  Senate  declaring  that  Mr.  Scott  was  not  entitled 
to  a  seat  in  the  Senate ;  which  was  referred  to  the  Committee  on  Privileges  and 
Elections,  with  the  memorials  referred  to. 

March  20,  1900,  the  committee  submitted  a  report  with  an  accompanying 
resolution  that  Mr.  Scott  was  entitled  to  a  seat  in  the  Senate  as  a  Senator  from  the 
State  of  West  "\'irginia.     A  minority  of  the  committee  dissented. 

The  principal  element  of  the  case  was  as  to  irregularities  in  the  West  Virginia 
legislature  at  the  time  of  the  election  of  Senator.  Another  objection  is  thus  treated 
in  the  majority  report  presented  by  Mr.  L.  E.  McComas,  of  ilaryland: 

The  fifth  objectioa  assigned  by  John  T.  McGraw,  memorialist,  is  that  at  the  time  of  the  election  of 
Mr.  Scott  he  was  a  citizen  but  not  an  inhabitant  of  the  State  of  West  Virginia,  but  wa.s  an  inhabitant  of 
the  District  of  Columbia. 

It  is  admitted  that  Mr.  Scott  was  bom  in  Ohio;  that  when  a  young  man  ho  removed  to  Wheeling,  in 
West  Virginia,  engaged  in  busine^,  had  resided  there  until  January  1 ,  1898,  when  he  was  appointed  by 
the  President  Commissioner  of  Internal  Revenue,  and  upon  his  confirmation  thereafter  he  came  to 
Washington  to  discharge  the  duties  of  this  Federal  office,  but  with  the  intent  to  retain  his  residence, 
citizenship,  inhabitancy,  and  domicile  in  Wheeling,  W.  Va.,  his  home;  that  in  accord  with  this  intent 
he  exercised  unchallenged  the  right  to  vote  and  did  vote  on  November  8,  1898,  in  the  precinct  in  Wheel- 
ing where  his  residence  was  and  had  remained  unchanged;  that  he  came  here  with  no  intent  to  change 
his  domicile  to  Washington  from  Wheeling,  and  that  he  claims  to  be  an  inhabitant  of  Wlieeling,  W.  Va., 
and  that  he  remained  in  Washington  in  the  discharge  of  his  official  functions  with  intent  to  return  to  his 
home  in  Wheeling  when  his  duties  of  office  here  ended. 

The  mere  statement  of  facts  should  suffice  to  show  that  this  objectitm  is  unfounded.  The  Federal 
Constitution  requires  that  the  Senator  shall  l)e  an  ' '  inhabitant "  of  the  State.  This  term  is  a  legal  equiva- 
lent of  the  term  "resident,"  and  residence  is  what  is  required  by  the  law  of  West  Virginia  to  entitle  the 
male  citizens  of  that  State  to  vote. 

The  committee,  without  extended  discussion,  were  unanimously  of  the  opinion  that  Mr.  Scott  was 
an  inhabitant  of  West  Virginia  at  the  time  of  his  election  to  the  Senate  of  the  United  States  and  is  entitled 
to  retain  his  seat. 

440.  During  the  discussion  of  the  qualifications  of  a  Senator  he  pre- 
sented his  resignation;  but  the  Senate  disregarded  it  and  proceeded  to 
declare  his  election  void. — On  March  14,  1849,'  the  Senate  was  considering  the 
eligibility  of  Mr.  James  Shields,  of  Illinois,  to  a  seat  in  the  Senate,  when  Mr.  Shields 
tendered  a  letter  containing  his  resignation.  The  reading  of  this  letter  was  not 
permitted  until  the  pending  question  had  been  postponed.     Then  the  letter  was 

'  Election  Cases,  Senate  Document  No.  11,  special  session  Fifty-eighth  Congress,  p.  888. 
^Second  session  Thirtieth  Congress,  Senate  Journal,  pp.  364,  365;   Appendix  of  Globe,  pp.  338, 
342-346. 


430 


PRECEDENTS   OF   THE    HOUSE   OF   BEPBESENTATIVES. 


§  440 


read,  and  a  resolution  directing  the  Vice-President  to  inform  the  executive  of  the 
State  of  Illinois  of  the  resignation  was  offered. 

On  March  15  the  subject  was  debated  at  length,  it  being  urged  that  if  the  Senate 
should  inform  the  executive  of  Illinois  of  the  resignation,  that  official  might  assume 
that  such  a  vacancy  existed  as  he  would  have  the  power  to  fill  by  appointment ;  also 
that  the  Senate  would  be  precluded  from  settling  the  question  as  to  Mr.  Shield's 
qualifications.  Finally  the  resolution  directing  the  executive  of  Illinois  to  be 
informed  was  laid  on  the  table,  yeas  33,  nays  14.  Then  the  Senate  resumed  the 
subject  of  qualification  and  declared  Mr.  Shield's  election  void  by  reason  of  his  not 
having  been  a  citizen  a  sufficient  time. 


Chapter  XIV* 
THE  OATH  AS  RELATED  TO  QUALIFICATIONS. 


1.  The  question  of  sanity.     Section  441. 

2.  Questions   of  loyalty   arising  before   the   adoption   of  the   fourteenth   amendment. 

Sections  442-453.' 

3.  Provisions  of  the  fourteenth  amendment.     Sections  455-463.- 

441.  The  Senate  investigated  the  sanity  of  a  Senator-elect  before 
allowing  him  to  take  the  oath. — April  30,  1844,'  in  the  Senate,  Mr. 
Spencer  Jamagan,  of  Tennessee,  offered  this  resolution,  just  after  the  reading 
of  the  credentials  to  which  it  refers: 

Resolved,  That  the  credentials  presented  to  the  Senate  of  the  election  of  John  M.  Niles  to  be  Senator 
of  the  United  States  from  the  State  of  Connecticut  be  referred  to  a  select  committee,  to  consist  of  five, 
who  shall  be  instructed  to  inquire  into  the  election,  returns,  and  qualifications  of  the  said  John  M.  Niles, 
and  into  his  capacity  at  this  time  to  take  the  oath  prescribed  by  the  Constitution  of  the  United  States. 

After  some  discussion  of  the  condition  of  Mr.  Niles,  during  which  it  was  stated 
by  a  Senator  that  of  his  own  personal  knowledge  he  could  assure  the  Senate  of  the 
sanity  of  Mr.  Xiles,  the  resolution  was  agreed  to.  Messrs.  Jamagan;  Thomas  H. 
Benton,  of  Missouri;  John  M.  Berrien,  of  Georgia;  Silas  Wright,  of  New  York;  and 
George  McDuffie,  of  South  Carolina,  were  appointed  the  committee. 

On  May  16  the  committee  reported,  saying  that  after  conversation  with  Mr. 
Niles  they  became  satisfied  of  his  capacity  to  take  the  oath.     The  report  concludes: 

The  committee  are  satisfied  that  Mr.  Niles  is  at  this  time  laboring  under  mental  and  physical 
debility,  but  is  not  of  unsound  mind  in  the  technical  sense  of  that  phrase;  and  the  faculties  of  his  mind 
are  subject  to  the  control  of  his  will;  and  there  is  no  sufficient  reason  why  he  be  not  qualified  and  per- 
mitted to  take  his  seat  as  a  member  of  the  Senate;  and  they  most  cordially  unite  with  Doctor  Brigham 
(whose  letter  constitutes  a  part  of  the  report  of  the  committee)  in  the  hope  that  such  a  course  (that  is, 
taking  his  seat  in  the  Senate  and  participating  at  least  two  hours  a  day  actively  in  its  business)  will  be  the 
means  of  usefulness  and  a  resource  against  disease:  Therefore, 

Resolved,  That  the  Hon.  John  M.  Niles  he  permitted  to  take  the  oath  of  a  Senator  in  the  Congress  of 
the  United  States,  and  to  take  his  seat  as  a  member  of  the  Senate. 

The  resolution  having  been  agreed  to,  Mr.  Niles  came  forward,  qualified,  and 
took  his  seat. 

*  See  Volume  VI,  Chapter  CLVII. 

'  See  also  Blakey  v.  GoUaday  (sec.  323  of  this  volume),  Switzler  v.  Anderson  (sec.  868  of  Volume  II), 
and  case  of  Roberts  (sec.  478  of  this  volume). 

^  See  cases  of  Sj'pher  v.  St.  Martin  (sec.  333  of  this  volume),  Newsham  v.  Ryan  (sec.  335  of  this 
volume),  and  Charles  H.  Porter  (sec.  387  of  this  volume). 

Senate  by  special  act  modified  oath  of  loyalty  (sec.  391  of  this  volume). 

'  First  session  Twenty-eighth  Congress,  Journal  of  Senate,  pp.  257,  283;  Globe,  pp.  592-594,  636. 

431 


432  PRECEDENTS    OF    THE    HOUSE    OF    KEPEESENTATIVES.  §   442 

442.  The  election  case  of  Philip  B.  Key,  of  Maryland,  in  the  Tenth 
Congress. 

A  Member  having  been  a  pensionei*  of  a  foreign  government,  the 
House  considered  his  case  and  declared  him  entitled  to  his  seat,  but 
declined  to  aflB.rn)  that  he  was  qualified. — On  December  11,  1807,^  Mr.  William 
Findiey,  of  Pennsylvania,  from  the  Coniniittee  on  Elections,  submitted  a  report  on 
the  petition  of  certain  electors  in  the  Third  Congressional  district  of  Maryland,  who 
prayed  that  the  seat  of  Mr.  Philip  B.  Key  be  vacated,  alleging  that  he  had  not  ful- 
filled the  condition  of  a  law  of  Maryland.  This  law,  which  imposed  on  Representa- 
tives in  Congress  from  that  State  a  qualification  in  addition  to  those  prescribed  by 
the  Constitution,  required  a  residence  of  twelve  calender  months  in  the  district 
before  election,  and  it  was  alleged  that  Mr.  Key  did  not  fulfill  this  condition  and 
that  he  was  not  an  inhabitant  of  the  State.  The  Committee  on  Elections  found 
upon  examination  that  the  law  had  been  repealed  so  far  as  Mr.  Key's  district  was 
concerned,  and  therefore  recommended  this  resolution:^ 

Resolved,  That  Philip  B.  Key,  having  the  greatest  number  of  votes  and  Ijeing  qualified  agreeably 
to  the  Constitution  of  the  United  States,  is  entitled  to  his  seat  in  this  House. 

On  January  21  and  22,  1808,  this  report  was  considered  in  the  House,  and  at 
that  time  a  statement  was  made  that  Mr.  Key  was,  or  had  been,  a  pensioner  of  the 
British  Government.  Debate  arising  on  this  point,  Mr.  Barent  Gardenier,  of  New 
York,  contended  that  every  person  was  eligible  to  a  seat  in  the  House  unless  expressly 
disqualified  by  the  Constitution.  There  being  nothing  in  the  Constitution  which 
disqualified  a  person  from  receiving  a  pension  from  a  foreign  government,  this  charge 
should  not  be  considered  in  Mr.  Key's  case. 

The  House,  however,  decided  that  the  report  should  be  recommitted  for  fur- 
ther examination. 

On  February  24,  1808,  the  conunittee  reported  their  findings  of  fact  on  the 
charge  that  Mr.  Key  was  a  British  pensioner.  In  1778  Mr.  Key  had  accepted  a 
commission  in  a  provincial  regiment  of  the  British  army.  After  the  general  peace 
of  1783  the  corps  he  served  in  was  disbanded,  and  he,  with  the  other  officers,  was 
placed  on  half  pay.  In  1785  he  returned  to  Maryland,  being  entitled  to  draw  his 
half  pay.  In  1794  he  sold  his  half  pay  to  a  brother-in-law,  and  shortly  thereafter 
was  elected  to  the  Maryland  legislature,  where  he  served  several  years.  Through 
the  bankruptcy  and  death  of  the  brother-in-law  Mr.  Key,  in  1805,  resumed  the 
receipt  of  his  half  pay,  but  after  taking  six  months'  pay  he  ceased  to  draw  it.  In 
January,  1806,  Mr.  Key  directed  his  agent  in  London  to  resign  for  him  all  right  and 
claim  to  the  half  pay,  and  on  October  28  or  29,  1807,  sent  a  formal  resignation  of 
it  to  the  British  minister  at  Washington  by  the  hands  of  a  notary  public.^  The 
committee  did  not  find  that  Mr.  Key  had  ever  taken  the  oath  of  allegiance  to  the 
King  of  Great  Britain,  but  he  had  taken  the  oath  required  of  the  public  servants 

'  First  session  Tenth  Congress,  Journal,  pp,  16.  68,  71,  114,  139,  140,  192,  232,  235;  Annals,  pp. 
1490-1495,  1845,  1848,  1849;  House  Reports  Nos.  3  and  5,  First  session  Tenth  Congress. 

-  For  question  as  to  inhabitancy,  see  section  432  of  this  volume. 

^  It  appears  from  the  report  that  Mr.  Key  was  elected  October  6,  1806,  and  took  the  oath  and  Iiis 
Beat  in  the  House  on  the  day  of  organization  of  the  Tenth  Congress,  October  26,  1807. 


&  443  THE  OATH  AS  RELATED  TO  QDALIFIOATIONS.  433 

of  the  State  of  Maniand.  The  committee  conckided  that  there  was  nothing  in 
these  facts  to  cause  them  to  alter  the  conclusion  wliich  they  had  set  forth  in  the 
former  report. 

On  January  21,  in  Committee  of  the  Whole,  on  motion  of  Mr.  Jolm  Rhea,  of 
Tennessee,  the  words  "having  the  greatest  number  of  votes,  and  being  qualified 
agreeably  to  the  Constitution  of  the  United  States,"  were  stricken  from  the  resolution. 
A  little  later  question  was  raised  as  to  IVIr.  Key's  relation  to  the  British  Government, 
and  the  report  was  recommitted. 

On  March  17,  after  the  committee  had  again  reported,  the  question  both  of 
residence  and  half  pay  was  discussed.  Mr.  John  Rowan  thought  that,  even  were  it 
true  as  to  the  alleged  receipt  of  half  pay  by  ilr.  Key,  neither  the  Constitution  nor 
any  law  of  the  United  States  made  it  any  disqualification.  If  Mr.  Key  had  continued 
to  receive  the  half  pay  after  becoming  a  Member,  that  might  be  cause  for  discussion. 

On  March  18  the  resolution  was  reported  from  the  Committee  of  the  Whole 
with  the  amendment  adopted  January  21.  Mr.  John  Randolph,  jr.,  of  Virgmia, 
demanded  a  division  of  the  amendment,  and  accordingly  the  question  was  taken 
first  upon  the  words  "having  the  greatest  number  of  votes."  The  House  concurred 
in  striking  these  out  without  division.  The  question  then  being  taken  on  concurring 
in  striking  out  the  words  "and  being  qualified  agreeably  to  the  Constitution  of  the 
United  States,"  the  yeas  were  79  and  the  nays  28. 

The  question  then  recurred  on  the  simple  proposition  declaring  Mr.  Key  entitled 
to  his  seat,  and  it  was  agreed  to — yeas  57,  nays  52.  The  final  debate  seems  to  have 
been  principally  on  the  question  of  liis  residence. 

443.  In  i862,  before  the  enactment  of  the  test  oath  for  loyalty,  the 
Senate,  after  mature  consideration,  declined  to  exclude  for  alleged  dis- 
loyalty Benjamin  Stark,  whose  credentials  were  unimpeached. 

In  1862  the  Senate  decided  to  administer  the  oath  "  without  preju- 
dice to  any  subsequent  proceedings  in  the  case  "  to  a  Senator-elect 
charged  with  disloyalty. 

A  Senate  committee  having,  on  the  strength  of  ex  parte  aflBdavits, 
found  Benjamin  Stark  disloyal,  the  Senate  disagreed  to  a  resolution  for 
his  expulsion. 

In  1862  a  Senator  who  challenged  the  right  of  a  Senator-elect  to  be 
sworn  substantiated  his  objection  with  ex  parte  aflB.davits. 

An  argument  that  a  Senator-elect  might  be  excluded  for  disqualifi- 
cations other  than  the  three  specified  by  the  Constitution. 

On  January  6,  1862,'  in  the  Senate,  Mr.  James  W.  Xesmith,  of  Oregon,  pre- 
sented the  credentials  of  Benjamin  Stark,  appointed  a  Senator  by  the  governor  of 
Oregon  to  fill  a  vacancy  occasioned  by  the  death  of  Edward  D.  Baker. 

Mr.  William  Pitt  Fessenden,  of  Mame,  moved  that  the  oath '  be  not  adminis- 
tered and  that  the  credentials,  with  certain  papers  wliich  he  then  offered,  be 
referred  to  the  Committee  on  the  Judiciary.  On  January  6  and  10  this  motion 
was  debated  at  length.     It  was  admitted  by  Mr.  Fessenden  that  he  considered 


'Second  session  Thirty-seventh  Congress,  Globe,  pp.  183,  265-269:  Election  Cases.  Senate  Docu- 
ment No.  11,  special  session  Fifty-eighth  Congress,  p.  284. 

=  Tlie  so-called  ironclad  oath  was  not  then  in  existence,  having  been  approved  July  2,  1862. 
5994— VOL  1—07 28 


434  PKECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §   443 

the  motion  unprecedented,  but  he  considered  it  justified  by  the  papers  which  he 
presented.  These  papers  consisted  of  affidavits  of  persons  in  Oregon,  who  swore 
that  they  had  heard  Mr.  Stark  make  disloyal  speeches. 

In  the  debate  it  appeared  that  persons  presenting  credentials  as  Senators  had 
been  denied  their  seats  pending  investigation;  but  that  in  such  cases  there  had 
been  involved  questions  of  law  only,  raised  by  the  wording  of  the  credentials  them- 
selves or  by  the  Senate  taking  judicial  loiowledge  of  a  fact  as  to  the  session  of  a 
legislature.  But  in  this  case  a  fact  as  to  qualification  was  raised,  and  loyalty  was 
not  one  of  the  three  enumerated  quahfications.  In  support  of  the  motion  the 
cases  of  Kensey  elohns,  Ambrose  H.  Sevier,  Lanman,  and  Dixon  were  cited. 

An  amendment  striking  the  word  "not"  from  I\Ir.  Fessenden's  motion  was 
disagreed  to — yeas  10,  nays  29.  Then  Mr.  Fessenden's  motion  was  agreed  to — 
yeas  29,  nays  11. 

On  February  7,  1862,'  Mr.  Ira  Harris,  of  New  York,  submitted  the  report  of 
the  Committee  on  the  Judiciary,  as  follows: 

The  Committee  on  the  Judiciary,  to  whom  were  referred  the  credentials  of  Benjamin  Stark  as  a 
Senator  from  the  State  of  Oregon,  with  the  accompanying  papers,  have  had  the  same  under  consideration, 
and,  without  expressing  any  opinion  as  to  the  effect  of  the  papers  before  them  upon  any  subsequent 
proceedings  in  the  case,  they  report  the  following  resolution: 

Resolved,  That  Benjamin  Stark,  of  Oregon,  appointed  a  Senator  of  that  State  by  the  governor 
thereof,  is  entitled  to  take  the  constitutional  oath  of  office. 

Mr.  Lyman  Trumbull,  of  lUinois,  dissented  from  the  conclusions  of  the  com- 
mittee, and  submitted  the  following  views: 

A  preliminary  question  was  raised  in  the  Senate  when  this  case  was  referred  to  the  committee, 
whether  it  was  competent  for  the  Senate  for  any  cause  to  refuse  to  allow  a  person  to  be  sworn  as  a  Mem- 
ber of  the  Senate  whose  credentials  were  in  proper  form,  and  who  possessed  all  the  qualifications  as 
to  age,  citizenship,  and  inhabitancy  prescribed  by  the  Constitution,  and  whether  the  only  remedy 
which  the  Senate  had  to  protect  itself  against  the  presence  of  an  infamous  person,  a  convicted  felon, 
or  an  avowed  and  open  traitor,  was  not  by  expulsion  by  a  two-thirds  vote  after  he  should  have  been 
sworn  into  office.  The  Senate  decided,  after  debate,  to  refer  the  credentials  of  Mr.  Stark,  with  the 
accompanying  papers,  consisting  of  written  statements  and  affidavits  impeaching  his  loyalty,  to  the 
committee  without  allowing  him  to  be  sworn.  A  majority  of  the  committee  now  report  the  case  back, 
with  a  resolution  that  Mr.  Stark  is  entitled  to  take  the  constitutional  oath,  expressly  stating  that  they 
do  so  "without  expressing  any  opinion  as  to  the  effect  of  the  papers  before  them  upon  any  subsequent 
proceedings  in  the  case." 

This  reservation  of  opinion  on  the  evidence  could  only  have  become  necessary  on  the  supposition 
that  some  subsequent  proceedings  might  be  taken  in  the  case,  referring  doubtless  to  a  motion  to  expel 
the  Senator  after  he  should  have  been  admitted  a  Member,  for  the  reasons  assigned  in  the  accompany- 
ing papers,  in  effect  establishing  the  principle  that  evidence  of  disloyalty,  which  might  be  sufficient 
to  expel  a  Member  when  admitted,  was  not  sufficient  to  prevent  his  qualifying  as  a  Member.  To  this 
principle  the  undersigned  can  not  agree.  He  believes  it  was  the  duty  of  the  committee  to  examine 
and  pass  upon  the  evidence  before  it,  and  if  found  insufficient  to  prevent  Mr.  Stark  from  taking  the 
constitutional  oath,  that  it  would  also  be  insufficient  to  warrant  his  expulsion  after  he  was  admitted. 

It  is  admitted  that  neither  the  Senate,  Congress,  nor  a  State  can  superadd  other  qualifications  for 
a  Senator  to  those  prescribed  by  the  Constitution,  and  yet  either  may  prevent  a  person  possessing  all 
those  qualifications,  and  duly  elected,  from  taking  his  seat  in  the  Senate.  Does  anyone  question  the 
right  of  a  State  to  arrest  for  crime  a  person  duly  qualified  for  and  appointed  a  Senator,  hold  him  in 
confinement,  and  thereby  prevent  his  appearing  in  the  Senate  to  qualify?  Suppose  a  Senator,  after 
his  appointment,  and  before  qualifying,  to  commit  the  crime  of  murder.     Would  anyone  question  the 

1  Senate  Report  No.  11;  Globe,  p.  696. 


§  443  THE  OATH  A3  BELATED  TO  QUALIFICATIONS.  435 

right  of  the  State  authorities  where  the  crime  was  committed  to  arrest,  confine,  and,  if  found  guilty, 
execute  the  murderer,  and  thereby  forever  prevent  his  taking  his  seat?  Or,  if  the  punishment  for 
the  offense  was  imprisonment,  would  anyone  question  the  right  to  hold  the  Senator  in  prison,  and 
thereby  prevent  his  appearing  in  the  Senate? 

Could  the  Senate  in  such  a  case  expel  him  before  he  had  been  admitted  to  a  seat?  Or  must  he 
[be]  brought  from  the  felon's  cell,  be  introduced  into  the  Senate,  and  sworn  as  a  Member  before  his 
seat  could  be  declared  vacant?  If  not,  must  the  State  go  unrepresented  till  the  time  for  which  he  was 
appointed  has  expired?  Or  would  it  be  competent  for  the  Senate  in  such  a  case,  by  a  majority  vote, 
to  declare  the  convict  incompetent  to  hold  a  seat  in  the  body,  and  thereby  open  the  way  for  the  appoint- 
ment of  a  successor?  It  is  manifest  that  the  prescribing  of  the  qualifications  for  a  Senator  in  the  Con- 
stitution was  not  intended  to  prevent  his  being  held  amenable  for  his  crimes.  The  fact  that  the  Con- 
stitution declares  that  Senators  and  Representatives  "shall  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during  their  attendance  at  the  sessions  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same,"  is  conclusive  that  for  those  offenses  they  may 
be  arrested.  As  a  punishment  for  crime,  then,  it  is  clear  that  a  Senator-elect,  possessing  all  the  con- 
stitutional qualifications  of  age,  citizenship,  and  inhabitancy,  may  be  prevented  from  taking  the  oath 
of  office.  Congress  has  repeatedly  acted  upon  the  presumption  that  it  was  entirely  competent  for  it 
to  prescribe,  as  a  punishment  for  crime,  an  inability  forever  afterwards  to  hold  any  office  of  honor, 
profit,  or  trust  under  the  United  States. 

By  a  statute  passed  in  1790,  any  person  giving  a  reward  to  a  United  States  judge  as  a  bribe  to  pro- 
cure from  him  any  opinion  or  judgment,  and  the  judge  receiving  such  bribe,  are  both  declared  to  be 
forever  disqualified  to  hold  any  office  of  honor,  trust,  or  profit  under  the  United  States.  By  an  act 
passed  in  1853,  any  Member  of  Congress  after  his  election,  and  whether  before  or  after  he  is  qualified, 
who  shall  accept  any  reward  given  for  the  purpose  of  influencing  his  vote  on  any  question  which  may 
come  before  him  in  his  official  capacity  is  declared  incapable  forever  of  holding  any  office  of  honor, 
trust,  or  profit  under  the  United  States.  Similar  laws,  it  is  believed,  exist  in  most  of  the  States,  pre- 
scribing as  part  of  the  punishment  for  particular  offenses,  such  as  dueling,  bribery,  and  some  others,  a 
disqualification  for  holding  any  office  under  the  State,  and  this  notwithstanding  the  State  constitutions 
may  have  prescribed  the  qualifications  for  members  of  their  legislatures,  of  which  the  disqualification 
arising  from  the  conviction  for  crime  was  not  one.  The  power  of  Congress  to  prescribe  the  punishment 
for  treason  is  expressly  given  by  the  Constitution,  except  that  it  can  not  be  made  to  work  corruption 
of  blood  or  forfeiture  beyond  the  life  of  the  person  attainted.  Does  anyone  doubt  the  power  of  Congress 
under  this  clause  of  the  Constitution  to  declare  that  a  person  convicted  of  treason  should  forever  be 
incapable  of  holding  any  office  under  the  United  States?  If  this  were  done,  would  it  be  pretended 
that  a  convicted  traitor  was  entitled  to  be  sworn  as  a  Senator?  The  clause  of  the  Constitution  prescribing 
the  qualifications  of  Senators  and  Representatives  could  never  have  been  intended  to  limit  the  power 
to  make  disqualification  to  hold  those  or  any  other  offices  a  penalty  for  the  commission  of  crime,  especially 
treason.  Its  design,  doubtless,  was  to  produce  uniformity  of  qualification  in  all  the  States,  and  to 
prevent  any  particular  class  of  persons,  such  as  ministers  of  the  gospel,  or  others,  from  being  excluded 
from  these  positions.  If  it  be  competent  for  Congress  to  make  disqualification  to  hold  office  a  punish- 
ment for  an  offense  against  the  United  States,  then  it  is  clearly  competent  for  the  Senate,  which,  by 
the  Constitution,  is  made  "the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  members," 
to  do  the  same  thing,  so  far  as  the  right  to  take  a  seat  in  that  body  is  concerned.  Doubtless  a  law  of 
Congress  declaring  that  a  person  convicted  of  a  particular  offense  should  not  hold  office  under  the  United 
States,  and  the  decision  of  the  courts  sustaining  such  a  law,  would  not  preclude  the  Senate  from  admit- 
ting such  a  person  to  a  seat,  should  it  think  proper,  because  the  Senate  is  the  exclusive  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  Members;  yet  it  is  hardly  conceivable  that  the  Senate 
ever  would  admit  such  a  person  to  be  sworn;  nor  does  the  fact  that  Congress  has  not  adopted  such  a 
punishment  for  disloyalty  or  treason  prevent  the  Senate  from  refusing  to  allow  to  be  sworn  as  a  Member 
a  person  believed  by  the  body  to  be  guilty  of  those  offenses  or  other  infamous  crimes. 

That  one  avowed  traitor,  a  convicted  felon,  or  a  person  known  to  be  disloyal  to  the  Government 
has  a  constitutional  right  to  be  admitted  into  the  body  would  imply  that  the  Senate  had  no  power  of 
protecting  itself — a  power  which,  from  the  nature  of  things,  must  be  inherent  in  every  legislative  body. 
Suppose  a  Member  sent  to  the  Senate,  before  being  sworn,  were  to  disturb  the  body  and  by  violence 
interrupt  its  proceedings,  would  the  Senate  be  compelled  to  allow  such  a  person  to  be  sworn  as  a  Member 


436 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§443 


of  the  body  before  it  could  cast  him  out?  Surely  not,  unless  the  Senate  is  unable  to  protect  itself  and 
preserve  its  own  order.  The  Constitution  declares  that  "each  House  may  determine  the  rules  of  its 
proceedings,  punish  its  Members  for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds,  expel 
a  Member."  The  connection  of  the  sentence  in  which  the  power  of  expulsion  is  given  would  indicate 
that  it  was  intended  to  be  exercised  for  some  act  done  as  a  Member,  and  not  for  some  cause  existing 
before  the  Member  was  elected  or  took  his  seat.  For  any  crime  or  infamous  act  done  before  that  time 
the  appropriate  remedy  would  seem  to  be  to  refuse  to  allow  him  to  qualify,  which,  in  the  judgment 
of  the  undersigned,  the  Senate  may  properly  do;  not  by  way  of  adding  to  the  qualifications  imposed 
by  the  Constitution,  but  as  a  punishment  due  to  his  crimes  or  the  infamy  of  his  character.  Hence 
the  undersigned,  conceiving  that  it  was  the  duty  of  the  committee  to  have  expressed  its  opinion  on  the 
evidence  of  disloyalty  before  it  and  to  have  reported  in  favor  of  or  against  the  swearing  in  of  the  Senator 
as  the  evidence  should  warrant,  and  not  allow  him  to  be  first  sworn,  and  leave  the  question  of  his  loyalty 
to  be  subsequently  determined  on  a  motion  to  expel,  the  undersigned  forbears  to  review  the  evidence 
of  disloyalty  before  the  committee  or  to  express  any  opinion  upon  it  till  the  pending  question  of  juris- 
diction to  consider  it  is  determined. 

The  report  was  debated  long  and  learnedly  on  February  18,  24,  26,  and  27.' 
Mr.  Harris,  in  opening  the  debate,^  gave  the  reasons  for  the  conclusion  which 
he  had  submitted  from  the  committee. 

The  question  submitted  to  the  committee  was,  whether  or  not  evidence  of  this  description  (certain 
ex  parte  affidavits  alleging  treasonable  declarations)  could  be  allowed  to  prevail  against  his  prima  facie 
right  to  take  his  seat  as  a  Senator.  The  committee  were  of  opinion  that  they  could  not.  The  Consti- 
tution declares  what  shall  be  the  qualifications  of  a  Senator.  They  are  in  respect  to  his  age,  in  respect 
to  his  residence,  in  respect  to  his  citizenship;  and  the  committee  were  of  opinion  that  the  Senate  were 
limited  to  the  question,  first,  whether  or  not  the  person  claiming  the  seat  and  presenting  his  credentials 
produced  the  requisite  evidence  of  his  election  or  appointment;  and  second,  whether  there  was  any 
question  as  to  his  constitutional  qualifications.  *  *  *  I  do  not  understand  that  it  is  competent  for 
the  Senate,  and  I  think  they  step  aside  from  their  only  jurisdiction  when  they  attempt  to  punish  a 
man  for  his  crime  or  misbehavior  antecedent  to  his  election.  If  this  were  so,  the  Constitution  ought  to 
be  amended  so  as  to  read  that  the  legislature  of  a  State  or  the  governor  of  a  State,  in  a  certain  contin- 
gency, shall  elect  or  appoint  a  Senator,  subject  to  the  advice  and  consent  of  the  Senate.  The  Senate 
would  then  be  the  ultimate  judge  whether  or  not  the  man  ought  to  have  a  seat  here,  and  it  would  be 
competent  for  the  Senate  upon  any  caprice  or  any  view  it  might  take  of  the  capacity,  moral,  or  intel- 
lectual, or  political,  of  a  man,  to  reject  him  and  prevent  his  taking  a  seat.  Sir,  I  do  not  so  understand 
the  Constitution.  I  understand  the  Senate  is  the  judge  of  the  election  of  a  Senator,  of  the  sufficiency 
and  genuineness  of  the  returns  furnished,  and  the  evidence  of  the  election;  and  also  of  the  constitu- 
tional qualifications  of  the  individual  to  hold  a  seat  in  the  Senate.  Beyond  that  I  apprehend  the  Senate 
have  no  power  at  all. 

On  the  other  hand,  it  was  urged  by  Mr.  Charles  Sumner,  of  Massachusetts,^ 
that  the  Constitution  required  the  oath  to  support  the  Constitution,  and  that  thi.s 
was  in  effect  another  constitutional  qualification  as  to  loyalty. 

This  contention  was  combatted,  especially  by  Messrs.  Timothy  O.  Howe,  of 
Wisconsin,  and  John  Sherman,  of  Ohio,*  who  contended  that  the  clause  of  the  Consti- 
tution requiring  the  oath  did  not,  in  effect,  impose  a  fourth  qualification. 

It  was  urged  by  Mr.  James  R.  Doolittle,  of  Wisconsin:  ^ 

The  power  given  to  a  majority  to  pass  upon  his  qualifications  implies  the  power  to  pass  upon  his 
disqualifications  also,  and  that  they  may  refuse  to  admit  to  a  seat  one  who  is  disqualified  as  an  avowed 
traitor.     I  am  more  inclined  to  that  opinion  because,  after  the  question  of  his  right  to  a  seat  upon  this 


'Globe,  pp.  861,  92.5,  963,  988-994. 

=i  Globe,  p.  861. 

3  Globe,  pp.  869,  969. 


*  Globe,  p.  927,  969. 
'Globe,  pp.  926. 


§  443  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  437 

ground  is  distinctly  raised  and  passed  upon  by  the  Senate,  it  may  become  res  adjudicata,  which  can  not  be 
reopened.  While  I  think  this  power  is  in  a  majority,  it  is  in  its  nature  judicial;  and  in  its  exercise, 
whether  by  a  majority  or  two-thirds,  this  body  should  proceed  with  the  same  deliberation  and  the  same 
freedom  from  all  party  bias  as  if  sitting  as  a  court . 

In  opposition  Mr.  Howe  argued/  after  enumerating  the  qualifications  of  the 
Constitution: 

\Miat  other  qualifications  the  Senator  should  have  are  to  be  determined  first  by  the  constituent  body 
when  they  elect;  and  from  their  decision  there  is,  in  my  judgment,  no  appeal,  except  to  two-thirds  of 
the  Senate  upon  a  motion  to  expel. 

It  was  further  urged  by  Mr.  Sherman  -  that  the  power  to  expel  was  unlimited, 
and  he  cited  English  cases  to  show  that  it  might  be  applied  to  ofTenses  committed 
before  election. 

On  February  27^  the  question  was  taken  first  on  the  amendment  proposed  by 
Mr.  Sumner  to  the  resolution,  viz: 

Strike  out  the  words  "  is  entitled  to  take  the  constitutional  oath  of  office  "  and  in  lieu  thereof  insert 
"and  now  charged  with  disloyalty  by  the  affidavits  of  many  citizens  of  Oregon,  and  also  by  a  letter 
addressed  to  the  Secretary  of  State  and  signed  jointly  by  many  citizens  of  Oregon,  some  of  whom  hold 
public  trusts  under  the  United  States,  is  not  entitled  to  take  the  constitutional  oath  of  office  without  a 
previous  investigation  into  the  truth  of  the  charge." 

This  amendment  was  disagreed  to — yeas  18,  nays  26. 

Thereupon  Mr.  Doolittle  moved  that  the  resolution  be  amended  by  adding 
thereto  the  words — 

without  prejudice  to  any  subsequent  proceedings  in  the  case. 

It  was  explained  that  this  was  proposed  so  that  the  Senate  might  not  be  pre- 
cluded from  passing  on  the  question  of  expulsion.  In  opposition  it  was  urged  that 
the  Senate  could  not  be  so  precluded,  but  the  amendment  was  agreed  to,  there  being, 
on  division,  ayes  24,  noes  16. 

On  the  question  to  agree  to  the  resolution  as  amended,  as  follows: 

Resolved,  That  Benjamin  Stark,  of  Oregon,  appointed  a  Senator  of  that  State  by  the  governor  thereof, 
is  entitled  to  take  the  constitutional  oath  of  office  without  prejudice  to  any  subsequent  proceedings  in 
the  case. 

It  was  determined  in  the  affirmative — yeas  26,  nays  19.* 

iir.  Stark  then  took  the  oath. 

On  February  28'  Mr.  Stark  offered  this  resolution: 

Resolved,  That  the  papers  relating  to  the  loyalty  of  Benjamin  Stark,  a  Senator  from  Oregon,  be  with- 
drawn from  the  files  of  the  Senate  and  referred  to  the  Committee  on  the  Judiciary,  with  instructions  to 
investigate  the  charges  preferred  against  said  Stark  on  all  evidence  which  has  been  or  may  be  presented, 
and  with  power  to  send  for  persons  and  papers. 

This  resolution  was  debated  at  length  on  Februarj^  28  and  March  the  18,^ 
disciission  relating  largely  to  the  effect  of  the  decision  to  admit  Mr.  Stark,  and  the 
propriety  of  further  action  in  view  of  that  vote.  Some  of  those  Senators  who  had 
voted  to  exclude  argued  that  it  was  now  rather  late  to  propose  to  purge  the  Senate 

' Globe,  p.  927.  "Globe,  p.  994. 

2  Globe,  p.  970.  « Globe,  p.  1011. 

^  Globe,  p.  993.  » Globe,  pp.    1011-1014,1261-1266. 


438  PRECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §  443 

of  an  alleged  unworthy  Member,  and  that  he  should  have  been  excluded  at  the 
outset. 

Finally,  after  amending  the  resolution  by  substituting  a  select  committee  for 
the  Judiciary  Committee,  the  resolution  was  agreed  to — yeas,  37;  nays,  3. 

On  April  22,  Mr.  Daniel  Clark,  of  New  Hampshire,  chairman  of  the  select  com- 
mittee, submitted  a  report.'  This  report  states  that  it  was  not  thought  practicable, 
because  of  the  remoteness  of  Oregon,  to  take  any  further  testimony,  and  says : 

The  committee  met  on  the  24th  of  March,  and  the  Senator  from  Oregon  attended  the  meeting  in 
compliance  with  the  invitation  of  the  committee,  and  desired  that  the  committee  should  examine  the 
papers  before  them,  and  if  they  should  come  to  the  conclusion  that  grounds  were  furnished  for  the  charge 
of  disloyalty  by  the  papers  and  testimony,  that  the  committee  should  draw  up  specific  charges,  to  which 
he  would  fde  his  answer.  This  the  committee  declined  to  do,  for  the  reason  that  they  did  not  wish  to 
become  his  prosecutors,  and  were  charged  by  the  Senate  with  investigation  and  not  accusation. 

Mr.  Stark  was  informed  that  the  committee  did  not  propose  to  take  any  further  testimony  unless  he 
desired  it,  but  would  investigate  the  charges  as  presented  by  the  papers  then  before  them.  To  which  the 
committee  understood  Mr.  Stark  to  reply  that  he  did  not  wish  to  take  any  further  testimony  as  the  matter 
stood.  It  was  then  suggested  by  the  committee  to  the  Senator  from  Oregon  that  he  should  submit  to  the 
committee  his  answer  in  writing  to  the  allegations  and  evidence  then  before  the  committee,  with  any 
further  evidence  he  might  wish  to  present,  and  that  the  committee  would  adjourn  to  afford  him  the 
necessary  time  for  that  purpose. 

The  report  next  quotes  the  letter  of  Mr.  Stark,  a  portion  of  which  is  as  follows: 

If  the  committee  propose  to  confine  their  investigation  exclusively  to  those  statements  and  ex  parte 
affidavits  now  before  them,  in  connection  with  what  I  may  submit  for  their  consideration,  it  may  not  be 
inappropriate  for  me  to  express  my  opinions  in  regard  to  them,  and  I  shall  do  so  in  the  same  spirit  by 
which  the  committee  appear  to  have  been  actuated  in  making  the  request. 

As  it  could  not  be  fairly  supposed  that  I  would  permit  myself  to  occupy  the  attitude  of  self -prosecutor 
or  that  I  would  assume  the  task  of  defending  myself  when  no  charge  on  prima  facie  evidence  had  been 
preferred  against  me,  I  trust  that  I  may  do  so  without  derogating  from  the  true  position  which  my  honor 
and  self-respect  demand  that  I  should  occupy. 

With  all  due  deference,  therefore,  I  submit  that  as  a  Senator  of  the  United  States  for  the  State  of 
Oregon  I  am  entitled  to,  and  I  claim,  every  presumption  of  honor,  integrity,  loyalty,  and  patriotism  that 
can  be  claimed  by  any  other  Senator  until  such  presumption  is  overborne  by  competent  testimony.  It 
certainly  would  be  very  extraordinary  to  put  an  honorable  Senator  upon  trial  for  expulsion  without 
charges  and  specifications  made  with  reasonable  (if  not  technical)  precision,  and  supported  by  testimony 
subjected  to  all  the  tests  which  human  wisdom  and  human  experience  have  found  to  be  essential  for  the 
ascertainment  of  truth.  Should  such  a  case  ever  arise  it  is  reasonable  to  suppose  that  it  would  not  he 
permitted  long  to  interrupt  the  order  or  disturb  the  decorum  of  the  American  Senate.  Unless  the  pro- 
ceedings of  your  committee  are  to  be  regarded  as  a  preliminary  inquiry,  whether  or  not.charges  for  expul- 
sion ought  to  be  preferred  against  me,  in  what  essential  particular  does  this  case  differ  from  the  one 
suggested? 

The  papers  referred  to  you  I  have  again  examined  with  that  earnest  attention  which  a  deep  personal 
interest  in  the  result  of  an  inquiry  must  ever  stimulate,  and  with  the  light  reflected  upon  them  by  the 
communication  which  I  had  the  honor  to  address  to  the  Conunittee  on  the  Judiciary  under  date  of  Jan- 
uary 17  ultimo,  I  am  unable  to  discover  anything  upon  which  a  sufficient  charge  for  expulsion  can  be 
predicated,  or  anything  in  the  nature  of  evidence  which  an  impartial  tribunal  could  receive  as  sufficient 
to  justify  expulsion  from  the  Senate.  Accepting  all  the  statements  contained  in  the  letters,  affidavits, 
etc.,  to  be  true,  and  there  is  merely  attributed  to  me  opinions  which  in  the  field  of  politics  might  be 
regarded  as  heresies,  and  expressions  charged  upon  me  which  might  be  characterized  as  idle,  mischiev- 
ous, and  unwise.  This  suggestion,  I  need  not  remind  the  committee,  is  not  made  as  palliative  upon  an 
admission  by  me  of  the  truth  of  any  part  of  these  statements,  but  purely  asiargumentative  and  as  properly 


'  Senate  Report  No.  38,  second  session  Thirty-seventh  Congress. 


§  443  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  439 

within  the  scope  of  my  purpose  in  addressing  to  them  this  communication.  Guided  by  this  purpose,  I 
have  in  these  reflections  excluded  any  denial  or  admission  of  anything  contained  in  the  papers  before  the 
committee,  my  chief  design  being  accomplished  if  I  shall  have  succeeded  in  showing  the  utter  impossi- 
bility of  making,  or  even  entering  upon,  a  defense  of  any  specific  charge  or  of  proffering  to  rebut  evidence 
when  none  is  presented. 

I  can  not  conclude  this  brief  statement  without  asserting,  as  in  substance  I  did  in  my  communication 
to  the  Judiciary  Committee,  that  the  declarations  of  my  assailants  are  utterly  false  in  many  particulars 
which  might  be  deemed  important,  especially  the  statements  of  Hull  and  Law;  that  the  expressions 
attributed  to  me  in  others  of  the  affidavits  have  been  wickedly  and  maliciously  perverted,  and  that  in 
every  respect  their  declarations  are  unju.st  to  my  real  sentiments  and  at  variance  with  the  whole  tenor 
of  my  life. 

The  committee,  after  giving  Mr.  Stark  opportunity  to  present  further  testimony, 
and  after  he  had  failed  to  do  so,  reached  conclusions  which  they  state  as  follows: 

The  committee  then  proceeded  to  consider  the  allegations  and  charges  contained  in  the  papers 
which  had  been  submitted  to  them  by  the  Senate,  in  connection  with  his  answer  and  statement,  and 
upon  mature  deliberation  do  find  the  following  conclusions  from  the  facts  proved,  viz: 

First.  That  for  many  months  prior  to  the  21st  of  November,  1861,  and  up  to  that  time,  the  said 
Stark  was  an  ardent  advocate  of  the  cause  of  the  rebellious  States. 

Second.  That  after  the  formation  of  the  constitution  of  the  Confederate  States  he  openly  declared 
his  admiration  for  it  and  advocated  the  absorption  of  the  loyal  States  of  the  Union  into  the  Southern 
Confederacy  under  that  constitution  as  the  only  means  of  peace,  warmly  avowing  his  sympathies  with 
the  South. 

Third.  That  the  Senator  from  Oregon  is  disloyal  to  the  Government  of  the  United  States. 

Tlie  report  gives  extracts  from  the  evidence  and  argument  to  show  the  reasons 
for  these  conclusions.  In  support  of  the  third  conclusion  they  cited  utterances  of 
Mr.  Stark's — 

calculated  to  encourage  the  rebellion  and  discourage  the  efforts  to  suppress  it. 

The  report  was  signed  by  the  chairman  and  by  Messrs.  J.  M.  Howard,  of  Michi- 
gan, Joseph  A.  Wright,  of  Indiana,  and  John  Sherman,  of  Ohio. 
Mr.  W.  J.  Willey,  of  Virginia,  did  not  entirely  concur: 

Concurring  in  the  first  two  conclusions  of  the  majority  of  the  committee,  I  am  yet  constrained, 
not  without  hesitation,  to  differ  with  them  in  their  third  and  last  conclusion.  Distrusting  all  ex  parte 
testimony,  especially  in  regard  to  expressions  uttered  in  the  heat  of  high  political  excitement,  seeing 
that  the  sentiments  and  opinions  thus  attributed  to  Mr.  Stark  are  virtually  denied  and  repudiated  by 
him  in  his  written  statement  before  the  committee ;  remembering  that  since  it  is  alleged  those  conver- 
sations took  place  and  those  expressions  were  uttered  Mr.  Stark,  in  taking  his  seat  as  a  Senator,  has 
purged  himself  of  these  sinister  allegations  by  taking  the  oath  to  support  the  Constitution  of  the  United 
States,  and  especially  fearing  the  danger  of  making  mere  difference  of  opinion,  however  wide  and  fun- 
damental, a  test  of  fidelity  to  the  Government,  I  am  not  prepared  to  say  that  Mr.  Stark  is  now  disloyal. 

On  May  7 '  Mr.  Sumner  submitted  the  following  resolution  for  consideration: 

Resolved,  That  Benjamin  Stark,  a  Senator  from  Oregon,  who  has  been  found  by  a  committee  of  this 
body  to  be  disloyal  to  the  Government  of  the  United  States,  be,  and  the  same  is  hereby,  expelled  from 
the  Senate. 

It  was  stated  at  this  time  by  Mr.  Sherman,  who  signed  the  report,  that  only  a 
small  portion  of  the  session  remained,  and  that  the  people  of  Oregon  would  very 

'  Globe,  p.  1983. 


440  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  444 

soon  have  the  opportunity  of  passing  on  the  question  of  Mr.  Stark's  loyalty.     There- 
fore he  did  not  favor  the  presentation  of  a  resolution  of  expulsion. 

On  Jime  5  and  6/  however,  Mr.  Sumner  pressed  the  question  to  the  attention 
of  the  Senate,  and  on  the  latter  day,  almost  without  debate,  the  question  was 
taken  on  agreeing  to  the  resolution,  and  it  was  disagreed  to — yeas  16,  nays  21. 

444.  A  question  being  raised  as  to  the  loyalty  of  a  Member-elect, 
the  House  has  exercised  its  discretion  about  permitting  him  to  take  the 
oath  at  once. — On  Xovember  21,  18G7,-  the  Members-elect  from  the  State  of 
Teimessee  appeared  to  take  the  oath,  when  Mr.  James  Brooks,  of  New  York,  chal- 
lenged Mr.  Wilham  B.  Stokes,  alleging  that  he  had  been  disloyal  during  the  war, 
and  presenting  in  support  thereof  a  letter  alleged  to  have  been  written  by  Mr. 
Stokes  in  1861,  announcing  an  intention  to  resist  the  Federal  Government. 

On  the  same  day  Mr.  James  Mullins  was  challenged  on  the  charge  of  disloyalty, 
in  support  of  which  a  letter  written  by  an  army  officer,  but  not  verified  by  oath, 
was  read,  charging  Mr.  Mullins  with  disloyal  utterances  in  1861. 

In  the  debate  it  was  argued  that  in  these  two  cases  the  charge  was  not  made 
on  the  responsibility  of  a  Member,  supported  by  affidavits,  as  in  the  Kentucky 
cases;  that  the  gentlemen  in  question  were  known  to  have  acted  loj^ally  during 
the  war,  and  that  the  evidence  shown  against  them  was  not  sufficient  to  preclude 
their  taking  the  test  oath  with  the  approval  of  their  own  consciences. 

Resolution  to  refer  the  credentials  and  deny  the  oath  to  the  two  Members- 
elect  were  disagreed  to  by  the  House,  and  they  were  sworn. 

445.  On  Xovember  21.  1867,=  the  Members-elect  from  the  State  of  Ten- 
nessee appeared  to  take  the  oath,  the  House  being  already  organized.  Thereupon 
Mr.  James  Brooks,  of  New  York,  challenged  the  right  of  Mr.  R.  R.  Butler  to  be  sworn 
on  the  ground  that  he  had  been  disloyal  to  the  Government,  presenting  in  support 
of  the  charge  the  journal  of  the  legislature  of  the  State  of  Tennessee  at  the  time  of 
the  secession  acts. 

After  debate  the  House  agreed  to  the  following  resolution: 

Resolved,  That  the  credentials  of  R.  R.  Butler,  from  the  First  district  of  Teimessee,  be  referred  to 
the  Committee  of  Elections,  and  that  he  be  not  sworn  pending  the  investigation. 

446.  On  January  31,  1870,^  Mr.  John  A.  Bingham,  of  Ohio,  presented  the 

following: 

Resolved,  That  the  Hon.  Lewis  McKenzie  be  now  sworn  in  as  Member  of  this  House  from  the  Seventh 
district  of  Virginia,  he  having  the  prima  facie  right  thereto;  but  without  prejudice  to  the  claim  of  Charles 
Whittlesey,  contestant  to  such  seat,  or  to  his  right  to.  prosecute  his  claim  thereto. 

It  appeared  from  the  debate  that  the  credentials  of  Mr.  McKenzie  were  in  proper 
form,  but  that  the  Committee  of  Elections  felt  themselves  botmd  by  the  resolution 
of  the  House  directing  them,  whenever  a  contestant  should  allege  that  his  opponent 
could  not  take  the  oath  of  loyalty,  to  inquire  mto  the  prima  facie  right,  and  report 

'  Globe,  pp.  2569,  2571,  2572,  2596. 

2  First  session  Fortieth  Congress,  Journal,  pp.  253,  254;  Globe,  pp.  768-778. 

3  First  session  Fortieth  Congress,  Journal,  p.  253;  Globe,  p.  768.  At  this  time  the  law  providing 
for  the  test  oath  was  in  force. 

■•Second  session  Forty-first  Congress,  Journal,  p.  239;  Globe,  p.  917. 


§  447  THK  OATH  AS  RELATED  TO  QUALIFICATIONS.  441 

their  finding.  Such  an  inquirj^  had  been  begun  in  this  case,  but  the  report  would 
not  be  made  up  for  some  time.  Under  these  circumstances,  and  because  several 
Members  vouched  for  the  loyalty  of  ilr.  McKenzie,  the  House  decided  to  permit 
him  to  take  the  oath,  agreeing  to  the  resolution. 

447.  The  House  decided  that  the  oath  should  be  administered  to  a 
Member-elect,  although  a  Member  charged  that  he  was  personally  dis- 
qualified.— On  March  4,  1871,^  while  the  Speaker  was  administering  the  oath 
to  the  Members-elect  at  the  time  of  the  organization  of  the  House,  the  name  of 
Mr.  Alfred  M.  Waddell,  of  North  Carolina,  was  called,  whereupon  ]\lr.  Horace  May- 
nard,  upon  liis  authority  as  a  Member  of  the  House,  objected  to  the  swearing  in  of 
Mr.  Waddell,  on  the  ground  that  he  was  personally  disqualified. 

Mr.  Waddell  stood  aside ;  and  after  the  organization  of  the  House  had  been  com- 
pleted, Mr.  Maynard  stated  that  the  disqualification  wliich  he  charged  existed  under 
the  third  article  of  the  fourteenth  amendment  of  the  Constitution.  Before  the  war 
Ml-.  Waddell  had  held  the  office  of  clerk  and  master  of  chancer^'  in  North  Carolina, 
an  ofiice  which  required  him  to  take  an  oath  to  support  the  Constitution  of  the 
United  States.  After  that  he  had  served  as  an  officer  in  the  Confederate  arm3^ 
The  supreme  court  of  North  Carolina  had  determined  that  the  office  of  clerk  and 
master  of  chancery  was  a  judicial  office. 

Mr.  Wilham  D.  Kelley,  of  Pennsylvania,  contended  that  the  office  in  question 
was  not  judicial  in  character,  and  that  the  House  was  not  bound  by  the  decision  of 
the  North  Carolina  court,  for  they  were  the  judges  of  the  quahfications  of  their  own 
Members.  He  then  read  the  law  of  North  Carolina  defining  the  duties  of  the  office 
to  show  to  the  House  that  they  were  not  judicial  in  character. 

Then,  on  motion  of  Mr.  Kelley,  the  oath  was  administered  to  Mr.  Waddell. 

Then,  on  motion  of  Mr.  Maynard,  his  credentials  were  referred  to  the  Committee 
on  Elections. 

448.  The  election  case  of  the  Kentucky  Members  in  the  Fortieth 
Congress. 

Before  the  adoption  of  the  fourteenth  amendment,  and  in  a  time  of 
civil  disorders,  the  House  denied  the  oath  to  Members-elect  who  pre- 
sented themselves  with  credentials  in  due  form  but  whose  loyalty  was 
questioned;  and  the  credentials  were  referred  to  a  committee. 

In  1867  it  was  held  that  no  man  duly  elected  should  be  excluded  for 
disloyalty  unless  it  could  be  clearly  proven  that  he  had  been  guilty  of 
such  open  acts  of  disloyalty  that  he  could  not  honestly  and  truly  take  the 
oath  of  July  2,  1862. 

Before  the  adoption  of  the  fourteenth  amendment,  and  in  a  time  of 
civil  disorders,  a  committee  reported  and  the  House  sustained  the  view 
that  no  person  who  had  been  disloyal  should  be  sworn. 

In  1867  the  Elections  Committee  took  the  view  that  charges  of  the 
disloyalty  of  a  constituency  should  not  prevent  a  person  holding  a 
regular  certificate  from  taking  a  seat  on  his  prima  facie  right. 

'  First  session  Forty-second  Congress,  Journal,  pp.  9,  13;  Globe,  pp.  6,  11,  12. 


442  PRECEDENTS   OF   THE    HOUSE   OF   EEPKESENTATIVES.  §  448 

In  1867  Members  who  challenged  the  right  of  a  Member-elect  to 
take  the  oath  did  so,  one  on  his  responsibility  as  a  Member  and  the 
other  on  the  strength  of  aflidavits. 

On  July  3,  1867,'  the  Congress  having  assembled  from  a  recess  caused  by  a 
temporary  adjournment,  the  Clerk  called  the  names  of  8  gentlemen  returned  as 
Members-elect  from  the  State  of  Kentucky,  with  credentials  in  due  form. 

Thereupon  Mr.  Kobert  C.  Schenck,  of  Ohio,  challenged  the  right  of  one  of  them, 
Mr.  Jolm  D.  Young,  to  take  the  oath  on  the  ground  that  he  had  given  aid  and 
comfort  to  the  enenues  of  the  Government.  Mr.  Schenck  produced  affidavits  in 
support  of  this  charge.  Mr.  John  A.  Logan,  of  Illinois,  also  presented  affidavits 
charging  Mr.  L.  S.  Trimble,  another  of  the  Members-elect  from  Kentucky,  with 
disloyalty.  Mr.  Jolm  F.  Benjamin,  of  Missouri,  on  his  responsibility  as  a  Member, 
challenged  the  loyalty  of  a  third,  Mr.  J.  Proctor  Knott.  In  the  course  of  the  debate 
the  fact  was  developed  that  only  one  of  the  8,  Mr.  George  M.  Adams,  was  free  from 
the  objections  which  were  being  urged. 

After  debate  the  House — yeas  67,  noes  50 — agreed  to  the  following: 

Whereas  it  is  alleged  that  ia  the  election  recently  held  in  the  State  of  Kentucky  for  Representa- 
tives in  the  Fortieth  Congress  the  legal  and  loyal  voters  in  the  several  districts  in  said  State  have  been 
overawed  and  prevented  from  a  true  expression  of  their  will  and  choice  at  the  polls  by  those  who  have 
sympathized  with  or  actually  participated  in  the  late  rebellion,  and  that  such  elections  were  carried 
by  the  votes  of  such  disloyal  and  returned  rebels;  and  whereas  it  is  alleged  that  several  of  the  Repre- 
sentatives-elect from  that  State  are  disloyal:  Therefore  be  it 

Resolved,  That  the  credentials  of  L.  S.  Trimble,  John  Young  Brown,  J.  Proctor  Knott,  A.  P.  Grover, 
Thomas  L.  Jones,  James  B.  Beck,  and  John  D.  Young,  Members-elect  from  the  State  of  Kentucky, 
shall  be  referred  to  the  Committee  of  Elections  for  report  at  as  early  a  day  as  practicable. 

On  July  5  ^  a  proposition  that  the  oath  be  administered  to  Messrs.  Beck  and 
Grover,  against  whom  the  charges  of  disloyalty  were  less  specific,  led  to  a  discus- 
sion of  the  grounds  for  refusing  the  oath  to  a  person  presenting  a  certificate  in  due 
form.  Members  asserting  that  such  action  was  justifiable  in  a  case  of  alleged  per- 
sonal disqualification.     The  proposition  was  referred  to  the  Committee  of  Elections. 

On  July  8^  the  Committee  on  Elections  reported,  through  Mr.  Henry  L.  Dawes, 
of  Massachusetts,  reciting  the  allegations  that  had  been  made,  and  concluding: 

The  committee  are  of  opinion  that  no  person  who  has  been  engaged  in  armed  hostility  to  the  Gov- 
ernment of  the  United  States,  or  who  has  given  aid  and  comfort  to  its  enemies  during  the  late  rebellion, 
ought  to  be  permitted  to  be  sworn  as  a  Member  of  this  House,  and  that  any  specific  and  apparently 
well-grounded  charge  of  personal  disloyalty  made  against  a  person  claiming  a  scat  as  a  Member  of  this 
House  ought  to  be  investigated  and  reported  upon  before  such  person  is  permitted  to  take  the  seat;  but 
all  charges  touching  the  disloyalty  of  a  constituency  in  a  State  in  whicli  loyal  civil  government  was  not 
overthrown  during  the  late  rebellion,  or  the  illegality  of  an  election,  are  matters  which  pertain  to  a  con- 
test in  the  ordinary  way,  and  should  not  prevent  a  person  holding  a  regular  certificate  from  taking  his 
seat. 

In  view  of  this  report  the  House  agreed  to  a  resolution  giving  the  committee 

'First  session  Fortieth  Congress,  Journal,  p.  161;  Globe,  pp.  468^79. 
=  Globe,  pp.  501-503;  Journal,  p.  165. 

Journal,  pp.  170,  171;  Globe,  pp.  513-515.  Report  No.  6;  2  Bartlett,  p.  327;  Rowell's  Digest, 
p.  218. 


§  448  THE  OATH  AS  RELATED  TO  QUALIEICATION8.  443 

the  authority  necessary  to  inquire  whether  any  or  either  of  the  seven  persons  were 
disquahfied 

from  sitting  as  Members  of  this  House  on  account  of  their  having  been  guilty  of  acts  of  disloyalty  to 
the  Government  of  the  United  States,  or  ha\'ing  given  aid  or  comfort  to  its  enemies. 

On  December  3,  1867/  j\Ir.  Burton  C.  Cook,  of  lUinois,  submitted  the  report.^ 
After  affirming  again  the  principles  set  forth  in  the  former  report  the  committee  say: 

It  is  apparent  that  there  must  be  power  in  this  House  to  prevent  this  [seating  of  disloyal  persons], 
the  House  being  the  judge  of  the  qualifications  of  its  Members,  of  which  fidelity  to  the  Constitution  is 
one,  and  that  this  end  can  only  be  certainly  accomplished  by  the  investigation  of  any  specific  and  appar- 
ently well-grounded  charge  of  personal  disloyalty  made  against  a  person  claiming  a  seat  as  a  Member 
of  this  House,  before  such  person  is  permitted  to  take  the  seat.  The  House  concurred  in  this  view  of 
the  committee  by  adopting  the  resolution  under  which  the  committee  is  now  acting.  The  principle 
upon  which  this  preliminary  investigation  was  ordered  was  adopted  by  Congress  when  the  oath  of  office 
to  be  taken  by  Members  of  this  House  was  prescribed  by  law,  and  the  preliminary  investigation  of 
specific  and  apparently  well-founded  charges  against  a  person  claiming  a  seat  in  this  House  is  only  an 
additional  mode  of  attaining  the  same  result  sought  to  be  secured  by  requiring  the  oath  to  be  taken  by 
all  persons  who  become  Members  of  the  House.     *    *    * 

Whether  at  some  future  time  provisions  should  be  made  by  law  by  which  those  persons  who  have 
been  at  one  time  guilty  of  acts  of  disloyalty,  but  have  by  their  subsequent  conduct  given  conclusive 
evidence  of  loyalty,  attachment  to  the  Government,  and  obedience  to  the  Constitution  and  laws,  should 
be  permitted  to  take  seats  in  this  Hotise,  is  a  matter  which  addresses  itself  to  the  considerate  judgment 
of  Congress,  but  upon  which  the  committee  is  not  now  called  upon  to  express  an  opinion.  But  while 
the  committee  entertained  no  doubt  that  it  is  the  right  and  duty  of  this  House  to  turn  back  from  its  verj' 
threshold  everyone  seeking  to  enter  who  has  been  engaged  in  armed  hostility  to  the  Government  of  the 
United  States,  or  has  given  aid  and  comfort  to  its  enemies  during  the  late  rebellion,  yet  we  believe  that 
in  our  Government  the  right  of  representation  is  so  sacred  that  no  man  who  has  been  duly  elected  by 
the  legal  voters  of  his  district  should  be  refused  his  seat  upon  the  ground  of  his  personal  disloyalty, 
tmless  it  is  proved  that  he  has  been  guilty  of  such  open  acts  of  disloyalty  that  he  can  not  honestly  and 
truly  take  the  oath  prescribed  by  the  act  of  July  2,  18G2;  and  further,  that  the  commission  of  such  acts 
of  disloyalty  to  the  Government  should  not  be  suspected  merely,  but  should  be  proved  by  clear  and 
satisfactory  testimony,  and  that  while  mere  want  of  active  support  of  the  Government  or  a  passive 
sympathy  with  the  rebellion  are  not  sufficient  to  exclude  a  person  regularly  elected  from  taking  his 
seat  in  the  House,  yet  whenever  it  is  shown  by  proof  that  the  claimant  has  by  act  or  speech  given  aid  or 
countenance  to  the  rebellion,  he  should  not  be  permitted  to  take  the  oath,  and  such  acts  or  speech  need 
not  be  such  as  to  constitute  treason  technically,  but  must  have  been  so  overt  and  public,  and  must  have 
been  done  or  said  under  such  circumstances,  as  fairly  to  show  that  they  were  actually  designed  to,  and  in 
their  nature  tended  to,  forward  the  cause  of  the  rebellion.  In  obedience  to  the  resolution  of  this  House 
of  July  8,  1867,  acting  upon  the  views  herein  expressed,  your  committee  sent  a  subcommittee  to  the 
State  of  Kentucky,  and  carefully  examined  all  the  evidence  which  they  could  procure  upon  the  ques- 
tion referred  to  them,  and  upon  an  examination  of  the  evidence  they  find  that  it  is  not  proved  that 
either  James  B.  Beck,  Thomas  L.  Jones,  A.  P.  Grover,  or  J.  Proctor  Knott  have  been  engaged  in  armed 
hostility  to  the  Government  of  the  United  States,  or  have  given  aid  and  comfort  to  its  enemies,  during 
the  late  rebellion,  and  they  therefore  recommend  that  they  be  permitted  to  be  sworn  as  Members  of 
this  House.  In  relation  to  the  case  of  Lawrence  S.  Trimble,  John  D.  Yoimg,  and  John  Young  Brown, 
the  committee  reports  that  the  seat  of  each  of  these  gentlemen  is  contested,  and  that  in  each  case  the 
contestants  have  made  the  point  that  the  person  holding  the  certificate  of  election  had  been  guilty  of 
direct  acts  of  disloj'alty  to  the  Government,  and  evidence  has  been  taken  both  by  the  claimants  and 
contestants,  in  addition  to  that  taken  by  the  committee,  upon  that  question,  which  evidence  the 

'  SecondsessionFortiethCongress,  Report  No.  2;  2Bartlett,  p.  368;  Journal,  p.  30;  Globe,  pp.  11, 13. 
^  It  was  announced  in  the  House  that  Messrs.  Michael  C.  Kerr,  of  Indiana,  and  Joseph  W.  McClurg, 
of  Missouri,  did  not  concur  in  the  legal  propositions  laid  down  in  the  report. 


444  PRECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §   449 

committee  has  not  yet  had  time  to  consider,  and  is  not  now  prepared  to  report  any  conclusion  in  those 
cases.  The  committee  believes  that  it  will  be  able  to  report  in  those  cases  within  a  short  time,  as 
the  cases  are  understood  to  be  ready  for  a  final  hearing. 

The  committee  recommends  the  adoption  of  the  following  resolution: 

Resolved,  That  James  B.  Beck,  Thomas  L.  Jones,  A.  P.  Grover,  and  J.  Proctor  Knott  are  entitled  to 
seats  as  Members  of  this  House  from  the  State  of  Kentucky. 

The  resolution  was  agreed  to  without  division,  and  the  four  persons  named  were 
sworn  in  as  Members.' 

449.  The  Kentucky  election  case  of  Smith  v.  Brown  in  the  Fortieth 
Congress. 

In  1868  the  House  excluded  a  Member-elect  who,  by  voluntarily 
giving  aid  and  comfort  to  rebellion,  had,  in  the  opinion  of  the  House, 
made  it  impossible  for  him  to  take  the  oath  of  office  prescribed  by  law. 

In  1868,  a  question  of  loyalty  arising,  the  House  in  effect  held  that 
there  might  be  established  by  law  qualifications  other  than  those 
reqviired  by  the  Constitution. 

In  1868  it  seems  to  have  been  assumed  by  the  Committee  on  Elec- 
tions, if  not  by  the  House  itself,  that  the  House  alone  might  not  add 
to  the  qualifications  prescribed  by  the  Constitution. 

Form  of  oath  prescribed  by  the  act  of  July  2,  1862,  known  as  the 
"  Iron-clad  oath." 

Discussion  as  to  whether  or  not  the  law  prescribing  the  oath  of 
loyalty  in  1862  was  constitutional. 

The  House  may  by  resolution  modify  the  legal  requirements  for 
taking  testimony  in  an  election  case. 

On  July  9,  1867,-  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee 
on  Elections,  presented  this  resolution,  which  was  agreed  to: 

Resolved,  That  in  each  of  the  cases  of  contested  election  from  Kentucky,  the  time  for  taking 
testimony  is  hereby  extended  to  the  1st  day  of  December  next,  in  all  things  else  conforming  to  existing 
law,  except  that  such  testimony  may  be  taken  before  a  notary  public. 

On  January  21,  1868,'  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the 
Committee  on  Elections,  submitted  the  report  of  a  majority  of  the  committee  ' 
in  one  of  the  above-mentioned  cases,  Smith  v.  Brown.  Mr.  Brown  had  presented 
credentials  in  proper  form,  but  had  been  excluded  with  other  Kentucky- 
Members.^ 

There  was  no  doubt  that  he  had  received  a  large  majority  of  the  votes. 

'  On  December  18,  1863,  in  the  Senate,  Mr.  Charles  Sumner,  of  Massachusetts,  proposed  a  rule 
requiring  all  Senators  to  take  and  subscribe  in  open  Senate  to  the  oath  or  affirmation  provided  for  by  the 
act  of  July  2,  1862.  This  gave  rise  to  a  lengthy  and  learned  debate  on  the  subject  of  the  oath  required 
and  allowed  by  the  Constitution,  and  upon  the  question  of  establishing  qualifications  outside  of  those 
provided  by  the  Constitution.  The  debate  was  continued  January  20,  21,  and  25,  1864,  and  on  the 
latter  day  the  resolution  was  agreed  to.  yeas  28,  nays  11.  (First  session  Thirty-eighth  Congress,  Globe,- 
pp.  48,  27.5,  290,  320-331,  341.) 

^  First  session  Fortieth  Congress,  Journal,  p.  177;  Globe,  p.  546. 

^Second  session  Fortieth  Congress,  House  Report  No.  11;  2  Bartlett,  p.  395;  Rowell's  Digest, 
p.  220. 

*  Minority  views  filed  by  Messrs.  M.  C.  Kerr,  <if  Indiana,  and  John  W.  Chanler,  of  New  York. 

■''  See  section  448  of  this  work. 


§  449  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  445 

This  election  case,  the  first  of  its  kind  since  the  formation  of  the  Constitution, 
and  recognized  by  the  House  as  of  the  liighest  importance,  was  divided  into  two 
branches,  which  the  House  decided  to  debate  and  decide  separately. 

(1)  The  question  as  to  whether  or  not  John  Young  Brown  was  disqualified 
from  sitting  as  a  Member  of  the  House  on  account  of  his  having  been  guilty  of  acts 
of  disloyalty  to  the  Government  of  the  United  States  or  having  given  aid  or 
comfort  to  its  enemies.  The  majority  of  the  committee,  in  their  report,  cite 
first  the  oath  prescribed  by  the  act  of  July  2,  1862: ' 

That  hereafter  even'  person  elected  or  appointed  to  any  office  of  honor  or  profit  under  the  Govern- 
ment of  the  United  States,  either  in  the  civil,  militarj',  or  naval  departments  of  the  public  service, 
excepting  the  President  of  the  United  States,  shall,  before  entering  upon  the  duties  of  such  office,  and 
before  being  entitled  to  any  of  the  salary  or  other  emoluments  thereof,  take  and  subscribe  the  following 
oath  or  affirmation: 

I,  A.  B.,  do  solemnlyswear  (or  affirm;  tnat  ^  have  never  voluntarily  borne  arms  against  the  United 
States  since  I  have  been  a  citizen  thereof:  that  I  have  voluntarily  given  no  aid,  countenance,  counsel, 
or  encouragement  to  persons  engaged  in  armed  hostility  thereto;  that  I  have  neither  sought,  nor 
accepted,  nor  attempted  to  exercise  the  functions  of  any  office  whatever  under  any  authority  or  pre- 
tended authority  in  hostility  to  the  United  States;  that  I  have  not  yielded  a  voluntary-  support  to  any 
pretended  government,  authority,  power,  or  constitution  within  the  United  States  hostile  or  inimical 
thereto.  And  I  do  further  swear  (or  affirm)  that,  to  the  best  of  my  knowledge  and  ability,  I  wUl  support 
and  defend  the  Constitution  of  the  United  States  against  all  enemies,  foreign  and  domestic;  that  I 
will  bear  tnie  faith  and  allegiance  to  the  same;  that  I  take  this  obligation  freely,  without  any  mental 
reser\'ation  or  purpose  of  evasion:  and  that  I  will  well  and  faithfully  discharge  the  duties  of  the  office 
on  which  I  am  about  to  enter:  so  help  me  God. 

The  report  then  says: 

The  committee  understands  itself  to  be  instructed  to  inquire  whether  the  said  Brown  has  committed 
any  of  the  acts  which  he  is  required  by  said  statute,  before  entering  upon  the  duties  of  a  Representative, 
to  make  oath  that  he  has  not  done. 

The  evidence  relied  upon  to  support  this  charge  of  disloyalty  against  Mr.  Brown  is  contained  in 
the  following  letter,  written  by  him  at  the  time  it  bears  date,  to  the  editors  of  the  Louisville  Courier, 
and  published  in  that  paper  on  the  15th  day  of  May  following: 

[From  the  Louisville  Courier,  May  15, 1861.] 

EUZABETHTOWN,  ApHl  18,  1861. 

Editors  Louisville  Ccnirier: 

My  attention  has  been  called  to  the  following  paragraph,  which  appeared  in  your  paper  of  this  date: 

"John  Young  Brown's  Position. — This  gentleman,  in  reply  to  some  searching  interrogatories 
put  to  him  by  Governor  Helm,  said,  in  reference  to  the  call  of  the  President  for  four  regiments  of  volun- 
teers to  march  against  the  South — 

"  '/  wmild  not  send  one  solitary  man  to  aid  that  Government,  and  those  uho  volunteer  should  be  shot 
doun  in  their  tracks.'  " 

This  ambiguous  report  of  my  remarks  has,  I  find,  been  misunderstood  by  some  who  have  read  it, 
who  construe  my  language  to  apply  to  the  government  of  the  Confederate  States!    What  I  did  say  wa-s  this: 

"Not  one  man  or  one  dollar  will  Kentucky  furnish  Lincoln  to  aid  him  in  his  unholy  uur  agaiytst 
the  South.  If  this  northern  army  shall  attempt  to  cross  our  borders,  ve  will  resist  it  vnto  the  death;  and  if 
one  man  shall  be  found  in  our  Commonwealth  to  volunteer  to  join  them  he  ought  and  I  believe  will  be 
shot  down  before  he  leaves  the  State." 

This  was  not  said  in  reply  to  any  question  propounded  by  ex-Governor  Helm,  as  you  have  stated, 
and  is  no  more  than  I  frequently  uttered  publicly  and  privately  prior  to  my  debate  with  him. 
Respectfully, 

John  Young  Brown. 

1  12  Stat.  L.,  p.  502. 


446  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  449 

The  majority  and  minority  differed  as  to  the  pm-port  and  effect  of  these  words. 
The  minority  contended  that  considering  the  circumstances  at  the  time  the  letter 
was  written  it  was  not  disloyal.  The  majority  concluded  that  Mr.  Brown  having 
"voluntarily  given  aid,  countenance,  counsel,  and  encouragement  to  persons 
engaged  in  armed  hostility  to  the  United  States,"  he  is  not  entitled  to  take  the 
oath  of  office  or  to  be  admitted  to  this  House  as  a  Representative  from  the  State 
of  Kentucky. 

Therefore  the  majority  of  the  committee  recommended  the  adoption  of  the 
following  resolution: 

Resolved,  That  John  Young  Brown,  having  voluntarily  given  aid,  countenance,  counsel,  and 
encouragement  to  persons  engaged  in  armed  hostility  to  the  United  Statse,  is  not  entitled  to  take  the 
oath  of  office  as  a  Representative  in  this  House  from  the  Second  Congressional  district  of  Kentucky  or 
to  hold  a  seat  therein  as  such  Representative. 

This  portion  of  the  report  was  debated  fully  on  January  .3 1  and  February  1 
and  3,  1868'.  The  question  of  fact  as  to  whether  the  letter  actually  constituted 
such  an  act  as  the  majority  contended  was  considered,  but  the  conflict  was  especially 
vigorous  over  the  legality  of  the  proposed  action. 

In  opposition  to  the  action  recommended  by  the  majority  of  the  committee  it 
was  urged^  that  in  the  compact  known  as  the  Constitution  it  was  agreed  that  no 
State  should  elect  any  person  who  should  not  have  three  specified  qualifications,  of 
age,  citizenship,  and  inhabitancy.  Either  House  might  judge  the  elections,  returns, 
and  qualifications  of  its  own  Members  and  might  expel.  Subject  to  these  limita- 
tions the  right  and  power  of  the  States  over  their  Representatives  was  exclusive  and 
complete.  The  attempt  in  the  act  of  July  2,  1862,  to  impose  another  qualification 
was  in  direct  conflict  with  the  terms  of  the  original  pact.  The  unposition  of  addi- 
tional limitations  not  being  among  the  powers  granted  to  the  Congress,  it  must  be 
unconstitutional  and  void.  But  even  supposing  the  act  of  1862  to  be  constitutional, 
it  was  not  competent  for  the  House  to  inquire  whether  a  Member  might  take  the 
oath.  That  was  a  question  for  him  to  determine  by  himself.  It  was  further  urged,^ 
although  not  as  vital,  that  even  under  the  terms  of  the  act  of  1862  the  oath  might 
not  be  rightfully  required,  since  there  was  a  broad  distinction  between  a  Member 
of  Congress  and  the  officer  referred  to  in  that  act.  Further,  the  law  of  the  oath  was 
unconstitutional  in  that  it  was  ex  post  facto  and  assumed  to  punish  for  alleged 
offenses  committed  before  its  enactment,  and  also  to  punish  without  legal  trial  and 
conviction.  In  the  case  of  ex  parte  Garland  the  Supreme  Court  had  held  this  oath 
unconstitutional  when  applied  to  lawyers.  The  oath  was  also  unconstitutional, 
because  the  Constitution  prescribed  only  an  oath  "to  support  this  Constitution." 
Under  the  legal  principle  "expressio  unius  exclusio  alterius'i  it  was  to  be  presumed 
that  the  Constitution  meant  what  was  written  and  nothing  more.  The  same 
doctrine  would  indicate  that  in  enumerating  the  three  qualifications  the  Constitution 
intended  that  there  should  be  no  more.  In  support  of  this  contention  Justice  Story 
was  quoted.     It  was  true  that  the  House  was  the  judge  of  the  qualifications  of  its 

'  Globe,  pp.  891,  899,  901,  916,  937. 

2 By  Mr.  James  B.  Beck,  of  Kentucky,  Globe,  p.  902. 

3  By  Mr.  J.  Proctor  Knott,  of  Kentucky,  Globe,  p.  912. 


§  449  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  447 

own  Members,  but  this  did  not  mean  that  it  might  create  new  quahfications.  It 
must  sit  in  a  judicial  and  not  a  legislative  capacity,  and  decide  only  whether  the 
Member  had  the  three  enumerated  qualifications.  This  argument  as  to  the  inability 
of  the  House  to  add  qualifications  by  itself  was  admitted  to  be  soimd  by  the  chair- 
man of  the  Elections  Committee,'  who  presented  the  report  against  Mr.  Brown,  but 
he  of  course  held  that  the  Congress  might  by  the  law  of  the  oath  establish  the 
additional  qualification  of  loyalty. 

In  support  of  the  resolution  of  exclusion  it  was  argued  that  the  Government 
might  go  behind  the  qualifications  enumerated  in  the  Constitution.  It  was  true 
that  only  three  qualifications  were  specified,  but  did  not  this  mean  that  no  man 
should  serve  who  had  not  at  least  these  three  qualifications?  -  It  had  been  held  that 
the  States  might  not  impose  other  qualifications,  but  it  did  not  necessarily  follow 
that  the  Congress,  with  the  approval  of  the  President,  i.  e.,  the  Government,  might 
not  prescribe  other  qualifications.  It  was  inherently  implied  in  every  constitu- 
tional provision  under  which  the  House  had  its  existence  that  no  man  should  be 
qualified  to  sit  as  a  Member  who  had  not  the  indispensable  qualification  of  loyalty 
to  the  Government.  The  laws  of  human  society  authorized  a  government  to  resort 
to  all  means  to  preserve  itself.  In  McCulloch  v.  Maryland,  Chief  Justice  Marshall 
had  set  forth  views  sustaining  the  argument  that  Congress  had  full  powers  of  preser- 
vation of  itself.  The  Congress  of  1862  had  fidl  power  to  adopt  the  form  of  oath  in 
question  in  this  case  as  a  consequence.  ■  It  was  further  urged^  that  if  under  the  Con- 
stitution no  qualifications  except  those  enumerated  could  be  required,  then  the 
great  leaders  of  the  recent  rebellion  might  be  elected  to  the  House  and  seated. 
Even  expulsion  might  not  be  a  remedy,  since  if  a  man  had  a  right  to  take  a  seat  he 
had  a  right  to  hold  it.  By  laws  passed  in  1793  and  1853,  disqualifying  persons 
guilty  of  certain  acts  from  holding  any  oSice  of  honor,  trust,  or  profit  under  the 
United  States,  Congress  had  asserted  its  right  to  prescribe  additional  qualifications. 
It  could  not  be  said  that  exclusion  from  the  House  in  the  pending  case  was  an  ex 
post  facto  punishment,  for  a  disqualification  from  holding  office  was  not  an  increase 
of  penalty. 

In  rebuttal  the  minority  argvied  that  the  case  of  McCulloch  v.  The  State  of 
Maryland  had  no  application  to  the  pending  case.  Also,  the  effect  of  the  acts  of 
1793  and  1853  was  denied  on  the  ground  that  a  Member  of  Congress  was  not  an 
officer  witliin  the  meaning  of  those  laws. 

On  February  13^  the  question  was  taken  on  a  motion  of  Mr.  Michael  C.  Kerr,  of 
Indiana,  to  substitute  for  the  resolution  proposed  by  the  majority  the  following: 

That  John  Young  Brown,  not  having  voluntarily  given  aid,  countenance,  counsel,  or  encourage- 
ment to  persons  engaged  in  armed  hostility  to  the  United  States,  and  having  received  a  majority  of  the 
votes  cast  in  the  Second  district  of  Kentucky  for  Representative  in  this  House,  is  entitled  to  admission 
and  to  take  the  oath  of  office  as  a  Representative  from  said  district. 

'Mr.  Henry  L.  Dawes,  of  Massachusetts,  Globe,  p.  915.  Mr.  Dawes  cited  his  report  in  this  case, 
wherein  he  said  that  the  House  "can  judge  whether  each  Member  has  been  elected  according  to  the 
laws  of  his  State  and  possesses  the  qualifications  fixed  by  the  Constitution.  Here  its  power  begins 
and  ends." 

^Speech  of  Mr.  Dawes,  Globe,  p.  894. 

3  By  Mr.  Burton  C.  Cook,  of  Illinois,  Globe,  p.  909. 

*  Journal,  pp.  342,  343;    Globe,  p.  1161. 


448 


PRECEDENTS   OF   THE    HOUSE  OF   REPRESENTATIVES. 


§  450 


This  amendment  was  disagreed  to,  yeas  43,  nays  38. 

The  resokition  of  the  majority,  excluding  Mr.  Brown,  was  then  agreed  to  with- 
out division. 

450.    The  Kentucky  case  of  Smith  v.  Brown,  continued. 

In  the  Kentucky  cases  in  1868  a  contest  was  presented  and  sus- 
tained against  a  person  to  whom  the  House  had  refused  the  oath  on  his 
prima  facie  showing. 

The  person  receiving  the  majority  of  the  votes  in  a  district  being 
excluded  as  disqualified,  the  House,  after  careful  examination,  declined 
to  seat  the  one  receiving  the  next  highest  number. 

The  Elections  Committee,  in  a  report  sustained  on  the  main  issue, 
held  as  an  incidental  question  that  the  English  law  as  to  seating  a 
minority  candidate  when  a  vacancy  is  caused  by  disqualification  is  not 
applicable  under  the  Constitution. 

(2)  On  the  second  branch  of  the  case,  relating  to  the  right  of  the  contestant  to 
the  seat,  the  comnuttee  were  imited.  Mr.  Young's  majority  over  the  contestant 
was  6,106  votes.  The  contestant  rested  his  claim  to  the  seat  solely  on  the  legal 
view  that  where  a  candidate  known  to  be  ineligible  receives  the  highest  number  of 
votes,  those  votes  are  to  be  treated  as  void,  and  the  candidate  having  the  next 
highest  number  be  seated.  The  report  reviews  the  English  authorities  on  which 
contestant  mainly  relied,  showing  that  the  rule  rested  entirely  on  the  fact  that  the 
voters  had  knowledge  of  the  ineligibility  of  the  candidate  before  voting  for  him. 
The  rule  laid  down  by  Heywood  on  County  Elections  was  ' '  that  it  is  a  willful  obsti- 
nacy and  misconduct  in  a  voter  to  give  his  vote  for  a  person  laboring  under  a 
known  incapacity."  Parliament  requires  the  notice  of  this  incapacity  to  be  exceed- 
ingly formal,  and  in  almost  every  instance  to  be  at  the  polls.     The  report  says: 

Now,  if  it  be  admitted  that  this  is  the  rule  of  law  in  this  country  as  well  as  in  Great  Britain,  the  facts 
do  not  bring  this  case  within  it.  No  such  notice  as  the  British  Parliament  required  was  given  to  the 
electors  at  the  polls  in  the  twelve  counties  composing  this  district.  Indeed,  it  does  not  appear  that  any 
notice  at  all  of  any  alleged  ineligibility  was  given  at  a  single  poll.  The  most  that  can  be  claimed,  by  way 
of  notice,  is  the  alleged  notoriety  of  certain  facts,  viz,  the  publication  of  the  letter,  which,  it  is  claimed, 
was  evidence  from  which  ineligibility  could  be  inferred  by  the  voter.  But  how  notorious  were  even  these 
facts?  The  letter  was  published  in  1861 — six  years  before  the  election;  it  was  reproduced  on  the  stump; 
but  in  how  many  of  these  counties,  in  the  hearing  of  how  many  of  the  very  men  who  afterwards,  on  elec- 
tion day.  cast  their  votes  for  Mr.  Brown,  does  not  appear.  It  must  also  be  remembered  that  what  would 
be  the  legal  result  arising  from  these  facts  was  never  made  certain  before  the  votes.  That  result  depended 
upon  the  purpose  for  which  the  letter  was  written,  and  its  effect — all  matters  of  proof  and  matters  at  all 
times  in  dispute  before  the  voters,  and  about  which  even  this  committee  itself,  with  a  better  opportunity 
than  any  voter  ever  had  to  investigate  and  examine  all  the  evidence,  are  now,  after  a  full  hearing,  as 
nearly  equally  divided  as  possible.  How  can  it  be  said,  then,  that  any  voter,  in  casting  his  ballot  for 
Mr.  Brown,  has  been  guilty  of  "willful  misconduct  and  obstinacy"  by  casting  a  vote  for  one  known  to  be 
ineligible?  Mr.  Hejrwood  says  that  in  England  "it  is  not  so  in  a  doubtful  case."  (Southwark  Elections, 
p.  259.)  If,  then,  it  be  admitted  that  this  English  rule  was  a  law  binding  on  this  House,  still  it  would 
not  avail  Mr.  Smith  in  this  case,  for  the  facts  do  not  bring  the  case  within  the  rule. 

But  the  committee  do  not  find  any  such  law  regulating  elections  in  this  country,  in  either  branch  of 
Congress,  or  in  any  State  legislature,  as  far  as  they  have  been  able  to  examine.  Their  attention  has  been 
called  to  no  case,  and  it  was  not  claimed  before  the  committee  that,  as  yet,  this  rule,  by  which  one  receiv- 
ing only  a  minority  of  the  votes  actually  cast  had  been  adjudged  elected,  had  ever  been  applied  in  this 
country. 


§  450  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  449 

On  the  other  hand,  there  have  been  many  cases  of  alleged  ineligibility  in  both  branches  of  Congress 
since  the  formation  of  the  Government,  in  some  of  which  seats  have  been  declared  vacant  on  that  ground, 
and  in  which,  had  there  existed  in  this  country  any  such  rule,  it  would  certainly  have  been  resorted  to. 

The  report  cites  the  cases  of  Ramsey  v.  Smith,  Gallatin,  Bailey,  Shields,  and 
the  case  of  Mr.  Bro\vn  himself  (the  excluded  one),  who  was  not  allowed  to  take  his 
seat  in  the  Tliirty-sixth  Congress  until  he  had  arrived  at  the  constitutional  age. 
Cushing's  Law  of  Legislative  Assemblies  was  also  discussed,  and  shown  to  be  based 
on  English,  not  American,  precedents. 

The  report  goes  on  to  discuss  the  powers  of  Parliament,  which  are  often  called 
omnipotent,  and  which  in  theory  proceed  from  the  Sovereign  and  not  from  the  people. 
In  the  matter  of  elections  it  had  laid  down  many  arbitrary  laws  besides  the  one  in 
question.     Comparing  the  English  with  the  American  system,  the  report  says: 

There  certainly  can  be  no  need  of  argument  to  show  that  such  law  can  find  no  place  in  our  system, 
or  occasion  to  contrast  the  limited  powers  of  the  House  of  Representatives  with  the  "omnipotence"  of 
Parliament.  As  Congress,  much  less  the  House  of  Representatives,  never  conceded,  never  having  the 
power  to  concede,  to  a  voter  his  right  to  the  ballot,  neither  can  it  take  it  away,  modify,  or  limit  it. 
Least  of  all  can  this  body,  the  House  alone,  punish  a  voter  for  "obstinacy"  or  "perversity"  in  the 
exercise  of  his  right.  It  can  not  touch  a  voter  or  prescribe  how  he  shall  vote,  nor  can  it  impose  a  pen- 
alty on  him,  much  les.s  disfranchise  him  or  say  what  shall  be  the  effect  or  the  power  of  his  ballot  if  it 
be  cast  in  a  particular  way.  The  laws  of  the  State  determine  this.  It  is  unnecessary  to  discuss  how 
far  both  Houses  by  a  law  can  interfere  under  that  clause  of  the  Constitution  which  says  that  "the  time, 
places,  and  manner  of  holding  elections  for  Senators  and  Representatives  shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may  at  any  time  by  law  make  or  alter  such  regula- 
tions." It  is  enough  to  say  that  Congress  never  has  touched  those  regulations,  but  has  left  them  as 
made  by  the  States.  Both  Houses  have  always  absolutely  conformed,  in  the  effect  to  be  given  to  the 
ballot,  to  the  law  of  the  State.  To  such  extent  has  it  been  carried  that  the  Senate  has  rejected  a 
claimant  to  a  seat  who  had  29  votes  to  29  blanks,  because  there  was  a  law  of  the  State  defining  the 
power  of  each  ballot  by  prescribing  that,  to  be  elected  Senator,  one  must  have  not  only  a  majority  of 
all  the  votes  cast,  but  also  a  majority  of  all  the  members  elected  to  the  legislature  (2  Contested  Elec- 
tions, G08i,  and  there  happened  to  have  been  60  members  elected  to  that  legislature:  and  this  House 
has,  in  obedience  to  a  law  of  the  State  of  Delaware,  rejected  votes  and  given  the  seat  to  a  contestant, 
because  4  votes  had  only  the  name  of  the  sitting  Member  on  them,  when  the  law  required  each  voter, 
though  there  was  but  one  Representative  to  be  elected,  to  put  two  names  on  his  ballot  of  two  persons 
residing  in  different  counties  of  the  State.  (1  Contested  Elections,  69.)  Some  States  have  required  a 
majority  of  all  votes  cast  for  an  election,  some  a  plurality  alone,  some  a  plurality  after  one  or  more 
unsuccessful  attempts.  The  statute  books  of  the  States  are  fidl  of  provisions  touching  elections,  extend- 
ing as  well  to  the  effect  and  jwwer  of  each  ballot  as  to  the  manner  of  depositing  it,  all  of  which  are 
a  rule  for  this  House.  Congress  has  not  seen  fit  to  enact  any  law  concerning  it  if  it  had  the  power.  It 
is  not  necessarj'  to  inquire  whether  Kentucky  might  not  provide  by  law  that  votes  cast  for  one  known 
to  be  ineligible  shall  be  thrown  away,  and  one  who  has  received  a  majority  of  the  votes  only  shall  be 
declared  elected.  It  is  enough  to  say  that  that  State  has  not  only  never  passed  such  a  law,  but  it 
has  enacted  by  statute  that  no  one  shall  be  declared  elected  who  has  not  received  a  majority  of  the 
votes  cast.  As  has  been  shown,  Parliament  did  enact  a  law  that  votes  cast  for  one  ineligible  shall  be 
treated  as  if  not  cast,  and  one  having  a  minority  only  of  the  votes  be  thus  elected.  But  neither  has 
Congress  nor  Kentucky  enacted  any  such  law;  much  less  can  this  House  alone,  by  a  resolution,  set  it 
up,  and  that,  too,  after  the  fact,  as  a  punishment  for  "willful  obstinacy  and  misconduct."  The  right 
of  representation  is  a  sacred  right,  which  can  not  be  taken  away  from  the  majority.  That  majority, 
by  perversel}'  persisting  in  casting  its  vote  for  one  ineligible,  can  lose  representation,  but  never  the 
right  to  representation  while  the  Constitution  and  the  State  government  shall  endure.  If  it  be  inquired 
whether  a  loyal  minority  have  not  rights  which  are  thus  extinguished,  the  answer  is  obvious.     If  aU 

.-,004 — VOL  1— fl7 20 


450  .   PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §   450 

are  legal  voters  the  right  of  one  is  no  greater  than  that  of  another;  nor  is  it  a  valid  objection  that  by 
this  rule  one  district  after  another  might  be  left  without  a  Representative  until  representation  itself 
might  be  destroyed.  The  Constitution  has  given  into  the  hands  of  Congress  power  by  law  to  make, 
alter,  or  amend  all  regulations  as  to  the  times,  places,  and  manner  of  electing  Representatives.  If 
this  is  power  enough  to  meet  the  exigency,  it  will  be  met  when  it  arises.  If  there  is  not  power 
enough  then  it  can  not  be  found  in  that  instrument.  When  Congress  has  by  law  thus  regulated 
elections,  this  House  can,  by  resolution,  conform  its  actions  thereto,  but  not  till  then. 

The  committee  are  therefore  of  the  opinion  that  the  case  does  not  come  within  the  law  of  the  British 
Parliament,  for  want  of  a  sufficient  notice  to  the  electors  at  the  polls  of  an  ineligibility,  known  and 
fixed  by  law;  that  the  law  of  the  British  Parliament  in  this  particular  has  never  been  adopted  in  this 
country,  and  is  wholly  inapplicable  to  the  system  of  government  under  which  we  live. 

The  will  of  the  majority  expressed  in  conformity  with  established  law  is  the  very  basis  on  which 
rest  the  foundations  of  our  institutions,  and  any  attempt  to  substitute  therefor  the  will  of  a  minority 
is  an  attack  upon  the  fundamental  principles  of  the  Government,  and  if  successful  will  prove  their 
overthrow. 

Therefore  the  committee  recommended  the  following  resolutions: 

Resolved,  That  Samuel  E.  Smith,  not  having  received  a  majority  of  the  votes  cast  for  Representative 
in  this  House  from  the  Second  Congressional  district  of  Kentucky,  is  not  entitled  to  a  seat  therein  as 
such  Representative. 

Resolved,  That  the  Speaker  be  directed  to  notify  the  governor  of  Kentucky  that  a  vacancy  exists 
in  the  representation  in  this  House  from  the  Second  Congressional  district  of  Kentucky. 

This  branch  of  the  report  was  debated  at  length  on  February  14  and  15.' 
This  debate  led  to  a  review  of  precedents  and  to  the  citation  of  several  American 
precedents  which  the  report  of  the  committee  had  overlooked  and  which  were  in 
harmony  with  the  English  rule.  The  earliest  was  an  instance  wherein  about 
seventy  years  previous  a  sheriff  had  been  declared  elected  in  one  of  the  counties 
of  Maryland  on  the  principle  of  the  English  precedents.^  A  later  case  was  a  decis- 
ion of  the  Maine  supreme  court '  (7  Maine  reports) ,  where  certain  scattering  votes 
cast  for  an  ineligible  person  had  been  disregarded,  thus  allowing  an  election  which 
otherwise  would  have  been  defeated  for  lack  of  the  required  absolute  majority. 
Another  precedent  was  cited  from  the  Maine  legislature  of  1865,  where  a  candidate 
who  was  ineligible  was  excluded,  although  he  had  a  majority  of  the  votes,  and  the 
minority  candidate  was  seated.  The  Indiana  case  of  Gulick  v.  New  was  also 
cited  in  support  of  the  same  theory.  Those  who  opposed  the  view  of  the  committee 
also  contended  that  the  alleged  disloyalty  of  Mr.  Brown  was  well  known  in  the 
district  and  constituted  sufficient  notice.  In  reply,  it  was  argued  that  it  had  only 
recently  been  decided  that  such  disloyalty  was  a  disqualification  and  that  Mr. 
Brown's  status  was  a  matter  of  controversy  in  the  district. 

Those  supporting  the  report  also  denied  the  authority  of  the  English  rule  and 
cited,  in  addition  to  the  precedents  referred  to  in  the  report,  a  decision  by  the 
supreme  court  of  Georgia  in  1852,  wherein  the  English  rule  was  denied  and  the 
contrary  principle  upheld. 

'  Globe,  pp.  1185,  1189-1200. 

'  Speech  of  Mr.  Dawes,  Globe,  pp.  1185,  1186. 

'  Speech  of  Mr.  John  A.  Peters,  of  Maine,  Globe,  p.  1197. 


§  451  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  451 

The  question  was  taken  '  on  a  motion  of  Mr.  John  Cobiirn,  of  Indiana,  to  sub- 
stitute for  the  resolution  denying  to  contestant  the  seat  the  following: 

That  Samuel  E.  Smith,  having  received  a  majority  of  the  votes  cast  in  conformity  with  law,  is 
entitled  to  take  the  oath  of  office  as  a  Representative  in  this  House  from  the  Second  Congressional 
district  of  Kentucky. 

This  motion  was  decided  in  the  negative,  yeas  30,  nays  102. 

Then  the  resolutions  as  reported  by  the  committee  were  agreed  to  without 
division. 

451.  The  Kentucky  election  case  of  McKee  v.  Young  in  the  Fortieth. 
Congress. 

John  D.  Young,  having,  in  the  opinion  of  the  House,  voluntarily- 
given  aid  and  comfort  to  the  enemy  by  words,  although  not  by  acts, 
was  held  incapable  of  taking  the  oath  of  July  2,  1862. 

Argument  that  the  act  of  July  2,  1862,  prescribing  a  test  oath,  did 
in  effect  create  an  additional  qualification. 

In  an  exceptional  case  the  House  rejected  votes  cast  by  persons 
lately  in  armed  resistance  to  the  Government,  although  hy  the  law^  of 
the  State  they  were  qualified  voters. 

Certain  officers  of  election  being  held  to  be  disqualified  under  State 
law,  the  House  rejected  the  returns  over  which  they  had  presided, 
declining  to  treat  them  as  de  facto  officers. 

A  question  as  to  whether  on  not  the  votes  of  persons  deprived  of 
citizenship  by  an  act  of  Congress  should  be  rejected  in  a  case  where 
the  State  law  did  not  require  a  voter  to  be  a  citizen  of  the  United  States. 

On  March  23,  1S6S,^  Mr.  Joseph  W.  McCliu-g,  of  Missoiu-i,  from  the  Committee 
on  Elections,  submitted  a  report  of  the  majority  of  the  committee  on  the  Kentucky 
election  case  of  McKee  v.  Young.  Mr.  Young  had  presented  himself  at  the  pre- 
ceding session  with  credentials  in  regular  form,  but  with  other  Kentucky  Members  ^ 
had  not  been  permitted  to  take  the  seat  until  his  qualifications  for  loyalty  had  been 
investigated. 

The  questions  arising  in  this  case  naturally  divide  themselves  into  two  main 
branches : 

1.  The  majority  of  the  committee  concluded,  from  a  discussion  of  the  evidence, 
that  the  contestant  had  sustained  the  allegation  in  his  notice  of  contest  that  said 
Young  "voluntarily  gave  aid,  coimtenance,  counsel,  and  encouragement  to  persons 
engaged  in  armed  hostility  to  the  Government  of  the  United  States."  The  report 
says: 

The  committee  find  the  allegations  of  the  contestant  so  sustained  by  the  proof  that  it  is  unnecessary 
to  contend  that  a  rule  too  liberal  in  favor  of  those  who  sympathized  with  the  late  avowed  enemies  of 
the  Government  was  adopted  when  report  No.  2  of  this  session  was  approved  by  this  House  in  the  cases 
from  Kentucky  of  Beck,  Jones,  Grover,  and  Knott.     This  case  is  brought  within  the  rule  then  laid 

'  Journal,  pp.  350,  351. 

'  Second  session  Fortieth  Congress,  House  Report  No.  29;  2  Bartlett,  p.  422;  Rowell's  Digest,  p.  222. 

^  See  section  448  of  this  work. 


452  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   451 

down,  as  it  is  proven,  by  clear  and  satisfactory  testimony,  that  the  said  John  D.  Young  "has  been  guilty 
of  such  acts  of  disloyalty  that  he  can  not  honestly  and  truly  take  the  oath  prescribed  by  the  act  of 
July  2,  18G2." 

The  testimony  of  witnesses  both  for  and  against  Mr.  Young  shows  that  he  was  not  regarded  by  any 
as  a  Union  man,  and  that  he  was  not  merely  in  passive  sympathy  with  those  engaged  in  the  rebellion 
but  desired  its  success  and  so  expressed  himself. 

Before  quoting  testimony  on  this  point  the  committee  would  express  the  opinion  that  "aid  and  com- 
fort'' may  be  given  to  an  enemy  by  words  of  encouragement,  or  the  expression  of  an  opinion,  from  one 
occupying  an  influential  position.  The  said  John  D.  Young  occupied  the  official  position  of  county 
judge,  as  shown  in  the  testiraimy. 

The  majority  of  the  committee  make  no  argument  on  the  right  to  exclude  such 
a  person,  regarding  that  question  as  settled  by  the  preceding  cases. 

The  minority  of  the  committee  '■  deny  that  the  evidence  shows  those  results 
claimed  by  the  majority,  and  argue  again  that  the  House  may  not  exclude  for  such 
a  reason.     They  say: 

Upon  the  whole  evidence,  therefore,  the  undersigned  maintain  that  it  has  not  been  made  to  appear 
Dy  anything  like  "clear  and  satisfactory  testimony"  that  John  D.  Young  has  been  guilty  of  any  such 
open  acts  of  disloyalty  that  he  can  not  truthfully  take  the  oath  prescribed  by  the  act  of  July  2,  1862, 
and  that  he  should  be  permitted  to  take  his  seat  as  the  Representative  of  the  Ninth  Congressional  dis- 
trict of  Kentucky  in  the  present  Congress. 

The  undersigned  can  not,  however,  close  this  paper,  lengthy  as  it  has  necessarily  been  made,  with- 
out entering  a  most  solemn  and  emphatic  dissent  from  the  doctrine  assumed  by  the  majority,  that  a 
person  po.ssessing  the  qualifications  prescribed  in  the  Constitution  of  the  United  States  for  a  Member  of 
the  House  of  Representatives  can  be  legally  excluded  from  his  seat  as  such,  after  ha-ving  been  duly 
elected  thereto,  simply  because  he  may  not  be  able  truthfully  to  take  the  oath  prescribed  by  the  act 
of  July  2,  1862.  It  is  more  than  doubtful,  in  their  opinion,  whether  the  act  can,  by  any  proper  rule  of 
construction,  be  made  to  apply  to  Members  of  Congress  at  all;  but,  be  that  as  it  may,  it  seems  to  them 
to  be  a  violation  of  the  Constitution  in  more  than  one  particular. 

Congress,  by  an  act  passed  January  24,  1865,  extended  the  provisions  of  the  act  of  July  2,  1862, 
so  as  to  require  the  oath  therein  prescribed  to  be  taken  by  lawyers  practicing  in  the  courts  of  the  United 
States.  That  act  was  declared  by  the  Supreme  Court,  upon  solemn  adjudication,  after  thorough  argu- 
ment, to  be  unconstitutional,  not  only  because  it  was  in  conflict  with  the  inhibition  against  the  passage 
of  bills  of  attainder,  but  because  it  was  to  all  intents  and  purposes  an  ex  post  facto  law,  besides  being 
in  contravention  of  that  clause  in  the  Constitution  vesting  the  pardoning  power  in  the  Executive.  (Ex 
parte  Garland,  4  Wall.,  p.  333.)  But  there  is  another  and  far  weightier  reason  for  holding  the  act  of  1862 
unconstitutional,  when  sought  to  be  enforced  as  to  Members  of  Congress,  and  that  is,  that  it  superadds 
qualifications,  or,  which  amounts  to  the  same  thing,  prescribes  disqualifications  for  Representatives 
unknown  to  the  Constitution,  which,  in  the  very  nature  of  things,  Congress  has  no  power  to  do. 

The  Constitution,  section  2,  Article  I,  provides  that  "  no  person  shall  be  a  Representative  who 
shall  not  have  attained  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the  United  States, 
and  who  shall  not  when  elected  be  an  inhabitant  of  the  State  in  which  he  shall  be  chosen,"  the  converse 
of  which  is  that  any  person  who  is  25  years  of  age,  has  been  a  citizen  of  the  United  States  for  seven 
years,  and  is  an  inhabitant  of  the  State  in  which  he  may  be  chosen,  shall  be  a  Representative  if  legally 
elected  as  such.  If  the  person  elected  possess  the  qualifications  presented  by  the  Constitution,  Con- 
gress has  no  power  to  inquire  any  further,  or  to  demand  anything  more. 

This  principle  was  early  recognized  by  Congress  in  the  case  of  Barney  v.  McCreery,  from  Maryland, 
and  reaffirmed  in  the  cases  of  Fouke  r.  Trumbull,  and  Turney  v.  Marshall,  from  Illinois.  In  the  latter 
case  the  distinguished  chairman  of  the  committee  at  that  time,  Mr.  Bingham,  says  in  his  report: 

' '  By  the  Constitution  the  people  have  the  right  to  chose  as  their  Representative  any  person  having 
only  the  qualifications  therein  mentioned,  without  superadding  thereto  any  additional  qualification 
whatever.     A  power  to  add  new  qualifications  is  equivalent  to  a  power  to  vary  or  change  them." 

'Messrs.  M.  C.  Kerr,  of  Indiana,  and  John  W.  Chanler,  of  New  York. 


§  451  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  453 

Yet  that  this  act  does  in  effect  prescribe  an  additional  qualification  is  too  plain  to  admit  of  an  argu- 
ment. It  is  self-evident  truth.  That  additional  qualification  without  the  possession  of  which  the 
majority  would  not  permit  him  to  take  his  seat,  is  his  ability  to  truthfully  take  the  test  oath.  If  the 
majority  think  he  can  truthfully  take  it,  he  gels  his  seat;  if  they  think  otherwise,  he  is  deprived  of  it. 
Will  any  man  of  ordinary  self-respect  deny,  then,  that  this  act  prescribes  an  additional  qualification? 
If  this  principle  is  correct,  then  there  is  no  limit  to  the  power  of  Congress  in  prescribing  qualifications 
for  its  Members  but  the  wiU  and  discretion  of  the  dominant  majority,  and  by  prescribing  test  after  test 
they  may  exclude  everybody  but  a  favored  few,  and  the  right  of  choosing  their  own  Representatives 
may  be  taken  from  the  people  entirely,  or  the  character  of  Congress  molded  to  suit  the  views  and 
interests  of  one  particular  section  or  party  forever. 

It  is  no  answer  to  this  to  say  that  Congress  should  have  the  power  to  exclude  persons  who  from 
imbecility  or  want  of  integrity  might  endanger  the  safety  of  the  Government.  The  question  is.  Has 
it  the  power?  It  has  only  the  power  to  exclude  those  who  do  not  possess  the  qualifications  pre- 
scribed in  the  Constitution.  If  the  people  see  proper  to  elect  an  imbecile,  a  person  holding  opinions 
distasteful  to  the  majority,  or  one  who  may  once  have  held  such  opinions,  to  represent  them,  it  is  a 
matter  that  concerns  themselves,  and  confers  no  new  power  on  Congress,  and  suspends  no  provisions 
of  the  Constitution.  The  only  remedy  lies  in  amending  the  Constitution,  in  the  manner  prescribed 
in  the  fifth  article.  Until  that  is  done.  Congress  can  do  no  more  than  pass  upon  the  qualifications 
already  prescribed. 

It  is  simply  begging  the  question  to  claim  that  Congress  has  the  power  to  prescribe  this  test  oath 
to  be  taken  by  its  Members,  because  ' '  each  House  has  the  power  to  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  Members,"  for  the  question  instantly  reciu-s,  "What  are  the  qualifications  of 
which  each  House  may  be  the  judge?"  and  the  answer  is,  simply  the  qualifications  prescribed  by  the 
Constitution.  To  admit  any  other  rule  would  be  to  make  each  House  entirely  independent  of  the 
Constitution,  as  to  who  may  or  may  not  be  its  own  Members. 

The  majority  of  the  committee  proposed  the  following  resolution: 

Resolved,  That  John  D.  Young,  having  voluntarily  given  aid,  countenance,  counsel,  and  encour- 
agement to  persons  engaged  in  armed  hostility  to  the  United  States,  is  not  entitled  to  take  the  oath  of 
office  as  a  Representative  in  this  House  from  the  Ninth  Congressional  district  of  Kentucky,  or  to  hold  a 
seat  therein  as  such  Representative. 

The  report  was  debated  on  June  20  and  22,'  and  on  the  latter  dav  Mr.  Kerr 
offered  as  a  substitute  a  declaration  that  ilr.  Young  "was  duly  elected  a  Member 
of  this  House"  and  "should  now  be  admitted  to  his  seat  herein  upon  taking  the 
oath  prescribed  by  law." 

This  substitute  was  decided  in  the  negative — yeas  30,  nays  96. 

The  resolution  reported  by  the  committee  was  then  agreed  to  without  division. 

2.  On  the  question  as  to  the  election  of  contestant  a  greater  diversity  of  opinion 
arose  in  the  committee.  It  was  not  contended  that  Mi-.  McKee  should  be  seated 
simply  because  'Sir.  Yoimg  had  been  excluded  for  disqualification,  the  question 
involved  m  such  a  proceeding  being  regarded  as  settled  in  a  former  case.  But  a 
serious  division  of  opinion  arose  on  the  question  as  to  whether  or  not  the  contestant, 
Mr.  McKee,  had  actually  been  elected.  In  the  report  presented  March  23  all  the 
committee,  with  one  exception,  agreed  that  contestant  was  not  elected.  But  on 
June  2  the  dissenting  Member,  Mr.  Charles  Upson,  of  Michigan,  filed  views  con- 
tending that  contestant  had  been  elected.^  On  June  3,  by  unanimous  consent, 
on  motion  of  Mr.  Henry  L.  Dawes,  of  Massachusetts,  and  without  debate,  the  subject 
was  recommitted.^     On  June  17  Mr.  Burton  C.  Cook,  of  Illinois,  presented  from  a 


'Journal,  pp.  912,  913. 

=  House  Report  No.  49;  2  Bartlett,  p.  452. 

^Journal,  p.  793;  Globe,  p.  2812. 


454  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   451 

majority  of  the  committee'  a  report  taking  the  ground  that  the  contestant  was 
elected,  and  recommending  the  adoption  of  the  following  resolutions: 

Resolved,  That  J.  D.  Young  was  not  legally  elected  a  Member  of  the  House  of  Representatives  of 
the  Fortieth  Congress  from  the  Ninth  Congressional  district  of  Kentucky. 

Resolved,  That  Samuel  McKee  was  duly  elected  a  Member  of  the  House  of  Representatives  in  the 
Fortieth  Congress  from  the  Ninth  Congressional  district  of  the  State  of  Kentucky. 

Mr.  Young  had  been  returned  by  an  official  majority  of  1,479  votes.  In  their 
final  report  the  majority  of  the  conmiittee  find  that  "the  625  votes  of  rebel  soldiers 
ought  not  to  be  counted,"  that  883  majorit}-  should  be  deducted  from  ilr.  Young, 
because  it  was  given  in  precincts  where  there  were  ''rebel  officers  of  election,"  and 
finally  that  the  votes  of  eight  deserters  should  be  deducted.  This  would  leave  a 
majority  of  41  for  Mr.  McKee,  the  contestant. 

(a)  As  to  the  625  votes  of  "rebel  soldiers,"  the  majority  in  their  final  report 
say: 

It  appears  perfectly  clear  to  the  committee  that  persons  who  had  been  soldiers  in  the  rebel  army 
had  no  right  to  vote  or  to  act  as  officers  of  election.  They  had  surrendered  to  the  Government  of  the 
United  States  upon  the  condition  that  each  company  or  regimental  officer  should  sign  a  parole  for  his  men, 
and  each  man  was  allowed  to  return  home,  not  to  be  disturbed  by  United  States  authority  so  long  as 
he  observed  his  parole  and  the  laws  in  force  where  he  resided.  These  men  were  especially  excepted 
from  the  amnesty  proclaimed  by  the  President  May  29,  1865,  under  the  tenth  exception,  and  there 
appears  to  have  been  no  other  act  of  amnesty  up  to  the  time  of  this  election  which  could  include  them; 
they  were  paroled  prisoners  of  war.  No  reason  occurs  to  the  committee  why  these  men  should  be  allowed 
to  vote  which  would  not  apply  with  equal  force  to  them  while  actually  in  the  field  against  the  Govern- 
ment; the  only  difference  which  appears  is  that  they  had  now  been  captured;  their  object,  aim,  and 
intent,  whether  in  fighting  or  voting,  was  manifestly  to  destroy  the  Government.  It  seems  absurd  to 
say  that  it  was  a  patriotic  duty  to  kill  them  while  they  were  in  arms  against  the  Government  to  prevent 
the  destruction  of  the  Government  by  them,  and  at  the  same  time  wholly  illegal  to  refuse  to  allow  them 
to  accomplish  the  same  result  by  their  votes.  The  whole  plan  of  reconstruction  by  Congress,  as  also  the 
plan  of  reconstruction  proposed  in  the  proclamations  of  the  President,  has  proceeded  upon  the  assump- 
tion that  those  who  had  renounced  their  allegiance  to  the  Government  and  fought  against  it  have  forfeited 
their  right  to  vote. 

In  debate  Mr.  Upson ^  elaborated  this  argument  further: 

1  say  that  when  a  rebel  throws  down  the  cartridge  box  he  can  not  take  up  the  ballot  box  and 
immediately  assume  either  to  come  into  this  House,  or  to  send  an  agent  here  to  represent  him,  without 
the  consent  of  the  sovereign  power  of  the  nation.  *  *  *  Xo  republican  government  can  exist  on  any 
such  basis.  Gentlemen  say  there  is  no  precedent.  Well,  of  course,  in  the  very  nature  of  things  there 
can  be  no  precedent.  There  is  no  precedent  for  such  a  rebellion  *  *  *  It  is  necessary  for  us  to 
distinctly  lay  down  and  assert  the  principles  that  all  political  rights  do  not  necessarily  revert  to  all 
men  who  engage  in  rebellion  when  peace  is  first  restored  as  they  were  before  the  rebellion  unless  by 
permission  of  the  sovereign  power  of  the  people.  *  *  *  It  is  by  virtue  of  the  reconstruction  acts  of 
Congress,  not  by  any  inherent  right  of  their  own,  that  they  have  the  right  to  vote  in  the  Southern  States. 

Kentucky,  of  course,  had  not  been  the  subject  of  reconstruction  legislation, 
never  having  seceded. 

In  their  first  report  the  majority  of  the  committee  had  said : 

But  the  committee  finding  that  there  is  no  law  of  Kentucky  disfranchising  rebel  soldiers,  have 
not  been  able  to  see  how  those  votes  can  be  rejected. 

•  House  Report  No.  59;  2  Bartlett,  p.  458.  Mr.  Luke  P.  Poland,  of  Vermont,  who  had  agreed  to  the 
first  majority  report,  dissented  from  this  (Globe,  p.  3371). 

2  Globe,  p.  3374. 


§  451  THE  OATH  AS  BELATED  TO  QrALIFICATIONS.  455 

The  minority  of  the  committee,  Messrs.  Kerr  and  Chanler,  concurred,  with  this 
argument : 

Each  State  has  the  exclusive  right  to  determine  who  shall  and  who  shall  not  be  electors  at  her  poUs, 
The  several  States  possessed  that  right  before  the  adoption  of  the  Constitution  of  the  United  States. 
They  never  surrendered  it  nor  delegated  to  Congress  or  any  other  department  of  the  Government 
the  power  to  alter  or  interfere  with  it  in  any  way.  The  Constitution  of  the  United  States,  Article  I, 
section  2,  provides  that  "the  electors  for  Representatives  in  Congress  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch  of  the  State  legislature."  The 
constitution  of  Kentucky,  in  force  when  this  election  was  held,  and  still  in  force,  prescribes  that  all 
white  male  citizens  of  the  State.  21  years  of  age.  who  shall  have  resided  in  the  State  two  years,  or  in 
the  county,  town,  or  city  in  which  they  offer  to  vote  one  year  next  preceding  the  election,  shall  be 
electors  of  the  most  numerous  branch  of  the  legistlature  of  that  State.  (New  constitution  of  Kentucky, 
Art,  II,  sec.  8.)  It  follows,  therefore,  that  no  vote  cast  for  either  Young  or  McKee  can  lawfully  be 
rejected  on  account  of  the  voter's  participation  in  the  rebellion,  no  matter  to  what  extent  that  participa- 
tion may  have  gone,  and  there  is  still  less  pretext  for  this  claim  of  contestant's,  because  Congress  has 
never  assumed  to  declare  who  shall  or  shall  not  be  voters  in  Kentucky,  even  granting  that  there  are  those 
who  may  be  willing  to  go  to  the  extent  of  admitting  that  they  have  that  power.  It  is  true  that  the 
legislature  of  Kentucky,  by  an  act  approved  March  11,  1862,  sought  to  deprive  all  who  had  participated 
in  the  rebellion  of  the  right  of  suffrage,  but  this  act  was  repealed  by  an  act  approved  December  19, 
186.5,     *     *     *. 

So  that  long  before  the  4th  of  May,  1867,  when  this  election  was  held,  all  who  had  in  any  way 
participated  in  the  rebellion  were  restored  to  all  their  political  rights  and  privileges,  and  had  all  the 
qualifications  of  an  elector  as  fully  as  if  they  had  never  been  in  the  rebellion  at  all.  What  difference, 
then,  does  it  make  in  this  case  whether  seven  hundred  or  seven  thousand  of  those  who  voted  for  Young 
had  been  in  the  rebel  army?  \Miat  difference  whether  eight  or  eight  thousand  of  them  had  deserted  from 
the  Federal  army?  They  were  still,  under  the  constitution  and  laws  of  Kentucky,  qualified  electors  of 
the  most  numerous  branch  of  the  State  legislature,  and  had  as  much  right  to  vote  for  a  Member  of  Congress 
under  the  Constitution  of  the  United  States  as  either  of  the  candidates  themselves. 

(b)  The  law  of  Kentucky  of  February  11,  1858,  provided  that  the  judges  of 
elections  should  be  so  appointed  as  to  represent  the  two  political  parties,  and  a 
further  law  enacted  March  15, 1862,  provided: 

Section  1.  That  in  construing  the  act  approved  February  11,  1858,  to  which  this  is  an  amendment, 
those  who  have  engaged  in  the  rebellion  for  the  overthrow  of  the  Government,  or  who  have  in  any  way 
aided,  counseled,  or  advised  the  separation  of  Kentucky  from  the  Federal  Union  by  force  of  arms,  or 
adhered  to  those  engaged  in  the  effort  to  separate  her  from  the  Federal  Union  by  force  of  arms,  shall  not 
be  deemed  one  of  the  political  parties  in  this  Commonwealth  within  the  provisions  of  the  act  to  which 
this  is  an  amendment. 

In  their  second  report  the  majority  found  that  in  each  of  ten  precincts  one  or 
more  returned  rebels  had  acted  as  officers  of  election,  and  that  in  such  precincts  a 
total  majority  of  883  had  been  returned  for  Mr.  Young.  The  report  contends  that 
this  majority  should  be  rejected. 

By  the  law  of  Kentucky  none  but  electors  can  be  judges  or  oflicers  of  election.  The  law  of  Ken- 
tucky also  provides  that  those  who  have  engaged  in  the  rebellion  for  the  overthrow  of  the  Government, 
or  who  have  in  any  way  aided,  counseled,  or  advised  the  separation  of  Kentucky  from  the  Federal 
Union  by  force  of  arms,  or  adhered  to  those  engaged  in  the  effort  to  separate  her  from  the  Federal  Union 
by  force  of  arms,  should  not  be  selected  as  judges  of  election.  *  *  *  It  has  long  been  held  that  if 
the  officers  of  election  are  not  capable  of  holding  the  office,  the  election  has  no  more  validity  than 
would  an  election  where  no  officers  whatever  were  appointed;  it  is  otherwise  where  persons  capable  of 
holding  the  office  are  appointed,  although  they  may  not  have  complied  with  the  forms  of  the  law. 
(Easton  v.  Scott,  First  Contested  Election  Cases,  p.  272;  Delano  v.  Morgan,  decided  the  present  session.) 


456  PEKCEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   451 

Both  in  the  report  and  in  the  debate,  a  state  of  intimidation  in  the  district 
was  referred  to  as  a  fact  which  showed  the  necessity  of  impartial  election  officers 
selected  according  to  the  law. 

The  partisan  leanings  of  the  election  officers  were  shown  from  the  poll  books. 
As  to  this,  and  as  to  the  law  providing  for  representation  of  two  parties,  neither 
of  which  should  include  those  who  had  aided  the  rebellion,  Mr.  Upson,  in  his 
minority  views,  had  said: 

It  is  submitted  that  such  statutes  can  not  be  considered  as  directory  merely,  but  as  imperative, 
and  it  is  insisted  also  that  the  condition  of  this  portion  of  Kentucky,  at  the  time  when  this  election  was 
held,  made  the  rigid  enforcement  of  this  law  a  matter  of  vital  interest  to  the  loyal  Union  men  of  that 
district. 

It  is  stated  by  the  minority  of  the  committee  in  their  report  heretofore  referred  to  (p.  16)  that  all 
these  election  officers  must,  by  the  laws  of  Kentucky,  have  been  appointed  in  June  or  July,  nearly  a 
year  preceding  this  election,  and  hence  they  argue  that  the  vote  of  these  officers  cast  at  this  election 
is  no  evidence  of  their  political  status  at  the  time  of  their  alleged  appointment  the  year  previous,  and 
they  quote  from  the  reasoning  of  the  chairman  of  the  committee  in  the  case  of  Blakey  v.  Golloday 
(Report  No.  1,  of  this  session,  p.  3)  in  support  of  this  position. 

Unfortunately,  however,  for  their  argument,  they  overlooked  the  fact  that  this  Congressional  election 
was  held  by  virtue  of  an  act  of  the  legislature  of  Kentucky,  pa.s.sed  February  18,  1867,  which  provided 
that  the  officers  of  election  to  be  appointed  by  the  county  courts  in  March  or  April  of  that  year,  for  the 
election  of  constables  and  justices  of  the  peace,  should  be  the  officers  of  election  for  the  election  of 
Members  of  Congress,  on  the  same  4th  day  of  May,  1867,  so  that  the  appointment  was  only  made  a  month 
or  two,  at  the  furthest,  prior  to  the  election,  and  the  vote  of  the  election  officer  would  be  a  pretty  sure 
criterion  of  his  political  party  status  at  the  time  of  his  appointment,  especially  as  the  Representative 
in  Congress  was  the  most  important  officer  to  be  chosen  at  said  election. 

But  the  case  of  Blakey  v.  Golloday  was  expressly  decided  on  other  grounds,  and  no  decision  was 
made  as  to  the  political  construction  to  be  given  to  this  law  of  Kentucky. 

In  their  first  report  the  majority  of  the  committee  had  refrained  from  taking 
a  position  on  this  featiu-e  of  the  case  because  from  the  view  they  took  as  to  other 
features  a  decision  on  this  question  would  not  affect  the  case. 

The  minority,  composed  of  Messrs.  Kerr  and  Chanler,  held : 

It  is  a  sufficient  answer  to  all  this  to  say  that  there  is  no  law  in  Kentucky  disqualifying  a  man  from 
acting  as  an  officer  of  an  election,  sheriff  of  a  county,  or  in  any  other  office  in  the  State,  on  account  of  his 
having  been  in  the  rebel  army;  and,  besides,  if  there  were,  these  were,  to  say  the  least  of  it,  all  officers 
de  facto,  duly  appointed  and  acting  regularly  under  color  of  authority.  No  complaint  is  made  that 
either  of  them  acted  unfairly,  or  that  either  candidate  was  benefited  or  injured  by  their  official  action, 
and,  therefore,  according  to  the  principle  above  stated,  their  acts  are  as  valid,  so  far  as  the  public  and  the 
parties  to  this  contest  are  concerned,  as  if  they  had  been  officers  de  jure. 

(c)  In  making  the  41  majority  for  contestant,  the  majority  of  the  committee 
m  their  second  report  rejected  the  votes  of  eight  deserters  from  the  Federal  Army, 
which  were  shown  to  have  been  cast  for  Young.  Mr.  Upson,  in  his  minority  views, 
which  seem  to  have  largely  influenced  the  second  report,  had  said: 

The  act  of  Congress  of  March  3,  1865,  decitizenizes,  by  their  own  voluntary  act,  all  persons  who 
have  deserted  the  military  or  naval  service  of  the  United  States  who  shall  not  return  to  said  service, 
or  report  themselves  to  a  provost-marshal,  within  sixty  days  after  the  issuing  of  the  President's  proclama- 
tion under  the  provisions  of  said  act,  and  makes  them  forever  incapable  of  holding  any  office  of  trust 
or  profit  under  the  United  States,  or  of  exercising  any  rights  of  citizens  thereof,  and  the  act  of  Congress 
of  July  19,  1867,  recognizes  expressly  this  loss  of  citizenship  in  consequence  of  desertion. 

The  statutes  of .  Kentucky  also  recognize  the  right  of  expatriation  on  the  part  of  the  citizen,  and 


§  452  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  457 

that  naturalization  can  only  be  effected  under  the  laws  of  the  United  States,  so  as  to  make  the  naturalized 
person  a  citizen  of  that  State,  and  no  person  by  her  constitution  can  be  a  voter  who  is  not  a  citizen. 
Citizenship  of  white  persons  in  that  State  is  derived  by  birth  within  that  or  some  other  State  of  the 
Union,  or  residence  therein,  or  by  naturalization  under  the  laws  of  the  United  States  and  the  like  resi- 
dence in  said  State.  The  few  exceptional  cases  it  is  not  necessarj'  to  notice.  That  deserters,  by  reason 
of  this  act  of  Congress,  are  not  legal  voters,  has  also  been  expressly  held  by  the  majority  of  the  said 
committee  in  the  recent  case  of  Delano  v.  Morgan,  from  the  Thirteenth  Congressional  district  of  Ohio. 
(Report  No.  42  of  this  session,  p.  3.) 

In  their  first  report  the  majority  had  said : 

It  is  proven  that  eight  deserters  from  the  Federal  Army  voted  for  Mr.  Young,  but  no  law  is  found 
under  which  Kentucky  excludes  such  a  vote. 

In  the  debate  Mr.  Poland  pointed  out '  that  in  the  case  of  Delano  v.  Morgan 
the  law  of  Ohio  required  a  voter  to  be  a  citizen  of  the  United  States,  and  it  was 
for  that  reason  that  deserters  who  had  lost  their  citizenship  because  of  the  law  of 
Congress  were  rejected  in  Ohio.  In  Kentucky  there  was  no  State  law  like  that 
of  Ohio. 

On  June  20  and  22 '  the  report  was  debated  at  length,  and  on  the  latter  day 
the  two  resolutions  reported  by  the  majority  were  agreed  to.  On  the  second  of 
the  two,  that  declaring  contestant  elected,  there  were  yeas  62,  nays  43. 

ilr.  McKee  then  appeared  and  took  the  oath. 

At  the  outset  of  this  case  a  preliminary  question  had  been  settled  as  follows : 

Before  proceeding  to  state  the  grounds  on  which  Mr.  McKee  bases  his  claim,  the  committee  remark 
that  the  notice  of  contest  is  objected  to  by  Mr.  Young  for  the  reason  that  the  contestant  does  not  "specify 
particularly  the  grounds  upon  which  he  relies  in  the  contest."  It  is  unnecessary  to  say  whether  or 
no  this  objection  would  have  been  sustained  if  made  in  time;  for  no  objection  appears  in  the  answer 
of  Mr.  Young  to  the  sufficiency  of  the  notice.  None  appears  to  have  been  made  during  the  time  of 
taking  testimony,  and  none  in  the  progress  of  the  argument  before  the  committee  by  Mr.  Young  or 
his  counsel.  The  objection  first  appears  in  Mr.  Young's  printed  brief,  after  both  parties  had  been 
fully  heard  in  the  whole  case.  In  the  opinion  of  the  committee  the  objection  as  to  particularity  of 
specifications  comes  too  late  to  require  further  attention. 

452.  The  Kentucky  election  case  of  Symes  v.  Trimble,  in  the  Fortieth 
Congress. 

It  not  being  proved  by  clear  and  satisfactory  testimony  that  Lawrence 
S.  Trimble  had  given  aid  and  comfort  to  rebellion,  the  House  declined  to 
exclude  him. 

In  the  Kentucky  cases  in  1868  a  contest  was  presented  and  sus- 
tained against  a  person  to  whom  the  House  had  refused  the  oath  on  his 
prima  facie  showing. 

The  House  sometimes  authorizes  a  contestant  to  serve  an  amended 
or  supplemental  notice  of  contest  after  the  expiration  of  the  time  fixed 
by  law  for  the  serving  of  the  notice. 

Contestants  have  sometimes  served  amended  or  supplemental  notices 
of  contest,  trusting  to  the  House  to  authorize  the  action  later. 

•  Globe,  p.  3372. 

2 Globe,  pp.  3328,  3331,  3336,  3368-3375;  Journal,  pp.  912-914. 


458  PRECEDENTS    OP    THE    HOUSE    OF    REPRESENTATIVES.  §   452 

On  July  11,  1S67/  Mr.  Halbert  E.  Paine,  of  Wisconsin,  from  the  Committee  on 
Elections,  reported  the  following: 

Resolved,  That  G.  G.  Symes,  contestant  of  the  claim  of  L.  S.  Trimble,  to  a  seat  in  this  House  as  a 
Representative  of  the  First  district  of  Kentucky,  be  permitted  to  serve  an  amended  or  supplementary 
notice  of  contest  within  ten  days  after  the  passage  of  this  resolution,  and  that  L.  S.  Trimble  be  permitted 
to  serve  his  answer  thereto  within  thirty  days  after  the  service  thereof. 

Mr.  Paine  explained  that  when  the  House  was  not  in  session  an  amended  notice 
was  often  served  after  expiration  of  the  legal  time,  the  contestant  trusting  to  the 
House  to  authorize  the  action  when  it  should  meet  and  consider  the  case.  But  it 
happened  that  the  House  was  in  session  at  this  time,  and  it  seemed  better  to  ask 
the  authority  at  first.  It  was  objected  that  as  the  time  allowed  by  law  for  filing 
notice  had  expired  this  proceeding  was  unusual,  but  the  resolution  was  agreed  to, 
ayes  64,  noes  26. 

As  appears  in  the  case  relating  to  the  Kentucky  Members  generally,^  Mr. 
Trimble  had  received  an  undoubted  majority  of  the  votes  cast,  and  had  presented 
credentials  in  regular  form,  but  had  not  been  permitted  to  take  the  oath  because  of 
charges  that  he  was  disqualified  because  of  alleged  disloyalty. 

The  Committee  on  Elections  reported  on  January  7,  1868,^  Mr.  Charles  Upson, 
of  Michigan,  presenting  the  report: 

By  a  resolution  of  this  House,  passed  July  8,  1867,  your  committee,  was,  among  other  things, 
instructed  to  inquire  and  report  whether  the  said  Lawrence  S.  Trimble  was  "disqualified  from  sitting 
as  a  Member  of  this  House  on  account  of  having  been  guilty  of  acts  of  disloyalty  to  the  Government  of 
the  United  States,  or  having  given  aid  and  comfort  to  its  enemies;"  and  in  pursuance  of  said  resolution 
testimony  was  taken  in  this  case,  as  well  as  other  cases  therein  embraced,  which  evidence,  on  the  3d  of 
December,  1867,  was  reported  to  this  House. 

The  right  of  the  said  Trimble  to  his  seat  was  also  contested  by  G.  G.  Symes,  who  likewise  claimed 
to  have  been  elected  thereto  as  the  Representative  from  said  district;  and  one  of  the  points  made  by 
the  contestant  in  his  allegations  was  that  the  said  Trimble  was  "guilty  of  overt  acts  of  disloyalty  and 
treason  to  the  Government  of  the  United  States  during  the  late  rebellion,  and  gave  aid  and  comfort  to 
the  rebels  by  supplying  them  with  medicine,  commissary,  and  quartermasters'  stores,  to  enable  them 
to  prosecute  the  war,  and  yourself  entered  their  lines  and  countenanced,  aided,  and  abetted  their  rebel- 
lion." As  the  whole  investigation  and  contest  depends  chiefly,  if  not  wholly,  on  this  charge  of  direct 
acts  of  disloyalty  as  disqualifying  Mr.  Trimble  from  sitting  as  a  Member  of  this  House,  and  as  the  evidence 
taken  under  the  aforesaid  resolution  of  the  House,  and  under  the  notice  of  contest,  relates  chiefly  to 
this  charge,  the  committee  thought  proper  to  consider  the  evidence  taken  under  the  resolution  and 
under  the  notice  of  contest  together,  and  to  embody  its  conclusions  in  one  final  report. 

Adhering  to  the  rule  laid  down  by  the  committee  in  its  report  made  to  this  House  December  3, 1867, 
in  the  cases  from  Kentucky  of  Beck,  Jones,  Grover,  and  Knott  (Report  No.  2  of  this  session),  which  was 
subsequently  approved  by  the  House,  the  committee,  having  considered  the  whole  testimony,  does  not 
find  that  it  has  been  "proved  by  clear  and  satisfactory  testimony"  that  the  said  Lawrence  S.  Trimble 
"has  been  guilty  of  such  open  acts  of  disloyalty  that  he  can  not  honestly  and  truly  take  the  oath  pre- 
scribed by  the  act  of  July  2,  1862,"  nor  does  it  find  the  allegations  of  contestant  sustained  by  the  proof. 

The  committee  found  the  charge  that  Mr.  Trimble  had  been  concerned  in 
contraband  trade  with  the  enemies  of  the  Government  too  vague  and  uncertain  to 
be  relied  on.     The  report  says : 

It  is  also  in  evidence  that  subsequent  to  these  alleged  illegal  transactions,  in  September,  1861,  and 
after  some  charges  had  been  made  against  Mr.  Trimble  in  relation  thereto,  an  investigation  was  had 

'  First  session  Fortieth  Congress,  Journal,  p.  187;  Globe,  p.  591. 

^  See  section  448  of  this  work. 

^Second  session  Fortieth  Congress,  House  Report  No.  G;  2  Bartlett,  p.  370;  Rowell's  Dige.st,  p.  218. 


§  453  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  459 

under  the  supervision  of  the  Treasury  Department,  and  he  was  exonerated  therefrom,  and  thereupon 
he  was  appointed  by  the  Treastiry  Department  one  of  the  Board  of  Trade  at  Paducah,  and  acted  in 
that  capacity,  so  far  as  appears,  to  the  satisfaction  of  the  Department. 

From  the  evidence  in  regard  to  speeches  made  by  Mr.  Trimble,  it  appears  that  in  1861  he  was  the 
Union  candidate  for  Congress  against  Burnett,  and  made  Union  speeches  in  that  canvass  throughout 
the  district.  After  the  emancipation  proclamation  of  President  Lincoln  was  issued,  he,  in  common 
with  many  of  the  originally  professed  Union  men  of  Kentucky,  opposed  Mr.  Lincoln's  Administration 
and  the  policy  of  the  war,  charging  that  it  was  waged  as  an  abolition  war,  and  asserting  that  he  was 
opposed  to  voting  any  more  men  or  money  to  aid  in  carrjang  it  on;  but  it  is  evident  from  the  whole 
testimony  that  his  opposition  was  expressed  in  language  similar  to  that  made  use  of  by  the  opponents 
of  the  Administration  about  that  time  on  the  floor  of  Congress,  the  propriety  or  tendency  of  which,  under 
the  circumstances,  it  is  perhaps  unnecessary  to  discuss  here. 

Kentucky  having  had  many  of  her  citizens  engaged  in  the  rebellion,  and  others  strongly  sympa- 
thizing with  them  who  remained  at  home,  and  having  since  the  siurender  of  the  rebel  armies  permitted, 
by  law,  all  retiuned  rebels  to  vote  who  are  in  other  respects  qualified,  it  is  evident  that  avowed  sympathy 
with  the  rebellion  does  not  at  present  detract  from  the  popularity  of  a  candidate  for  official  position  in 
that  State,  but  rather  conduces  to  his  success,  and  this  fact  may  have  somewhat  stimulated  some  candi- 
dates in  their  efforts  and  intensified  their  expressions  before  their  constituents.  In  this  case,  however, 
Mr.  Trimble  having  been  the  outspoken  Union  candidate  for  Congress  in  1861  against  secession,  having 
by  authority  of  the  Treasury  Department,  in  September  of  the  same  year,  served  as  one  of  the  Board 
of  Trade  at  Paducah,  and  having  also  been  elected  and  having  served  as  a  Representative  from  his 
district  in  the  Thirty-ninth  Congress,  his  seat  uncontested  and  his  loyalty  unquestioned,  your  committee, 
taking  into  consideration  all  the  testimony,  finds  no  case  made  out  under  the  charges  against  him  dis- 
qualifj'ing  him  from  taking  his  seat  or  disproving  his  election  as  a  Representative  to  this  Congress  from 
his  district. 

The  committee  recommends  the  adoption  of  the  following  resolutions: 

Resolved,  That  G.  G.  Symes  is  not  entitled  to  a  seat  in  this  House  as  a  Representative  from  the 
First  Congressional  district  in  Kentucky. 

Resolved,  That  the  oath  of  office  be  now  administered  to  Lawrence  S.  Trimble,  and  that  he  be 
admitted  to  a  seat  in  this  House  as  a  Representative  from  the  First  Congressional  district  in  Kentucky. 

The  resolutions  were  debated  in  the  House  on  July  10  '  and  were  agreed  to 
without  division. 

The  oath  was  thereupon  administered  to  Mr.  Trimble. 

453.  A  Senator-elect  whose  loyalty  satisfactorily  withstood  inquiry, 
but  who  seemed  unable  truthfully  to  take  the  oath  of  July  2,  1862,  was 
finally  permitted  to  take  the  oath. 

In  1866  a  Senator  having  stated  in  his  place  that  the  loyalty  of  a 
Senator-elect  was  doubtful,  the  credentials  were  referred  to  a  committee 
before  the  oath  was  taken. 

In  1866^  a  question  arose  in  the  Senate  as  to  the  qualifications  of  David  T. 
Patterson,  a  Senator-elect  from  Tennessee.  Mr.  Patterson's  credentials  were 
presented  on  Julj^  26,  1866,^  and  after  debate  were  referred  to  the  Committee  on 
the  Judiciary,  with  instructions  to  inquire  into  Mr.  Patterson's  qualifications. 

The  motion  to  refer  was  made  by  Mr.  Charles  Sumner,  of  Massachusetts,  and 
in  support  of  the  motion  he  cited  the  case  of  Senator  Stark.  It  was  pointed  out 
that  in  that  case  affidavits  were  presented  charging  disloyalty.  In  this  case  a 
Senator  merely  stated  in  his  place  that  there  was  reason  to  suspect  the  loyalty  of 

'  Journal,  p.  167;  Globe,  pp.  447^52. 

''  Election  Cases,  Senate  Document  No.  11,  special  session  Fifty-eighth  Congress,  p.  329. 

'  First  session  Thirty-ninth  Congress,  Globe,  pp.  4162-4169. 


460  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   453 

Mr.  Patterson.  The  debate  proceeded  to  a  discussion  of  the  propriety  of  refusing 
the  oath  to  a  person  presenting  prima  facie  evidence  of  his  election,  and  a  distinc- 
tion was  drawn  between  the  Senate,  which  was  a  continuing  body,  and  a  body  like 
the  House,  where  it  was  necessary  for  purposes  of  organization  to  give  credit  to  the 
credentials  at  the  outset.  The  fact  that  the  House  "had  declined  to  give  full  effect 
to  tlie  credentials  of  the  Tennessee  Member  and  had  referred  them  to  the  committee, 
in  the  meantime  refusing  to  allow  the  bearer  to  qualify,  was  cited.  The  dangers 
of  excluding  persons  bearing  credentials  in  due  form  was  dwelt  on,  but  the  motion 
of  Mr.  Sumner  was  agreed  to — yeas  2G,  naj-s  14. 

On  July  27  '  Mr.  Luke  P.  Poland,  of  Vermont,  presented  the  report  of  the 
committee : 

The  only  question  in  relation  to  the  qualiticationa  of  Mr.  Patterson,  fir  his  right  to  hold  his  seat  in 
the  Senate,  arises  from  the  fact  of  his  having  held  the  office  of  circuit  judge  in  the  State  of  Tennessee 
after  that  State  had  passed  an  ordinance  of  secession  and  become  a  member  of  the  Confederacy. 

Circuit  judges  in  Tennessee  are  elected  by  the  people  of  the  several  circuits,  and  hold  their  offices 
for  the  term  of  eight  years. 

Judge  Patterson  was  elected  judge  in  one  of  the  circuits  in  eastern  Tennessee  in  May,  1854,  and 
his  term  of  office  had  not  expired  when  the  State  passed  the  ordinance  of  secession.  The  constitution 
of  the  State  of  Tennessee  remained  the  same  after  the  secession  of  the  State  as  before,  and  there  was 
no  change  made  in  the  form  of  the  State  government  or  in  their  judicial  system.  A  large  majority  of 
the  people  of  East  Tennessee  were  ardently  devoted  to  the  Union  and  deemed  it  very  important  for 
their  interest  and  that  of  the  Union  cause  that  the  civil  officers  in  that  section  of  the  State  should  be 
filled  with  Union  men. 

Judge  Patterson  was  a  firm,  avowed,  and  influential  Union  man,  and  he  was  urgently  pressed  by 
the  Union  men  of  that  circuit  to  run  as  a  candidate  for  reelection  as  circuit  judge,  and  ho  finally,  though 
reluctantly,  consented  to  do  so.  The  opposing  candidate  was  an  avowed  secessionist,  and  the  issue 
in  the  election  was  between  Union  and  secession.  The  election  was  held  in  May,  1862,  and  Judge 
Patterson  was  elected  over  his  rebel  competitor  by  a  large  majority.  At  the  same  election  most  of  the 
local  offices  in  that  section  were  filled  by  the  election  of  Union  men.  At  that  time  it  was  believed  by 
the  Union  men  of  East  Tennessee  that  they  would  soon  be  relieved  from  rebel  military  rule  by  the 
arrival  of  Union  forces;  and  they  desired  also  to  retain  the  civil  power  in  their  own  hands.  In  this 
expectation  they  were  disappointed,  and  soon  rebel  liands  were  scattered  through  that  region,  and  the 
Union  people  were  subjected  to  great  hardships  and  cruel  oppression.  When  Judge  Patterson  was  thus 
reelected  judge,  he  did  not  suppose  he  would  be  commissioned  by  the  governor  of  the  State,  who  was  a 
secessionist;  but,  after  some  considerable  delay,  a  commission  was  sent  to  him  with  peremptory  orders 
to  take  the  oath.  On  the  receipt  of  his  commission  and  order  to  take  the  oath.  Judge  Patterson  delayed 
and  hesitated,  and  consulted  other  leading  Union  men  as  to  the  proper  course  for  him  to  take.  They 
advised  and  urged  him  to  take  the  oath;  that  he  could  thereby  afford  protection  to  some  extent  to  Union 
men  against  acts  of  lawless  ^^olcnce  on  the  part  of  the  rebels,  and  that  if  he  did  not  accept  the  office  and 
take  the  oath  the  office  would  be  filled  by  a  rebel,  and  they  would  then  be  oppressed  by  the  civil  as 
well  as  the  military  power  of  the  rebels.  Judge  Patterscm  yielded  to  their  urgency  and  arguments, 
and  went  before  a  magistrate  and  took  the  oath  which  the  Tennessee  legislature  had  prescribed,  which, 
in  substance,  was  that  he  would  support  the  constitution  of  Tennessee  and  the  constitution  of  the  Con- 
federate States.  Judge  Patterson  declared  at  the  time  to  the  magistrate  that  he  owed  no  allegiance  to 
the  Confederate  government,  and  that  he  did  not  consider  that  part  of  the  oath  as  binding  him  at  all. 
At  this  time  there  were  rebel  troops  in  the  neighborhood,  and  Judge  Patterson  had  good  reason  to  believe 
that  his  refusal  to  take  the  oath  would  subject  him  to  arrest  and  imprisonment,  if  not  worse  treatment; 
but  we  do  not  find  that  he  was  actuated  at  all  by  personal  considerations,  but  acted  solely  upon  the 
motive  that  he  could  thereby  afford  some  aid  and  protection  to  the  Union  people  and  also  prevent  the 
office  from  falling  into  hands  that  would  use  it  to  oppress  them. 


Senate  Report  No.  139. 


I  453  THE   OATH    AS    RELATED   TO   QUALIFICATIONS.  461 

East  T<?niK>ssee  at  tliis  timewa.s  in  a  very  disturbed  and  distracted  condition.  The  countrywas  full 
of  bands  of  armed  rebels,  and  lawless  violence  held  sway.  Business  was  nearly  suspended,  and  no 
civil  business  was  done  in  the  courts.  Judge  Patterson  held  a  few  terms  of  court  in  counties  where  he 
could  organize  grand  juries  of  Union  men.  and  in  this  way  did  something  toward  preserving  peace  and 
order  in  the  community.     No  other  business  was  done  by  him  as  judge  after  his  election  in  1862. 

During  all  this  time  Judge  Patterson  was  an  open,  avowed,  and  devoted  adherent  to  the  Union.  He 
was  in  constant  communication  with  the  officers  of  the  Federal  troops  nearest  that  vicinity,  and  obtained 
and  furnished  to  th-em  information  as  to  the  movements  of  the  rebels.  He  aided  in  concealing  Union 
men,  and  in  facilitating  their  escape  to  the  Union  lines,  when  they  generally  entered  the  Union  service. 
He  aided  the  Union  people  and  the  Union  cause  in  every  way  open  to  him,  and  too  numerous  for  detail. 
By  these  means  he  became  amenable  to  the  hostility  of  the  secessionists,  and  was  subjected  to  great 
difficulty  and  danger.  He  was  several  times  airested  and  held  for  some  time  in  custody.  At  times  he 
was  obliged  to  conceal  himself  for  safety,  and  spent  nights  in  outbuildings  and  in  the  woods  to  avoid  their 
vengeance. 

In  September,  I8<>;?,  the  Federal  troops  reachea  Knoxville,  and  Judge  Patterson  succeeded  in  escap- 
ing with  hLs  family  to  that  place,  and  did  not  return  to  his  home  until  after  the  close  of  the  rebellion. 

As  before  stated,  the  constitution  and  election  laws  and  judicial  system  of  Tennessee  remained  the 
same  after  the  secession  of  the  State  as  before,  and  Judge  Patterson  was  elected  judge  the  last  time  under 
the  same  State  constitution  and  laws  as  existed  at  his  first  election,  and  no  laws  were  enforced  by  him  as 
judge  except  such  as  were  in  force  before  the  secession  of  the  State. 

The  committee  are  all  satisfied  that  during  the  entire  rebellion  Judge  Patterson  was  an  earnest  firm 
and  devoted  Union  man,  and  suffered  severely  in  support  of  his  principles.  In  accepting  the  office  of 
judge,  and  taking  the  official  oath,  he  did  not  intend  any  hostility  to  the  authority  or  Government  of  the 
United  States,  nor  did  he  intend  to  acknowledge  any  allegiance  to,  or  any  friendship  for,  the  confederate 
government,  but  acted  throughout  with  a  sincere  desire  to  benefit  and  preserve  the  Union  and  the  Gov- 
ernment of  the  United  States.  He  always  denied  the  authority  of  the  confederate  government  over  him 
and  feels  an  entire  willingness  and  ability  to  take  the  oath  required  upon  his  admission  to  a  seat  in  the 
Senate.     The  committee  recommend  the  following  resolution: 

Resolved,  That  the  Hon.  David  T.  Patterson  is  duly  qualified  and  entitled  to  hold  a  seat  in  the 
Senate  of  the  United  States  as  a  Senator  from  the  State  of  Tennessee. 

On  July  27 '  the  resolution  was  debated  and  Mr.  Lyman  Trumbull,  of  Illinois 
objected  that  on  the  state  of  facts  Mr.  Patterson  could  not  take  the  oath,  since  the 
oath  would  cause  him  to  swear  that  he  had  never  taken  or  exercised  the  functions  of 
the  office,  while  he  undoubtedly  had  done  both.  It  was  suggested  that  Congress  had 
already  proposed  a  constitutional  amendment  providing  for  the  removal  of  political 
disabilities,  and  while  this  amendment  had  not  been  finally  ratified,  yet  ConcTess 
might  carry  out  its  spirit  by  passing  a  joint  resolution  applying  to  his  case.  So  a 
joint  resolution  was  introduced  in  the  Senate  that  Mr.  Patterson  be  admitted  upon 
his  taking  so  much  of  the  oath  prescribed  by  the  act  of  July  2,  1862,  as  is  not 
included  in  the  words,  "that  I  have  neither  sought,  nor  accepted,  nor  attempted  to 
exercise  the  functions  of  any  office  whatever,  under  any  authority  or  pretended 
authority  in  hostility  to  the  United  States."  This  joint  resolution  passed  the 
Senate,  but  was  laid  on  the  table  in  the  House  the  same  day. 

There  was  considerable  debate^  as  to  the  dilemma  resulting  from  this  situation, 
it  being  maintained  strenuously  that  Mr.  Patterson  coidd  not  and  should  not  take  the 
oath,  but  finally  the  Senate  agreed  to  this  resolution: 

Reso:ved,  That  the  Hon.  David  T.  Patterson,  upon  taking  the  oaths  required  by  the  Constitution  and 
laws,  be  admitted  to  a  seat  in  the  Senate  of  the  United  States. 

On  July  28^  Mr.  Patterson  took  the  oath. 

'  Globe,  pp.  4213-4216  ^Qio^e,  pp.  4242-4245.  'Globe,  p.  4293. 


462  PRECEDENTS   OF   THE    HOUSE   OF   EEPKESENTATIVES.  §  454 

454.  By  the  fourteenth  amendment  one  who,  having  previously 
taken  an  oath  as  an  officer  of  Government  to  support  the  Constitution, 
has  engaged  in  rebellion,  is  disqualified  as  a  Member  until  the  disability 
be  removed. — Section  3  of  Article  XIV  '   of  the  Constitution  provides: 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or  elector  of  President 
and  Vice-President,  or  hold  any  office,  civil  or  military,  under  the  United  States,  or  under  any  State, 
who,  having  previously  taken  an  oath,  as  a  Member  of  Congress,  or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged  in  insurrection  or  rebellion  against  the  same, 
or  given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may  by  a  vote  of  two-thirds  of  each  House, 
remove  such  disability.' 

455.  The  Tennessee  election  case  of  Roderick  R.  Butler  in  the  Fortieth 
Congress. 

A  Member-elect  who  was  about  to  be  sworn  was  challenged  for  dis- 
loyalty, whereupon  the  House  denied  him  the  oath  and  referred  the 
credentials. 

A  Member-elect  who  had  not  been  disloyal,  but  who  could  not  truth- 
fully take  the  oath  of  July  2,  1862,  was  not  sworn  until  he  had  been 
relieved  of  his  disabilities  by  law. 

An  objection  to  a  Member-elect's  qualifications  being  sustained 
neither  by  affidavit  nor  on  the  personal  responsibility  of  the  Member 
objecting,  the  House  declined  to  entertain  it. 

A  bill  removing  the  disabilities  of  a  Member-elect  and  modifying 
the  test  oath  for  his  benefit  was  passed  by  a  two-thirds  vote. 

For  persons  whose  disabilities  had  been  removed  the  oath  of  July  2, 
1862,  was  modified  by  the  act  of  July  11,  1868. 

On  November  21,  1867,''  at  a  period  after  the  organization  of  the  House,  the 
Members-elect  from  the  State  of  Tennessee  presented  themselves  with  credentials 
in  regular  form. 

Thereupon  Mr.  Charles  A.  Eldridge,  of  Wisconsin,  objected  to  the  administra- 
tion of  the  oath  to  one  of  them,  Mr.  William  B.  Stokes,  presenting  a  letter  tending 
to  show  disloyalty  on  the  part  of  Mr.  Stokes.  Mr.  Eldridge  at  the  same  time  pre- 
sented a  resolution  that  Mr.  Stokes's  credentials  be  referred  to  the  Committee  of 
Elections  and  that  he  be  not  sworn  pending  the  investigation. 

Mr.  James  Brooks,  of  New  York,  then  challenged  Messrs.  Butler,  Mullins,  and 
Amell,  alleging  disloyalty  in  their  past  records.  He  also  challenged  the  whole  dele- 
gation on  the  ground  that  a  republican  form  of  government  did  not  exist  in  Ten- 
nessee. He  thereupon  moved  to  amend  the  pending  resolution  by  adding  resolu- 
tions that  all  the  certificates  of  the  gentlemen  from  Tennessee  be  referred  to  the 

•  The  fourteenth  article  was  proclaimed  as  ratified  on  July  28,  1868. 

=!  By  the  act  of  May  22, 1872  (17  Stat.  L.,  p.  142),  the  disabilities  imposed  by  this  article  were  removed 
from  all  persons  whomsoever,  except  Senators  and  Representatives  of  the  Thirty-sixth  and  Thirty- 
seventh  Congresses,  officers  in  the  judicial,  military,  and  naval  service  of  the  United  States,  heads 
of  departments,  and  foreign  ministers  of  the  United  States;  and  by  act  of  June  G,  1898,  all  existing 
disabilities  were  removed  (30  Stat.  L.,  p.  432). 

•■' First  session  Fortieth  Congress,  Journal,  pp.  253,  254;  Globe,  pp.  768-778. 


§  455  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  463 

Committee  of  Elections,  and  that  Messrs.  Butler,  Mullins,  and  Amell's  credentials 
be  referred  previous  to  their  being  sworn. 

After  debate,  which  disclosed  more  serious  evidence  in  the  shape  of  a  legisla- 
tive journal  of  Tennessee  against  Mr.  Butler  than  against  the  remaining  Members, 
Mr.  Henry  L.  Dawes,  of  Massachusetts,  proposed  the  following  substitute: 

That  the  credentials  of  R.  R.  Butler,  from  the  First  district  of  Tennessee,  be  referred  to  the  Com- 
mittee of  Elections,  and  that  he  be  not  sworn  pending  the  investigation. 

Mr.  Brooks's  amendment  having  been  disagreed  to,  the  substitute  proposed 
by  Mr.  Dawes  was  agreed  to,  and  then  the  resolution  as  amended  was  agreed  to — 
yeas  117,  nays  28. 

Thereupon  Messrs.  Eldridge  and  Brooks  offered  separate  resolutions  that  the 
oath  be  not  administered  to  Messrs.  Stokes  and  Mullins  until  their  cases  had  been 
investigated.  Neither  Mr.  Eldridge  nor  Mr.  Brooks  presented  affidavits  or  asserted 
on  their  responsibility  as  Members  that  the  two  persons  in  question  had  been  dis- 
loyal, but  left  it  to  be  inferred  from  a  copy  of  a  letter  in  the  case  of  one  and  an 
extract  from  a  speech  in  the  case  of  another. 

After  debate,  in  the  course  of  which  it  was  recalled  that  affidavits  were  pro- 
duced in  the  Kentucky  cases,  whde  in  this  case  a  Member  did  not  even  make  the 
charges  on  his  own  responsibility,  the  House  decided  the  resolutions  in  the  negative. 

Thereupon  the  oath  was  administered  to  all  the  Tennessee  Members  except 
Mr.  Butler. 

On  February  25,  1868,^  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Com- 
mittee on  Elections,  submitted  a  report  in  the  case  of  Mr.  Butler.  This  report 
states  that  the  only  objection  raised  against  Mr.  Butler,  who  had  a  large  majority 
of  the  votes  in  the  district,  was  disloyalty.  It  appeared  that  on  December  14,  1861, 
as  a  member  of  the  secession  legislature  of  Tennessee,  he  had  voted  for  resolutions 
pledging  the  State  to  the  Southern  confederacy.  Mr.  Butler  admitted  this,  but 
claimed  that  nevertheless  he  then  was  a  Union  man  and  continued  to  be  afterwards. 
There  was  also  evidence  tending  to  show  that  he  remained  in  the  legislature  to  be 
of  service  to  Union  men,  and  that  liis  votes  were  understood  not  to  express  his 
views.  There  was  no  doubt  that  after  returning  from  the  legislature  he  served 
actively  as  a  Union  man.     The  committee  conclude : 

The  evidence  is  very  full  on  these  points,  and  leaves  no  doubt  on  the  mind  of  the  committee  of 
the  sincere  loyalty  of  Mr.  Butler,  and  that  the  several  acts  and  votes  in  the  legislature  laid  to  his  charge 
as  evidence  of  his  disloyalty  are  capable  of  the  explanation  here  given. 

But  the  oath  of  office  which  the  law  requires  Mr.  Butler  to  take  before  he  can  bo  admitted  to  a  seat 
as  a  Representative  is  in  the  following  words: 

"I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  have  never  voluntarily  borne  arms  against  the  United 
States  since  I  have  been  a  citizen  thereof;  that  I  have  voluntarily  given  no  aid,  countenance,  counsel, 
or  encouragement  to  persons  engaged  in  armed  hostility  thereto;  that  I  have  neither  sought  nor  accepted, 
nor  attempted  to  exercise,  the  functions  of  any  office  whatever  under  any  authority  or  pretended 
authority  in  hostility  to  the  United  States;  that  I  have  not  yielded  a  voluntary  support  to  any  pre- 
tended government,  authority,  power,  or  constitution  within  the  United  States  hostile  or  inimical 
thereto.  And  I  do  further  swear  (or  affirm)  that,  to  the  best  of  my  knowledge  and  ability,  I  will 
support  and  defend  the  Constitution  of  the  United  States  against  all  enemies,  foreign  and  domestic; 

■  Second  session  Fortieth  Congress,  House  Report  No.  18;  2  Bartlett,  p.  461;  Rowell's  Digest,  p. 
224. 


464  PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   455 

that  I  will  liear  true  faith  and  allegiance  to  the  same;  that  I  take  this  obligation  freely,  without  any 
mental  reservation  or  purpose  of  evasion;  and  that  I  will  well  and  faithfully  discharge  the  duties  of  the 
office  on  which  I  am  about  to  enter.     So  help  me  God." 

It  will  be  observed  that  he  is  required  to  make  oath  that  he  has  "neither  sought  nor  accepted,  nor 
attempted  to  exercise,  the  functions  of  any  office  whatever  under  any  authority  or  pretended  authority 
in  hostility  to  the  United  States."  In  the  opinion  of  the  committee  he  can  not  truthfully  so  swear. 
Whatever  may  have  been  his  motives,  the  fact  still  stares  him  in  the  face  that  he  took  and  accepted 
the  office  which  he  will  be  compelled  to  swear  that  he  has  not  taken  and  accepted.  But,  for  the  reasons 
heretofore  given,  the  committee  recommends  that,  by  a  joint  resolution,  so  much  of  the  oath  as  thus 
stands  in  the  way  of  admission  to  a  seat  in  this  House  of  one  truly  loyal  throughout  the  war  may  be 
omitted  in  administering  the  oath  of  office  to  Mr.  Butler. 

It  accordingly  recommends  the  passage  of  the  accompanying  joint  resolution. 

This  joint  resolution  came  up  for  debate  on  March  4,  1868.'  It  provided  that 
Mr.  Butler  be  admitted  to  his  seat  upon  taking  the  usual  oath  to  support  the  Con- 
stitution of  the  United  States,  and  upon  taking  all  of  the  "test  oath"  excepting 
the  words:  "That  I  have  neither  sought  nor  accepted,  nor  attempted  to  exercise, 
the  functions  of  any  office  whatever  under  any  authority  or  pretended  authority 
in  hostility  to  the  United  States." 

After  this  joint  resolution  was  reported  it  appeared  that  Mr.  Butler  had  before 
the  war  taken  an  oath  to  support  the  Constitution  of  the  United  States,  and  there- 
fore that  his  case  came  within  the  third  section  of  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States.  There  was  some  question  as  to  whether  this 
amendment  was  yet  in  force.  After  debate,^  on  March  5,^  the  House  voted  to 
recommit  the  joint  resolution  with  instructions  to  the  committee  to  report  a  bill 
for  the  relief  of  Mr.  Butler,  and  also  a  general  bill  for  such  persons  as  might  have 
theii  disabilities  removed  by  a  two-thirds  vote  in  accordance  with  section  3  of  the 
fourteenth  amendment  to  the  Constitution.  On  March  6  *  two  bills  were  introduced 
in  accordance  with  these  instructions.  They  were  debated  at  length ''  in  both 
House  and  Senate,  the  question  of  Mr.  Butler's  loyalty  and  of  the  desirability  of 
modifying  the  requirements  of  the  test  oath  being  especially  considered.  The 
bill  relating  to  Mr.  Butler  passed  both  the  House  and  Senate  by  two-thirds  votes, 
and  it  was  understood  at  the  time  that  a  two-thirds  vote  was  necessary.' 

The  law  as  finally  perfected  in  Mr.  Butler's  case  provided  •? 

That  all  legal  and  political  disabilities  imposed  by  the  United  States  upon  Roderick  E.  Butler,  of 
Tennessee,  in  consequence  of  participation  in  the  recent  rebellion,  be,  and  the  same  are  hereby,  removed. 
And  the  said  Butler,  on  entering  upon  the  discharge  of  the  duties  of  any  office  to  which  he  has  been  or 
may  be  elected  or  appointed,  instead  of  the  oath  prescribed  by  the  act  of  July  2,  1862,  shall  take 
and  subscribe  the  following  oath.     [Here  followed  an  oath  to  support  the  Constitution.] 

This  act  was  approved  June  19,  1868,  and  on  June  26  Mr.  Butler  appeared  and 
took  the  oath.* 

'  Globe,  p.  1662. 
=  Globe,  pp.  1662,  1682-1693. 
"Journal,  p.  477;  Globe,  p.  1693. 
••  Journal,  p.  482. 

5  Globe,  pp.  1707,  1977,  2192,  2218,  2267,  2559,  3058,  3197,  3733,  3761. 
"  See  remarks  of  Mr.  Dawes,  Globe,  p.  3197. 
,  '15  Stat.  L.,  p.  360. 

^  Journal,  p.  935. 


§  456  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  465 

The  general  law  approved  July  11,  1868/  provided  the  same  oath  for  persons 
generally  whose  disabilities  should  be  removed  by  a  two-thirds  vote  of  the  two 
Houses. 

456.  The  North  Carolina  election  case  of  Boyden  v.  Shober  in  the 
Forty-first  Congress. 

A  Member-elect,  enrolled  by  the  Clerk  on  his  regnilar  credentials, 
did  not  vote  until  his  disqualifications  had  been  removed  and  he  had 
been  permitted  by  the  House  to  take  the  oath. 

A  State  law  requiring  two  ballot  boxes  to  be  kept  at  each  polling 
place  was  construed  by  the  House  as  directory  only;  and  in  the  absence 
of  fraud  a  neglect  of  the  provision  did  not  nullify  the  election. 

On  March  4,  1869,'  at  the  organization  of  the  House,  the  name  of  Mr.  Francis 
E.  Shober,  of  North  Carolina,  appears  on  the  Clerk's  list  of  Members-elect.  On 
the  yeas  and  naj"s  on  a  motion  to  proceed  to  the  election  of  Speaker  his  name  appears 
among  those  not  voting.  On  the  vote  for  Speaker  he  did  not  vote.  The  Journal 
does  not  show  affirmatively  that  he  was  not  swoni  in,  but  on  a  yea-and-nay  vote 
taken  on  March  5,  after  the  Members  had  been  sworn  in,  his  name  does  not  appear 
at  all,  indicating  that  he  had  not  been  sworn  in  and  that  his  name  had  been  stricken 
from  the  roll  of  Members. 

On  April  12,  1870,^  the  President  approved  an  act  "to  remove  political  dis- 
abiUties  from  Francis  E.  Shober,  of  North  Caroliaa."  This  act  removed  his  disabili- 
ties and  prescribed  the  form  of  oath  to  be  taken  by  him  on  being  sworn  into  any 
oiEce. 

On  April  13,  1870,^  Mr.  George  W.  McCrary,  of  Iowa,  presented  the  following 
resolution,  which  was  agreed  to : 

Resolved,  That  Francis  E .  Shober  be  sworn  as  a  Member  of  this  House  from  the  Sixth  district  of  North 
Carolina  and  that  upon  taking  the  oath  prescribed  by  the  act  passed  at  the  present  session  of  Congress 
for  his  relief  he  shall  be  entitled  to  a  seat  in  this  House  without  prejudice  to  the  right  of  Nathaniel 
Boyden  to  contest  the  right  thereto. 

Mr.  McCrary  stated  that  Mr.  Shober's  credentials  had  been  examined  by  the 
Committee  on  Elections  and  found  regular. 

On  Januan,'  16,  1871,^  Mr.  McCrary  submitted  the  report  of  the  Committee  on 
Elections  ia  the  contest  of  Boyden  v.  Shober.  This  report  states  that  the  sitting 
Member  admitted  his  inability  to  take  the  test  oath,  and  did  not  offer  to  qualify 
until  after  Congress  had  passed  an  act  to  relieve  him  from  disabihty.  Of  course 
the  passage  of  the  relieving  act  disposed  of  the  contestant's  allegations  of  disability. 
After  disposing  of  some  considerations  as  to  charges  not  sustained  by  the  evidence, 
the  report  says : 

We  are  left,  therefore,  to  the  consideration  of  the  first  ground  of  contest,  viz,  that  the  election  was 
wholly  void  by  reason  of  a  failure  to  comply  with  the  statutory  provisions  concerning  the  manner  of 
conducting  the  election. 

'  15  Stat.  L.,  p.  85;  Revised  Statutes,  sec.  1757. 
2  First  session  Forty-first  Congress,  Journal,  pp.  5,  8,  10. 
s  16  Stat.  L.,  p.  634. 

*  Second  session  Forty-first  Congress,  Journal,  p.  610;  Globe,  p.  2648. 
'  Third  session  Forty-first  Congress. 
5904— VOL  1—07 30 


466  PRECEDENTS  OP  THE  HOUSE  OF  REPRESENTATIVES.  §  457 

It  is  said  that  the  law  of  North  Carolina,  rightly  construed,  required  that  two  ballot  boxes  should 
have  been  kept  at  each  poll,  and  that  all  ballots  for  Member  of  Congress  should  have  been  deposited  in 
one,  and  all  ballots  for  electors  for  President  and  Vice-President  in  the  other. 

There  seems  to  be  some  doubt  as  to  the  true  construction  of  the  statute  of  North  Carolina,  but  assum- 
ing that  the  construction  contended  for  by  contestant  is  correct,  we  are  of  opinion  that  the  statute  is 
directory  only,  and  that  the  failure  to  provide  two  ballot  boxes,  and  the  deposit  of  all  the  ballots  in  one 
box,  did  not  render  the  election  void  in  the  absence  of  fraud.  If  the  ballots  were  freely  cast,  if  they 
•were  honestly  and  fairly  counted,  and  correctly  returned,  we  should  be  unwilling  to  hold  that  a  mere 
mistake  of  the  election  oflicers,  as  to  whether  the  ballots  should  go  into  one  box  or  two,  should  be  allowed 
to  defeat  the  will  of  the  majority. 

It  is  claimed  that  the  certificate  of  election  was  not  issued  to  contestee  by  competent  authority;  that. 
it  should  have  been  issued  by  the  sheriffs  of  the  several  counties  comprising  the  district  and  not  by  the 
governor.  The  law  upon  this  subject  is  not  cited  in  the  record,  and  the  point  is  not  pressed.  Indeed, 
it  has  been  rendered  immaterial  by  the  action  of  the  House  in  accepting  the  credentials  of  contestee  and 
ordering  him  to  1)0  sworn  into  office  thereon.  We  may  remark,  however,  that  the  failure  or  refusal  of  the 
proper  officer  to  issue  a  certificate  of  election  would  only  render  it  necessary  for  the  House  to  go  back  to 
the  returns  and  poll  books  and  ascertain,  if  possible,  from  these,  or  from  any  competent  and  sufficient 
evidence,  who  was  actually  elected,  and  award  the  seat  accordingly. 

We  are  of  opinion,  therefore, "that  the  contestant  has  failed  to  sustain  the  points  made  by  him  in  his 
notice  of  contest,  with  the  exception  of  the  fifth  point,  which  was  sustained  by  the  proof  but  which  was 
rendered  immaterial  by  the  act  of  Congress  relieving  contestee  from  liis  disability. 

Your  committee  are  of  opinion  that  the  contestant  has  prosecuted  this  contest  in  good  faith  and  with 
reasonable  cause,  and  that  under  the  practice  of  the  House  in  similar  cases  he  is  entitled  to  compensation 
for  the  expenses  incurred  by  him. 

We  therefore  recommend  the  adoption  of  the  accompanying  resolutions: 

Resolved,  That  Nathaniel  Boyden  is  not  entitled  to  a  seat  in  this  House  as  a  Representative  from 
the  Sixth  district  of  North  Carolina. 

Resolved,  That  Francis  E.  Shober  is  entitled  to  retain  his  seat  in  this  House  as  a  Representative  from 
said  district. 

On  January  24,  1871,'  the  two  resolutions  were  agreed  to  without  debate  or 
division. 

457.  In  1867  the  Senate,  having  in  view  the  test  oath  and  the  spirit 
of  the  fourteenth  amendment,  excluded  Philip  F.  Thomas  for  disloyalty. 

In  1867  the  Senate,  upon  the  statement  by  a  Member  that  there 
were  rumors  affecting  the  loyalty  of  a  Member-elect,  referred  the  cre- 
dentials before  permitting  the  oath  to  be  taken. 

The  right  to  add  other  qualifications  to  the  three  prescribed  by  the 
Constitution  was  discussed  fully  in  the  Senate  in  1867. 

Discussion  of  the  question  as  to  whether  or  not  the  test  oath  of  July 
2,   1862,  actually  prescribed  a  new  qualification  for  the  Member. 

On  March  18,  1867,^  the  credentials  of  Philip  F.  Thomas,  Senator-elect  from 
Maryland,  were  presented  in  the  Senate.  Mr.  Jacob  M.  Howard,  of  Michigan, 
objected  that  there  were  rumors  affecting  the  loyalty  of  Mr.  Thomas  and  moved 
that  the  credentials  be  referred  to  the  Committee  on  the  Judiciary.  In  the  debate 
attention  was  called  to  the  fact  that  in  the  cases  of  Messrs.  Stark  and  Patterson  the 
allegations  were  more  specific;  but  fmally,  on  March  19,  the  credentials  were  referred 
Avithout  division. 

1  Journal,  p.  207;  Globe,  p.  698. 

^Election  Cases,  Senate  Document  No.  11,  special  session  Fifty-eighth  Congress,  p.  333;  first  ses- 
sion Fortieth  Congress,  Globe,  pp.  171-lSO,  200. 


§  457  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  467 

On  December  LS  Mi-.  Reverdy  Johnson,  of  Maryland,  from  the  Committee  on 
the  Judiciary,  reported : 

That  they  have  taken  the  evidence  submitted  herewith,  and  that  they  find  nothing  sufficient,  in  the 
opinion  of  the  committee,  to  debar  said  Thomas  from  taking  his  seat,  unless  it  be  found  in  the  fact  of  the 
son  of  said  Thomas  ha\ang  entered  the  military  ser\'ice  of  the  confederacy,  and  in  the  circumstances 
connected  with  that  fact  or  relating  to  it,  and  without  the  expression  of  an  opinion  in  regard  to  this 
point,  they  report  the  whole  evidence  to  the  Senate. 

Mr.  Johnson  submitted  the  following  resolution  for  consideration : 

Resolved,  That  the  Hon.  Philip  F.  Thomas,  Senator-elect  from  Maryland,  be  admitted  to  his  seat  on 
his  taking  the  oaths  prescribed  by  the  Constitution  and  laws  of  the  United  States. 

458.  On  January  6,  1868,Hhe  report  was  taken  up,  and  the  debate  began  as  to 
whether  or  not  the  act  of  Mr.  Thomas  in  assisting  liis  son  was  an  act  giving  aid 
and  comfort  to  the  enemies  of  the  Government.  The  test  oath  was  also  discussed 
and  its  bearing  on  the  question  of  qualifications,  Mr.  George  F.  Edmunds,  of 
Vermont,  contending  ^  that  the  Constitution  did  not  definitely  prescribe  all  the 
qualifications,  but  that  there  existed  the  authority  to  impose  other  qualifications, 
citing  this  passage: 

The  Senators  and  Representatives  before  mentioned,  and  the  members  of  the  several  State  legis- 
latures, and  all  executive  and  judicial  officers,  both  of  the  United  States  and  the  several  States,  shall  be 
bound  by  oath  or  affirmation  to  support  this  Constitution;  but  no  religious  test  shall  ever  be  required  as 
a  qualification  to  any  office  of  public  trust  under  the  United  States. 

A  question  was  also  raised  as  to  whether  or  not  the  amendment  to  the  Con- 
stitution specifying  the  disability  on  account  of  treason,  and  providing  for  its  removal 
by  a  two-thirds  vote  of  each  House,  had  been  ratified. 

The  report  was  debated  at  length  on  January  20-22,  February  12-14,  and  17-19.^ 
Speaking  on  January  22,  Mr.  William  Pitt  Fessenden,  of  Maine,  said  *  that  it  might 
at  times  be  necessary  for  the  Senate  to  protect  itself  by  refusing  admission,  but,  he 
continued : 

We  are  exercising  in  any  such  case  an  extra-constitutional  power.  I  think  it  exists  as  other  powers 
which  we  have  asserted  during  the  war  exist;  but,  as  I  said  before,  they  can  only  be  exercised  in  very 
extraordinary  cases.  As  we  stand  now,  it  would  be,  in  my  judgment,  dangerous  in  the  extreme  for 
Congress  to  assume  the  power  of  excluding  a  man  who  was  sent  here  with  the  proper  credentials  on  mere 
presimiptions  or  mere  suppositions  or  mere  ideas  of  what  the  man  is.  The  ordinary  question  presented 
to  the  Senate  in  such  a  case  is  with  regard  to  his  qualifications  as  prescribed  by  the  Constitution  itself; 
and  it  is  only  within  a  very  recent  period  that  it  has  become  necessary  to  go  further,  as  we  have  gone 
further  and  as  we  unquestionably  had  a  right  to  do,  and  prescribe  another  qualification,  if  you  choose 
so  to  call  it;  that  is  to  say,  prescribe  a  rule  of  admission  Ijy  designating  an  oath  to  be  taken  which  has 
reference  to  the  qualifications,  or  rather  to  the  disqualifications,  of  the  individual.  I  voted  for  that. 
I  think  we  had  a  right  to  pass  it.  *  *  *  The  question,  however,  as  presented  to  us  now,  is  beyond 
that.  It  is  whether  we  shall  assume  the  responsibility  of  refusing  to  permit  this  gentleman  to  take  the 
oath.  He  professes  himself  willing  to  take  it.  We  are  called  upon  by  many  gentlemen  who  have 
spoken  here  to  say  that  he  shall  not  be  permitted  to  do  it,  because  it  is  one  of  those  cases  where  we  are 
called  upon,  outside  of  any  constitutional  provision  and  outside  of  any  legal  pro\'ision,  to  exclude  this 
man  on  the  doctrine  of  self-protection,  for  no  other,  I  think,  can  be  adduced  to  support  the  proposition. 

'  Second  session  Fortieth  Congress,  Globe,  pp.  320-330. 

2  Globe,  p.  327. 

3  Globe,  pp.  632-635,  653-662,  678-686,  1144-1156,  1165-1177,  1205-1210,  1232-1243. 
<  Globe,  pp.  684,  685. 


468  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   458 

*  *  *  The  power  which  we  have  under  the  Constitution  to  judge  of  the  qualifications  of  Members 
of  the  body  is  not  a  mere  arbitrary  power  to  be  exerted  according  to  the  will  of  the  individuals  who  may 
vote  upon  the  subject.  It  ought  to  be  a  power  subject  to  certain  rules  and  founded  upon  certain  prin- 
ciples. So  it  was  up  to  a  very  late  period,  until  the  rebellion.  The  rule  simply  was,  if  a  man  came 
here  and  presented  proper  credentials  from  his  State,  to  allow  him  to  take  the  ordinary  oath  which  we 
all  took,  to  support  the  Constitution,  and  be  admitted,  and  if  there  was  any  objection  to  him  to  try  that 
question  afterwards. 

Speaking  on  February  13,  Mr.  Charles  Sumner  said:' 

I  do  not  stop  to  argue  the  question,  if  that  amendment  is  now  a  part  of  the  Constitution;  for  I  would 
not  unnecessarily  occupy  your  time,  nor  direct  attention  from  the  case  which  you  are  to  decide.  For 
the  present  I  content  myself  with  two  remarks:  First,  the  amendment  has  already  been  adopted  by 
three-fourths  of  the  States  that  took  pajt  in  proposing  it,  and  this  is  enough,  for  the  spirit  of  the  Consti- 
tution is  thus  satisfied;  and,  secondly,  it  has  already  been  adopted  by  " the  legislatures  of  three-fourths 
of  the  several  States"  which  have  legislatures,  thus  complying  with  the  letter  of  the  Constitution. 
Therefore  by  the  spirit  of  the  Constitution,  and  also  by  its  letter,  this  amendment  is  now  a  part  of  the 
Constitution,  binding  on  all  of  us.  As  such  I  invoke  its  application  to  this  case.  In  face  of  this  positive 
peremptory  requirement  it  is  impossible  to  see  how  loyalty  can  be  other  than  a  "qualification."  In 
denying  it  you  practically  set  aside  this  amendment. 

But  even  without  this  amendment,  I  can  not  doubt  that  the  original  text  is  sufficiently  clear  and 
explicit.  It  is  nowhere  said  in  the  Constitution  that  certain  specified  requirements  and  none  others 
shall  be  "qualifications"  of  Senators.  The  word  "qualifications,"  which  plays  such  a  part  in  this  case, 
occurs  in  another  connection,  where  it  is  provided  that  "each  House  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members."  What  these  "qualifications"  may  be  is  to  be  found 
elsewhere.  Searching  the  Constitution  from  beginning  to  end  we  find  three  "qualifications,"  which 
come  under  the  head  of  form,  being  (1)  age,  (2)  citizenship,  and  (3)  inhabitancy  in  the  State.  But 
behind  and  above  these  is  another  "qualification,"  which  is  of  substance,  in  contradiction  to  form  only. 
So  supreme  is  this  that  it  is  placed  under  the  safeguard  of  an  oath.  This  is  loyalty.  It  is  easy  to  see 
how  infinitely  more  important  is  this  than  either  of  the  others — than  age,  than  citizenship,  or  than 
inhabitancy  in  the  State.  A  Senator  failing  in  either  of  these  would  be  incompetent  by  the  letter  of  the 
Constitution ;  but  the  Republic  might  not  suffer  from  his  presence.  On  the  other  hand,  a  Senator  failing 
in  loyalty  is  a  public  enemy,  whose  presence  in  this  council  Chamber  would  be  a  certain  peril  to  the 
Republic. 

It  is  vain  to  say  that  loyalty  is  not  declared  to  be  a  "qualification."  I  deny  it.  Loyalty  is  made 
a  "qualification"  in  the  amendment  to  the  Constitution;  and  then  again  in  the  original  text,  when  in 
the  most  solemn  way  possible  it  is  distinguished  and  guarded  by  an  oath.  Men  are  familiarly  said  to 
"  qualify  "  when  they  take  the  oath  of  office,  and  thus  the  language  of  common  life  furnishes  an  authentic 
interpretation  to  the  Constitution. 

But  no  man  can  be  allowed  to  take  the  oath  as  Senator  when,  on  the  evidence  before  the  Senate, 
he  is  not  competent.  If  it  appear  that  he  is  not  of  sufficient  age,  or  of  the  required  citizenship  or  inhab- 
itancy, he  can  not  be  allowed  to  go  to  that  desk.  Especially  if  it  appear  that  he  fails  in  the  all-important 
"qualification  "  of  loyalty,  he  can  not  be  allowed  to  go  to  that  desk.  A  false  oath,  taken  with  our  knowl- 
edge, would  compromise  the  Senate.  We  who  consent  will  become  parties  to  the  falsehood.  We  shall 
be  parties  in  the  offense.  It  is  futile  to  say  that  the  oath  is  one  of  purgation  only,  and  that  it  is  for  him 
who  takes  it  to  determine  on  his  conscience  if  he  can  take  it.  The  Senate  can  not  forget  the  evidence; 
nor  can  its  responsibility  in  the  case  be  swallowed  up  in  any  process  of  individual  purgation.  On  the 
evidence  we  must  act  and  judge  accordingly.  The  "open  sesame"  of  this  Chamber  must  be  something 
more  than  the  oath  of  a  suspected  applicant. 

According  to  Lord  Coke,  "  an  infidel  can  not  be  sworn  "  as  a  witness.  This  was  an  early  rule  which 
has  since  been  softened  in  our  courts.  But  under  the  Constitution  of  the  United  States  and  existing 
statutes  a  "political  infidel  can  not  be  sworn"  as  a  Senator.  Whatever  may  be  his  inclination  or  motive 
he  must  not  be  allowed  to  approach  your  desk.  The  country  has  a  right  to  expect  that  all  who  enter 
here  shall  have  a  sure  and  well-founded  loyalty,  above  all  question  or  "suspicion."  And  such  I  insist 
is  the  rule  of  the  Constitution  and  of  Congress. 


'  Globe,  p.  1145. 


§458 


THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  469 


As  if  to  place  the  questior.  beyond  all  doubt,  Congress  by  positive  enactment  requires  that  ever\' 
Senator,  before  admis-sion  to  his  seat,  shall  swear  that  he  has  ''voluntarily  given  no  aid,  countenance, 
counsel,  or  encouragement,  to  persons  engaged  in  armed  hostility"  to  the  United  States.  Here  is  little 
more  than  an  interpretation  of  the  Constitution.  The  conclusion  is  plain.  No  person  who  has  volun- 
tarily given  even  "countenance"  or  "encouragement"  to  another  engaged  in  the  rebellion  can  be 
allowed  to  take  that  oath. 

Speaking  on  the  same  day,  Mr.  George  F.  Edmunds,  of  Vermont,  said,'  after 
quoting  the  passage  of  the  Constitution  in  relation  to  qualifications: 

Senators  will  observe  that  these  are  negative  statements.  They  are  exclusive,  every  one  of  them. 
It  is  not  declaring  who  shall  be  admitted  into  the  Senate  of  the  United  States.  It  is  declaring  who 
shall  not  be  eUgible  to  election  to  this  body;  that  is  all.  It  is  the  same  as  to  the  House  of  Representa- 
tives and  as  to  other  officers,  always  in  the  negative,  always  exclusive,  instead  of  in  the  affirmative 
and  inclusive.  And  upon  what  principle  was  this  Constitution  founded?  Will  lawj'ers  here  deny 
that  we  have  a  right  to  look  to  the  course  of  constitutional  and  parliamentan,-  jurisprudence  in  that 
countrj-  from  which  we  derive  our  origin  and  most  of  our  laws  to  illustrate  our  own  Constitution  and 
to  enlighten  us  in  this  investigation?  By  no  means.  And  what  was  that?  The  House  of  Commons 
in  Parliament,  using  the  verj-  language  that  in  another  section  of  the  Constitution  is  used  here,  were 
the  exclusive  judges  of  the  elections,  returns,  and  qualifications  of  their  own  members.  What  was 
their  constitutional  power  under  that  rtile?  It  was  that  they  were  the  sole  and  exclusive  judges,  not  only 
of  the  citizenship  and  of  the  property  qualification  of  persons  who  should  be  elected,  but  of  everything 
that  entered  into  the  personnel  of  the  man  who  presented  himself  at  the  doors  of  the  House  of  Commons 
with  a  certificate  of  election  for  admission.  And  what  were  those  rules?  One  was  that  an  idiot  could 
not  be  a  representative  in  the  Commons;  another  was  that  an  insane  man  could  not  be,  and  a  variety 
of  other  disqualifications,  of  which  the  Commons  themselves  alone  were  the  sole  and  exclusive  judges. 

We  declared  in  our  Constitution  that  a  certain  class  of  persons  should  never,  under  any  circum- 
stances, whatever  their  other  qualifications  might  be,  be  Senators  of  the  United  States;  no  alien  should 
be  a  Senator.  Did  it  therefore  follow  that  every  citizen,  male  or  female,  black  or  white,  rich  or  poor, 
sane  or  insane,  innocent  or  criminal,  should  be  a  Senator?  Not  by  any  means,  I  take  it.  We  declared 
then  that  no  person  should  be  a  Senator  who  was  not  a  citizen,  who  had  not  a  certain  qualification  of 
residence  and  of  age,  and  there  we  stopped  the  rule  of  disqualification,  leaving  the  common  law  exactly 
where  it  stood  before.  And  that  common  law,  in  the  verj-  language  of  its  immemorial  time,  was  inserted 
in  another  section  of  the  instrument,  which  declared  that  this  body  should  be  the  judges  of  the  elections, 
returns,  and  qualifications  of  its  members.  And  that  very  word  "qualifications."  by  the  known  historj' 
of  jurisprudence,  had  the  scope  and  signification  that  I  have  named;  and  that  was,  that  it  was  the  duty 
of  the  body  to  apply  it  to  the  candidate,  to  keep  itself  ptire  from  association  with  criminals  and 
incompetent  persons. 

Speaking  on  Februarj'  18,^  Mr.  Reverdy  Johnson,  of  Maryland,  said: 

The  only  qualifications  required  by  the  Constitution  are  that  the  party  to  be  chosen  shall  be  at 
least  30  years  of  age,  etc.  *  *  *  Subject  to  these  limitations,  the  legislature  of  the  State  has  the 
unrestricted  right  of  choice.  No  department  of  this  Government  of  the  United  States  has  any  jiu-isdic- 
tion  over  it.  The  Constitution,  whether  we  regard  its  terms  or  its  evident  scope,  as  manifested  by  its 
nature,  creates  a  government  of  delegated  powers,  and  that  government  has  consequently  no  authority 
to  interfere.      *    *    * 

Mr.  Johnson  went  on  to  substantiate  this  argument  by  reference  to  the  clause 
relating  to  expulsion.  He  also  expressed  the  opinion  that  Congress  had  no  authority 
to  pass  the  test  oath. 

In  the  course  of  the  debate  Mr.  Sumner  had  proposed  this  as  a  substitute : 

That  Philip  F.  Thomas.  Senator-elect  from  Maryland,  can  not  be  admitted  to  take  the  oath  of 
office  required  by  the  Constitution  and  laws,  inasmuch  as  he  allowed  his  minor  son  to  leave  the  paternal 
house  to  serve  as  a  rebel  soldier,  and  gave  him  at  the  time  §100  in  money,  all  of  which  was  ''aid," 

■  Globe,  p.  1149.  2Globe,  p.  1237. 


470  PBECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §  459 

"countenance,"  or  "encouragement"  to  the  rebellion,  which  he  was  forbidden  to  give;  and  further, 
inasmuch  as  in  forbearing  to  disclose  and  make  known  the  treason  of  his  son  to  the  President,  or  other 
proper  authorities,  according  to  the  requirement  of  the  statute  in  such  cases,  he  was  guilty  of  misprision 
of  treason  as  defined  by  existing  law. 

Mr.  Sumner  withdrew  this,  however,  it  being  urged  that  Mr.  Thomas's  conduct 
as  a  Cabinet  officer  in  1860  afforded  more  certain  grounds  for  action. 

Mr.  Roscoe  Conkling,  of  New  York,  proposed  the  following  substitute: 

That,  in  the  judgment  of  the  Senate,  Philip  F.  Thomas,  Senator-elect  from  Maryland,  can  not  with 
truth  take  the  oath  prescribed  by  the  act  of  Congress  approved  July  2,  1862,  and  that  therefore  he  be 
not  allowed  to  take  said  oath, 

but  withdrew  it,  after  commenting  on  the  variance  of  opinion  as  to  whether  the 
test  oath  actually  prescribed  a  new  qualification  or  not.' 

The  question  being  then  taken  on  the  resolution  originally  proposed  by  Mr. 
Johnson,  it  was  disagreed  to — yeas  21,  nays  28.^ 

Then,  by  a  vote  of  yeas  27,  nays  20,  the  Senate  agreed  to  the  follo\ving,  offered 
by  Mr.  Charles  D.  Drake,  of  Missouri: 

Resolved,  That  Philip  F.  Thomas,  having  voluntarily  given  aid,  countenance,  and  encouragement 
to  persons  engaged  in  armed  hostility  to  the  United  States,  is  not  entitled  to  take  the  oath  of  office  as 
a  Senator  of  the  United  States  from  the  State  of  Maryland,  or  to  hold  a  seat  in  this  body  as  such  Senator; 
and  that  the  President  pro  tempore  of  the  Senate  inform  the  governor  of  the  State  of  Maryland  of  the 
action  of  the  Senate  in  the  premises. 

459.  The  Georgia  case  of  Wimpy  and  Christy  in  the  Fortieth  Con- 
gress. 

In  1868  the  House  denied  the  oath  to  two  persons  who  appeared  with 
conflicting  credentials  which  cast  doubt  on  the  right  of  either  to  the  seat. 

A  question  as  to  whether  a  State  law  may  give  to  the  minority  can- 
didate the  seat  for  which  the  majority  candidate  is  disqualified. 

On  December  7,  1868,'  the  Speaker  laid  before  the  House  credentials  from  the 
governor  of  Georgia,  certifying  John  A.  Wimpy  as  entitled  to  a  seat  in  the  House. 
These  credentials  showed  that  John  H.  Cliristy  had  received  the  highest  number 
of  votes  in  the  Sixth  district,  but,  it  appearing  to  the  satisfaction  of  the  governor 
that  said  Christy  was  ineligible  under  the  fourteenth  amendment  to  the  Constitu- 
tion, and  the  said  Wimpy  having  received  the  next  highest  number  of  votes,  the  gov- 
ernor had  commissioned  Wimpy,  relying  on  a  law  of  Georgia  providing  that  when 
the  person  receiving  the  highest  number  of  votes  for  any  office  should  be  ineligible 
the  person  receiving  the  next  highest  number,  and  being  eligible,  should  be  com- 
missioned. 

At  the  same  time  Mr.  James  A.  Brooks,  of  New  York,  presented  credentials 
signed  by  Major-General  Meade,  commander  of  the  military  district  including 
Georgia,^  certifying  the  election  of  Mr.  Christy.     Mr.  Brooks  stated  that  this  cer- 

'  Globe,  pp.  1263,  1264. 
2  Globe,  p.  1271. 

^ Third  session  Fortieth  Congress,  Jomnal,  p.  8;  Globe,  p.  7. 

*  The  reconstruction  act  provided  for  the  military  districts  and  the  political  reconstruction  of  the 
States  under  military  supervision.     14  Stat.  L.,  p.  428;  15  Stat.  L.,  p.  73. 


§  459  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  471 

tificate  was  similar  to  that  on  which  other  Members  from  Georgia  had  been  seated. 
Mr.  Brooks  charged  that  Mr.  Wimpy  had  been  a  Confederate  soldier. 

Both  certificates  were  referred  to  the  Committee  on  Elections,  and  neither 
claimant  was  sworn  in. 

On  JanuarA'  15'  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee 
on  Elections,  submitted  a  report.  They  foimd  that  the  commission  of  Mr.  Christy 
was  signed  by  General  Meade,  under  whose  order  the  election  had  been  held.  That 
of  ilr.  Wimpy  was  signed  by  Governor  Bullock,  who  was  at  the  same  election 
chosen  governor  and  assumed  the  duties  of  the  office  on  relinquishment  of  command 
by  General  Meade. 

The  committee  found  that  Mr.  Christy,  by  his  own  admission,  had  given  "aid, 
countenance,  covmsel,  and  encouragement  to  persons  engaged  in  armed  hostility 
to  the  Government,"  and  in  accordance  with  the  precedent  in  the  case  of  John  Y. 
Brown  was  not  qualified  to  hold  a  seat  as  Representative  from  the  State  of  Georgia. 
This  appeared  independently  of  any  question  as  to  ineligibility  under  the  fourteenth 
amendment. 

Examining  the  case  of  Mr.  Wimpy,  the  committee  conclude: 

The  committee  was  of  opinion  that  at  the  time  of  this  election  Mr.  Wimpy,  like  Mr.  Christy,  could 
not  take  the  oath  of  office  because  he  had  "voluntarily  given  aid,  countenance,  counsel,  and  encourage- 
ment to  persons  engaged  in  armed  hostility  to  the  Government  of  the  United  States."  If,  therefore, 
the  provision  in  the  statute  of  Georgia  included  Members  of  Congress  and  also  this  cause  of  ineligibility, 
still  Mr.  Wimpy  could  not  avail  himself  of  it  because  of  his  own  ineligibility  at  the  time  of  the  election. 
Nor  would  a  subsequent  removal  of  disabilities  by  act  of  Congress  give  Mr.  Wimpy  the  benefit  of  this 
act,  because  the  act  refers  to  the  eligibility  at  the  time  of  the  election;  and  if  such  an  act  could  bring 
Mr.  Wimpy  within  its  provisions,  such  an  act  could  likewise  take  Mr.  Christy  out  of  its  provisions,  and 
upon  its  passage  he  would,  with  a  majority  of  the  votes,  be  instantly  entitled  to  the  seat. 

This  conclusion,  arrived  at  unanimously  by  the  committee,  renders  it  unnecessary  to  determine 
other  questions  raised  in  this  case  which  would  otherwise  render  it  at  least  very  doubtful  whether' 
under  any  circumstances,  Mr.  Wimpy,  with  a  majority  of  100  votes  against  him,  could,  by  force  of  the 
law  of  Georgia  already  cited,  become  entitled  to  the  scat.  The  committee  therefore  does  not  find  it 
necessary  to  express  an  opinion  whether  the  statute  was  intended  to  affect  other  than  State  officers,  or 
could,  if  intended,  include  Representatives  in  Congress,  or  whether  aiding  the  late  rebellion  was  one 
of  the  causes  of  ineligibility  embraced  in  the  "foregoing  rules"  specified  in  the  one  hundred  and  twenty- 
sixth  section  of  the  act,  which  was  itself  enacted  long  before  the  rebellion  broke  out;  but,  for  the 
reasons  already  specified,  reports  adversely  on  the  claim  of  Mr.  Wimpy  to  the  seat.  It  therefore 
recommends  the  adoption  of  the  accompanying  resolutions: 

Resolved,  That  J.  H.  Christy,  having  voluntarily  given  aid,  countenance,  counsel,  and  encourage- 
ment to  persons  engaged  in  armed  hostility  to  the  United  States,  is  not  entitled  to  take  the  oath  of 
office  as  a  Representative  in  this  House  from  the  Sixth  Congressional  district  of  Georgia  or  to  hold  a 
seat  therein  as  such  Representative. 

Resolved,  That  John  A.  Wimpy,  not  having  received  a  majority  of  the  votes  cast  for  Representative 
in  this  House  from  the  Sixth  Congressional  district  of  Georgia,  is  not  entitled  to  a  seat  therein  as  such 
Representative. 

Resolved,  That  the  Committee  of  Elections  be  discharged  from  the  further  consideration  of  the 
question  of  removing  political  disabilities  from  John  H.  Christy,  and  that  the  same  be  referred  to  the 
Committee  on  Reconstruction. 

On  January  28,^  the  report  was  debated  in  the  House,  rather  in  reference  to 

*  House  Report  Xo.  8;  2  Bartlett,  p.  464;  Rowell's  Dieest,  p.  225. 
2  Globe,  pp.  675,  677. 


472 


PKECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES. 


§  460 


its  relation  to  the  question  of  reconstruction  than  on  the  merits  of  the  respective 
claimants,  and  on  that  day  was  postponed  until  the  third  Tuesday  of  February. 
It  was  not  taken  up  on  that  day,  or  again.     So  neither  claimant  was  admitted. 

460.  The  Kentucky  election  case  of  Zeigler  v.  Rice  in  the  Forty-first 
Congress. 

In  1869  John  M.  Rice,  challenged  on  account  of  alleged  disloyalty, 
was  permitted  by  the  House  to  take  the  oath  pending  examination  of  the 
charges. 

In  1869  the  Elections  Committee  proposed  to  exclude  for  disloyalty 
one  who  had  already  been  sworn  in;  and  although  the  committee  were 
reversed  on  the  facts,  the  propriety  of  the  proceeding  was  not  questioned. 

In  a  case  somewhat  inconclusive  it  was  held  that  notice  of  disqualifica- 
tion given  seasonably  to  the  electors  did  not  modify  the  rule  against  seat- 
ing a  minority  candidate. 

On  March  4,  1869/  at  the  organization  of  the  House,  the  name  of  ^Ir.  John  M. 
Rice,  of  Kentucky,  was  on  the  roll  presented  by  the  Clerk.  When  the  Members-elect 
were  taking  the  oath  objection  on  ground  of  disloj^alty  was  made  to  Mr.  Rice,  and 
he  stood  aside.     On  the  next  day  the  House  agreed  to  this  resolution: 

Resolved,  That  Boyd  Winchester  and  John  M.  Rice,  Representatives-elect  from  the  State  of  Ken- 
tucky, be  now  sworn  in,  and  the  papers  filed  against  their  admission  be  referred  to  the  CJommittee  of 
Elections,  when  appointed,  with  directions  to  report  as  soon  as  practicable. 

Accordingly  Messrs.  Winchester  and  Rice  were  sworn  in  and  took  their  seats. 

On  June  30,  1870,^  Mr.  R.  R.  Butler,  of  Tennessee,  from  the  Committee  on 
Elections,  submitted  the  report  of  the  committee  on  the  case  of  Zeigler  v.  Rice.  The 
contestant  alleged  that  sitting  Member  was  ineligible  under  section  3  of  the  four- 
teenth amendment  to  the  Constitution. 

A  question  of  law  and  a  question  of  fact  were  involved : 

(a)  The  question  of  law  arose  from  the  following  specification  in  contestant's 
notice  of  contest: 

That  notice  of  this  disqualification  on  your  part  was  given  publicly  to  the  voters  of  the  district  prior 
to  the  said  election  held  on  the  3d  day  of  November,  1868,  and  during  the  time  you  stood  as  a  candidate 
before  the  people;  that  this  disqualification  existed  at  that  time;  and  that  by  reason  thereof  all  votes 
cast  for  j'ou  were  and  are  illegal  and  void;  wherefore  I  was  duly  elected  by  the  legal  vote  of  said  district 
on  said  3d  day  of  November  last,  and  am  lawfully  entitled  to  and  claim  the  seat  in  the  Forty-first  (Congress 
of  the  United  States  as  Representative  for  said  Ninth  district  of  Kentucky. 

The  majority  in  their  report  say  they  are  convinced  that  sittuig  Member  is 
ineligible,  "but  do  not  agree  with  contestant  that  as  contestee  was  ineligible  the 
candidate  who  was  eligible  is  entitled  to  the  seat." 

The  views  of  the  minority,  presented  by  Mr.  Albert  G.  Burr,  of  Illinois,  say: 

The  undersigned  concurs  with  the  majority  of  the  committee  in  the  opinion  that  in  no  possible  aspect 
of  this  case  can  it  be  pretended  that  the  contestant  Zeigler  is  entitled  to  the  seat  as  the  Representative  of 
the  Ninth  Congressional  district  of  Kentucky.  There  is  no  dispute  on  that  point.  The  contestant 
himself  does  not  claim  that  he  received  a  majority  of  the  votes  cast,  and  no  just  man  can  dissent  from  the 
conclusion  of  the  committee  that  he  has  no  shadow  of  title  whatever  to  the  seat. 

'  First  session  Forty-first  Congress,  Journal,  pp.  9,  13;  Globe,  pp.  6,  13. 

^  Second  session  Forty-first  Congress,  House  Report  No.  107;  2  Bartlett,  p.  871. 


§  i61  THE  OATH  AS  RELATED  TO  QCALIFICATIONS.  473 

(b)  The  question  of  the  qualification  of  Mr.  Rice  was  a  question  of  fact.  The 
majority  of  the  committee,  from  the  testimony  presented,  concluded  that  he  had 
been  disloyal  and  had  given  aid  and  comfort  to  the  enemy.  Therefore  they  pro- 
posed the  following: 

Resolved,  That  the  Hon.  John  M.  Rice  is  disqualified  by  the  third  section  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States  from  holding  a  seat  in  Congress,  and  that  the  seat  now 
occupied  by  him  as  a  Representative  from  the  Xinth  district  of  Kentucky,  in  the  Forty-first  Congress,  is 
hereby  declared  vacant,  and  that  the  Speaker  of  the  House  of  Representatives  notify  the  governor  of  the 
Commonwealth  of  Kentucky  that  such  vacancy  exists. 

The  minority  construed  the  evidence  as  entirely  failing  to  show  Mr.  Rice  dis- 
qualified, and  recommended  the  following: 

Resolved,  That  Hon.  John  M.  Rice  is  justly  entitled  to  his  seat  as  Representative  in  the  Forty-first 
Congress  from  the  Ninth  district  of  the  State  of  Kentucky. 

The  report  was  debated  on  July  11,'  the  debate  being  confined  entirely  to  the 
question  of  fact,  and  the  proposition  to  exclude  a  Member  who  had  already  taken 
the  oath  and  his  seat  was  not  discussed.  As  to  the  question  of  fact,  Members  who 
had  known  sitting  Member  at  the  time  of  the  alleged  disloyalty  raised  a  question  as 
to  the  conclusions  which  the  majority  had  drawn  from  the  testimony. 

Finally  the  question  recurred  on  the  substitute  proposed  by  the  minority,  and 
it  was  agreed  to  \vithout  division.     Then  the  resolution  as  amended  was  agreed  to. 

So  the  report  of  the  majority  of  the  committee  was  overruled,  and  Mr.  Rice 
retained  the  seat. 

461.  The  Virginia  election  case  of  Tucker  v.  Booker,  in  the  Foi-ty- 
first  Congress. 

In  1870  no  one  of  the  Members-elect  from  Virginia  was  seated  until 
the  credentials  were  reported  on  by  a  committee  and  the  House  had 
acted. 

A  Member-elect  whose  loyalty  was  impeached  was  permitted  to  take 
the  oath;  and  after  that  the  House  was  reluctant  to  take  action  in  his 
case. 

A  question  as  to  whether  or  not  a  Member  who  is  disqualified,  but 
has  been  permitted  to  take  the  oath,  may  be  excluded  by  majority  vote. 

A  question  relating  to  a  Member's  right  to  his  seat  being  laid  on  the 
table,  the  Member  continues  in  his  functions. 

At  the  beginning  of  the  second  session  of  the  Forty-first  Congress  the  cre- 
dentials of  all  the  Members-elect  from  the  State  of  Virginia  were  referred  to  the 
Committee  on  Elections,  and  the  claimants  were  not  sworn  in  until  the  committee 
reported.  Against  Mr.  George  W.  Booker  charges  of  disloyalty  were  made,  but 
the  committee  on  Februarj-  1,  1870,^  reported  a  recommendation  that  the  oath  be 
administered  to  him  in  accordance  with  the  precedent  made  by  the  House  in  the 
case  of  Mr.  McKenzie.  There  was  much  discussion  over  this  motion.  The  com- 
mittee had  not  examined  the  question  of  loyalty,  and  strong  allegations  of  dis- 

'  Journal,  pp.  1199,  1200,  1213;  Globe,  pp.  5442-5447. 

'  Second  session  Forty-first  Congress,  Journal,  p.  244;  Globe,  pp.  947-950. 


474  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   461 

loyalty  were  made  against  Mr.  Booker.  Finally,  by  a  vote  of  yeas  89,  nays  72,  it 
was  determined  that  the  oath  should  be  administered,  and  Mr.  Booker  was  accord- 
ingly sworn  in. 

On  March  22,  1870,'  Mr.  George  M.  Brooks,  of  Massachusetts,  from  the  Special 
Committee  of  Elections,  presented  the  report  in  the  case  of  Tucker  v.  Booker.  The 
returns  showed  Mr.  Booker  elected  by  a  plurality  of  3,533  over  contestant.  The 
groimds  of  contest  related  entirely  to  the  loyalty  of  sitting  Member,  it  being  charged 
that  he  was  disqualified  because  of  section  3  of  the  fourteenth  amendment  to  the 
Constitution,  and  also  that  he  was  unable  to  take  the  oath  of  July  2,  1862. 

The  committee  found  from  the  testimony  of  one  witness  that  Mr.  Booker  had 
admitted  that  he  voted  for  the  Virginia  ordinance  of  secession. 

The  remaining  testimony  was  of  a  documentary  character,  setting  forth  facts 
such  as  are  included  in  this  portion  of  the  report: 

From  the  evidence  it  appears  that  on  July  14,  1856,  said  Booker,  having  been  elected  a  justice 
of  the  peace  for  the  county  of  Henry  and  State  of  Virginia  for  the  term  of  four  years  from  the  1st  day 
of  August  then  next,  took  the  oaths  of  office  prescribed  by  law,  and  the  oath  to  support  the  Consti- 
tution of  the  United  States;  that  acting  under  this  commission,  he  performed  the  duties  of  justice 
of  the  peace,  and  on  July  9,  1860,  having  been  again  elected  a  justice  of  the  peace  for  the  term  of  four 
years  from  the  Ist  day  of  August  then  next,  he  took  the  several  oaths  required  by  law,  and  on  the  10th 
day  of  September,  1860,  he  was  elected  presiding  justice  of  the  court,  and  that  he  continued  to  exercise 
the  duties  of  such  magistrate  during  the  rebellion. 

The  particular  acts  of  disloyalty  that  are  relied  upon  by  the  contestant,  and  which  appear  to  be 
proved  and  are  not  denied  by  the  the  contestee,  are  as  follows:  That  at  a  county  court  held  for  Henry 
County,  at  the  court-house,  on  May  13,  1861,  said  Booker  met  with  other  justices  and  voted  to  accept 
the  provisions  of  an  act  of  the  general  assembly  passed  January  19,  1861,  authorizing  the  county  courts 
to  arm  the  militia  of  their  respective  counties,  and  to  provide  means  therefor,  pursuant  to  a  resolution 
of  the  convention  of  Virginia  "recommending  the  county  courts  to  levy  or  raise,  by  issuing  bonds, 
a  sufficient  amount  of  money  to  equip  and  arm  such  volunteers  as  may  be  raised  within  the  limits  of 
their  respective  counties;"  it  was  also  at  said  court  "ordered  that  ten  thousand  dollars  be  raised  by 
levy  on  all  the  lands  and  all  other  subjects  liable  to  tax  and  levies  in  said  county." 

That  at  a  county  court  held  July  8,  1861,  said  Booker  being  present  as  presiding  justice,  WQliam 
Martin  was  appointed  by  said  court  as  an  agent  on  the  part  of  Henry  County,  "to  visit  the  volunteer 
companies  in  the  service  and  report  to  the  next  court  the  wants  and  general  condition  of  said  com- 
panies, with  a  view  to  making  provision  by  the  court  for  the  relief  of  their  necessities."  At  a  court 
held  September  9,  1861,  Samuel  H.  Haviston  was  appointed  an  agent  for  the  county  to  purchase  full 
winter  equipments  for  the  four  volunteer  companies  in  the  service. 

At  a  court  held  October  15,  1861,  said  Booker  was  appointed  an  agent  for  the  county  "to  repair 
to  the  encampments  of  the  several  companies  from  said  county  and  ascertain  the  wants  of  each  member 
in  clothing,  and  report  thereof  to  the  next  court."  And  at  a  court  held  November  12,  1861,  said  Booker 
made  a  report  in  writing,  which  is  annexed  hereto  and  marked  "A." 

The  sitting  Member  did  not  deny  the  facts  presented  against  him,  but  claimed 
that  he  was  from  the  outset  opposed  to  secession;  that  he  was  always  a  Union 
man,  and  that  he  held  the  offices  he  did  in  order  to  protect  other  Union  men  and 
save  himself  from  conscription.  The  testimony  of  other  witnesses  convinced  the 
committee  of  this,  and  they  say: 

Although  technically  said  Booker  may  have  seemed  to  have  ' '  given  aid  and  comfort  to  the  enemies  " 
of  the  United  States  by  performing  the  duties  of  his  office,  yet  the  committee  is  convinced  that  he  was 
during  the  whole  rebellion,  and  to  the  present  time  has  been,  a  sincere  Union  man,  and  that  the  acts 


'  House  report  No.  41;  2  Bartlett,  p.  772. 


§  461  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  475 

by  him  performed  to  which  objection  is  taken  are  in  contravention  of  tlie  letter  but  not  the  spirit  of 
the  third  article  of  the  fourteenth  amendment  to  the  Constitution  of  the  United  States.  The  committee 
therefore  holds  that  said  Booker  is  not  ineligible  under  the  same. 

The  committee  is,  however,  of  the  opinion  that  if  no  action  had  been  taken  by  the  House  upon  the 
claim  of  said  Booker  for  a  seat,  it  would  have  reported  that  having  accepted  and  exercised  the  functions 
of  an  office  under  the  Confederate  government,  he  could  not  take  so  much  of  the  oath  prescribed  by  the 
act  of  July  2,  1862,  as  declares  that  he  has  "neither  sought  nor  accepted,  nor  attempted  to  exercise  the 
functions  of  any  office  whatever,  under  any  authority  or  pretended  authority  in  hostility  to  the  United 
States,"  without  being  relieved  from  the  disabilities  imposed  by  said  act,  and  that  it  should  have  recom- 
mended that  so  much  of  said  oath  above  recited  should  be  omitted  in  administering  the  oath  of  office 
to  said  Booker. 

But  the  House,  on  the  1st  day  of  February  last,  upon  representation  being  made  that  said  Booker 
was  loyal,  voted  that  he  was  entitled  to  his  seat,  and  he  took  the  oath  prescribed  by  the  act  of  July  2, 
1862,  and  is  now  a  sitting  Member  of  this  House.  The  committee  is  of  the  opinion  that  this  vote  was 
an  indication  of  the  sense  of  the  House  that  the  fact  of  his  loyalty  was  the  question  to  be  settled,  and 
this  being  determined  in  his  favor,  he  was  entitled  to  his  seat.  The  committee  also  believes  that  said 
Booker,  conscious  of  his  loyalty,  did  not  consider  that  he  was  debarred  from  taking  said  oath,  holding 
the  office  under  the  circumstances  and  for  the  purposes  he  did  so  hold  it;  that  he  did  not  deem  it 
was  the  spirit,  intent,  or  meaning  of  the  same  to  apply  to  one  who  was  truly  loyal  and  a  Union  man 
through  the  rebellion,  and  has  been  so  to  the  present  time. 

The  committee  therefore,  believing  said  Booker  to  have  taken  said  oath  honestly,  considering  that 
he  was  right  in  so  doing,  and  being  desirous  of  carrying  out  the  will  of  a  large  plurality  of  the  voters 
in  his  district,  and  the  declared  wish  of  the  House  as  expressed  by  their  vote  of  February  1,  hereby 
recommends  the  passage  of  the  following  resolution: 

Resolved,  That  the  Hon.  George  W.  Booker  is  entitled  to  retain  his  seat  as  a  Member  of  this  Congress 
from  the  Fourth  district  of  the  State  of  Virginia. 

The  report  was  offered  in  the  House  on  March  22,'  and  thereupon  Mr.  Luke  P. 
Poland,  of  Vermont,  proposed  a  preamble  reciting  the  facts  as  to  sitting  Member's 
acts,  and  a  resolution  "That  George  W.  Booker  is  disqualified  from  holding  a  seat  as 
a  Member  of  this  House." 

On  July  5^  the  report  was  debated  in  the  House.  ^Ir.  Henrj"  L.  Dawes,  of 
Massachusetts,  raised  a  question  as  to  how  Mr.  Booker  could  be  excluded,  since  he 
had  already  been  admitted  to  a  seat  and  taken  the  oath.  Mr.  Dawes  did  not  see 
how  he  could  be  removed  except  by  expulsion.  Mr.  Poland  seemed  to  regard  the 
taking  of  the  oath  under  the  circumstances  as  temporary,  and  intimated  that  a 
majority  vote,  in  his  opinion,  might  exclude  the  sitting  Member. 

The  remainder  of  the  debate  referred  largely  to  the  record  of  Mr.  Booker  and 
the  question  of  duress  as  an  excuse  for  his  acts. 

Finally  Mr.  Dawes  moved  to  lay  the  whole  subject  on  the  table. 

A  question  being  raised  as  to  the  effect  of  such  a  motion,  if  carried,  the  Speaker 
pro  tempore  said: 

It  is  hardly  a  parliamentary  question  for  the  Chair  to  decide.  The  Chair  is  under  the  impression, 
however,  that  it  would  leave  the  case  just  where  it  was  before  it  was  referred  to  the  Committee  on 
Elections. 

The  motion  to  lay  on  the  table  was  then  agreed  to — ayes  99,  noes  24. 
On  July  6  ^  Mr.  Booker  is  recorded  as  voting,  and  thereafter  to  the  end  of  the 
session. 

'  Globe,  p.  2135.  ^  Journal,  p.  1149;  Globe,  pp.  5195-5199.  =  Journal,  p.  1155. 


476  PRECEDENTS    OF    THE    HOUSE    OF    EEPKESENTATIVES.  §   "^62 

462.  The  Virginia  election  case  of  Whittlesey  v.  McKenzie  in  the 
Forty-first  Congress. 

In  1870  the  House  voted  to  administer  the  oath  to  a  Member-elect 
on  his  correct  prima  facie  showing,  although  a  question  as  to  his  quali- 
fications was  pending  before  the  Elections  Committee. 

In  1870,  after  a  Member-elect  had  been  permitted  to  take  the  oath, 
the  House  took  up  and  decided  a  contest  based  on  his  alleged  disloyalty, 
deciding  that  the  evidence  did  not  show  his  disqualification. 

An  instance  wherein  the  House  decided  on  its  own  initiative  an  elec- 
tion case  pending  before  the  Committee  on  Elections. 

At  the  opening  of  the  second  session  of  the  Forty-first  Congress  the  credentials 
of  all  the  claimants  to  seats  from  Virginia  were  referred  to  the  Committee  on  Elec- 
tions for  examination,  pending  the  administration  of  the  oath.  On  January  31, 
1870,'  Mr  John  A.  Bingham,  of  Ohio,  not  a  member  of  the  Elections  Conmiittee, 
offered  the  following  resolution: 

Resolved,  That  Hon.  Lewis  McKenzie  be  now  sworn  in  as  a  Member  of  this  House  from  the  Seventh 
district  of  Virginia,  he  having  the  prima  facie  right  thereto;  but  without  prejudice  to  the  claim  of  Charles 
Whittlesey,  contestant  to  such  seat,  or  to  his  right  to  prosecute  his  claim  thereto. 

Mr.  Halbert  E.  Paine,  of  Wisconsin,  chairman  of  the  Committee  on  Elections, 
stated  that  Mr.  McKenzie's  credentials  were  in  the  same  form  as  those  of  the  other 
Virginia  claimants,  who  had  already  been  allowed  to  take  the  oath.  But  there 
was  a  resolution  of  the  House  providing  that  whenever  either  contestant  should 
allege  that  the  other  claimant  was  unable  to  take  the  oath,  the  Committee  on  Elec- 
tions should  inquire  into  the  charge  and  report  before  the  oath  should  be  admin- 
istered. The  charge  had  been  made  in  this  case,  and  an  investigation  had  been 
made.  The  tcstmiony  was  now  in  the  hands  of  the  printer,  and  until  it  was  printed 
and  examined  the  committee  could  not  arrive  at  a  conclusion  as  to  whether  or  not 
Mr.  McKenzie  was  entitled  to  take  the  oath.  Mr.  Paine  admitted,  however,  that 
the  House,  having  all  control  over  the  subject,  might  permit  Mr.  McKenzie  to  take 
the  oath,  although  the  order  of  the  House  precluded  the  Committee  on  Elections 
from  recommending  it  at  this  stage. 

After  debate  as  to  Mr.  McKenzie's  loyalty,  the  resolution  was  agreed  to  without 
division. 

Mr.  McKenzie  was  accordingly  sworn  in. 

On  May  24,  1870,^  Mr.  John  C.  Churchill,  of  New  York,  from  the  Subcommittee 
on  Elections,  submitted  a  report  in  the  case  of  Whittlesey  v.  McKenzie.  Contestant 
raised  no  question  as  to  the  validity  of  the  election  or  the  correctness  of  the  count, 
but  claimed  that  sitting  Member  was  guilty  of  acts  in  the  early  part  of  the  year 
1861  which  made  him  ineligible  under  the  third  section  of  the  foiuteenth  article 
of  amendments  to  the  Constitution,  and  also  made  it  impossible  that  he  should 
truthfully  take  the  oath  of  July  2,  1862. 

The  contestant  gave  facts  in  support  of  his  contention: 

1 .  On  the  21st  day  of  January,  1861,  the  house  of  delegates  of  Virginia,  of  which  the  sitting  Member 
was  then  a  member,  adopted,  by  a  unanimous  vote,  108  delegates  voting,  the  following  resolution: 

"Resolved  by  the  general  assembly  of  Virginia,  That  if  all  efforts  to  reconcile  the  unhappy  difference 

'  Second  session  Forty-first  Congress,  Journal,  p.  239;  Globe,  pp.  917-918. 
2  House  Report  No.  75;  2  Bartlett,  p.  74G. 


§  462  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  477 

existing  between  the  two  sections  of  the  country  shall  prove  to  be  abortive,  that,  in  the  opinion  of  the 
general  assembly,  everj'  consideration  of  honor  and  interest  demand  that  Virginia  shall  unite  her  destiny 
with  the  slaveholding   States  of  the  South." 

The  sitting  Member.  Mr.  McKenzie,  was  present  and  voted  for  this  resolution. 

2.  On  the  14th  day  of  March,  1861,  the  senate  of  Virginia  passed,  with  an  amendment,  and  returned 
to  the  house  of  delegates  for  their  concurrence,  '"An  act  to  authorize  the  issue  of  treasury  notes."  A 
motion  was  made  to  lay  the  bill  and  amendment  on  the  table.  For  this  motion  the  sitting  Member 
voted,  and  in  support  of  it  made  a  speech,  of  which  the  following  is  a  report  which  appeared  in  the 
Daily  Richmond  ^\'hig  of  March  15,  1861,  and  the  substantial  correctness  of  which  is  not  disputed: 

"During  the  debate,  Mr.  McKenzie  said  the  House  had  been  in  session  sixty-six  days,  and,  until 
a  few  days  ago,  he  had  supposed  the  bill  had  become  the  law  of  the  land.  He  had  voted  for  this  bill 
the  time  he  did  because  he  had  believed  it  was  important  to  the  public  safety.  We  had  just  voted 
that,  so  far  as  Virginia  was  concerned,  we  would  not  permit  the  coercion  on  the  part  of  the  Federal 
Government  of  any  of  the  Southern  States.  Having  come  to  this  conclusion,  he,  for  one,  was  ready  to 
vote  means  to  arm  the  State,  if  need  be. 

"Does  anybody  presume  that  170,000  voters  of  Virginia,  a  commonwealth  extending  from  the 
Potomac  to  the  Ohio  River,  a  better  armed  State  than  any  five  States  in  the  Union,  are  acting  from 
any  fear  of  the  North?  Virginia  is  not  afraid.  WTien  the  convention  comes  to  a  decision,  and  whatever 
they  do,  and  it  is  ratified  by  the  people,  she  will  take  her  position,  and,  if  necessary,  fight.  I  think  the 
opportunity  ought  to  be  given  to  amend,  if  necessary;  and  I  shall,  therefore,  vote  to  lay  it  on  the  table." 

The  motion  to  lay  on  the  table  was  defeated  by  a  large  majority,  and  the  amendment  of  the 
Senate  was  then  concurred  in  and  the  bill  passed  by  a  unanimous  vote,  the  sitting  Member  voting  in  the 
afiirmative. 

3.  On  the  2d  of  May,  1861,  the  sitting  Member,  being  then  a  member  of  the  common  council  of  the 
city  of  Alexandria,  voted  in  favor  of  an  appropriation  of  $200  each  to  the  Emmot  Guards  and  to  the 
Irish  volunteers,  to  aid  in  equipping  these  companies,  which  soon  after  entered  the  Confederate  service. 

4.  On  April  30  and  May  6,  1861,  a  quantity  of  oats  belonging  to  sitting  Member  were  taken  by  the 
military  authorities  of  Virginia  and  were  charged  to  the  State. 

The  committee,  examinino:  these  charges  at  length,  found  that  the  only  gov- 
ernment to  which  ilr.  McKenzie  yielded  support  at  the  times  in  question  was  that 
of  the  State  of  Virginia,  but  that  Virginia  did  not  ratify  the  ordinance  of  secession 
until  May  23,  1S61.  Since  then  Mr.  McKenzie  had  been  an  outspoken  Union  man. 
It  could  not  be  pretended  that  he  had  yielded  support  to  any  government  hostile 
to  the  United  States. 

Therefore  the  onh'  question  was  as  to  whether  or  not  he  had  given  "aid  or 
comfort"  to  the  enemies  of  the  United  States.  The  committee  found  from  an 
examination  of  the  testimony  and  facts,  in  relation  to  all  the  circumstances,  that 
the  charges  of  the  contestant  were  not  sustained.     They  also  found: 

A  good  deal  of  evidence  in  this  case  was  taken  to  show  that  the  sitting  Member  before,  during,  and 
after  the  occurrence  of  the  acts  charged  as  making  him  ineligible  was  known  and  accepted  generally 
by  all,  both  the  loyal  and  the  disloyal  people  of  his  acquaintance  in  Alexandria  and  vicinity,  as  a  friend 
of  the  Union  cause.  It  is  well  argued  by  the  contestant  that  this  can  not  be  received  as  a  defense  for 
two  reasons:  First,  that  the  sitting  Member  has  served  no  answer  in  this  case,  as  required  by  the  laws, 
and  therefore  can  not  set  up  in  the  evidence  any  matter  by  way  of  defense  to  the  charges  of  the  con- 
testant except  such  as  may  tend  to  negative  the  charges;  and,  second,  that  if  the  acts  make  him  ineligible, 
neither  prior,  subsequent,  nor  contemporaneous  loyalty  could  make  him  eligible  or  do  more  than  fur- 
nish a  ground  for  him  to  ask  to  be  relieved  from  his  disabilities.  But  this  evidence,  though  not  receivable 
as  a  defense,  is  properly  to  be  received,  as  enabling  us  the  better  to  understand  the  acts  themselves  and 
to  determine  their  true  character. 

Therefore : 

We  conclude  that  nothing  shown  in  the  evidence  in  this  case  makes  the  sitting  Member  ineligible 
under  the  fourteenth  article  of  amendments  to  the  Constitution  of  the  United  States  or  debars  him 


478  PRECEDENTS    O^    THE    HOUSE    OF    REPRESENTATIVES.  §   463 

from  taking  the  oath  prescribed  by  law,  and  this  makes  it  unnecessary  for  us  to  consider  the  question 
very  ably  presented  by  the  contestant  in  his  argument  as  to  the  effect  of  such  ineligibility,  if  shown, 
upon  votes  cast  for  the  sitting  Member;  and  we  conclude  with  recommending  to  the  House  the  adoption 
of  the  following  resolutions: 

Resolved,  That  Charles  Whittlesey  is  not  entitled  to  a  seat  as  a  Member  of  the  Forty-first  Congress 
from  the  Seventh  Congressional  district  of  Virginia. 

Resolved,  That  Lewis  McKenzie  is  entitled  to  a  seat  as  a  Member  of  the  Forty-first  Congress  from 
the  Seventh TJongressional  district  of  Virginia. 

On  June  17'  the  resolutions  were  agreed  to  by  the  House  without  debate  or 
division. 

463.  The  Senate  election  case  of  Joseph  C.  Abbott  in  the  Forty- 
eighth  Congress. 

A  Senator-elect  being  disqualified,  the  Senate,  after  elaborate  exam- 
ination, decided  that  the  person  receiving  the  next  highest  number  of 
votes  was  not  entitled  to  the  seat. 

On  March  7,  1871,^  a  memorial  was  presented  in  the  Senate  from  Joseph  C. 
Abbott,  who  claimed  to  have  been  legally  elected  a  Senator  from  North  Carolina. 
This  memorial  was  referred  to  the  Committee  on  Privileges  and  Elections,  and 
on  February  28,  1872,  Mr.  John  A.  Logan,  of  Illinois,  submitted  from  that  committee 
the  following  report:  ^ 

The  Committee  on  Privileges  and  Elections,  to  whom  was  referred  the  memorial  of  Joseph  C.  Abbott, 
claiming  to  be  entitled  to  a  seat  in  this  body  as  a  Senator  from  North  Carolina,  for  the  term  commencing 
on  the  4th  day  of  March,  A.  D.  1871,  respectfully  submit  the  following  report: 

Article  I,  section  5,  of  the  Constitution  of  the  United  States  provides  that — 

"Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  members." 

The  duty  which  devolves  upon  the  Senate  in  deciding  cases  that  arise  under  this  clause  of  the 

Constitution  is  in  the  nature  of  a  judicial  proceeding,  and  the  cases  must  be  decided  upon  the  evidence 

presented  and  in  accordance  with  legal  principles  as  established  by  former  parliamentary  and  judicial 

precedents  and  decisions. 

Examining  the  facts,  the  committee  found  as  to  the  election  by  the  legislature: 

That  the  number  of  members  present  at  the  time  and  so  voting  constituted  a  quorum  of  each  house 
of  the  legistature,  the  constitution  of  North  Carolina  providing  that  "neither  house  shall  proceed  upon 
public  business  unless  a  majority  of  all  the  members  are  actually  present,"  the  numbers  so  present  amount- 
ing to  a  majority  of  all  the  members. 

On  the  following  day  the  two  houses,  in  the  usual  form,  declared  that  Vance  had  received  a  majority 
of  the  votes  cast  in  both  houses  and  that  he  was  duly  elected  as  such  Senator  for  said  term  of  six  years 
commencing  on  the  4th  day  of  March,  1871. 

It  is  also  further  in  evidence  that  said  Vance  was  not  on  said  second  Tuesday  of  November,  1870,  and 
at  no  time  since  has  been,  qualified  to  serve  as  such  Senator,  owing  to  disability  imposed  by  the  fourteenth 
article  of  amendment  of  the  Constitution. 

It  is  averred  that  the  members  of  the  legislature  of  North  Carolina  so  voting  for  Vance,  at  the  time 
their  votes  were  cast,  had  notice  of  the  ineligibility  of  Vance,  but  no  evidence  on  this  point  has  been 
presented  to  the  committee,  the  memorialist  relying  upon  the  assumption  that  this  was  a  matter  of 
public  notoriety. 

It  appears,  therefore,  that  Abbott  rests  his  claim  to  the  seat  solely  upon  what  he  assumes  to  be  the 
legal  result  of  the  conceded  ineligibility  of  Vance,  who,  although  receiving  a  majority  of  the  votes,  is  not 
entitled  to  take  the  oath  of  office  or  hold  the  seat.     He  assumes  that  it  is  a  conclusion  of  law  that  if  the 

'  Journal,  p.  1026;  Globe,  p.  4519. 

^Election  Cases,  Senate  Document  No.  11,  special  session,  Fifty-eighth  Congress,  p.  396. 

^  Second  session  Forty-eighth  Congress,  Senate  Report  No.  58. 


§  463  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  479 

candidate  who  has  receivea  the  hignest  number  of  votes  is  ineligible  and  that  ineligibility  was  known 
to  those  who  voted  for  him  before  casting  their  votes,  that  the  votes  so  cast  for  him  are  void,  and  should 
be  considered  as  nullities  and  as  though  they  never  had  been  cast;  and  consequently  the  candidate 
receiving  the  next  highest  number  of  votes  is  elected. 

In  support  of  this  view  of  the  case  the  memorialist  has  called  the  attention  of  the  committee  to  a 
large  number  of  English  authorities  bearing  on  this  question.  While  the  committee  make  no  question 
as  to  the  general  tenor  of  the  decisions  to  which  attention  has  been  called,  yet  it  is  evident  that  these  are 
based  upon  a  verj'  different  rule  from  that  adopted  in  our  country.  To  show  that  this  rule  is  different, 
the  committee  would  refer  to  the  following  authorities,  which  are  cited  in  the  very  able  report  of  Mr. 
Dawes  from  the  Committee  on  Elections,  in  the  case  of  Smiths.  J.  Y.  Brown  (Report  of  Committees,  No.  11 
second  session  Fortieth  Congress.)    *    *    * 

After  citing  the  authorities  in  favor  of  seating  a  minority  candidate,  when  an 
election  had  been  made  after  due  notice  of  disabiUties,  the  report  continues: 

But  is  such  a  principle  applicable  in  a  government  based  upon  the  theory  that  the  power  emanates 
from  the  people?  In  the  British  Government  the  cai^e  is  exactly  the  reverse,  as  there  the  theory  is  that 
the  power  originates  with  the  monarch,  and  the  privileges  allowed  the  people  to  select  representatives 
are,  under  that  theory',  considered  as  conceded  and  not  as  inherent  rights.  But  this  Government  rests 
upon  an  entirely  different  basis.  Here  the  power  originates  with  the  people,  and  that  which  the  Govern- 
ment is  authorized  to  exercise  is  conceded  by  the  people.  The  right  to  designate  who  shall  exercise  this 
power  has  never  been  delegated.  The  method  by  which  this  choice  shall  be  made  known  consistent 
with  this  theory  can  never  be  otherwise  than  by  giving  the  majority  or  plurality  the  right  to  decide. 
Any  attempt  to  restrict  the  right  of  the  voter  is  an  attempt  to  invade  that  right;  therefore  the  theory  that 
casting  a  vote  knowinglj-  for  an  ineligible  candidate  is  in  the  nature  of  a  crime  which  may  be  punished 
by  ignoring  the  act  of  the  majority  and  recognizing  the  act  of  the  minority  is  in  direct  conflict  with 
that  most  sacred  right  which  the  people  of  this  Government  have  always  guarded  with  jealous  care. 
Such  a  rule  is  consistent  with  the  theorj'  of  the  British  Government,  as  it  affords  one  means  of  preventing 
the  power  from  passing  into  the  hands  of  the  people;  but  it  is  directly  at  variance  with  the  theory  of  our 
Government,  as  it  affords  one  means  by  which  that  right  which  the  people  have  of  selecting  their  repre- 
sentatives may  be  abridged. 

While,  therefore,  the  general  tenor  of  the  English  authorities  to  which  he  refers  us  is  admitted  to  be 
as  claimed  by  the  memorialist,  yet  we  do  not  conceive  such  a  rule  to  be  applicable  to  and  consistent  with 
the  political  institutions  of  the  United  States,  where  the  right  of  the  majority  to  govern  and  the  Govern- 
ment is  based  upon  the  consent  of  the  governed  is  one  of  the  first  political  lessons  to  be  learned. 

There  is  also  another  very  strong  reason  why  the  English  authorities  relied  upon  by  the  memorialist 
are  not  applicable  in  the  present  case,  even  if  the  spirit  and  fundamental  idea  of  our  institutions  were 
insufficient  to  show  this. 

The  third  section  of  the  fourteenth  amendment  of  the  Constitution,  which  imposes  the  disabilities 
in  question,  also  contemplates  and  provides  for  the  removal  thereof  by  Congress.  There  is  no  such 
feature  in  the  English  law.  The  English  cases  are,  therefore,  based  upon  a  very  different  state  of  facts 
from  those  that  exist  in  this  country,  and  are  not  precedents  for  this  case. 

It  is  difficult  to  conceive  how  the  Constitution  could  grant  authority  to  Congress  to  remove  the 
disabilities  under  which  an  individual  who  has  been  elected  is  laboring,  and  allow  him  to  take  his  seat 
as  a  Member,  and  yet  at  the  same  time  embrace  the  idea  that  such  an  election  is  wholly  void  and  the 
votes  cast  for  him  nullities.  Yet  Congress  by  its  action  in  numerous  instances  has  given  the  first  con- 
struction to  this  clause  of  the  Constitution,  and  if  the  memorialist  in  this  case  shall  be  admitted  to  his 
seat  the  Senate  will  have  to  give  the  second  construction. 

After  citing  at  length  the  judicial  decisions  and  legislative  cases  against  the 
English  theory,  the  report  continues: 

But  suppose  that  it  is  admitted  that  the  English  rule  is  applicable  here,  do  the  facts  in  this  case 
bring  it  within  that  rule?  Were  the  votes  for  Vance  cast  in  willful  obstinacy  for  a  candidate  the  voters 
knew,  or  had  good  reason  to  believe,  would  not  be  entitled  to  take  his  seat?  The  memorialist  avers 
that  the  fact  that  Vance  was  known  to  be  ineligible  is  not  controverted.     That  his  ineligibility  was  a 


480 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§463 


matter  of  public  notoriety  in  North  Carolina  is  doubtless  true,  and  that  it  was  known  to  most  if  not  all 
of  the  members  of  the  legislature  is  quite  probable;  yet  no  evidence  has  been  presented  to  the  committee 
proving  this  fact,  or  that  notice  of  his  disqualification  was  given  at  the  time  the  vote  was  taken. 

Let  us  even  go  one  step  further,  and  suppose  that  the  evidence  on  this  point  was  clear  and  explicit; 
are  we  not  justified  in  believing  that  those  who  voted  for  Vance  did  so  in  good  faith,  believing  that  his 
disabilities  would  be  removed  after  the  election  by  the  action  of  Congress,  basing  this  presumption  on  the 
precedents  which  liad  recently  been  set  in  similar  cases?  Nor  is  this  by  any  means  an  improbable 
hypothesis,  but  accords  much  better  with  the  facts  presented  to  the  committee  than  the  hypothesis 
that  the  votes  given  for  Vance  were  cast  in  "willful  obstinacy"  for  a  candidate  they  knew  would  not  be 
admitted  to  his  seat.  If  they  were  given  under  the  impression  that  these  disabilities  would  be  removed, 
then,  although  unavailing,  they  can  not  be  rejected  from  the  count.  And  the  committee  would  again 
refer  to  the  report  of  tlie  committee  in  the  case  of  Yulee  v.  Mallory,  of  Florida,  1852. 

*  ****** 

Under  the  English  rule  it  is  the  fact  that  the  voters  knowingly  and  purposely  throw  away  their 
votes  that  lays  the  foundation  for  saying  they  assent  to  the  election  of  the  minority  man.  But  no  such 
purpose  can  be  predicated  of  the  legislature  of  North  Carolina.  They  did  not  know  that  their  votes 
for  Vance  would  be  thrown  away.  They  did  not  purposely  throw  them  away,  because  Congress  had 
in  numerous  cases  previously  removed  disabilities  of  a  similar  character  from  those  elected  and  allowed 
them  to  hold  their  offices.  Nearly  all  of  the  officers  elected  in  this  State  in  1868  had  their  disabilities 
removed  by  the  act  of  June,  1868,  and  were  allowed  by  virtue  thereof  to  enter  upon  and  discharge  the 
functions  of  their  respective  offices. 

The  same  act  removed  the  disabilities  of  a  large  number  of  persons  elected  in  Alabama  in  February, 
1868,  and  at  the  close  of  the  section  contains  this  sweeping  clause: 

"And  also  all  officers-elect  at  the  election  commenced  the  4th  day  of  February,  1868,  in  said 
State  of  Alabama,  and  who  have  not  publicly  declined  to  accept  the  offices  to  which  they  were  elected." 
(15  Stat.  L.,  366,  2.) 

These  were  certainly  sufficient  to  raise  in  the  minds  of  the  members  of  the  legislature  of  North 
Carolina  who  voted  for  Vance  the  belief  that  his  disabilities  would  be  removed  and  that  he  would  be 
allowed  to  take  his  seat.  In  fact,  they  had  good  right  to  believe  that  this  was  the  rule,  and  the  opposite 
the  exception,  especially  where  the  persons  so  elected  were  known  to  favor  the  restoration  of  order  and 
obedience  to  law. 

Again,  it  may  be  fairly  argued  that  the  fourteenth  amendment  to  the  Constitution  did  not  disqualify 
Vance  to  be  elected,  but  only  to  hold  the  office  of  Senator  in  case  his  disability  should  not  be  removed. 
Upon  this  interpretation  his  election  was  voidable  only,  and  not  void,  and,  as  a  consequence,  Abbott 
was  not  elected.  But  even  if  this  interpretation  is  erroneous,  it  is  one  the  legislature  of  North  Carolina 
might  (and  as  nothing  to  the  contrary  is  shown,  we  are  to  presume  did)  honestly  entertain  (especially  in 
view  of  the  action  of  Congress  above  referred  to),  and  if  they  elected  Vance  under  a  mistake  in  law,  his 
election  was  not  void,  but  only  voidaljle. 

Although  the  committee  have  referred  to  the  decisions  of  the  courts  and  legislative  bodies  of  this 
country  bearing  upon  this  ease,  the  tenor  of  which  is  believed  to  be  decidedly  adverse  to  the  claim  of  the 
memorialist,  yet  this  appears  unnecessary,  as  a  careful  examination  of  the  act  of  Congress  of  July  25, 
1866  (which  has  already  been  alluded  to  on  one  point),  when  applied  to  the  facts  in  this  case,  would 
seem  to  be  an  effectual  bar  to  the  claim  of  the  memorialist. 

The  report  then  cites  this  act,  which  in  terms  requires  the  election  of  a  Senator 
by  majority  vote,  and  concludes: 

It  is,  moreover,  evident  from  the  very  wording  of  this  act  that  Congress  did  not  even  contemplat3 
the  possibility  of  an  election  by  a  minority  under  any  circumstances,  but  by  this  act  imply  the  opposite. 

As  to  another  question  the  report  holds: 

It  has  been  suggested  that  there  is  a  distinction  in  respect  to  the  operation  of  the  rule  insisted  on 
by  the  memorialist  between  a  popular  election,  under  our  liberal  system  of  suffrage,  for  a  Member  to  the 
House  of  Representatives  by  ballot  and  an  election  of  a  Senator  by  viva  voce  vote  of  the  members  of  a 
legislature. 


f. 


§  463  THK  OATH  AS  RELATED  TO  QUALIFICATIONS.  481 

Your  committee  are  inclined  to  think  this  is  correct,  but  that  the  distinction  bears  against  the 
claim  of  the  memorialist  instead  of  in  favor  of  it. 

The  number  of  persons  entitled  to  vote  at  a  popular  election  is  not  fixed  and  definite,  and  hence 
it  is  impossible  to  have  a  quorum  or  anything  answering  thereto.  There  is  no  power  to  compel  attendance. 
This  is,  and  necessarily  mixst  be,  wholly  voluntary;  therefore  it  is  necessary  that  those  attending  should 
have  the  right  to  elect  where  the  election  is  free,  and  are  prevented  from  attending  by  force,  intimida- 
tion, or  fraud.  If  a  candidate  receiving  the  majority  is  disqualified,  and  the  votes  cast  for  him  are 
declared  nullities  (as  claimed  by  the  memorialist),  the  remaining  votes  are  as  effectual  to  elect  as  if  every 
voter  of  the  district  had  been  present;  and  if  those  who  voted  for  the  candidate  receiving  the  majority 
had  not  been  present  at  all,  the  election  nevertheless  would  have  been  valid.  But  the  rule  is  wholly 
difierent  in  legislative  bodies.  The  number  is  fixed  and  definite,  a  quorum  can  be  and  is  required  to 
act,  and  the  presence  of  a  less  number  is  not  effectual.  Had  but  the  32  who  voted  for  Abbott  been 
present  in  the  house  at  the  time  the  vote  was  cast,  we  do  not  suppose  anyone  would  contend  that  he  had 
even  a  shadow  to  base  his  claim  upon;  yet  this  number  would  be  sufiicient  to  elect  in  a  district  of  1,000 
voters  if  no  others  voted.  We  therefore  coincide  in  the  view  that  there  is  a  difference,  and  that,  even 
if  the  English  rule  was  applicable  in  the  case  of  an  election  of  a  Member  to  the  House  of  Repre- 
sentatives, it  would  by  no  means  follow  that  it  was  applicable  to  the  election  of  a  Senator  where  the 
number  voting,  of  the  votes  counted,  is  less  than  a  quorum. 

Your  committee,  therefore,  after  a  full  hearing  of  the  case  and  examination  of  the  authorities,  come 
to  the  conclusion  that  the  Hon.  Joseph  C.  Abbott,  of  North  Carolina,  is  not  entitled  to  a  seat  in  the  United 
States  Senate,  and  recommend  the  adoption  of  the  following  resolution: 

Resolved,  That  Joseph  C.  Abbott,  not  having  received  a  majority  of  the  votes  cast  by  the  North 
Carolina  legislature  on  the  second  Tuesday  in  November,  1870,  for  the  office  of  Senator  of  the  United 
States,  is  not  entitled  to  a  seat  in  said  United  States  Senate  as  such  Senator. 

Mr.  Matt  H.  Carpenter,  of  Wisconsin,  on  behalf  of  himself  and  Mr.  B.  F.  Rice, 
of  Arkansas,  submitted  minoritj-  views,  in  which  they  say: 

Had  Vance  beenqualified  to  serve,  there  would  be  no  question  as  to  his  right.  But  hewas  disquali- 
fied by  the  fourteenth  amendment  to  the  Constitution  of  the  United  States,  for  the  reason  that  he  had 
been  a  Member  of  the  Congress  prior  to  the  rebellion,  and,  as  such  Member,  had  taken  an  oath  to  support 
the  Constitution  of  the  United  States,  and  during  the  rebellion  he  had  acted  as  colonel  in  the  rebel 
army,  and  taken  an  oath  of  allegiance  to  the  so-called  Confederate  States  of  America;  and  he  had  acted 
as  governor  of  the  rebel  State  of  North  Carolina  from  August,  1862,  to  April,  1865;  and  this  disquali- 
fication was  notorious — known  to  all  the  members  of  the  legislature  at  the  time  of  his  election,  and  to  all 
the  people  of  that  State.  The  fact  that  Vance  was  known  to  the  members  of  the  legislature  who  voted 
for  hini  for  Senator  to  be  disqualified  is  not  controverted.  On  the  contrarj'.  General  Ransom,  who 
claims  to  have  been  subsequently  elected,  upon  the  resignation  of  Vance,  was  heard  before  your  com- 
mittee, and  frankly  admitted  that  the  fact  that  Vance  was  disqualified  was  well  known  to  all  the 
members  of  both  houses  of  the  legislature  at  the  time  of  his  pretended  election. 

It  is  admitted  on  all  hands  that  the  election  which  was  held,  as  before  stated,  conferred  no  right 
upon  Vance  to  a  seat  in  this  body;  but  Abbott,  who  was  qualified,  and  who  received  the  next  highest 
number  of  votes  cast,  and  a  majority  of  all  the  votes  cast  for  qualified  candidates  in  both  houses,  insists 
that  he  was  elected  at  said  election,  and  is  now  entitled  to  the  seat;  and  this  is  the  question  to  be 
determined. 

The  minority  views  then  go  on  to  cite  the  statute  governing  the  election  of  a 
Senator  by  the  legislature,  and  continues: 

It  will  be  perceived  that  this  act  does  not  attempt  to  determine  what  shall  be  a  quorum  of  each 
house,  but  leaves  that  question  to  be  determined  by  the  constitution  and  laws  of  the  State.  By  the 
constitution  of  North  Carolina  it  is  provided : 

"Neither  house  shall  proceed  upon  public  business  unless  a  majority  of  all  the  members  are  actually 
present."- 

5994— VOL  1—07 31 


482  PRECEDENTS   OF   THE   HOUSE   OF   EEPEESENTATIVES.  §'  463 

It  is  not  necessary  that  all  the  members  should  participate  in  the  transaction  of  public  business  by 
either  house,  but  merely  that  a  majority  of  all  the  members  should  actually  be  present  in  each  house. 
But  in  providing  for  an  election  by  the  joint  assembly  of  the  two  houses  the  act  of  Congress  does  provide 
that  in  such  election — 

"The  person  having  a  majority  of  all  the  votes  of  the  said  joint  assembly,  a  majority  of  all  the 
members  elected  to  both  houses  being  present  and  voting,  shall  be  declared  duly  elected." 

The  difference  in  these  two  provisions  is  not  one  of  phraseology  merely,  but  of  substance.  In  the 
election  by  the  two  houses  separately  in  North  Carolina,  if  a  majority  of  the  members  elected  to  each 
house  are  actually  present,  the  person  who  shall  receive  the  highest  number  of  votes  cast,  though  that 
may  be  less  than  half  of  a  constitutional  quorum,  is  to  be  declared  elected;  but  in  the  election  by  the 
joint  assembly  it  is  not  enough  that  a  candidate  should  receive  a  majority  of  all  the  votes  cast,  but  he 
must  receive  a  majority  of  "all  the  votes  of  the  said  joint  assembly — a  majority  of  all  the  members  elected 
to  both  houses  being  present  and  voting. ' '  These  provisions  are  so  materially  different  that  the  variation- 
can  not  be  regarded  as  accidental,  and  the  reason  for  the  distinction  is,  no  doubt,  that  the  act  intended 
to  leave  the  matters  of  a  quorum  and  the  proceedings  of  the  houses  acting  separately  to  be  regulated  by 
the  constitution  and  laws  of  the  State,  but  the  act  intended  to  provide  what  should  be  necessary  to 
constitute  a  quorum  and  make  an  election  in  the  joint  assembly — a  body  created  by  the  act,  and 
whose  proceedings  might  not  be  regulated  by  the  constitution  of  the  State. 

It  is  only  necessary  in  this  case  to  consider  the  effect  of  the  proceedings  in  the  two  houses  on  the 
first  day,  because  it  is  upon  those  proceedings  Mr.  Abbott  founds  his  claim.  If  he  was  legally  elected 
on  that  day  the  subsequent  proceedings  by  the  joint  assembly  could  not  affect  his  right,  nor  can  such 
claim  be  affected  by  any  subsequent  proceedings  of  the  legislature.  His  claim  depends  upon  the  legal 
effect  of  what  took  place  in  the  two  houses  on  the  first  day  of  the  election. 

It  is  insisted  that  the  provisions  of  the  act  in  relation  to  election  by  the  two  houses  and  by  the 
joint  assembly  are  substantially  the  same,  because  it  is  provided  by  the  act  that — 

"Each  house  shall  openly,  by  a  viva  voce  vote  of  each  member  present,  name  one  person  for 
Senator,  etc.,  and  the  name  of  the  person  so  voted  for  who  shall  have  a  majority  of  the  whole  number 
of  votes  cast  in  each  house  shall  be  entered  on  the  journal,"  etc. 

And  hence  it  results  that  to  be  elected  on  the  first  day  the  person  must  have  a  majority  of  all  the 
members  present.  But  this  construction,  which  is  equivalent  to  saying  that,  to  make  an  election,  every 
member  must  vote,  would  put  it  in  the  power  of  a  single  member  of  the  legislature  to  defeat  an  election 
on  that  day.  This  could  not  have  been  intended,  and  that  clause  must  be  regarded  as  relating  merely 
to  the  manner  of  voting;  and  if  a  number  of  votes  are  cast  for  a  qualified  candidate,  and  the  other  mem- 
bers refuse  to  vote  at  all,  then  the  person  "who  shall  have  a  majority  of  the  whole  number  of  votes  cast'' 
must  be  deemed  elected. 

The  provision  concerning  the  joint  assembly  is  materially  different.     There  it  is  provided: 

"The  joint  assembly  shall  then  proceed  to  choose,  by  a  viva  voce  vote  of  each  member  present,  a 
person  for  the  purpose  aforesaid,  and  a  person  having  a  majority  of  all  the  votes  of  the  said  joint  assembly, 
a  majority  of  all  the  members  elected  to  both  houses  being  present  and  voting,  shall  be  declared  duly 
elected." 

The  clause  "a  person  having  a  majority  of  all  the  votes  of  the  said  joint  assembly,  a  majority  of  all 
the  members  elected  to  both  houses  being  present  and  voting,"  undoubtedly  requires  that  to  make  an 
election  a  candidate  must  receive  a  number  of  votes  greater  than  half  of  the  majority  of  both  houses. 
The  difference  between  the  two  provisions  is  this:  If  a  majority  or  quorum  of  each  house  are  actually 
present  when  each  house  proceeds  to  the  election  on  the  first  day,  the  person  receiving  the  highest 
number  of  votes  cast  is  elected,  though  receiving  less  than  half  of  a  majority.  But  in  the  joint  assembly 
it  is  necessary  to  an  election  that  a  candidate  should  receive  the  votes  of  more  than  half  of  a  majority 
of  both  houses. 

It  is  a  well-established  rule  for  construing  statutes  that  every  clause,  phrase,  and  word  must  be 
deemed  to  have  been  added  to  the  statute  for  the  purpose  of  accomplishing  some  end  that  would  not  be 
accomplished  without  it. 

Applying  this  familiar  precept  to  the  statute  before  us,  it  must  be  held  that  the  provision  in  r^ard 
to  an  election  by  the  joint  assembly  requiring  a  person  to  receive  "a  majority  of  all  the  votes  of  the  said 
joint  assembly,"  which  is  not  found  in  the  act  in  relation  to  an  election  by  the  two  houses  acting 


I  463  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  483 

separately,  was  added  for  the  purpose  of  requiring  in  one  case  what  was  not  necessary  in  the  other.  It 
may  be  said  that  the  same  thing  ought  to  be  required  in  the  one  case  as  in  the  other,  and  that  the  act  of 
Congress  ought  not  to  be  so  construed  as  to  permit  an  election  by  the  minority  in  one  case  and  to  forbid 
it  in  the  other.  But  the  answer  to  this  is  obvious.  Before  the  passage  of  this  act  the  States  elected 
Senators  by  various  methods;  some  by  a  joint  assembly  of  both  houses  and  some  by  the  action  of  the 
two  houses  separately.  In  those  States  which  elected  by  the  latter  method  the  houses  might  sometimes 
disagree,  and  thus  defeat  an  election.  It  was  the  manifest  intention  of  the  act  of  Congress  to  afford  to  a 
legislature  the  opportunity  of  electing  a  Senator  by  the  separate  action  of  the  houses,  and  in  doing  so 
to  leave  the  whole  detail  of  the  election  to  be  regulated  by  the  parliamentary  usage  of  the  State.  But 
in  providing  for  an  election  by  the  joint  assembly,  a  method  not  in  use  in  some  of  the  States,  it  was 
necessary  to  provide  what  should  be  a  quorum,  and  what  should  be  necessary  to  an  election. 

As  the  act  of  Congress  does  not  affect  the  question  under  consideration,  resort  must  be  had  to  the 
precedents  and  authorities,  English  and  American. 

It  is  admitted  that  when  the  electors  vote  for  a  disqualified  candidate,  in  ignorance  of  his  disquali- 
fication, the  election  is  void,  and  must  be  remitted  to  the  elective  body.  But  it  is  insisted  that  where, 
as  in  this  case,  the  electors  (the  members  of  the  two  houses)  had  full  knowledge  of  the  disqualification, 
votes  cast  for  such  person  are  considered  as  thrown  away,  and  the  qualified  candidate  receiving  the  next 
highest  number  of  votes,  and  a  majority  of  all  votes  cast  for  qualified  candidates,  is  elected.  If  this 
proposition  is  well  grounded,  Mr.  Abbott  is  entitled  to  a  seat;  and  this  is  the  precise  question  upon 
which  we  are  to  consult  the  authorities. 

Mr.  Abbott  furnished  to  your  committee  a  printed  brief  containing  references  to  and  quotations 
from  the  decisions  upon  this  question  from  the  earliest  times,  which  quotations  are  embodied  in  this 
report.     *    *    * 

After  citing  many  decisions  referred  to  in  the  brief,  especially  the  case  of  Yulee, 
the  views  of  the  minority  proceed: 

It  was  strongly  contended  before  your  committee  that  the  case  under  consideration  falls  fairly 
within  this  equitable  principle,  because  it  was  said  that  all  the  State  ofHcers  and  judges  of  North  Caro- 
lina had  been  elected  while  under  disability  imposed  by  the  fourteenth  amendment,  and  Congress  had 
subsequent  to  their  election  removed  their  disabilities  and  enabled  them  to  hold  their  oflSces;  and 
your  committee  were  referred  to  the  act  of  June  25,  1868  (15  Stat.  L.,  p.  366),  by  which  "all  officers 
elected  at  the  election  commencing  the  4th  day  of  February,  1868,  in  the  State  of  Alabama,"  and  who 
had  not  publicly  declined  to  accept  the  offices  to  which  they  were  elected,  were  relieved  of  their  disa- 
bilities. From  these  facts  it  was  contended  that  the  members  of  the  legislature  who  voted  for  Vance 
might  well  believe,  and  it  was  said  that  in  fact  they  did  believe,  that  Congress  would  relieve  Vance  of 
his  disability  and  that  he  would  be  admitted  to  his  seat  in  the  Senate. 

This  suggestion  has  some  force,  but  a  slight  examination  will  show  that  it  is  rather  plausible  than 
sound.  In  the  first  place,  the  case  bears  no  resemblance  to  that  supposed  in  the  report  in  Yulee's 
case,  because  here  there  was  no  misapprehension  as  to  any  fact  then  existing.  If  the  electors  had  sup- 
posed that  Vance  was  not  disqualified,  though  in  fact  he  was,  or  had  they  believed  that  an  act  had 
already  passed  Congress  relieving  him  from  his  disability,  though  such  was  not  the  case,  then  the  elect- 
ors would  have  acted  under  a  misapprehension  and  honestly  entertained  the  belief  that  Vance  was 
eligible.  But  such  is  not  the  case.  Every  elector  who  voted  for  Vance  knew  that  he  was  disqualified 
by  the  fourteenth  amendment  and  that  his  disability  had  not  been  removed.  Every  elector  therefore 
knew  when  he  gave  his  vote  for  Vance  that,  as  the  case  then  stood,  such  vote  was  thrown  away.  As 
well  might  a  man  claim  exemption  from  the  penalty  imposed  by  a  statute  upon  the  ground  that  although 
he  knew  he  was  violating  its  provisions  he  expected  the  legislature  would  repeal  it.  It  was  the  duty 
of  that  legislature  to  elect  a  Senator  who,  in  virtue  of  that  election  and  without  the  aid  of  any  other 
government,  would  be  authorized  to  demand  his  seat  as  a  Senator.  To  elect  a  disqualified  candidate 
and  then  refer  it  to  Congress  to  remove  his  disqualifications  or  not  is  to  transfer  the  election  from  the 
legislature  to  Congress.  In  such  case  the  legislature  would  in  effect  be  nominating  a  Senator  and  sub- 
mitting it  to  Congress  to  determine  whether  or  not  he  should  be  a  Senator.  Put  the  case  in  the  strongest 
possible  light  for  Vance,  still  it  must  be  admitted  that  the  electors  who  voted  for  him  knew  that  as  the 
case  then  stood  their  votes  were  being  thrown  away;  that  without  the  action  of  Congress,  which  might 
or  might  not  be  interposed,  the  election  was  in  violation  of  the  Constitution;  and  up  to  the  time  when 


484  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  463 

Abbott  claimed  his  seat  in  this  body,  and  up  to  the  present  hour,  the  votes  given  for  Vaneo  remain 
wholly  inoperative,  void,  blanks  in  the  law,  thrown  away  for  every  legal  purpose.  Mistakes  which 
equity  may  relieve  against  are  mistakes  in  regard  to  existing  facts — not  oversangiiine  and  unfounded 
hopes  looking  to  the  futiu'e  for  realization  and  accomplishment. 

In  the  second  place,  the  legislation  of  Congress  in  regard  to  the  organization  of  the  reconstructed 
governments  of  the  Southern  States  furnishes  no  precedent  to  bind  the  Senate  in  determining  the  elec- 
tion of  its  own  Members.  Those  State  governments  could  not  be  organized  without  relieving  the  disa- 
bilities of  those  who  had  been  elected.  Congress  was  therefore  compelled  to  do  so  or  abandon  those 
States  to  anarchy  or  remit  them  to  military  rule.  To  quote  the  language  of  a  great  statesman  on  another 
subject,  "A  doubtful  precedent  should  not  be  followed  beyond  its  necessity."  No  such  necessity 
exists  in  regard  to  the  Senate  of  the  United  States,  and  therefore  the  electors  had  no  right  to  assume 
that  Congress  would  do  in  this  case,  where  there  was  no  necessity  for  it,  what  it  had  been  compelled  to 
do  in  the  other  cases  referred  to.  And  in  no  case  has  a  Senator  elected  under  disabilities  imposed  by 
the  fourteenth  amendment  been  relieved  of  such  disability  and  permitted  to  take  his  seat. 

Several  decisions  of  the  House  of  Representatives  have  been  referred  to  which  are  supposed  to  be 
inconsistent  with  the  principle  here  asserted .  But  it  is  believed  that  in  none  of  those  cases  was  it  estab- 
lished that  the  electors  knew  of  the  disqualification  of  the  candidate  voted  for;  and  in  the  very  able 
report  of  Mr.  Dawes,  from  the  Committee  on  Elections  (Report  of  Committees,  11,  second  session  Fortieth 
Congress),  which  is  much  relied  upon,  it  is  expressly  stated  that  this  point  was  not  involved,  because 
it  did  not  appear  that  the  electors  had  such  notice. 

But  there  are  many  reasons  for  declining  a  critical  examination  of  the  decisions  of  the  other  House 
in  regard  to  the  election  of  its  Membei-s.  By  the  Constitution  each  House  is  made  the  judge  of  the 
elections,  retiu-ns,  and  qualifications  of  its  Members.  It  would  therefore  be  improper  for  the  Senate — 
certainly  indelicate  for  a  committee  of  the  Senate — to  criticise  the  actions  or  decisions  of  the  House; 
and  it  would  be  subversive  of  the  Constitution,  because  it  woidd  practically  make  the  House  of  Repre 
sentatives  not  only  the  judge  of  the  election,  returns,  and  qualifications  of  its  own  Members,  but  also  of 
the  Members  of  this  House,  if  the  Senate  were  to  follow  as  precedents  the  decisions  of  the  House  in 
conflict  with  its  own  opinions. 

Again,  there  is  much  force  and  reason  in  the  distinction  made  by  the  court,  in  Commonwealth  v. 
Cluley  (56  Penn.  St.,  p.  274),  between  a  popular  election,  under  our  system  of  almost  universal  suffrage, 
for  a  Member  of  the  House  of  Representatives,  by  ballot,  and  an  election  of  a  Senator  by  a  viva  voce 
vote  of  the  members  of  a  legislature.  And  it  might  well  be  that  the  House  of  Representatives  should 
establish  one  rule  appropriate  to  the  election  of  its  Members  and  the  Senate  a  different  rule  in  regard 
to  the  election  of  its  Memliers.     The  difference  between  the  two  cases  would  justify  different  rules. 

In  a  popular  election,  by  baUot,  for  a  Member  of  the  House  of  Representatives,  where  the  voters 
are  numerous  and  scattered  over  a  considerable  territory,  it  would  be  impossible  to  ascertain  whether 
or  not  the  electors,  or  enough  of  them  to  change  the  result,  had  knowledge  of  the  disqualification  of  the 
candidate.  Besides,  voting  by  baUot  includes  the  right  of  the  elector  to  conceal  the  fact  for  which 
candidate  he  voted.  This  is  his  secret,  which  can  not  be  wrested  from  him  even  in  a  court  of  justice. 
And  they  who  voted  against  the  successful  candidate,  yet  failed  to  defeat  him  at  the  polls,  might  attempt 
to  accomplish  the  same  end  by  pretending  to  have  voted  for  him  with  knowledge  of  his  incapacity. 
Even  perjury  in  such  case,  should  a  voter  voluntarily  swear  falsely  in  regard  to  it,  could  never  bo  detected 
and  punished.  Such  a  principle  applied  to  such  elections  would  be  unsatisfactory,  often  incapable  of 
application,  and  always  a  temptation  to  frauds  and  perjuries,  which  might  be  committed  with  impunity. 
And  it  may  be  conceded  that,  in  determining  who  has  been  elected  at  such  popular  election  by  ballot, 
no  candidate  not  receiving  a  majority  of  all  votes  cast,  counting  blanks  and  ballots  for  disqualified 
candidates,  ought  to  be  declared  elected ;  and  that  the  decisions  of  the  House  of  Representatives,  as 
applied  to  the  election  of  its  own  Members,  ought  to  proceed  upon  a  different  principle  than  the  one 
here  contended  for. 

But  the  circumstances  which  may  well  induce  the  House  of  Representatives  to  depart  from  the 
ancient  rule  and  practice  in  determining  the  election  of  its  Members  do  not  exist  in  relation  to  the 
election  of  Senators.  Senators  are  elected  by  a  small  number  of  persons,  the  number  fixed  by  law, 
who  are  compelled  to  vote  viva  voce.  Their  votes  are  matters  of  record,  and  the  record  discloses  who 
voted  for  and  who  voted  against  the  disqualified  candidate.  'Wliether  these  electors  had  notice  or  not 
of  the  ineligibility  of  a  candidate  is  easily,  and  may  be  definitely  and  certainly,  ascertained.     There 


§  463  THE  OATH  AS  RELATED  TO  QUALIFICATIONS.  485 

is  no  inconvenience,  no  opportunity  for  fraud,  no  temptation  to  perjury,  in  the  application  of  the 
principle  here  contended  for  to  such  an  election.  Every  reason  that  can  be  given  for  excluding  the 
application  of  this  principle  to  popular  elections  by  ballot  sustains  its  application  to  the  election  of  a 
Senator  by  the  viva  voce  vote  of  the  members  of  the  legislature;  and  it  is  worthy  of  remark  that  the 
rule  of  parliamentary  and  common  law.  which  is  established  by  an  unbroken  current  of  decisions  in 
England,  had  reference  to  elections,  not  by  ballot,  but  viva  voce.  That  method  of  election  gave  rise  to 
the  nde,  and  no  reason  has  been  given,  none  suggests  itself,  for  departing  from  it  now  in  regard  to 
such  elections.  And  it  should  also  be  observed  that  in  every  case  in  the  American  courts  of  law  where 
the  judges  have,  obiter  dictum,  declared  that  the  minority  candidate  was  not  elected,  not  only  was 
the  element  of  knowledge  of  the  disqualification  wanting,  but  the  election  was  by  ballot  and  not  viva 
voce.  Not  a  dictimi  of  any  American  court  or  American  law  writer  of  established  reputation  has 
been  cited  to  your  committee,  and  it  is  believed  that  none  exist,  which  disapproves  of  the  principle 
as  applicable  to  elections  viva  voce. 

In  the  report  of  the  majority  it  is  said  that  this  principle  belongs  to  a  government  where,  as  in 
England,  the  right  to  vote  has  been  granted  or  conceded  as  a  boon  or  franchise  by  the  monarch  to  his 
subject:  and  hence  to  vote  for  a  candidate  known  to  be  disqualified  is  a  crime.  But  that  in  this  country 
voting  is  the  inherent  right  of  every  citizen;  and  Roe  on  Elections,  page  256,  is  cited  as  sustaining  this 
assertion  in  relation  to  elections  in  England.  The  author  referred  to.  so  far  from  sustaining  such  a  dis- 
tinction, does  not  allude  to  it.  And  it  is  believed,  for  many  reasons,  that  no  such  distinction  can  be 
maintained. 

1.  The  great  charter  in  England  was  not  a  concession  in  the  sense  of  a  grant  of  rights.  It  was  an 
admission  that  certain  rights  belonged  to  Englishmen,  and  always  had  belonged  to  them.  The  rights 
there  admitted  to  exist  were  the  inherent  rights  of  Englishmen.     Blackstone  says: 

"The  great  charter  'contained  very  few  new  grants,  but,  as  Sir  Edward  Coke  obser\-es,  was  for  the 
most  part  declarator^'  of  the  principal  grounds  of  the  fundamental  laws  of  England.' " 

The  great  Bill  of  Rights  delivered  by  the  Lords  and  Commons  to  the  Prince  and  Princess  of  Orange 
February  13,  1688,  and  afterwards  enacted  in  Parliament,  after  enumerating  the  privileges  of  the  people, 
concludes  in  the  following  strain  of  ancient,  manly  eloquence: 

"And  they  do  claim,  demand,  and  insist  upon  all  and  singular  the  premises,  as  their  undoubted 
rights  and  liberties." 

And  the  act  of  Parliament  recognizes — 

"All  and  singular  the  rights  and  liberties  asserted  and  claimed  in  the  said  declaration  to  be  true, 
ancient,  and  indubitable  rights  of  the  people  of  this  Kingdom." 

2.  The  right  of  voting  in  this  countrj'  is  not  an  inherent  right  of  the  citizen.  If  it  were,  women  as 
well  as  men  could  vote;  because  women  as  well  as  men  are  citizens  and  always  have  been  under  our 
Constitution:  and  ever>'  inherent  right  of  the  citizen  is  possessed  as  fully  and  may  be  exercised  as  freely 
by  the  female  as  the  male  citizen.  Our  popular  elections  are  participated  in  by  those  who  have  a  con- 
stitutional right  to  vote.  Their  right  to  vote  does  not  spring  merely  from  citizenship;  it  is  a  right  secured, 
limited,  and  regulated  by  the  Constitution  and  laws.  A  citizen  has  no  more  inherent  right  to  be  a  voter 
than  to  be  a  Senator.  The  citizen  may  vote  if  the  Constitution  and  laws  permit,  not  otherwise;  so  every 
citizen  may  be  a  Senator  Lf  duly  elected  and  qualified,  not  otherwise. 

3.  But  if  such  distinction  were  conceded  to  exist,  it  would  strengthen  the  conclusion  here  arrived 
at.  To  test  this  let  us  concede  that  the  Englishman  in  voting  is  exercising  not  an  inherent  right,  but  a 
franchise  delegated  to  him  by  the  Crown;  therefore  it  is  a  crime  for  him  to  vote  for  a  disqualified  candi- 
date, and  for  that  reason  his  vote  is  considered  as  thrown  away  and  the  next  highest  qualified  candidate 
is  to  be  considered  as  elected.  And  let  us  also  concede  that  at  a  popular  election  in  this  countrj'  the 
voter  exercises  an  inherent  right  of  citizenship:  and  hence,  if  he  votes  for  a  candidate  known  to  be  dis- 
qualified his  vote  is  not  thrown  away.  From  these  admissions  what  results?  Simply  this:  That  in  our 
popular  elections,  by  ballot,  for  a  Member  of  the  House  of  Representatives  the  principle  here  contended 
for  does  not  apply.  Very  well.  It  does  not  apply  upon  this  hj-pothesis,  because  the  voter  is  exercising 
an  inherent  right  and  not  a  delegated  power  when  he  casts  his  ballot.  Now,  if  this  distinction  be  well 
taken  does  not  everyone  perceive  that  the  principle  here  contended  for  must  apply  to  an  election  of 
Senators  by  the  members  of  a  legislature  who  in  that  election  are  exercising  a  delegated  power  and  not 
an  inherent  right?  The  members  of  the  legislature  in  electing  a  Senator  are  exercising  a  power  that  is 
delegated  in  a  double  sense.     The  power  to  elect  a  Senator  is  delegated  hy  this  Government — that  is, 


486 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


463 


by  the  Constitution  of  the  United  States — to  the  legislature  of  the  State;  and  the  people  elect  members 
of  that  legislature  who  are  among  other  things  to  exercise  this  power  of  electing  a  Senator.  It  will  not 
be  pretended  that  a  member  of  the  legislature  in  voting  for  a  Senator  is  exercising  an  inherent  right  of  a 
citizen,  and  all  must  admit  that  he  is  exercising  a  delegated  power;  so  that  the  very  argument  which 
exempts  the  election  of  Members  of  the  House  of  Representatives  from  the  operation  of  the  principle 
under  consideration  subjects  the  election  of  Senators  to  its  full  operation. 

It  has  also  been  urged  before  your  committee  that  bills  passed  by  Congress  to  relieve  disabilities  of 
Members  elected  to  the  House  of  Representatives  rest  upon  principles  inconsistent  with  the  con- 
clusions of  this  report.  To  this  two  answers  may  be  made:  (1)  The  proceedings  of  Congress  in  relation 
to  cases  of  election  while  reconstruction  of  the  late  rebel  States  was  in  progress  can  hardly  be  relied  upon 
as  settling  principles  by  which  either  House  of  Congress  ought  to  be  bound  in  times  of  peace.  The 
circumstances  under  which  such  legislation  was  had  were  exceptional  and  the  legislation  itself  ought 
not  to  stand  as  a  precedent.  (2)  The  bills  which  have  passed  were  bills  originating  in  the  House  of 
Representatives  concerning  Members  elected  to  that  House,  and  although  the  Senate  has  concurred  in 
the  enactment  of  such  laws  it  ought  not  to  be  regarded  as  settling  principles  by  which  the  Senate  must 
be  bound  in  determining  the  election  of  its  own  Members.  A\'henever  the  House  of  Representatives 
manifests  its  desire  to  seat  a  Member,  although  it  may  require  the  enactment  of  a  law  by  both  Houses 
to  accomplish  the  purpose,  still  the  Senate  in  concurring  in  such  enactment  may  be  regarded  as  extend- 
ing a  courtesy  to  the  House  of  Representatives  rather  than  settling  principles  which  will  bind  the  Senate 
in  relation  to  the  election  of  its  own  members.     *    *    * 

Therefore  it  is  submitted  that  upon  reason  and  authority  the  votes  cast  for  Mr.  Vance,  with  full 
knowledge  on  the  part  of  the  members  of  both  houses  of  the  legislature  that  he  was  disqualified  by 
the  Constitution  to  serve  in  this  body,  ought  to  be  considered  as  thrown  away;  and  that,  inasmuch  as  a 
majority  of  all  the  members  elected  to  each  house  were  "actually  present,"  the  election  was  legal,  and 
that  the  qualified  candidate  receiving  the  highest  number  of  votes,  and  a  majority  of  all  votes  cast  for 
qualified  candidates,  was  duly  elected.  It  is  conceded  that  majorities  have  a  constitutional  right  to 
govern  in  this  country;  but  it  is  not  conceded  that  even  the  majority  of  the  legislature  of  a  State  may 
morally  or  constitutionally  defeat  government  by  refusing  to  elect  Senators  to  serve  in  the  Senate  of 
the  United  States.  In  this  case  the  majority  had  a  right  to  elect  a  qualified  person  to  the  Senate;  but 
having  waived  their  right  by  voting  for  a  person  known  to  be  disqualified,  as  much  as  though  they  had 
refused  to  vote  at  all  or  had  voted  for  a  man  known  to  be  dead,  the  minority  who  complied  with  the 
Constitution  by  voting  for  a  qualified  candidate  may  well  be  held  to  have  expressed  the  will  of  the 
legislature.  If  the  majority,  being  called  upon,  will  not  vote  they  can  not  complain  that  the  election 
was  decided  by  those  who  did  vote,  though  a  minority  of  the  elective  body.  And  voting  for  a  person 
known  to  be  disqualified  is  not  voting.  Such  votes  are  void — no  votes;  and  the  highest  number  of 
votes  cast,  a  quorum  being  present,  must  effect  an  election. 

Therefore,  in  view  of  the  premises,  the  minority  of  your  committee  reconmiend  the  adoption  of  the 
following  resolution: 

"  Resolved,  That  Joseph  C.  Abbott  has  been  duly  elected  Senator  from  the  State  of  North  Carolina 
for  the  term  of  six  years,  commencing  on  the  4th  day  of  March,  1871.  and  that  he  is  entitled  to  a  seat 
in  the  Senate  as  such  Senator." 

The  reports  were  debated  at  length  in  the  Senate  on  April  11,  12,  15,  22,  and 
23,  1872,'  and  on  the  latter  day  the  motion  to  substitute  the  minority  resolution 
for  that  of  the  majority  was  disagreed  to — yeas  10,  nays  42.  Then  the  resolution 
reported  by  the  majority  was  agreed  to. 

'  Globe,  pp.  2387-2390, 2431-2434,  2676;  Appendix,  pp.  219-229,  245-257,  234-245,  272-279,  32»-^34. 


Chapter  XV. 

POLYGAMY  AND  OTHER  CRIMES  AS  DISQUALIFICATIONS. 


1.  Cases  of  Whittemore,  Connor,  and  Acklen.     Sections  464-466.' 

2.  The  polygamy  cases  of  1868,  1873,  and  1882.     Sections  467-473. 

3.  The  case  of  Brigham  H.  Roberts.     Sections  474-480. 

4.  The  Senate  case  of  Reed  Smoot.     Sections  481-483.- 

5.  Incidental  opinion  of  a  House  committee.     Section  484. 

464.  B.  F.  Wliitteinore,  being  reelected  to  the  same  House  from  which 
he  had  resigned  to  escape  expulsion  for  crime,  was  excluded  from  taking 
the  oath  and  his  seat. — On  June  18,  1870,'  the  Speaker  laid  before  the  House 
the  credentials  of  ilr.  B.  F.  Whittemore,  of  South  Carolina,  who  had  been  chosen  at  a 
special  election  to  fill  the  vacancy  caused  by  expulsion  proceedings  taken  by  the 
House  against  him  at  an  earUer  period  in  this  session.^  Mr.  John  A.  Logan,  of 
Illinois,  objected  to  the  administration  of  the  oath  to  Mr.  Wliittemore  on  the  ground 
that  he  had  disquaHfied  himself  for  being  a  Member  of  the  House. 

It  was  urged  that  the  credentials  should  be  referred  to  a  committee  for  examina- 
tion, and  the  subject  was  postponed  to  a  day  certain.  On  June  21  Mr.  Logan 
presented  this  resolution: 

Be  it  resolved,  That  the  House  of  Representatives  decline  to  allow  said  B.  F.  Whittemore  to  be 
sworn  as  a  Representative  in  the  Forty-first  Congress  and  direct  that  his  credentials  be  returned  to  him. 

Accompanying  this  resolution  was  a  preamble  reciting  the  facts  of  the  proceed- 
ings of  expulsion  against  Mr.  Whittemore  for  the  sale  of  appointments  at  the  Military 
Academy  and  the  fact  that  he  had  escaped  expulsion  by  resigning ;  and  that  he  had 
received  the  censure  of  the  House. 

Mr.  Logan,  in  advocating  the  resolution,  said  he  did  not  presume  that  the  Con- 
stitution contemplated  expulsion  for  any  mere  political  reasons,  or  for  anything 
except  a  violation  of  the  rules  of  the  House  or  an  infraction  of  some  existing  law. 
He  assumed  that  where  the  House  had  the  right  to  expel  for  violation  of  its  rules  or 
of  some  existing  law  it  had  the  same  power  to  exclude  a  person  from  its  body.  Mr. 
Logan  then  had  read  the  law  against  bribery',  for  violation  of  which  Mr.  Whittemore 
had  been  censured.  It  was  right  to  exclude  a  man  from  the  House  for  crime.  It  was 
this  feature  of  crime  which  distinguished  tliis  case  from  those  of  Messrs.  Giddings,  of 

'  Discussion  of  bribery  as  a  disqualification.     (Sec.  946  of  Vol.  II.) 

^Alleged  statutory  disqualifications.     (Sec.  955  of  Vol.  II.) 

^Second  session  Forty-first  Congress,  Journal,  pp.  1040,  1060;  Globe,  pp.  4588,  4669-^674. 

*  For  those  proceedings  see  Chapter  XLII,  of  this  work. 

487 


488  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   4fi5 

Oliio,  and  Brooks  and  Keitt,  of  South  Carolina,  wlio,  after  receiving  the  censure  of 
the  House,  had  resigned  their  seats,  and  after  reelection  had  been  admitted  to  the 
House.  The  case  of  Mr.  Matteson,  of  New  York,  who  had  been  censured,  was  also 
different,  because  he  had  returned  to  a  Congress  succeeding  that  in  which  he  had 
been  censured,  and  which  had  no  jurisdiction  of  the  offense  committed  against  its 
predecessor. 

Mr.  John  F.  Famsworth,  of  Illinois,  urged  that  grave  constitutional  questions 
were  involved,  and  that  the  matter  should  be  referred  to  a  committee  for  examina- 
tion.    He  quoted  the  Wilkes  case  to  illustrate  the  dangers  of  a  precedent  of  exclusion. 

The  resolution  offered  by  Mr.  Logan  was  adopted  by  a  vote  of  130  yeas  to  76 
nays. 

465.  The  Texas  election  case  of  Grafton  v.  Connor,  in  the  Forty-first 
Congress. 

In  1870  the  House  declined  to  exclude  John  C.  Connor,  who  possessed 
the  constitutional  qualifications  and  satisfactory  credentials,  but  whose 
moral  character  was  impeached. 

Statement  of  the  attitude  of  the  House  at  the  close  of  the  civil  war 
as  to  qualifications  other  than  those  prescribed  by  the  Constitution. 

A  military  order  has  been  accepted  as  credentials  of  Members  from 
a  reconstructed  State;  but  the  said  credentials  were  examined  by  a  com- 
mittee before  the  House  authorized  the  bearers  to  take  the  oath. 

On  March  30,  1870,'  a  message  from  the  President  announced  that  he  had 
approved  the  act  to  admit  the  State  of  Texas  to  representation  in  the  Congress  of 
the  United  States.  On  the  same  day  a  letter  was  presented  "from  the  secretary 
of  civil  affairs.  State  of  Texas,  inclosing  General  Orders,  No.  5,  headquarters  Fifth 
Military  District,  Texas,  giving  the  result  of  an  election  held  on  the  30th  of  Novem- 
ber and  1st,  2d,  and  3d  of  December,  1869."  This  letter,  which  constituted  cre- 
dentials of  election,  was  referred  to  the  Conunittee  on  Elections,  the  claimants  to 
seats  not  being  sworn  in. 

On  March  31  ^  Mr.  Halbert  E.  Paine,  of  Wisconsin,  from  the  Conunittee  on 
Elections,  presented  the  following  resolution: 

Resolved,  That  the  oath  of  office  be  now  administered  to  G.  W.  Whitmore,  J.  C.  Connor,  W.  T. 
Clark,  and  E.  Degener,  Representatives-elect  from  *  *  *  the  State  of  Texas:  Provided,  That  the 
right  of  any  person  to  contest  the  seats  of  either  of  said  Representatives  shall  not  be  thereby  impaired. 

Mr.  Joseph  P.  C.  Shanks,  of  Indiana,  proposed  an  amendment  that  Jolm  C. 
Connor  be  not  sworn  in,  but  that  the  contested  case  of  Grafton  v.  Connor  be 
referred  to  the  Committee  on  Elections,  with  instructions  to  examine  and  report 
both  as  to  prima  facie  and  final  right. 

Thereupon  Messrs.  Shanks  and  Benjamin  F.  Butler,  of  Massachusetts,  pre- 
sented affidavits  wherein  it  was  charged  that  Mr.  Connor,  wliile  an  officer  of  the 
Army,  about  January  5,  1868,  had  cruelly  whipped  and  otherwise  punished  certain 
negro  soldiers  of  his  command,  and  that  later,  on  October  23,  1869,  in  a  public 
speech  in  Texas,  he  had  boasted  that  he  used  the  lash  freely  on  the  soldiers,  and 

'  Second  session  Forty-first  Congress,  Journal,  pp.  547,  548;  Globe,  p.  2297. 
=  Journal,  pp.  552,  553;  Globe,  pp.  2322-2329. 


§   466  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  489 

had  also  stated  that  he  escaped  conviction  by  a  miUtary  court  by  bribing  the  sol- 
diers with  circus  tickets,  so  that  they  would  not  testify  against  him.  Therefore,  it 
was  urged  that  because  of  bad  character  he  should  not  be  admitted  to  take  the 
oath,  although  the  Committee  on  Elections  had  foxmd  his  credentials  regular  and 
sufficient. 

The  debate  which  followed  was  summarized  by  a  brief  colloquy,  wherein  Mr. 
James  A.  Garfield,  of  Ohio,  asked : 

Allow  me  to  ask  *  *  *  a  anjlhing  in  the  Constitution  of  the  United  States  and  the  laws 
thereof    *    *    *    forbids  that  a  "moral  monster"  shall  be  elected  to  Congress? 

To  which  ]VIr.  Ebon  C.  Ingersoll,  of  Illinois,  replied: 

I  believe  the  people  may  elect  a  moral  monster  to  Congress  if  they  see  fit,  but  I  believe  that  Con- 
gress has  a  right  to  exclude  that  moral  monster  from  a  seat  if  they  see  fit. 

The  weight  of  argument  was  against  the  position  assumed  by  Mr.  Ingersoll. 
Mr.  Henry  L.  Dawes,  of  Massachusetts,  speaking  for  the  Committee  on  Elections  in 
the  preceding  Congress,  said : 

When  any  Member,  upon  his  responsibility  as  a  Member,  made  any  charge  against  any  claimant 
to  a  seat  that  touched  his  constitutional  qualification  the  House,  before  swearing  him  in,  would  refer 
the  question  to  the  proper  committee  to  report  on  it.  Beyond  that  the  Committee  on  Elections  came 
to  the  conclusion,  and  the  House  sustained  them,  it  was  not  proper  to  go.  That  question  of  itself  was 
a  very  delicate  one.  and  of  course  might  be  carried  to  such  an  extent  as  to  involve  great  abuse  to  the 
rights  of  persons  claiming  seats  here.  But  never  did  that  committee  ask  the  House  to  go  one  inch 
beyond  the  question  of  the  constitutional  qualification  of  a  Member,  and  never  did  this  House  decide 
that  we  had  the  right  to  go  one  inch  beyond  that  question.  As  to  the  question  whether  a  gentleman 
claiming  a  seat  has  heretofore  behaved  in  a  manner  unbecoming  a  Member,  I  think  this  is  the  first  time 
it  was  ever  raised  on  the  floor  of  the  House. 

The  question  being  taken  on  the  amendment  proposed  by  Mr.  Shanks,  the 
yeas  and  nays  were  demanded,  but  were  refused.  Tellers  also  were  refused.  Then 
the  amendment  was  disagreed  to  without  division. 

Then  the  resolution  proposed  by  the  Committee  on  Elections  was  agreed  to. 

Accordingly  the  Texas  Members-elect,  Mr.  Connor  among  them,  appeared  and 
were  sworn. 

On  July  15 '  the  Committee  on  Elections  reported,  and  the  House  agreed  to  a 
resolution  declaring  Mr.  Grafton,  the  contestant,  not  entitled  to  the  seat. 

466.  A  Member  being  charged  with  a  crime  entirely  disconnected 
from  his  representative  capacity,  the  House  declined  to  hold  that  a  ques- 
tion of  privilege  was  involved. — On  January  7.  1879,-  Mr.  J.  H.  Acklen,  of 
Louisiana,  after  a  personal  explanation,  offered  the  following: 

Whereas  J.  H.  Acklen.  a  Member  of  this  House,  has  been  charged  by  afiidavit  with  having  seduced 
Mattie  Palfrey  Wright,  now  deceased,  in  April,  1877,  said  affida\'it  having  been  drawn  up  by  one  H.  L. 
Smith,  also  deceased,  and  sworn  to  by  said  Mattie  Wright:   Therefore, 

Be  it  resolved,  That  the  Speaker  of  the  House  be,  and  he  is  hereby,  authorized  to  appoint  a  committee 
of  three  Members  of  this  House,  whose  duty  it  shall  be  to  investigate  the  truth  or  falsity  of  said  charges, 
etc. 

Mr.  John  H.  Reagan,  of  Texas,  raised  the  question  of  order  that  a  mere  charge  of 
crime,  on  which  no  conviction  had  been  obtained,  did  not  justify  the  House  in  taking 
jurisdiction  on  the  question  of  qualifications. 

'  Journal,  p.  1277. 

'  Third  session  Forty-fifth  Congress,  Journal,  p.  138;   Record,  p.  354. 


490  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   467 

The  Speaker  '  said : 

The  gentleman  from  Louisiana  rose  to  a  question  of  personal  privilege.  The  Chair  has  been  reluctant 
to  interrupt  him  and  is  reluctant  now  to  decide  in  a  matter  affecting  the  character  of  a  Member  of  this 
House.  The  gentleman  from  Texas  raises  the  question  that  this  does  not  embrace  a  question  of  personal 
privilege.  Since  this  discussion  has  been  going  on,  the  Chair,  so  far  as  his  memory  enables  him  to  recol- 
lect, fails  to  remember  a  single  instance  during  his  own  term  of  service  in  this  House  wherein  charges  of 
this  character,  which  do  not  directly  affect  the  representative  character  of  a  Member  of  this  House,  have 
been  made  a  subject  of  inquiry  by  the  House.  The  Chair  finds  in  one  instance  a  decision  made  by  one 
of  his  predecessors,  Mr.  Speaker  Linn  Boyd,  which  he  desires  to  have  read  to  the  House: 

"Mr.  Thomas  H.  Bayly  submitted,  as  a  question  of  privilege,  the  following  resolution,  namely: 

"Resolved,  That  the  special  committee  of  which  Hon.  Mr.  Letcher  is  chairman  be  instructed  to  com- 
municate to  this  House  any  communication  made  to  that  committee  reflecting  upon  the  representative 
character  of  T.  H.  Bayly,  a  member  of  this  House,  by  B.  E.  Green  or  others,  with  a  view  that  the  House 
may  take  such  action  as  to  it  may  seem  proper,  the  said  committee  having  decided  that  it  was  not  within 
their  jurisdiction." 

The  decision  in  that  case  by  Mr.  Speaker  Boyd  was  that  it  was  not  a  subject  of  investigation  unless 
it  did  actually  affect  the  official  character  of  the  Representative.  In  a  case  like  this  the  Chair  is  quite 
willing  to  submit  the  question  to  the  House  with  this  preliminary  statement  on  his  part. 

Thereupon  Mr.  James  A.  Garfield,  of  Ohio,  said: 

If  by  "personal  privilege"  is  meant  the  ordinary  rights  which  the  House  grants  to  a  man  to  make  a 
personal  explanation,  I  certainly  should  vote  aye.  And  therefore  I  want  it  understood  that  my  vote, 
which  in  this  case  will  be  "no,"  means  that  I  do  not  conceive  that  this  is  a  case  about  which  the  House 
has  any  jurisdiction  to  investigate,  and  in  that  sense  I  vote  against  it. 

The  Speaker  said : 

The  Chair  desires  to  say  in  answer  to  the  gentleman  from  Ohio  that  the  distinction  he  has  drawn  is  a 
very  proper  one.  The  Chair  himself  has  allowed  the  personal  explanation  to  be  made.  The  question 
whether  it  embraces  a  privilege  affecting  the  character  of  a  Member  of  the  House  the  Chair  prefers  to 
submit  to  the  House. 

The  Speaker  having  put  the  question:  "Does  the  said  preamble  and  resolution 
involve  a  question  of  privilege?"  it  was  decided  in  the  negative  without  division. 

On  April  15,  1879,^  Mr.  J.  R.  Chalmers,  of  Mississippi,  claiming  the  floor  for  a 
question  of  personal  privilege,  had  read  a  newspaper  article  describing  him  as  "  one  of 
the  notorious  and  bloody-handed  butchers  of  the  forever  infamous  Fort  Pillow  mas- 
sacre," etc.  Then  'Mr.  Chalmers  offered  a  resolution  providing  for  a  select  committee 
to  investigate  the  subject  of  General  Chalmer's  conduct. 

Mr.  James  A.  Garfield,  of  Ohio,  made  a  point  of  order. 

The  Speaker  did  not  rule  upon  the  question,  wliich  was  after  debate  postponed. 

On  May  7,^  after  further  debate,  the  House  laid  the  resolution  on  the  table- 
ayes  98,  noes  70. 

467.  The  TTtah  election  case  of  McGrorty  v.  Hooper,  in  the  Fortieth 
Congress. 

In  1868  the  House  declined  to  pass  on  the  title  to  a  seat  of  William  H. 
Hooper,  Delegate  from  Utah,  who  was  alleged  to  have  been  elected  by- 
undue  influence  of  an  alleged  disloyal  organization. 

'  Samuel  J.  Randall,  of  Pennsylvania,  Speaker. 
-  First  session  Forty-sixth  Congress,  Record,  p.  455. 
3  Record,  pp.  1125-1132. 


§   467  POLYGAMY    AST)    OTHLR    CRIMES    AS    DISQUALIFICATIONS.  491 

In  1868  the  House  refused  a  seat  to  a  contestant  who  received  a  small 
minority  of  the  votes  in  a  Territory,  but  who  alleged  that  the  majority 
voters  were  disqualified  by  treasonable  antagonism  to  the  Government. 

An  instance  wherein  a  Delegate  gave  notice  of  a  contest  by  a  tele- 
gram, which  was  submitted  to  the  House  by  the  Speaker. 

In  1868  the  House  entertained  a  contest  for  the  seat  of  a  Delegate, 
although  the  first  notice  of  contest  was  irregular  and  the  supplemental 
notice  was  not  filed  within  the  time  required  by  law. 

A  resolution  declaring  a  Delegate  entitled  to  his  seat  being  laid  on 
the  table,  the  Delegate  continued  to  exercise  his  functions. 

On  March  5,  1867/  the  Speaker  laid  before  the  House  a  telegram  from  William 
McGrorty,  giving  notice  of  contest  for  the  seat  of  William  H.  Hooper,  Delegate  from 
Utah  TerritorA".  On  March  6  Mr.  Hooper  was  sworn  in  without  any  question  being 
raised. 

On  July  9,  1868,'  Mr.  John  W.  Chanler,  of  Xew  York,  submitted  the  report 
of  the  committee.'  The  consideration  of  the  case  involved  a  preUminary  question 
as  to  the  notice  of  contest.  Contestant  admitted  that  he  had  not  proceeded  accord- 
ing to  the  terms  of  the  law,  explaining  his  reasons: 

On  the  23d  of  February,  1867,  the  contestant  deposited  in  the  office  of  Wells,  Fargo  &  Co.,  at  Great 
Salt  Lake  City,  a  notice  directed  to  the  Hon.  William  H.  Hooper,  and  a  similar  notice  to  the  Clerk  of  the 
House  of  Representatives,  notifying  them  that  he  should  contest  the  seat  of  said  Hooper,  which  notices 
were  received  in  this  city  and  delivered  to  the  parties  to  whom  they  were  addressed  some  time  in  the 
month  of  March  following. 

The  reasons  why  the  grounds  were  not  stated  in  the  notice  are  fully  set  forth  in  the  affidavit  of  con- 
testant, made  on  the  18th  of  January,  1868,  which  has  been  placed  before  the  committee,  with  the  other 
papers  in  the  case;  and  it  is  confidently  submitted  that  those  reasons  are  sufficient  to  excuse  him  from 
a  literal  compliance  with  the  law.  It  is  there  shown  that  it  would  have  been  impossible  to  contest  the 
election  in  the  usual  manner  because  of  the  hostility  of  the  Mormon  leaders,  endangering  the  lives  of 
himself  and  friends,  and  the  destruction  of  the  ballots  and  lists  of  voters,  at  the  time  when  the  notice 
was  sent  to  Mr.  Hooper. 

The  sitting  Delegate  objected  that  the  notice  had  not  been  filed  within  the 
time  required  by  law,  that  it  did  not  comply  %vith  the  law,  although  there  existed 
no  valid  reasons  why  it  shomd  not  have  done  so,  and  that  the  testimony  taken  was 
ex  parte. 

Contestant  urged  *  that,  while  his  original  notice  was  defective  in  specifications, 
his  second  amended  notice  of  January  18,  1868,  supplied  all  omissions,  and  consid- 
ered that  the  precedents  of  the  House  (citing  Kline  v.  Yerree)  justified  its  reception. 
He  also  urged  through  his  counsel  that  the  law  of  1851  concerning  contested  elec- 
tions did  not  apply  to  the  Territories,  citing  cases  of  Hunt  v.  Palao  and  Benner  v. 

•First sessionFortiethCongress,Journal, pp.  11,13;  Globe, p.  11;  2Bartlett, p. 211;  RoweU's Digest, 
p.  216. 

2 House  Report  No.  79,  second  session  Fortieth  Congress. 

'It  was  stated  in  debate  that  four  members  of  the  committee — Messrs.  Henry  L.  Dawes,  of  Massa- 
chusetts; Charles  Upson,  of  Michigan;  Joseph  W.  McClurg,  of  Missouri,  and  Glenni  W.  Scofield,  of 
Pennsylvania — dissented  from  the  views  in  the  report,  although  agreeing  to  the  resolutions.  (Globe, 
p.  4383.) 

*  Speech  of  contestant.  Globe,  pp.  4384,  4385. 


492  PRECEDENTS    OF    THE    HOUSE    OF    SEPRESENTATIVES.  §   467 

Porter,  as  well  as  others.  Furthermore,  it  was  urged  that  the  law  of  1851  was  not 
absoluteh'  binding  on  the  House,  being  only  a  wholesome  rule  which  might  be 
departed  from  for  good  cause,  citing  Williams  v.  Sickles. 

The  committee  in  their  report  did  not  specifically  discuss  this  preliminary 
question;  but  the  fact  that  they  proceed  to  consider  the  case  on  its  merits  is  an 
evident  decision. 

As  to  the  merits  of  the  case,  the  contestant  presented  seven  grounds  of  contest, 
but  the  report  discusses  only  three: 

1.  That  the  sitting  Delegate  represents  a  community  separated  from  and  hostile  to  the  other  portions 
of  the  people  of  the  United  States,  and  organized  and  acting  in  disregard  and  violation  of  the  laws  of  the 
United  States,  and  under  an  anti-republican  form  of  government. 

2.  That  he  [the  sitting  Delegate]  is  the  representative  of  the  institution  of  polygamy. 

3.  That  his  secret  oath,  taken  in  the  Mormon  Church,  disqualifies  him  from  sitting  as  a  Delegate  in 
the  Congress  of  the  United  States. 

The  contestant,  as  appears  from  his  address  to  the  House,  argued  that  since 
the  constituency  was  hostile  to  the  Government  of  the  United  States  those  who 
voted  for  the  sitting  Delegate  were  incompetent  electors  and  their  votes  were  void. 
He  also  urged  that  there  were  illegalities  connected  with  the  election  which  rendered 
it  impossible  to  determine  what  votes  were  cast  according  to  law.  Contestant  also 
argued  that  as  the  sitting  Delegate  had  taken  oaths  pledging  him  to  hostility  to 
the  United  States  he  was  disqualified  for  the  office  and  all  votes  cast  for  him  were 
void.  This  disqualification  he  attempted  to  prove  by  affidavits,  ex  parte  in 
nature,  describing  the  oaths  taken  by  Mormans  in  the  "endowment"  ceremonies. 
Contestant  further  argued  that,  although  the  majority  of  the  people  of  the  Terri- 
tory were  disloyal  and  incompetent,  the  loyal  minority  should  not  be  deprived 
of  its  representation. 

The  official  returns  had  given  15,068  votes  for  sitting  Delegate  and  105  for 
contestant.  Therefore  contestant  claimed  the  seat  as  representative  of  the  loyal 
minority  of  105. 

The  committee  discussed  at  length  the  people  and  institutions  of  Utah,  sum- 
marizing their  conclusions: 

So  far,  therefore,  as  it  was  to  the  interest  of  the  leaders  of  Mormonism  to  oppose  this  Government, 
to  strengthen  and  enrich  themselves  and  secure  the  support  of  new  converts,  your  committee  think  the 
organization  has  been  antagonistic  to  the  United  States.  But  from  no  malice  aforethought  have  they 
ever,  as  far  as  any  proof  has  come  to  your  committee,  organized  rebellion  or  sedition  against  the  supreme 
authority  of  this  Union,  or  committed  treason  by  any  overt  act. 

To  remedy  the  evils  which  now  exist  in  this  Territory  and  to  prevent  them  in  the  future  has  been 
a  matter  of  serious  consideration  for  many  years  by  this  Government,  and  a  plan  is  now  before  the  Com- 
mittee on  Territories  in  the  Senate  for  radically  changing  the  manner  of  carrying  on  the  government 
of  Utah. 

The  duties  of  your  committee  do  not  extend  to  the  subject-matter  of  reform  in  the  Territory  further 
than  to  protect  the  purity  of  the  representative  system  and  secure  to  every  citizen  of  the  United  States 
the  full  enjoyment  of  his  liberty  at  the  polls. 

Your  committee  believe  that  it  is  the  imperative  duty  of  Congress  to  enforce  the  laws  by  every 
means  in  the  power  of  this  Government,  to  prevent  undue  influence  of  the  hierarchy  of  the  Mormon 
society  over  the  people  of  that  Territory. 

A  strong  belief  exists  in  the  mind  of  your  committee  that  to  considerable  extent  such  influence  has 
been  used  in  the  recent  elections  for  Delegate  to  Congress  from  Utah,  but  sufficient  proof  of  its  illegality 


§  468  POLYGAMY    AND    OTHER    CElTffES    AS    DISQUALIFICATIONS.  493 

has  not  come  to  their  knowledge  to  -warrant .  in  their  opinion,  any  direct  interference  by  immediate  action 
of  Congress. 

The  vote  polled,  under  whatever  control  it  may  have  been  deposited,  is,  in  the  opinion  of  your 
ctimmitfcee,  in  default  of  full  and  satisfactory  evidence  to  the  contrarj%  to  be  deemed  and  accepted  as 
the  legal  vote  of  the  people  of  Utah.  Their  minds  may  have  been  under  religious  or  other  prejudice, 
created  or  incre^ased  by  the  Mormon  leaders  in  favor  of  one  candidate  and  against  the  other,  but  there 
is  no  reason  to  conclude  that  the  free  exercise  of  the  ballot  by  the  citizen  was  unlawfully  prevented  by 
force  or  fraud.  No  euffici'Ciit  proof  to  that  effect  has,  in  the  opinion  of  your  committee,  been  presented 
by  the  contestant-  The  committee  therefore  unanimously  agree  to  present  the  following  resolutions, 
to  wit: 

"Resolvfd,  That  William  McGrorty  is  not  entitled  to  a  seat  in  this  House  as  a  Delegate  from  the 
Territory  of  Utah. 

"Resolved,  That  William  H.  Hooper  is  entitled  to  a  seat  in  this  House  as  a  Delegate  from  the  Terri- 
tory- of  Utah." 

The  report  was  debated  on  July  23,  1868,^  the  principal  argument  being  made 
by  contestant,  and  the  first  resohition,  declaring  contestant  not  entitled  to  the  seat, 
was  agreed  to  without  division.  The  second  resolution,  declaring  sitting  Member 
entitled  to  the  seat,  was  laid  on  the  table. 

The  practical  effect  of  this  action  was  to  leave  sitting  Delegate  in  the  seat,  as 
is  shown  by  his  appearance  at  the  next  session  of  this  Congress.'' 

468.  The  Utali  election  case  of  Maxwell  v.  Cannon,  in  the  Forty-third 
CJongress. 

In  1873  the  House  seated  Delegate  George  Q.  Cannon  on  the  strength 
of  his  unimpeached  credentials,  although  it  was  objected  that  he  was  dis- 
qualified. 

On  December  2,  1873,^  the  Delegates  from  the  Territories  were  called  to  be 
sworn  after  the  House  had  been  fully  organized.  To  Delegate  George  Q.  Cannon, 
of  Utah,  objection  was  made  by  Mr.  Clinton  L.  Merriam,  of  New  York,  who  pre- 
sented for  the  action  of  the  House  the  following  resolution : 

Whereas  it  is  alleged  that  George  Q.  Cannon,  of  Utah,  has  taken  oaths  inconsistent  with  citizen- 
ship of  the  United  States  and  with  his  obligations  as  Delegate  in  this  House,  and  has  been,  and  con- 
tinues to  be,  guilty  of  practices  in  violation  and  defiance  of  the  laws  of  the  United  States:  Therefore, 

Resolved,  That  the  credentials  of  said  Cannon,  and  his  right  to  a  seat  in  this  House  as  a  Delegate 
from  Utah,  be  referred  to  the  Committee  on  Elections,  and  that  said  Cannon  be  not  admitted  to  a  seat 
in  this  House  previous  to  the  report  of  said  committee. 

In  the  course  of  the  debate  Mr.  Stephen  W.  Kellogg,  of  Connecticut,  asked 
if  there  was  any  other  certificate  or  credential  from  the  governor  of  Utah  than 
the  one  which  had  already  been  presented  in  behalf  of  Mr.  Cannon. 

The  Speaker  replied  that  the  Clerk  informed  him  that  that  was  the  only  cre- 
dential that  had  been  presented  from  Utah. 

In  the  course  of  the  debate  the  Maryland  case  in  the  Forty-first  Congress  was 
cited  in  support  of  the  contention  that  he  was  entitled  by  prima  facie  right  to 
his  seat  on  the  certificate.  It  was  argued  (by  Mr.  Benjamin  F.  Butler,  of  Massa- 
chusetts) that  to  take  any  other  course  would  be  to  establish  precedents  that  in 

'  Second  session  Fortieth  Congrcs?,  Journal,  p.  1159;  Globe,  pp.  4383-4389. 

=  Third  session,  Journal,  p.  181. 

^  Cong.  Record,  first  session  Forty-third  Congress,  pp.  7  and  8. 


494  PRECEDENTS    OF    THE    HOUSE    OF    REPEESENTATIVES.  §   469 

times  of  high  party  excitement  might  prevent  the  organization  of  the  House 
indefinitely. 

Mr.  Merriam's  resohition  was  laid  on  the  table  without  division,  and  Mr.  Cannon 
then  took  the  oath. 

469.    The  Utah  case  of  Maxwell  v.  Cannon  continued. 

In  1873  the  Elections  Committee  concluded  that  a  Delegate  who  had 
been  sworn  could  be  reached  on  a  question  of  qualifications  only  by 
process  of  expulsion. 

The  Elections  Committee  concluded  in  1873  that  if  the  Member-elect 
be  disqualified  the  minority  candidate  is  not  thereby  entitled  to  the  seat. 

Discussion  of  the  right  of  the  House  to  fix  qualifications  other  than 
those  specified  by  the  Constitution. 

Discussion  of  the  distinction  between  the  power  to  judge  of  the  elec- 
tions, returns,  and  qualifications  of  the  Member  and  the  power  to  expel. 

In  1873  the  Elections  Committee  concluded  that  where  a  law  of  Con- 
gress extended  the  Constitution  over  a  Territory  the  qualifications  of  the 
Delegate  should  be  similar  to  those  of  Members. 

Discussion  as  to  whether  or  not  the  expulsion  of  a  Delegate  should  be 
effected  by  a  majority  or  a  two-thirds  vote. 

On  April  30,  1874,'  Mr.  Gerry  W.  Hazelton,  of  Wisconsin,  submitted  the  report 
of  the  majority  of  the  committee  in  the  Utah  case  of  Maxwell  v.  Cannon,  which 
had  come  before  the  Committee  on  Elections  like  ordinary  cases  of  that  kind.  It 
was  not  claimed  by  the  contestant  that  he  had  received  a  majority  of  the  votes 
actually  cast,  although  it  was  maintained  that  gross  irregularities  existed  in  the 
manner  of  conducting  the  election  and  making  the  returns.  Wliile  there  was 
testimony  to  bear  this  out,  yet  the  sitting  Member  undoubtedly  had  a  majority 
of  the  legal  votes. 

Therefore  two  questions  were  left  for  the  committee: 

(1)  Contestant  raised  the  following  question: 

George  Q.  Cannon,  the  sitting  Delegate,  is  not  qualified  to  represent  said  Territory,  or  to  hold  his 
seat  in  the  Forty-third  Congress,  and  for  cause  of  disqualification  we  say  it  is  shown  by  the  evidence 
that  he,  at  and  before  the  day  of  the  election,  to  wit,  on  the  5th  day  of  August,  1872,  was  openly  living 
and  cohabiting  with  four  women  as  his  wives  in  Salt  Lake  City,  in  Utah  Territory,  and  he  is  still  so 
living  and  cohabiting  with  them. 

The  sitting  Delegate  in  his  answer  had  denied  the  charges  of  contestant  on 
the  subject  of  polygamous  relations. 

The  committee  first  proceeded  to  consider  the  question  of  their  own  jurisdiction 
to  consider  a  question  of  qualifications.     They  say: 

What  are  the  qualifications  here  mentioned  and  referred  to  the  Committee  on  Elections?  Clearly, 
the  constitutional  qualifications,  to  wit,  that  the  claimant  shall  have  attained  the  age  of  25  years,  been 
seven  years  a  citizen  of  the  United  States,  and  shall  be  an  inhabitant  of  the  State  in  which  he  shall  be 
chosen. 

The  practice  of  the  House  has  been  so  uniform,  and  seems  so  entirely  in  harmony  with  the  letter 
of  the  Constitution,  that  the  committee  can  but  regard  the  jurisdictional  question  as  a  bar  to  the  consid- 
eration of  qualifications  other  than  those  above  specified  mentioned  in  the  notice  of  contest  and  herein- 
before alluded  to. 

1  Report  No.  484;  Smith,  p.  182;  Rowell's  Digest,  p.  291. 


§  469  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  495 

It  being  conceded  that  the  contestee  has  these  qualifications,  one  other  inquiry  only  under  this 
head  remains,  to  wit :  Does  the  same  rule  apply  in  considering  the  casa  of  a  Delegate  ae  of  a  Member  of 
the  House?    This  question  seems  not  to  have  been  raised  heretofore. 

The  act  organizing  the  Territory  of  Utah,  approved  September  9, 1850,  enacts  that  the  Constitution 
and  laws  of  the  United  States  are  hereby  extended  over  and  declared  to  be  in  force  in  said  Territory  of 
Utah,  so  far  as  the  same  or  any  provision  thereof  may  be  applicable. 

It  was  said  on  the  argument  that  the  Constitution  can  not  be  extended  over  the  Territories  by  act 
of  Congress,  and  the  views  of  Mr.  Webster  were  quoted  in  support  of  this  position. 

We  do  not  deem  it  necessary  to  consider  that  question,  because  it  will  not  be  denied  that  Con- 
gress had  the  power  to  make  the  Constitution  a  part  of  the  statutorj-  law  of  the  Territory  as  much  as  any 
portion  of  the  organic  act  thereof.  For  the  purposes  of  this  inquiry,  it  makes  no  difference  whether  the 
Constitution  is  to  be  treated  as  constitutional  or  statutory  law.  If  either,  it  is  entitled  to  be  considered 
in  disposing  of  this  case. 

Now,  while  it  would  be  entirely  competent  for  Congress  to  prescribe  qualifications  for  a  Delegate  in 
Congress  entirely  unlike  those  prescribed  in  the  Constitution  for  Members,  it  seems  to  us,  in  the  absence 
of  any  such  legislation,  we  may  fairly  and  justly  assume  that  by  making  the  Constitution  a  part  of  the 
law  of  the  Territory,  Congress  intended  to  indicate  that  the  qualifications  of  the  Delegate  to  be  elected 
should  be  similar  to  those  of  a  Member.  It  would  seem  to  be  to  that  extent  an  instruction  to  the  electors 
of  the  Territorj',  growing  out  of  the  analogies  of  the  case. 

We  conclude,  therefore,  that  the  question  submitted  to  us,  under  the  order  of  the  House,  comes 
within  the  same  principles  of  jurisdiction  as  if  the  contestee  were  a  Member  instead  of  a  Del^ate. 

This  position,  it  wLU  be  observed,  does  not  conflict  with  the  right  of  the  House  to  refer  a  preliminary 
inquiry  to  this  committee  as  to  the  disqualification  of  a  Member  or  Delegate  to  be  sworn  in  and  take  his 
seat  prior  to  the  oath  being  administered.  In  such  case  the  reference  is  special,  and  the  jurisdiction  of 
the  committee  follows  the  order  of  the  House. 

The  case  of  Samuel  E.  Smith  against  John  Young  Brown,  in  the  Fortieth  Congress,  is  in  point. 
That  case  was  referred  to  the  Committee  on  Elections,  before  the  contestee  was  sworn  in,  to  ascertain 
and  report  whether  he  had  committed  any  of  the  acts  specified  in  the  law  of  July  2,  1862,  which  he  was 
required  to  swear  he  had  not  committed,  before  entering  on  the  duties  of  a  Representative. 

It  was  a  preliminary  inquir\%  made  under  a  special  order  of  the  House,  and  might  have  been 
executed  as  properly  by  the  Judiciary  Committee  or  by  a  special  conmiittee.  It  did  not  relate  in  the 
remotest  manner  to  the  election,  returns,  and  qualifications  of  the  claimant  under  the  Constitution. 

The  contestee  in  this  case  having  been  sworn  in  and  admitted  to  his  seat,  and  his  name  ofiicially 
entered  upon  the  roll  of  Delegates,  we  think  he  can  be  reached  only  under  the  exercise  of  the  power  of 
expulsion,  which  it  is  competent  for  the  House  to  set  in  motion  by  a  special  order  of  reference. 

(2)  The  second  question  related  to  the  claim  of  the  contestant  to  a  seat  as  the 
minority  candidate,  the  majority  candidate  being  disqualified.  The  committee 
deny  the  authority  of  the  case  of  Wallace  v.  Simpson  in  support  of  this  contention, 
and  quote  the  case  of  Smith  v.  Brown  as  estabhshing  a  doctrine  contrary  to  that 
laid  dowTi  by  the  contestant. 

Therefore  the  majority  of  the  committee  recommended  the  adoption  of  the 
following  resolutions: 

Resolved  (1 ),  That  George  R.  Maxwell  was  not  elected,  and  is  not  entitled  to  a  seat  in  the  House  of 
Representatives  of  the  Forty-third  Congress  as  Delegate  for  the  Territory  of  Utah. 

Resolved  {2),  That  George  Q.  Cannon  was  elected  and  returned  as  a  Delegate  for  the  Territory  of 
Utah  to  a  seat  in  the  Forty-third  Congress. 

Mr.  Horace  H.  Harrison,  of  Tennessee,  dissented  from  the  conclusions  of  his 
associates  wherein  they  stopped  short  in  their  second  resolution  of  declaring  Mr. 
Cannon  entitled  to  the  seat,  and  proposed  the  following: 

Resolved,  That  George  Q.  Cannon  was  duly  elected  and  returned  as  Delegate  from  the  Territory  of 
Utah,  and  is  entitled  to  a  seat  as  a  Delegate  in  the  Forty-third  Congress. 


496  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   469 

Mr.  Harrison  considered  that  a  Delegate  should  not  be  considered  as  on  any 
different  basis  from  a  Member,  and  proceeded  to  make  his  argument  with  this 
proposition  understood.     Mr.  Harrison  says : 

The  qualifications  of  Representatives  in  Congress  are  prescribed  by  the  second  section  of  the  first 
article  of  the  Constitution  of  the  United  States. 

They  are:  First,  that  they  shall  have  attained  the  age  of  25  years;  second,  that  they  shall  have 
been  seven  years  citizens  of  the  United  States;  and,  third,  that  they  shall  when  elected  be  inhabitants 
of  those  States  in  which  they  shall  be  chosen.     No  other  qualifications  are  prescribed  in  the  Constitution. 

If  the  Constitution  of  the  United  States  had  vested  anywhere  the  power  to  prescribe  qualifications 
of  Representatives  in  Congress  additional  to  or  different  from  those  prescribed  by  the  Constitution  itself, 
it  is  obvious  that  this  power  would  have  been  conferred  either  upon  Congress,  or  upon  the  House  alone, 
or  upon  the  States. 

In  the  history  of  our  Government  it  has  never  been  claimed  that  the  House  of  Representatives, 
acting  alone,  possessed  the  power  to  add  to  or  change  the  qualifications  of  its  Members.  The  vain 
attempt  made  by  Mr.  Randolph,  in  the  case  of  Barney  v.  McCreery,  in  the  Tenth  Congress,  to  vindicate 
a  claim  of  that  kind  in  favor  of  the  States,  signally  failed,  and  has  never  been  repeated  in  the  House. 

Mr.  Justice  Story,  in  his  discussion  of  the  subject  of  the  qualifications  of  Representatives  in  Congress, 
says  that  it  would  seem  but  fair  reasoning,  upon  the  plainest  principles  of  interpretation,  that  when  the 
Constitution  established  certain  qualifications  as  necessary  for  office  it  meant  to  exclude  all  others,  as 
prerequisites,  and  that  from  the  very  nature  of  such  a  provision  the  affirmation  of  these  qualifications 
would  seem  to  imply  a  negative  of  all  others.  And  although  it  is  certain  that  the  letter  of  those  constitu- 
tional provisions  which  relate  to  Representatives  from  the  States  does  not  apply  exactly  to  the  cases 
of  Delegates  from  the  Territories,  still  it  is  just  as  certain  that  their  spirit  does. 

Mr.  Harrison  declared  that  no  act  could  be  found  fixing  the  qualifications  of  a 
Delegate  or  providing  a  disqualification  for  any  cause.  The  act  of  July  1,  1862, 
provided  a  punishment  for  bigamy;  but  disqualification  for  office  was  not  a  part  of 
this  pimishment. 

Mr.  Harrison  then  continued: 

The  precedents  of  the  House  are  in  accordance  with  this  construction  of  the  Constitution.  There 
has  been  no  precedent  since  the  organization  of  the  Government  which  would  justify,  any  more  than 
would  the  Constitution  itself  justify,  the  House  acting  as  the  judges  of  the  election,  returns,  and  quali- 
fications of  Mr.  Cannon,  in  a  decision  to  deprive  him  of  his  seat  on  the  ground  that  he  has  violated  the 
law  prohibiting  polygamy  in  the  Territories  of  the  United  States. 

The  case  of  B.  F.  Whittemore,  in  the  Forty-first  Congress,  is  relied  upon  as  an  authority  for  the 
refusal  to  admit  a  Representative-elect  on  other  grounds  than  mere  constitutional  disqualifications. 
But  a  critical  examination  of  that  case  will  show  that  the  House  only  decided  that  a  Representative 
who  had  by  resignation  escaped  expulsion  for  an  infamous  crime  from  that  House  should  not  be  read- 
mitted to  the  same  House. 

The  case  of  Mr.  Matteson,  in  the  Thirty-fifth  Congress,  relied  upon  in  argument  before  the  commit- 
tee, was  a  case  arising,  not  under  the  clause  of  the  Constitution  which  makes  each  House  the  judge  of 
the  election,  returns,  and  qualifications  of  its  Members,  but  under  that  clause  which  confers  the  power 
of  expulsion. 

The  line  of  demarkation  between  these  two  great  powers  of  the  House,  the  power  to  judge  of  the 
election,  returns,  and  qualifications  of  its  Members  by  a  mere  majority  vote,  and  the  power  to  expel  its 
Members  by  a  two-thirds  vote,  is  clear  and  well  defined.  That  line  is  not  to  be  obliterated.  It  would 
be  necessary  to  preserve  it,  even  though  its  obliteration  might  seem  to  threaten  no  disasters,  even  though 
its  maintenance  might  promise  no  benefits  to  the  House,  to  the  people,  or  to  the  Constitution.  For  this 
liarrier  is  raised  by  the  Constitution  itself. 

The  framers  of  the  Constitution  of  the  United  States,  in  prescribing  or  fixing  the  qualifications  of 
Members  of  Congress,  must  be  presumed  to  have  been  dealing  with  the  question  with  reference  to  an 


§   4:70  POLYGAMr    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  497 

obvious  necessity  for  uniformity  in  the  matter  of  the  qualLfications  of  Members,  and  with  a  jealous 
desire  to  prevent,  by  the  action  of  either  House  of  Congress,  the  establishment  of  other  or  different 
qualifications  of  Members. 

It  was  appropriate  and  proper — in  fact,  necessary — that  the  power  should  be  given  to  each  House 
to  judge  of  the  elections,  returns,  and  qualLfications  of  its  Members;  that  is,  to  judge  of  the  constitu- 
tional qualLfications  of  its  Members. 

The  exercise  of  this  power  requires  only  a  majority  vote. 

But  the  House  possesses  another  power,  to  decide  who  shall  and  who  shall  not  hold  seats  in  that 
body.  It  is  altogether  distinct,  in  origin  and  character,  from  that  to  which  I  have  just  referred.  It  is 
the  power  of  expulsion,  which  requires  a  two-thirds  vote  for  its  exercise.  It  is  conferred  by  the  follow- 
ing clause  of  the  Constitution: 

"Each  House  may  determine  the  rules  of  its  proceedings,  punish  its  Members  for  disorderly  behav- 
ior, and,  with  the  concurrence  of  two-thirds,  expel  a  Member." 

This  power  of  expulsion  conferred  by  the  Constitution  on  each  House  of  Congress  was  necessary  to 
enable  each  House  to  secure  an  efficient  exercise  of  its  powers  and  its  honor  and  dignity  as  a  branch  of 
the  National  legislature. 

It  was  too  dangerous  a  power  to  confer  on  either  House  without  restriction,  and  hence  it  was  expressly 
provided  in  the  Constitution  that  there  must  be  a  concurrence  of  two-thirds  of  the  Members  to  expel. 

Under  this  power,  guarded  as  it  has  been  by  the  constitutional  provision  requiring  a  vote  of  two- 
thirds,  there  have  been  but  a  very  few  instances  of  expulsion  since  the  organization  of  the  Government, 
and  it  would  seem  that  a  power  so  rarely  exercised  does  not  require  the  agency  of  a  standing  committee. 

The  minority  views  then  go  on  to  discuss  the  cases  of  Benjamin  G.  Harris,  of 
Maryland,  and  of  Mr.  Herbert,  of  CaUfomia,  and  concluded  that  the  House  had 
always  dechned  to  fix  quaUfications  outside  of  those  fixed  by  the  Constitution,  and 
that— 

the  failure  of  the  committee  in  this  case,  after  that  committee  has  found  that  the  sitting  Delegate  from 
Utah  has  been  duly  elected  and  returned,  to  report  that  he  is  entitled  to  his  seat,  is  unauthorized  in 
principle  or  by  precedent  and  dangerous,  in  so  far  as  it  tends  to  break  down  the  distinction  between 
the  jurisdiction  of  the  House  in  such  a  contest  as  the  present  one  and  the  jurisdiction  of  the  House  by  a 
two-thirds  vote  to  expel  a  member  from  the  House. 

The  report  was  debated  at  length  on  May  12.'  The  debate  referred  to  the 
status  of  a  Delegate,  and  to  the  propriety  of  adding  to  the  qualifications  prescribed 
in  the  Constitution.  In  the  course  of  the  debate  Mr.  E.  R.  Hoar,  of  Massachusetts, 
raised  the  question  as  to  whether  or  not  a  two-thirds  vote  was  needed  for  the  expul- 
sion of  a  Delegate.  Delegates  were  creatures  of  statutes,  and  he  doubted  the  power 
of  a  preceding  Congress  to  impose  on  the  present  Congress,  against  its  will,  the 
presence  of  any  one  besides  the  Members  who  came  b}'  constitutional  right. 

At  the  conclusion  of  the  debate  the  two  resolutions  recommended  by  the  major- 
ity of  the  committee  were  agreed  to  without  division. 

Then,  by  a  vote  of  109  yeas  to  76  nays,  the  resolution  contended  for  by  Mr. 
Harrison  was  agreed  to. 

470.   The  Utah  election  case  of  Maxwell  v.  Cannon,  continued. 

In  1873  it  was  proposed  by  the  majority  of  the  Elections  Committee 
to  exclude  Delegate  George  Q.  Cannon  for  polygamy;  but  the  resolution 
was  not  considered. 


5994— VOL  ]— <)7 32 


'  Journal,  pp.  959-962;  Record,  pp.  3813-3819. 


498  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   "i^O 

Then,  by  a  vote  of  137  yeas  to  51  nays,  the  House  agreed  to  the  following  reso- 
lution proposed  by  Mr.  Hazelton,  in  connection  with  the  report  of  the  Committee  on 
Elections : 

Whereas  George  R.  Maxwell  has  prosecuted  a  contest  against  the  sitting  Member,  George  Q.  Cannon, 
now  occupying  a  seat  in  the  Forty-third  Congress  as  Delegate  for  the  Territory  of  Utah,  charging,  among 
other  things,  that  the  said  Cannon  is  disqualified  from  holding,  and  is  unworthy  of,  a  seat  on  the  floor  of 
this  House,  for  the  reason  that  he  was  at  the  date  of  his  election,  to  wit,  on  the  5th  day  of  August,  1872, 
and  prior  thereto  had  been,  and  still  is,  openly  living  and  cohabiting  with  four  women  as  his  wives  under 
the  pretended  sanction  of  a  system  of  polygamy,  which  system  he  notoriously  indorses  and  upholds, 
against  the  statute  of  the  United  States  approved  July  1 ,  1862,  which  declares  the  same  to  be  a  felony,  to 
the  great  scandal  and  disgrace  of  the  people  and  the  Government  of  the  United  States,  and  in  abuse  of  the 
privilege  of  representation  accorded  to  said  Territory  of  Utah,  and  that  he  has  taken  and  never  renounced 
an  oath  which  is  inconsistent  with  his  duties  and  allegiance  to  the  said  Government  of  the  United  States; 
and  whereas  the  evidence  in  support  of  such  charge  has  been  brought  to  the  official  notice  of  the  Committee 
on  Elections:  Therefore, 

Resolved,  That  the  Committee  on  Elections  be,  and  is  hereby,  instructed  and  authorized  to  inves- 
tigate said  charge  and  report  the  result  to  the  House  and  recommend  such  action  on  the  part  of  the 
House  as  shall  seem  meet  and  proper  in  the  premises. 

On  Januarj'  21,  1875,'  Mr.  H.  Boardman  Smith,  of  New  York,  submitted  the 
report  of  the  majority  of  the  committee  in  response  to  these  instructions.  The  com- 
mittee give  an  account  of  the  evidence  before  them,  state  that  the  testimony  as  to 
the  oath  in  the  Endowment  House  is  confhcting,  and  say,  first  quoting  the  statute : 

"That  every  person  having  a  husband  or  wife  living  who  shall  marry  any  other  person,  whether 
married  or  single,  in  a  Territory  of  the  United  States,  or  other  place  over  which  the  United  States  have 
exclusive  jurisdiction,  shall,  except  in  the  cases  specified  in  the  proviso  to  this  section,  be  adjudged 
guilty  of  bigamy,  and,  upon  conviction  thereof,  shall  be  punished  by  a  fine  not  exceeding  five  hundred 
dollars,  and  by  imprisonment  for  a  term  not  exceeding  five  years:  Provided,  nevertheless.  That  this  sec- 
tion shall  not  extend  to  any  person  by  reason  of  any  former  marriage,  whose  husband  or  wife  by  such 
marriage  shall  have  been  absent  for  five  successive  years  without  being  known  to  such  person  within 
that  time  to  be  living,  nor  to  any  person  by  reason  of  any  former  marriage  which  shall  have  been  dis- 
solved by  the  decree  of  a  competent  court,  nor  to  any  person  by  reason  of  any  former  marriage  which 
shall  have  been  annulled  or  pronounced  void  by  the  sentence  or  decree  of  a  competent  court  on  the 
ground  of  the  nullity  of  the  marriage  contract." 

The  second  section  disapproves  and  annvds  all  acts  and  ordinances  of  the  provisional  government  of 
Deseret  and  of  the  Territory  of  Utah  which  establish,  support,  maintain,  shield,  or  countenance  polyg- 
amy, however  disguised  by  legal  or  ecclesiastical  solemnities,  sacraments,  ceremonies,  consecration,  or 
other  contrivances. 

This  statute  was  approved  on  the  1st  day  of  July,  1862,  and  has  since  remained  the  law  of  the  land. 

It  is  proper  to  add  that,  after  the  adoption  of  the  resolution  above  quoted  referring  this  question  to 
your  committee,  an  act  was  passed  by  this  House,  at  the  last  session,  with  little  or  no  opposition,  which 
reads  as  follows: 

"  [H.  R.  3679.     Forty-third  Congress,  first  session.] 

"In  the  Senate  op  the  United  St.\tes,  June  17,  1874. — Re.^d twice  and  referred  to  the  Com- 
mittee ON  Territories. 

"AN  ACT  defining  the  qualifications  of  Territorial  Delegates  in  the  House  of  Representatives. 

"Beit  enacted  by  the  Senate  and  Home  of  Representatives  of  the  United  States  of  America  in  Congress 
assembled.  No  person  hereafter  shall  be  a  Delegate  in  the  House  of  Representatives  from  any  of  the 
Territories  of  the  United  States  who  shall  not  have  attained  the  age  of  twenty-five  years,  and  been 

'  House  Report  No.  106,  second  session  Forty-third  Congress;  Smith,  p.  259. 


§   470  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  499 

seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  the 
Territory  in  which  he  shall  be  chosen;  and  no  such  person  who  is  guilty  either  of  bigamy  or  of  polygamy 
shall  be  eligible  to  a  seat  as  such  Delegate. 

"  Passed  the  House  of  Representatives  June  16,  1874. 

"Attest:  Edward  McPherson,  Clerk." 

Notwithstanding  this  fact  the  said  Delegate  was  a  candidate  at  the  recent  election,  and  was  actually 
elected  Delegate  for  the  same  Territory  in  the  Forty-fourth  Congress. 

Your  committee  think  the  evidence,  unchallenged  as  it  is  by  the  Delegate,  establishes  that,  at  the 
date  of  his  election,  to  wit,  on  the  5th  day  of  August,  1872,  and  prior  thereto,  the  said  Delegate  was,  and 
still  is,  openly  living  and  cohabiting  with  four  women  as  his  wives,  under  the  pretended  sanction  of  a 
system  of  polygamy,  which  system  he  notoriously  indorses  and  upholds,  in  violation  of  the  statute  of  the 
United  States,  approved  July  1,  1862,  above  quoted. 

Therefore  the  majority  recommended  that  the  following  resolution  be  agreed  to 
by  the  House : 

Resolved,  That  George  Q.  Cannon,  Delegate  from  Utah,  being  found,  upon  due  consideration  of 
the  evidence  submitted,  and  not  controverted  by  said  Cannon,  to  be  an  actual  polygamist,  and  to 
have  married  his  fourth  wife,  having  three  other  wives  then  living,  in  the  month  of  August,  1865,  in 
open  and  notorious  violation  of  the  law  of  July  1,  1862,  forbidding  such  marriage,  and  declaring  the 
same  to  be  a  crime  punishable  both  by  fine  and  imprisonment,  and  it  appearing  that  he  still  maintains 
his  polygamous  practices  in  defiance  of  law,  is  deemed  unworthy  to  occupy  a  seat  in  the  House  of 
Representatives  as  such  Delegate,  and  that  he  be  excluded  therefrom. 

The  minority  of  the  committee,  Messrs.  Horace  H.  Harrison,  of  Tennessee, 
C.  R.  Thomas,  of  North  Carolina,  L.  Q.  C.  Lamar,  of  Mississippi,  Edward  Crossland, 
of  Kentucky,  and  R.  M.  Speer,  of  Kentucky,  opposed  this  proposed  action,  but 
Mr.  Harrison  alone  gave  his  grounds  for  his  opposition,  making  an  elaborate 
minority  report. 

This  is  the  first  instance  [says  this  report]  where  it  has  been  sought  to  expel  a  Delegate  from  one 
of  the  Territories  of  the  United  States,  and  there  is  little  in  the  shape  of  authority  to  guide  us  in  the 
examination  of  the  question. 

Although  there  is  nothing  in  the  Constitution  concerning  a  Delegate  from  the  Territories  of  the 
United  States,  and  no  express  provision  therein  for  their  expulsion  as  there  is  in  the  case  of  Members, 
we  do  not  doubt  the  power  of  the  House  to  expel.  The  power  results  simply  from  the  fact  that  the 
Delegate  is,  in  some  sense,  a  Member,  or  is  one  of  the  body.  He  is  entitled,  as  well  by  courtesy  as 
by  a  custom  which  has  obtained  in  this  country  upon  the  organization  of  Territorial  government  in  the 
Territories,  to  certain  rights  and  priv-ileges;  he  is  entitled  to  introduce  and  advocate  on  the  floor  of  the 
House  any  measure  affecting  the  people  of  the  Territory,  or  to  oppose  in  debate  any  measure  he  may 
deem  injurious  to  them.  He  is  amenable  to  the  rules  of  the  House  or  the  regulations  concerning  its 
proceedings.  He  would  clearly,  as  it  is  assumed,  have  to  possess  certain  qualifications  to  entitle  him 
to  be  a  Delegate — at  least  that  of  citizenship,  as  is  shown  in  the  contest  in  regard  to  the  admission  of 
the  Delegate  from  Michigan  Territory  in  1823,  during  the  Eighteenth  Congress.' 

Everything  in  relation  to  the  position  of  a  Delegate  having  the  rights  and  privileges  we  have 
mentioned,  and  every  relation  he  bears  to  the  House  or  to  the  Members  thereof,  in  the  absence  of 
anything  in  the  Constitution  and  laws  on  the  subject,  would  suggest  that  if  a  Delegate  is  expelled  it 
ought  to  be  for  the  same  causes  that  would  justify  the  House  in  expelling  a  Member,  and  that  the  power 
to  expel  should  be  exercised  as  the  constitutional  power  to  expel  a  Member  is  exercised. 

It  would  seem  that  all  of  the  reasons  that  can  be  urged  in  favor  of  the  rule  which  the  framere  of 
the  Constitution  made  concerning  the  expulsion  of  a  Member  apply  with  equal  force  in  the  case  of  a 
Delegate.     The  framers  of  that  instrument  regarded  this  power  to  expel  a  Member  by  a  mere  majority 

'  See  section  421  of  this  work. 


500  PRECEDENTS    OF    THE    HOUSE    OP    REPRESENTATIVES.  §    471 

vote  as  a  dangerous  one,  and  guarded  its  exercise  liy  proxading,  in  substance,  that  an  expulsion  of  a 
Member  could  only  be  ordered  by  a  two-thirds  vote.  Of  coarse,  we  will  not  be  understood  as  con- 
tending that  the  House  has  not  the  power,  if  it  choose  to  exercise  it,  to  expel  a  Delegate  by  a  mere 
majority  vote,  or  that  there  is  any  express  provision  of  law  operating  as  an  inhibition  on  this  power. 
But  we  submit  that  this  power  should  be  regulated  in  its  exercise  by  a  legal  discretion,  and  that  no 
safer  rule  can  be  found  than  the  one  which  is  deduced  from  the  analogy  we  have  mentioned. 

If  it  is  true  that  the  power  to  expel  a  Delegate  is  drawn  from  analogy  to  the  power  given  in  the 
matter  of  the  expulsion  of  members,  it  would  seem  to  follow  that,  looking  to  this  fact  and  to  the  nature 
of  the  office  of  a  Territorial  Delegate  as  a  representative  of  a  portion  of  the  people  of  this  country,  and 
as,  in  some  sense,  a  Member  of  this  body,  he  ought  not  to  be  expelled  except  for  causes  which  would 
justify  the  House  in  expelling  a  Member,  and  by  a  two-thirds  vote  on  the  question. 

He  certainly  ought  not  to  be  expelled  for  political  reasons  or  causes,  or  on  account  of  the  existence 
of  certain  practices  in  the  Territory  he  represents,  or  to  punish  him  for  an  alleged  indulgence  therein 
or  the  people  he  represents  by  depriving  them  of  representation. 

After  discussing  the  subject  of  Mormonism  in  the  Territory  of  Utah,  and  the 
fact  that  the  Territory  had  frequently  been  represented  by  Delegates  who  practiced 
polygamy,  the  report  continues: 

But  a  graver  question  than  those  we  have  considered  is  the  question  whether  the  House  ought, 
as  a  matter  of  policy,  or  to  establish  a  precedent,  expel  either  a  Delegate  or  Member  on  account  of  alleged 
crimes  or  immoral  practices  unconnected  with  their  duties  or  obligations  as  Members  or  Delegates, 
when  the  Delegate  or  Member  possesses  all  the  qualifications  to  entitle  him  to  his  seat. 

If  we  are  to  go  into  the  question  of  the  moral  fitness  of  a  Member  to  occupy  a  seat  in  the  House, 
where  will  the  inquiry  stop?  What  standard  shall  we  fix  in  determining  what  is  and  what  is  not  suffi- 
cient cause  for  expulsion? 

The  report  discusses  the  possibilities  of  such  moral  and  political  disqualifi- 
cations being  made  a  pretext  for  depriving  constituences  of  their  representation. 
To  illustrate  the  reluctance  of  the  House  to  expel  for  such  reasons,  two  cases  were 
cited:  That  of  Benjamin  G.  Harris,  of  Maryland,  who  had  been  convicted  of  aiding 
the  rebellion,  but  who  was  allowed  to  hold  a  seat  in  the  Thirty-ninth  Congress;' 
and  Representative  Herbert,  of  California,  who  was  charged  with  homicide,  but 
who  was  not  disturbed  in  his  seat.^ 

The  committee  also  laid  stress  upon  the  fact  that  at  the  previous  session  the 
House  had  declared  Mr.  Cannon  entitled  to  his  seat. 

On  February  9,  1875,  Mr.  Smith,  of  New  York,  called  up  the  resolution  reported 
by  the  majority  of  the  committee.  The  consideration  of  it  was  antagonized  on 
behalf  of  an  appropriation  bill,  and  the  House  voted  by  a  large  majority  not  to 
consider.^ 

471.  The  Utah  election  case  of  Campbell  v.  Cannon,  in  the  Forty- 
seventh  Congress. 

In  1882  the  House  declined  to  permit  the  oath  to  he  administered  to 
either  of  two  contesting  Delegates  until  the  papers  in  relation  to  the  prima 
facie  right  had  been  examined  by  a  committee. 

The  House  has  given  to  a  committee  the  right  to  decide  on  either  the 
prima  facie  or  final  right  to  a  seat  before  authorizing  the  oath  to  be 
administered  to  a  Delegate. 


'  On  December  19,  1865,  the  resolution  relating  to  Mr.  Harris  was  introduced. 

^  On  February  24,  1857,  this  case  was  reported  on,  no  action  being  recommended. 

^  Second  session  Forty-third  Congress,  Record,  p.  1083. 


§  472  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  501 

On  January  10,  1882/  the  House  proceeded  to  the  consideration  of  this  resolu- 
tion, offered  December  6,  1881 : 

Resolved,  That  Allen  G.  Campbell,  Delegate  elect  from  Utah  Territory,  is  entitled  to  be  sworn  in 
as  Delegate  to  this  House  on  his  prima  facie  case. 

To  this  Mr.  Thomas  B.  Reed,  of  Maine,  offered  the  following  as  a  substitute: 

Resolved,  That  the  papers  in  relation  to  the  right  to  a  seat  as  a  Delegate  from  the  Territory  of  Utah 
be  referred  to  the  Committee  on  Elections.^  with  instructions  to  report  at  as  early  a  day  as  practicable 
as  to  the  prima  facie  right,  or  the  final  right,  of  claimants  to  the  seat  as  the  committee  shall  deem  proper. 

After  debate  the  substitute  was  agreed  to,  and  the  resolution  as  amended  was 
agreed  to. 

The  facts  of  the  case  appeared  as  follows:  That  Mr.  Campbell  had  the  governor's 
certificate  of  election;  that  Mr.  George  Q.  Cannon  received  18,568  votes,  and  Mr. 
Campbell  only  1,3.57;  that  Mr.  Cannon  was  a  naturalized  citizen,  and  also  a  Mormon 
and  a  polygamist,  living  with  plural  wives,  and  a  defender  of  the  institution  of 
polygamy.^ 

472.    The  Utah  election  case  of  Campbell  v.  Cannon,  continued. 

A  committee  having  power  to  report  on  either  prima  facie  or  final 
right,  made  a  single  report  on  final  right  only. 

Records  of  returns,  duly  authenticated  by  seal,  are  received  as  evi- 
dence in  election  cases  after  the  time  for  taking  testimony  is  closed. 

The  record  of  a  court  of  naturalization  sufficiently  establishes  citizen- 
ship, even  though  it  be  alleged  that  the  certificate  of  the  fact  has  not  been 
issued  regTilarly. 

The  court  record  of  naturalization  may  not  be  questioned  collaterally 
by  evidence  impeaching  the  facts  on  which  the  certificate  was  issued. 

On  February  28,  1882,*  the  report  of  the  majority  of  the  Committee  of  Elections 
in  the  Utah  case  of  Campbell  v.  Carmon  was  submitted  to  the  House.  The  follow- 
ing is  a  statement  ^  of  the  essential  preliminary  facts : 

The  election  out  of  which  it  arises  was  held  on  November  2, 1880,  for  the  choice  of  a  Delegate  from 
the  Territor)'  of  Utah.  The  returns,  which  were  duly  filed  with  the  secretary  of  the  Territorj',  were 
opened  and  canvassed  by  him  in  the  presence  of  the  governor  of  the  Territory  on  December  14,  1880. 
The  canvass  of  the  votes,  which  was  concluded  on  January  8,  1881,  showed  that  George  Q.  Cannon 
received  18,568  votes,  and  Allen  G.  Campbell  received  1,357  votes.  The  law  provides  that  the  person 
having  the  highest  number  of  votes  shall  be  declared  by  the  governor  to  be  elected.     The  governor, 

'  Furst  session  Forty-seventh  Congress,  Journal,  pp.  255,  256;  Record,  pp.  322-340. 

-  The  Committee  on  Elections  consisted  of  Messrs.  WQliam  H.  Calliins,  of  Indiana,  George  C.  Hazel- 
ton,  of  Wisconsin,  John  T.  Wait,  of  Connecticut,  William  G.  Thompson,  of  Iowa,  Ambrose  A.  Ranney, 
of  Massachusetts,  James  M.  Ritchie,  of  Ohio,  Augustus  H.  Pettibone,  of  Tennessee,  Samuel  H.  Miller, 
of  Pennsylvania,  Ferris  Jacol)s.  jr.,  of  New  York,  John  Paul,  of  Virginia,  Frank  E.  Beltzhoover,  of  Penn- 
sylvania, Gibson  Atherton,  of  Ohio,  Lowndes  H.  Davis,  of  Missouri,  G.  W.  Jones,  of  Texas,  and  Samuel 
W.  Moulton  of  Illinois. 

3  Mthough  Mr.  Campbell  had  the  certificate  of  the  governor,  the  Clerk  of  the  preceding  House 
had  placed  Mr.  Cannon's  name  on  the  roll  at  the  opening  of  the  Forty-seventh  Congress.  The  Speaker, 
however,  declined  to  recognize  the  roll  of  delegates,  and  Mr.  Cannon  was  not  sworn  in. 

■*  House  Report  'So.  559,  first  session  Forty-seventh  Congress;  2  Ellsworth,  p.  604. 

'This  statement  is  from  the  views  of  Mr.  F.  E.  Beltzhoover,  of  Pennsylvania,  who  concurred 
generally  with  the  conclusions  of  the  majority  of  the  committee. 


502  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   472 

however,  in  the  mistaken  belief  that  he  had  the  right  to  go  behind  the  returns,  heard  evidence  and 
arguments  to  show  that  Mr.  Cannon  was  an  alien  and  polygamist,  and  on  these  grounds  finding  them, 
as  he  believed,  sustained,  declared  Mr.  Cannon  ineligible  and  disqualified  to  serve  as  a  Delegate.  The 
governor  further  decided,  under  an  erroneous  view  of  the  law,  that  Mr.  Cannon  being  ineligible,  the 
votes  cast  for  him  were  void,  and  Mr.  Campbell  being  a  citizen  and  eligible,  and  having  received  the 
next  highest  number  of  votes,  was  elected.  The  governor  accordingly  gave  Mr.  Campbell  a  certificate 
of  election,  and  filed  among  the  records  of  the  Territory,  in  the  office  of  the  secretary  thereof,  an  elabo- 
rate opinion  containing  a  full  statement  of  the  facts.  The  secretary  of  the  Territory,  on  January  10, 
1881,  gave  Mr.  Cannon  a  certified  copy  of  the  opinion  and  declaration  of  the  governor,  and  also,  on 
January  20,  1881,  gave  him  a  certified  abstract  of  all  the  returns. 

Mr.  Cannon  notified  Mr.  Campbell,  on  February  4,  1881,  that  he  would  contest  his  seat  on  the 
ground  that  he  (Cannon)  had  received  a  large  majority  of  the  votes  cast.  On  February  24,  1881,  Mr. 
Campbell  replied  to  Mr.  Cannon's  notice  that  he  was  not  elected,  and,  if  elected,  was  disqualified  by 
■•eason  of  his  alienage  and  polygamy.  No  testimony  was  taken  by  Mr.  Cannon  in  support  of  his  notice 
during  the  time  allowed  to  him  by  law,  but  on  May  9,  1881,  and  subsequently  thereto,  testimony  was 
taken  by  Mr.  Campbell  to  show  that  Mr.  Cannon  was  a  polygamist  and  an  unnaturalized  alien,  and  by 
Mr.  Cannon,  in  reply,  to  show  his  citizenship. 

The  certificates  held  by  Mr.  Cannon  and  Mr.  Campbell  and  all  the  papers  and  testimony  in  the 
case  were  placed  in  the  custody  of  the  Clerk  of  the  Forty-sixth  Congress,  and  by  him  were  handed 
over  to  his  successor  at  the  organization  of  the  Forty-seventh  Congress. 

When  the  Forty-seventh  Congress  was  organized  and  the  Delegates  from  the  Territories  were 
called  to  be  sworn,  objection  was  made  to  both  Mr.  Campbell  and  Mr.  Cannon,  and  neither  was  admitted. 
After  a  full  discussion  of  the  question  as  to  which  of  the  two  gentlemen  had  the  prima  facie  right  to 
the  seat,  it  was  resolved  by  the  House,  on  January  13,  1882 — 

"  That  the  papers  in  relation  to  the  right  to  a  seat,  as  a  Delegate  from  the  Territory  of  Utah,  be 
referred  to  the  Committee  on  Elections,  with  instructions  to  report,  at  as  early  a  day  as  practicable,  as 
to  the  prima  facie  right  or  the  final  right  of  the  claimants  to  the  seat,  as  the  committee  shall  deem 
proper." 

While  the  majority  of  the  committee  concurred  in  a  conclusion,  they  quite 
generally  filed  individual  views  instead  of  joining  in  a  report.  But  the  views  filed 
by  Mr.  William  H.  Calkins,  of  Indiana,  chairman  of  the  committee,  who  submitted 
the  report  to  the  House,  were  generally  referred  to  in  the  debate  as  representing 
most  nearly  the  position  of  the  majority. 

As  to  the  question  of  prima  facie  right,  Mr.  Calkins  took  this  view,  seeming,  in 
doing  so,  to  voice  the  general  opinion  of  the  committee: 

At  the  threshold  of  this  case  we  were  met  with  a  certificate  held  by  Mr.  Campbell,  the  contestee, 
from  the  governor  of  Utah  Territory.  We  decline  to  enter  into  a  discussion  of  the  prima  facie  right 
of  Mr.  Campbell  to  take  his  seat  as  a  Delegate  on  this  certificate,  because  we  construe  the  action  of 
the  House  on  passing  on  it  as  a  decision  adverse  to  Mr.  Campbell,  and,  being  compelled  to  report 
on  the  whole  case,  we  deem  it  a  piece  of  supererogation  to  reopen  the  case  of  the  prima  facie  right, 
being  satisfied  with  the  action  of  the  House  thereon.  We  dismiss  that  part  of  the  case  from  further 
consideration. 

At  the  outset  Mr.  Calkins  thus  discussed  a  question  of  practice: 

The  next  question  that  meets  us  is  a  question  of  practice  raised  by  the  contestee;  which  is,  that 
there  is  no  competent  evidence  before  the  committee  relative  to  the  number  of  votes  cast  for  Mr.  Can- 
non at  the  last  election,  and  it  is  therefore  contended  that,  on  the  certificate  issued  by  the  governor 
to  Mr.  Campbell,  he  is  entitled  pro  confesso  to  the  seat  on  the  final  hearing. 

The  facts  before  us  are  as  follows:  A  certified  transcript  made  by  the  secretary  of  the  Territory, 
under  the  seal  thereof,  was  filed  by  Mr.  Cannon  with  the  Clerk  of  the  House  of  Representatives  on  the 

day  of  November,  1880,  and  was  duly  referred  to  this  committee  under  a  resolution  of  the  House 

adopted  on  the day  of  December,  1881.     It  did  not  reach  the  committee  at  the  same  time  that  the 

other  papers  in  the  contest  came  into  its  possession,  but  shortly  thereafter  it  was  sent  by  the  Clerk  of 


§  473  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  503 

the  House  to  this  committee.  These  certificates  purport  on  their  face  to  be  certified  transcripts  of  the 
returns  made  by  the  county  canvassing  boards  to  the  secretary  of  the  Territory,  under  the  laws  of  Utah. 
We  therefore  hold  that  certificates  of  election  made  by  county  canvassing  boards  to  the  secretary 
of  the  Territory  (under  the  Territorial  law  relative  to  the  election  of  other  Territorial  officers  of  the 
Territory' — see  sees.  22,  23,  and  38,  et  seq.)  constitute  the  proper  mode  to  be  pursued  in  the  Terri- 
tories in  respect  to  the  election  of  Delegates,  and  that  that  mode  gives  effect  to  the  law  which  makes 
it  the  duty  of  the  governor  to  canvass  the  votes  and  to  give  a  certificate  to  the  person  receiving  the  high- 
est number  of  votes  for  Delegate  in  Congress.  It  has  been  the  practice  of  this  committee  to  receive  all 
records  duly  authenticated  by  a  seal  without  having  them  first  introduced  before  the  magistrate  who 
takes  and  certifies  the  depositions.  We  know  of  no  other  practice  that  has  obtained  since  the  founda- 
tion of  the  Government.  This  class  of  evidence  has  never  been  held  to  fall  within  the  meaning  of  the 
law  passed  by  Congress  relative  to  contested-election  cases.  The  testimony  there  referred  to  is  the 
testimony  of  witnesses  or  the  introduction  of  such  documents  as  need  identification  or  further  proof 
before  their  competency  is  admitted,  and  we  hold  that  it  does  not  apply  to  records  and  evidence  which 
a  seal  may  make  perfect  without  further  identification.  If  the  contostee  has  been  or  is  surprised  at  the 
introduction  of  this  testimony,  his  proper  course  is  to  make  application  for  a  continuance,  so  that  he 
may  be  allowed  to  take  further  testimony.  Not  having  made  such  application,  we  presume  that  he 
does  not  wish  to  avail  himself  of  that  course  in  this  case.  McCrary  seems  to  hold  the  better  practice 
to  be  otherwise  (sec.  362),  but  section  353  so  modifies  the  doctrine  first  laid  down  that  it  is  not  in  con- 
flict with  the  view  the  committee  take. 

This  seems  to  have  been  the  generally  accepted  view  in  the  committee,  although 
Mr.  William  G.  Thompson,  of  Iowa,  in  his  views,  antagonizes  it: 

The  contestee  had  a  right  to  the  notice  required  by  law;  he  had  a  right  to  be  present  and  cross- 
examine  the  witness;  he  had  a  right  to  show  that  this  statement  was  not  the  best  evidence  and  demand 
that  investigation  be  made  into  the  legality  of  every  ballot  cast,  as  well  as  the  qualifications  of  each 
elector,  and  especially  so  when  we  find  in  evidence  this  strange  law  upon  the  statute  books  of  Utah, 
then  and  now  in  force  (act  of  Feb.  12,  1870,  sec.  43,  ch.  2):  "That  every  woman  of  the  age  of  twenty- 
one  years  who  has  resided  in  the  Territory  six  months  next  preceding  any  general  election,  bom  or 
naturalized  in  the  United  States,  or  who  is  a  wife  or  daughter  of  a  native-born  or  naturalized  citizen  of 
the  United  States,  shall  be  entitled  to  vote  at  any  election  in  this  Territory." 

The  acceptance  of  these  returns  as  evidence  disposed  necessarily  of  the  ques- 
tion as  to  whether  or  not  Mr.  Cannon  received  the  highest  number  of  legally  cast 
votes  for  the  office  of  Delegate  to  Congress. 

The  next  question  in  issue  was: 

Was  he  a  citizen  of  the  United  States  at  the  time  of  his  election  and  did  he  possess  the  other 
necessary  qualifications? 

This  question  involved  the  determination  of  certain  facts  as  to  the  naturaliza- 
tion of  Mr.  Carmon.  It  was  alleged  that  his  certificate  had  not  been  regularly 
issued,  but  the  majority  considered  that  the  records  of  the  court  established  it 
sufficiently.     On  another  point,  however,  Mr.  Calkins  said : 

The  other  point  made,  that  Mr.  Cannon  had  not  been  a  resident  of  any  State  or  Territory  of  the 
United  States  for  five  years  next  preceding  the  date  of  naturalization,  involves  quite  a  novel  question. 
We  hold,  however,  on  this  point,  that  the  record  can  not  be  collaterally  questioned,  and  that  therefore 
it  is  incompetent  to  show  by  evidence  in  this  proceeding  that  the  certificate  is  null.  (Pruit  v.  Cum- 
mings,  16  Wend.,  616;  State  v.  Penny,  10  .\rk.,  616;  McCarthy  v.  Marsh,  1  Seld.,  263;  In  re  Colman, 
15  Blatchf.,  406;  Spratt  v.  Spratt,  4  Pet.,  393.) 

473.    The  Utah  election  case  of  Campbell  v.  Cannon,  continued. 

In  1882  the  House,  by  majority  vote  and  for  the  disqualification  of 
polygamy,  excluded  Delegate  George  Q.  Cannon,  who  had  not  been  sworn 
on  his  prima  facie  showing. 


504  PRECEDENTS    OP    THE    HOUSE    OF    EEPEESEKTATIVES.  §   473 

A  Delegate-elect  being  excluded  for  disqualification,  the  House 
declined  to  seat  the  candidate  having  the  next  highest  number  of  votes. 

An  argument  that  questions  affecting  qualifications  should  be  insti- 
tuted in  the  House  alone  and  not  by  proceedings  under  the  law  of  contest. 

In  188S,  in  a  sustained  case,  the  major  opinion  of  the  Elections  Com- 
mittee inclined  to  the  view  that  the  constitutional  qualifications  for  a 
Member  did  not  apply  to  a  Delegate. 

An  elaborate  discussion  of  the  status  in  the  House  of  a  Delegate  from 
a  Territory. 

The  question  as  to  whether  or  not  a  law  of  Congress  creating  Delegates 
is  binding  on  the  House  in  succeeding  Congresses. 

Discussion  of  the  effect,  in  the  matter  of  qualifications  of  Delegates,  of 
a  law  extending  the  Constitution  over  a  Territory. 

The  third  and  last  question  arising  is,  Was  he  a  polygamist  at  the  time  of  his 
election;  and  if  so,  is  that  a  disqualification? 

On  the  question  of  fact  there  could  be  no  doubt,  for  he  had  given  the  following 
written  admission : 

In  the  matter  of  George  Q.  Cannon.  Contest  of  Allen  G.  Campbell's  right  to  a  seat  in  the  House  of 
Representatives  of  the  Forty-seventh  Congress  of  the  United  States  as  Delegate  from  the  Territory 
of  Utah. 

I,  George  Q.  Cannon,  contestant,  protesting  that  the  matter  in  this  paper  contained  is  not  relevant 
to  the  issue,  do  admit  that  I  am  a  member  of  the  Church  of  Jesus  Christ  of  Latter-Day  Saints,  commonly 
called  Mormons;  that  in  accordance  with  the  tenets  of  said  church  I  have  taken  plural  wives,  who  now 
live  with  me,  and  have  so  lived  with  me  for  a  number  of  years,  and  borne  me  children.  I  also  admit  that 
in  my  public  addresses  as  a  teacher  of  my  religion  in  Utah  Territory  I  have  defended  said  tenet  of  said 
church  as  being,  in  my  belief,  a  revelation  from  God. 

Geo.  Q.  Cannon. 

Therefore  there  remains  the  question,  Does  the  practice  of  polygamy  dis- 
qualify a  Delegate?  This  was  the  really  important  question  at  issue,  both  in  the 
committee  and  in  the  debates  on  the  floor.  And  its  discussion  involved  the  question 
of  the  status  of  Territorial  Delegates  as  distinguished  from  the  status  of  Members. 

Mr.  Calkins,  in  his  views,  said: 

We  are  now  brought  face  to  face  with  the  question  whether  this  House  will  admit  to  a  seat  a  Delegate 
who  practices  and  teaches  the  doctrine  of  a  plurality  of  wives,  in  open  violation  of  the  statute  of  the 
United  States  and  contrary  to  the  judgment  of  the  civilized  world.  There  are  several  clauses  in  our 
Constitution  which  may  have  some  bearing  on  this  subject. 

Section  2,  Article  I,  of  the  Constitution  is  as  follows: 

"The  House  of  Representatives  shall  be  composed  of  Members  chosen  every  second  year  by  the 
people  of  the  several  States,"  etc. 

SECTION  5. 

"Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  members; 
and  a  majority  of  each  shall  constitute  a  quorum  to  do  business.     *    *    *  " 

CLAUSE   2. 

"  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its  members  for  disorderly 
behavior,  and,  with  a  concurrence  of  two-thirds,  expel  a  member." 

AMENDMENT  I,  SECTION   1. 

"Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech  or  of  the  press." 


§   473  POLYGAMY    AND    OTHEK    CRIMES    AS    DISQUALIFICATIONS.  505 

ARTICLE   IV,  SECTION   3,  CLAUSE   2. 

"The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  United  States." 

These  are  the  provisions  of  the  Constitution  which  may  be  held  to  have  some  bearing  on  the  question 
of  the  qualifications  of  Delegates. 

In  the  first  place,  Is  a  Delegate  from  a  Territorj'a  Member  of  the  House  of  Representatives  within 
the  meaning  of  the  Constitution?  The  second  section  of  the  first  article  says:  "The  House  of  Repre- 
sentatives shall  be  composed  of  Members  chosen  every  second  year  by  the  people  of  the  several  States, 
and  the  electors  in  each  State  shall  have  the  qualifications  requisite  for  electors  in  the  most  numerous 
branch  in  the  State  legislature."  There  is  no  proAdsion  in  the  Constitution  for  the  election  of  Delegates 
to  the  House  of  Representatives  or  to  the  Senate.  They  are  entirely  the  creature  of  statute.  They  are 
clearly  not  within  the  clause  of  the  Constitution  last  above  quoted,  for  the  House  is  "composed  of  Mem- 
bers chosen  every  second  year  by  the  people  of  the  several  States;"  and  nothing  is  said  of  the  Territories. 
Delegates  have  never  been  regarded  as  Members  in  any  constitutional  sense,  because  their  powers, 
duties,  and  pri\-ileges  on  the  floor  of  the  House,  when  admitted,  are  limited.  They  may  speak  for  their 
Territories;  they  may  advocate  such  measures  as  they  think  proper;  they  may  introduce  bills  and  serve 
on  committees;  but  they  are  deprived  of  the  right  to  vote.  And  we  doubt  whether  Congress  could 
clothe  them  with  the  right  to  vote  on  measures  affecting  the  people  of  the  States  or  of  the  Territories, 
because  they  do  not  represent  any  integral  part  of  the  nation,  but  simply  an  unorganized  territory 
belonging  to  the  whole  people.  Hence  Delegates  are  creatures  of  statute,  and  it  would  be  competent 
at  any  time  for  the  legislative  branch  of  the  Government  to  al^olish  the  office  altogether. 

The  writer  of  this  report  goes  further  than  that.  He  holds  that  it  is  incompetent  for  Congress  and 
the  Executive  to  impose  on  any  future  House  the  right  of  Delegates  to  seats  with  defined  qualifications. 
That  is  to  say,  when  the  several  laws  were  passed  giving  the  Territories  the  right  to  this  limited  repre- 
sentation, those  laws  were  binding  only  on  the  lower  House,  which  permitted  them  to  be  or  made  it 
possible  for  them  to  be  passed,  and  were  persuasive  only  to  the  Houses  of  future  Congresses.  For  some 
purposes  each  House  of  Congress  is  a  separate,  independent  branch  of  the  Government.  It  is  made  so 
by  the  Constitution.  For  example,  each  House  is  the  judge  of  the  elections  and  returns  of  its  own  Mem- 
bers, and  neither  the  Executive  nor  the  Senate  can  interfere  with  that  constitutional  prerogative.  Each 
House  is  independent  in  its  expenditure  of  its  contingent  fund,  and  in  the  government  of  its  own  ofiicers. 
It  is  independent  in  the  formation  of  its  own  committees,  in  clothing  them  with  power  to  take  evidence, 
to  send  for  persons  and  papers,  and  to  investigate  such  matters  as  are  within  its  jurisdiction.  Each 
House  is  independent  in  its  power  to  arrest  and  to  imprison,  during  the  session  of  the  body,  such  contu- 
macious witnesses  as  refuse  to  abide  its  order.  In  many  other  instances  that  may  be  cited  each  House 
acts  independently  of  the  other.  And  with  reference  to  the  election  of  Delegates,  who  (if  they  hold  any 
office  or  franchise  at  all)  can  be  nothing  but  agents  representing  the  property  and  common  territory  of  all 
the  people,  it  operates  only  on  the  lower  branch  of  Congress,  for  their  election  extends  no  right  to  them 
to  interfere  with  the  business  of  the  Senate  or  to  act  as  members  thereof.  This  must  not  be  construed 
into  an  opinion  that  the  writer  holds  that  the  House  of  Representatives  may  disregard  any  law  which 
Congress  has  the  constitutional  power  to  pass.  Such  laws  are  as  binding  upon  this  House  as  upon  any 
citizen  or  court.  Nor  does  the  writer  of  this  report  mean  to  be  understood  that  it  is  not  competent  for 
Congress  to  provide,  under  the  Constitution,  for  legislative  representation  for  Territories,  but  it  is  denied 
that  Congress  can  bind  the  House  by  any  law  respecting  the  qualification  of  a  Delegate.  It  can  not 
affix  a  qualification  by  law  for  a  Delegate  and  bind  any  House  except  the  one  assenting  thereto.  The 
qualification  of  Members  is  fixed  by  the  Constitution.  Hence  they  may  not  be  added  to  or  taken  from 
by  law.  But  as  to  Delegates,  they  are  not  constitutional  officers.  Their  qualification  depends  entirely 
upon  such  a  standard  as  the  body  to  which  they  are  attached  may  make.  It  is  urged  this  means  a  legal 
qualification.  This  is  admitted;  but  that  legal  qualification  is  remitted  to  the  body  to  which  the 
Delegate  is  attached,  because  it  is  the  sole  judge  of  that  requisite.  It  is  unfettered  by  constitutional 
restrictions  and  can  not  yield  any  part  of  this  prerogative  to  the  other  branch  of  Congress  or  the  Execu- 
tive. If  it  could,  the  right  to  amend  would  follow,  and  the  House  might  find  itself  in  the  awkward 
position  of  having  the  Senate  fixing  qualifications  to  Delegates,  or  the  Executive  vetoing  laws  fixing 
them,  and  by  this  means  the  power  which  V)y  the  Constitution  resides  alone  in  the  House  would  be 
entirely  abrogated. 


506  PRECEDENTS   OF   THE    HOUSE   OF   KEPBESENTATIVES.  §   473 

It  is  claimed  this  is  an  autocratic  power.  This  is  admitted.  All  legislative  bodies  are  autocratic 
in  their  powers  unless  restricted  by  written  constitutions.     In  this  instance  there  is  no  restriction. 

It  is  contended  that  the  act  of  Congress  extending  the  Constitution  and  laws  of  the  United  States 
over  the  Territory  of  Utah,  in  all  cases  where  they  are  applicable,  extends  the  constitutional  privilege 
to  Delegates  and  clothes  them  with  membership  as  constitutional  officers  of  the  House.  We  can  not 
assent  to  that  view.  The  very  language  of  the  act  itself  only  extends  the  Constitution  and  laws  over 
the  Territory  in  cases  where  they  are  applicable.  They  can  not  be  applicable  to  the  election  of  a  Dele- 
gate; for  if  they  were,  then  Congress  would  have  no  authority  to  deprive  a  Delegate  of  the  right  to  vote. 
To  contend  that  the  applicability  of  the  Constitution  in  that  respect  extends  to  Delegates  proves  too 
much.  It  is  clear,  therefore,  that  that  clause  of  the  Constitution  relative  to  the  expulsion  of  a  Member 
by  a  two-thirds  vote  can  not  apply  to  Delegates,  because  they  hold  no  constitutional  office.  It  is  equally 
clear  that  the  clause  of  the  Constitution  relative  to  elections,  returns,  and  qualifications  of  Members 
has  no  applicability  except  by  parity  of  reasoning;  and  we  do  not  dissent  from  the  view  that,  so  far  as 
the  qualification  of  citizenship  and  other  necessary  qualifications  (except  as  to  age)  are  concerned, 
they  extend  to  Delegates  as  well  as  to  Members.  (Sec.  1906,  R.  S.  U.  S.)  This  is  made  so,  probably, 
by  the  statute,  expressly  so  to  all  the  Territories  except  to  Utah  Territory,  and  inferentially  to  that 
Territory.  It  follows,  as  a  logical  sequence,  that  the  House  may  at  any  time,  by  a  majority  vote,  exclude 
from  the  limited  membership  which  it  now  extends  to  Delegates  from  Territories  any  person  whom  it 
may  judge  to  be  unfit  for  any  reason  to  hold  a  seat  as  a  Delegate. 

It  can  not  be  said  that  polygamy  can  be  protected  under  that  clause  of  the  Constitution  protecting 
everyone  in  the  worship  of  God  according  to  the  dictates  of  his  own  conscience  and  prohibiting  the 
passage  of  laws  preventing  the  free  exercise  thereof. 

It  is  true  that  vagaries  may  be  indulged  by  persons  under  this  clause  of  the  Constitution  when  they 
do  not  violate  law  or  outrage  the  considerate  judgment  of  the  civilized  world.  But  when  such  vagaries 
trench  upon  good  morals,  and  debauch  or  threaten  to  debauch  public  morals,  such  practice  should  be 
prohibited  by  law  like  any  other  evil  not  practiced  as  a  matter  of  pretended  conscience. 

The  views  which  we  have  just  expressed  render  it  unnecessary  for  us  to  discuss  further  the  various 
propositions  involved.  In  the  face  of  this  admission  of  Mr.  Cannon  we  feel  compelled  to  say  that  a 
representative  from  that  Territory  should  be  free  from  the  taint  and  obloquy  of  plural  wives.  Having 
admitted  that  he  practices,  teaches,  and  advises  others  to  the  commission  of  that  offense,  we  feel  it 
our  duty  to  say  to  the  people  of  that  Territory  that  we  will  exclude  such  persons  from  representing 
them  in  this  House.  In  saying  this  we  desire  to  cast  no  imputation  on  the  contestant  personally,  because 
tn  his  deportment  and  conduct  in  all  other  respects  he  is  certainly  the  equal  of  any  other  person  on 
ihis  floor. 

Mr.  F.  E.  Beltzhoover,  in  his  views,  presented  the  question  of  quahfication  in 
a  somewhat  different  light : 

The  only  portion  of  the  Constitution  of  the  United  States  which  refers  to  the  Territories  is  Article  IV, 
section  3,  clause  2,  which  provides: 

"The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  United  States." 

This  clause  of  the  fundamental  law  has  received  the  most  learned  and  elaborate  consideration  by 
the  Supreme  Court  in  Scott  v.  Sanford  (19  Howard,  393,  etc.),  wherein,  after  going  fully  into  the  whole 
history  of  the  Territories  from  the  time  of  the  first  cession  to  the  Government,  it  is  held  that  this  clause — 

"Applies  only  to  territory  within  the  chartered  limits  of  some  one  of  the  States  when  they  were  col- 
onies of  Great  Britain,  and  which  was  surrendered  by  the  British  Government  to  the  old  confederation 
of  the  States  in  the  treaty  of  peace.  It  does  not  apply  to  territory  acquired  by  the  present  Federal 
Government  by  treaty  or  conquest  from  a  foreign  nation." 

To  all  other  territory  it  is  held  that  the  Constitution  does  not  extend,  and  can  not  be  extended  by 
Congress,  except  in  so  far  as  Congress  may  enact  the  provisions  of  the  Constitution  into  a  part  of  the 
organic  law  of  such  territory.  This  has  been  done  in  regard  to  Utah,  first  by  the  act  of  Congress  which 
organized  that  Territory,  and  which  provides  that  "the  Constitution  and  laws  of  the  United  States 
are  hereby  extended  over  and  declared  to  be  in  force  in  said  Territory  of  Utah,  so  far  as  the  same  or 
any  provision  thereof  may  be  applicable." 


§   JrTa  POLYGAMY    AND   OTHER    CRIMES    AS    DISQUALIFICATIONS.  507 

The  Revised  Statutes,  sec.  1891,  provides  in  somewhat  different  language,  but  of  the  same  purport, 
that  'the  Constitution  and  all  laws  of  the  United  States  which  are  not  locally  inapplicable  shall,"  etc. 
The  Constitution  and  all  the  laws  of  the  United  States  are,  therefore,  a  part  of  the  statute  law  of 
the  Territory  of  Utah,  so  far  as  they  are  applicable  locally  to  that  Territory. 

Now,  what  was  the  design  of  the  framers  of  the  Constitution  in  reference  to  the  territory  which 
they  provided  for  in  the  clause  which  we  have  quoted  above?  The  history  of  the  subject  clearly 
shows  that  they  intended  to  conunit  the  unorganized  territories  wholly  to  the  discretion  and  unlimited 
power  of  Congress.  This  is  so  decided  by  the  courts  in  all  the  cases  in  which  the  subject  is  considered; 
this  was  so  held  in  Scott  i'.  Sanford  (supra),  and  Judge  Nelson,  in  Benner  v.  Porter  (9  Howard,  235), 
says: 

"They  are  not  organized  under  the  Constitution  nor  subject  to  its  complex  distribution  of  the 
powers  of  government  or  the  organic  law,  but  are  the  creatures  exclusively  of  the  legislative  depart- 
ment, and  subject  to  its  supervision  and  control." 

It  is  held  by  Judge  Storj-  that ' '  the  power  of  Congress  over  the  public  Territories  is  clearly  exclusive 
and  universal,  and  their  legislation  is  subject  to  no  control,  but  is  absolute  and  unlimited,  unless  so  far 
as  it  is  affected  by  stipulations  in  the  cessions,  or  by  the  ordinance  of  1787,  under  which  any  part  of  it 
has  been  settled."  (Storj-,  Constitution,  sec.  1328;  Rawle,  Constitution,  p.  237;  1  Kent's  Commentaries, 
p.  243.) 

The  Supreme  Court  of  the  United  States,  in  a  very  recent  case,  says:  ' '  The  power  is  subject  to  no 
limitations."     (Gibson  v.  Chouteau,  13  Wall.,  99.) 

See  also  Stacey  v.  Abbott  (1  Am.  Law,  T.  R.,  84),  where  it  is  held  by  the  supreme  court  of  one 
of  the  Territories  that  they ' '  are  not  organized  under  the  Constitution ;  they  are  exclusively  the  creatures 
of  Congress." 

But  there  is  something  more  shown  by  the  historj'  of  the  clause  in  the  Constitution  in  reference  to 
Territories  and  by  the  decisions  of  the  courts  thereon.  It  is  clear  from  both  these  that  it  was  never 
intended  that  the  status  of  the  Territories  should  in  any  respect  approach  so  near  the  character  and 
position  of  sovereign  States  as  to  require  that  whatever  agents  these  Territories  might  be  entitled  to  on 
the  floor  of  Congress,  should  have  the  status  and  qualifications  of  Members  of  Congress.  The  Territories 
in  the  minds  of  the  framers  of  the  Constitution  had  none  of  the  rights  and  attributes  of  the  States.  No 
other  parts  of  the  Constitution  were  made  to  apply  to  them  except  the  clause  we  have  quoted.  On 
the  contrarj',  they  were  spoken  of  as  property,  and  power  was  given  to  Congress  to  dispose  of  them  as 
property,  and  to  make  all  needful  rules  and  regulations  respecting  them  as  other  property  of  the  United 
States.  They  were  put  in  the  same  categorj'  with  the  other  chattels  of  the  Government.  There  is, 
therefore,  nothing  in  the  Constitution  which  will  justify  us  in  believing  in  the  light  of  its  history  that 
the  qualifications  of  agents  who  might  be  appointed  to  look  after  the  interests  of  the  Territories  on  the 
floor  of  Congress  should  be  the  same  or  even  like  those  of  Members  of  Congress.  This  is  so,  we  main- 
tain, with  regard  even  to  that  Territory  over  which  the  Constitution  extends  directly  and  immediately, 
because  it  was  within  the  control  of  the  Government  at  the  time  the  Constitution  was  framed.  If, 
therefore,  the  Constitution  did  not  contemplate  the  requirement  of  such  cjualifications  for  Delegates 
as  agents  of  the  Territorj^  within  its  immmediate  purview,  with  much  less  plausibility  can  it  be  contended 
that  it  shoiild  require  them  where  it  is  only  extended  as  a  part  of  the  statute  law.  The  Constitution 
clearly  puts  it  in  the  power  of  Congress  to  say  at  any  time  and  in  any  way  it  may  see  proper  what 
qualifications  it  will  exact  of  the  agents  whom  as  a  matter  of  grace  and  discretion  it  permits  to  come 
from  the  Territories  into  its  deliberations,  and  to  sit  among  its  Members.  Neither  the  Senate  nor  the 
Executive,  nor  any  other  power  on  earth,  has  any  right  to  interfere  except  by  permission  in  fixing  the 
qualifications  for  admission  to  the  House;  and  the  concurrence  and  cooperation  of  the  Senate  and  Execu- 
tive in  the  passage  of  any  enactment  on  the  subject  can  go  no  further  in  giving  it  force  and  validity 
than  to  make  it  a  persuasive  rule  of  action  which  the  House  is  at  liberty  to  follow  or  disregard.  ' '  Each 
House  shall  be  the  judge  of  the  election,  returns,  and  qualifications  of  its  own  members."  No  law 
that  was  ever  passed  on  this  subject,  which  is  under  the  exclusive  and  unlimited  control  of  Congress, 
by  any  former  Congress  is  binding  on  any  subsequent  Congress.  Each  Congress  may  wholly  repudiate 
all  such  acts  with  entire  propriety.  It  is  customary  to  regard  them  as  rules  of  conduct.  This  is  well 
illustrated  by  the  doctrine  laid  down  by  McCrary  in  his  Law  of  Elections,  section  349,  in  reference  to 
the  laws  made  to  govern  contested  elections; 

'■  The  Houses  of  Congress,  when  exercising  their  authority  and  jurisdiction  to  decide  upon  'the 


508  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   -173 

election,  returns,  and  qualifications'  of  Members,  are  not  bound  by  the  technical  rules  which' govern 
proceedings  in  courts  of  justice.  Indeed,  the  statutes  to  be  found  among  the  acts  of  Congress  regulating 
the  mode  of  conducting  an  election  contest  in  the  House  of  Representatives  are  directory  only,  and 
are  not  and  can  not  be  made  mandatory  under  the  Constitution.  In  practice  these  statutory  regulations 
are  often  varied,  and  sometimes  wholly  departed  from.  They  are  convenient  as  rules  of  practice,  and 
of  course  will  be  adhered  to  unless  the  House,  in  its  discretion,  shall  in  a  given  case  determine  that  the 
ends  of  justice  require  a  different  course  of  action.  They  constitute  wholesome  rules,  not  to  be  departed 
from  without  cause.  It  is  not  within  the  constitutional  power  of  Congress,  by  a  legislative  enactment 
or  otherwise,  to  control  either  House  in  the  exercise  of  its  exclusive  right  to  be  the  judge  of  the  election, 
returns,  and  qualifications  of  its  own  Members. 

' '  The  laws  that  have  been  enacted  on  this  subject  being  therefore  only  directory  and  not  absolutely 
binding,  would  have  been  more  appropriately  passed  as  mere  rules  of  the  House  of  Representatives, 
since  by  their  passage  it  may  be  claimed  that  the  House  conceded  the  right  of  the  Senate  to  share  with 
it  in  this  duty  and  power  conferred  by  the  Constitution.  It  is  presumed,  however,  that  the  provisions 
in  question  were  enacted  in  the  form  of  a  statute  rather  than  a  mere  rule  of  the  House,  in  order  to  give 
them  more  general  publicity,  etc." 

It  is  also  important  to  observe  the  wide  distinction  which  Congress  has  always  made  between  the 
powers  and  status  of  a  Member  of  Congress  and  a  Delegate  from  a  Territory. 

A  Member  of  Congress  is  sent  by  a  State  by  virtue  of  its  irrefragable  right  to  representation  under 
the  Constitution  of  the  United  States.  This  right  Congress  can  not  abrogate  or  control  or  limit  or  modify 
in  any  way. 

A  Delegate  is  an  agent  of  a  Territory,  sent  under  the  authority  or  permission  of  an  act  of  Congress. 
This  right  or  permission  is  subject  to  the  merest  whim  and  caprice  of  Congress.  It  can  be  utterly  wiped 
out  or  modified  or  changed  just  as  Congress  may  see  proper  at  any  time. 

A  Member  of  Congress  must  have  certain  qualifications  under  the  Constitution. 

A  Delegate  need  have  none  but  what  Congress  sees  fit  to  provide. 

A  Member  of  Congress  is  the  representative  and  custodian  of  the  political  power  and  interests  of  a 
sovereign  State,  which  is  itself  a  factor  and  part  of  the  Government. 

A  Delegate  has  no  political  power,  but  is  only  a  businc  ss  agent  of  the  Territory,  for  the  purest  busi- 
ness purposes.     He  has  no  right  to  vote  or  aid  in  shaping  the  policy  of  the  Government  in  war  or  peace. 

A  Member  of  Congress  is  an  officer  named  in  the  Constitution  of  the  United  States,  and  contem- 
plated and  provided  by  the  framers  thereof  at  the  time  of  the  organization  of  the  Government.  He  is  a 
constitutional  officer. 

A  Delegate  is  not  a  constitutional  officer  in  the  remotest  sense.  There  were  no  Delegates  men- 
tioned or  thought  of  by  the  framers  of  the  Constitution. 

A  Memberof  Congress  is  chosen  under  section  2,  Article  I,  of  the  Constitution,  which  provides  that— 

"The  House  of  Representatives  shall  be  composed  of  Members  chosen  every  second  year  l)y  the 
people  of  the  several  States,  and  the  electors  in  each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State  legislature.  No  person  shall  be  a  Representative 
who  shall  not  have  attained  the  age  of  twenty-five  years  and  been  seven  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen." 

This  specifically  and  definitely  and  indubitably  fixes  how  and  where  and  by  whom  Members 
of  Congress  shall  be  chosen  and  what  qualifications  they  must  imperatively  have.  "No  person  shall 
be  a  Representative,"  etc.,  without  these  qualifications. 

A  Delegate  is  chosen  under  section  1862  of  the  Revised  Statutes,  which  provides  that — 

"Every  Territory  shall  have  the  right  to  send  a  Delegate  to  the  House  of  Representatives  of  the 
United  States,  to  serve  during  each  Congress,  who  shall  be  elected  by  the  voters  of  the  Territory  qualified 
to  elect  members  of  the  legislative  assembly  thereof.  The  person  having  the  greatest  number  of  votes 
shall  be  declared  by  the  governor  duly  elected,  and  a  certificate  shall  be  given  accordingly.  Every  such 
Delegate  shall  have  a  seat  in  the  House  of  Representatives,  with  the  right  of  debating,  but  not  of  voting." 

This  fully  and  very  clearly  provides  how  Delegates  shall  be  chosen  and  what  power  they  shall  have, 
but  does  not  exact  or  provide  any  qualifications  or  hint  at  any.  This  is  the  same  provision  substantially 
which  has  been  made  for  Delegates  from  1787  down  to  this  time.  The  provision  in  the  act  of  July  13, 1787, 
for  the  government  of  the  Northwest  Territory,  is  that  the  joint  assembly  of  that  Territory  "shall  have 


§  473  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  509 

authority,  by  joint  ballot,  to  elect  a  Delegate  to  Congress,  who  shall  have  a  seat  in  Congress  with  the  right 
of  debating,  but  not  of  voting." 

These  few  marked  points  of  distinction  between  the  two  offices  not  only  show  that  the  constitutional 
qualifications  for  members  do  not  apply  to  Delegates,  but  that  none  of  the  legislation  which  has  ever  been 
enacted  on  the  subject  seems  to  have  been  founded  on  the  belief  that  they  did. 

CONGRESS   HAS   ADDED   TO   THE    CONSTITUTIONAL    QUALIFICATIONS    OF   MEMBERS;   WHY   NOT   OF 

DELEGATES. 

But  admitting  for  the  purposes  of  this  discussion,  what  can  not  be  maintained,  that  the  same  qualifi- 
tions  which  entitle  a  Member  of  Congress  to  admission  shall  also  entitle  a  Delegate  to  the  same  right,  and 
I  still  hold  that  Congress  has  the  right  and  power  to  say  that  a  polygamist  shall  not  be  admitted  as  a  Dele- 
gate. Under  the  high  power  inherent  in  everj'  organization  on  earth  to  preserve  its  integrity  and  exist- 
ence Congress  has  the  indubitable  right  to  keep  out  of  its  councils  any  person  whom  it  believes  to  be 
dangerous  and  hostile  to  the  Government. 

During  the  war  almost  the  whole  Congressional  delegation  from  the  State  of  Kentucky  were  halted  at 
the  bar  of  the  House,  and,  on  the  objection  of  a  Member,  were  not  permitted  to  be  sworn  until  it  was 
ascertained  whether  they  or  either  of  them  were  guilty  of  disloyal  practices.  They  had  each  every  quali- 
fication usually  required  by  the  Constitution;  they  were  duly  and  regularly  elected  and  returned;  they 
were  sent  by  a  sovereign  State,  holding  all  her  relations  in  perfect  accord  with  the  Federal  Ciovemment; 
but  the  House  proceeded  to  inquire  into  each  case,  and  not  until  a  reasonable  investigation  was  had  were 
any  of  them  admitted.  The  committee  which  had  the  matter  in  charge  reported,  and  the  House  adopted 
and  laid  down,  the  following  rule  on  the  subject  of  all  such  cases: 

"Whenever  it  is  shown  by  proof  that  the  claimant  has,  by  act  of  speech,  given  aid  or  countenance  to 
the  rebellion  he  should  not  be  permitted  to  take  the  oath,  and  such  acts  or  speech  need  not  be  such  as  to 
constitute  treason  technically,  but  must  have  been  so  overt  and  public,  and  must  have  been  done  or  said 
under  such  circumstances,  as  fairly  to  show  that  they  were  actually  designed  to,  and  in  their  nature 
tended  to,  forward  the  cause  of  the  rebellion." 

In  the  case  of  John  Young  Brown,  who  was  among  the  number,  the  committee  almost  unanimously 
reported  against  his  right  to  admission  on  the  ground  that  he  had  written  an  imprudent  and  disloyal  letter; 
nothing  more.  He  had  never  committed  an  act  of  treason.  He  was  never  arrested  or  tried  or  convicted. 
He  denied  all  treasonable  intent  in  the  letter  and  made  every  effort  in  his  power  to  explain  and  extenuate 
his  offense.  But  seven  out  of  the  nine  members  of  the  Committee  on  Elections  of  the  Fortieth  Congress 
reported  that  he  "was  not  entitled  to  take  the  oath  of  office,  or  to  be  admitted  to  the  House  as  a  Repre- 
sentative from  the  State  of  Kentucky."  This  report  was  adopted  by  the  House  by  a  vote  of  108  to  43. 
The  minority  report  in  that  case  made  an  argument  against  the  action  of  the  majority  in  almost  the  same 
words  and  on  identically  the  same  grounds  that  the  minority  of  the  Committee  on  Elections  occupy  in 
the  case  under  consideration.  It  was  argued  that  Mr.  Brown  had  all  the  constitutional  qualifications,  and 
that  Congress  had  no  right  to  exact  more;  that  in  any  event  he  had  never  been  tried  or  convicted  of 
treason,  and  unless  convicted  of  the  crime  even  treason  was  no  disqualification.  But  Congress  then  laid 
down  the  rule  above  given,  and  never  abrogated  since,  that,  in  addition  to  the  ordinary  constitutional 
requirements,  every  man  must  be  well  disposed  and  loyal  toward  the  Government  before  he  can  be 
admitted  to  Congress  to  aid  in  forming  its  policy  and  controlling  its  destinies. 

The  act  of  July  2,  1862,  providing  what  is  known  as  the  iron-clad  oath,  added  a  new  and  marked 
qualification  to  those  required  of  Members  of  Congress  prior  to  that  time,  and  every  Member  who  has 
taken  that  oath  since  has  submitted  to  the  exaction  of  that  additional  qualification.  The  distinguished 
counsel  who  argued  the  case  of  Mr.  Cannon  before  the  Committee  on  Elections  felt  the  force  of  this  act, 
and  the  long-continued  practice  of  Congress  under  it  and  explained  it  as  a  war  measure.     He  said: 

"Thegroundsupon  which  this  law  was  vindicated,  although  not  stated  with  much  care  or  precision, 
are  nevertheless  clearly  enough  disclosed  by  the  debates.  It  was  enacted  as  a  war  measure.  The  iron- 
clad oath  was  adopted  as  the  countersign  which  should,  in  time  of  war,  exclude  domestic  enemies  from 
the  civil  administration  of  the  Government,  in  the  same  manner  and  for  the  same  reason  that  the  military 
countersign  was  employed  to  exclude  those  enemies  from  the  military  lines  of  the  army.  It  was  enacted 
as  a  measure  of  defense  against  an  armed  enemy  in  time  of  war,  and  was  as  necessary-  and  as  justifiable  as 
any  other  war  measure  not  specifically  marked  out  in  the  text  of  the  Constitution." 


510  PKECEDENTS    OP   THE    HOUSE    OF   EEPEESENTATIVES.  §   473 

If  Congress  could,  almost  without  challenge,  provide  and  add  such  a  distinct  and  imperative  qualifi- 
cation, not  for  Delegate  but  for  a  Member  of  Congress,  in  1862,  why  may  we  not  in  1882  ask  a  reasonable 
additional  qualification  for  a  Delegate  from  a  Territory  who  does  not  come  within  the  letter  or  spirit  of 
the  Constitution?  The  act  of  1862  was  a  bold  and  radical  assertion  of  the  doctrine  of  self-preservation  on 
the  part  of  Congress  to  maintain  its  integrity  and  the  purity  and  loyalty  of  its  counsels.  The  resolution 
recommended  by  the  majority  of  the  Committee  on  Elections  only  says  to  the  people  of  Utah,  you  shall 
not  abuse  the  privilege  of  representation  which  we  allowed  you  on  the  floor  of  Congress,  by  sending  as 
your  Delegate  a  person  who  adheres  to  an  organization  that  is  hostile  to  the  interests  of  free  government, 
and  whose  doctrines  and  practices  are  offensive  to  the  masses  of  the  moral  people  of  the  great  nation  we 
represent. 

CONCLUSION. 

The  following  is  a  summary  of  the  reasons  for  my  concurrence  in  the  resolutions  of  the  majority  of  the 
committee: 

1.  The  history  of  the  cession  and  organization  of  the  Territory,  which  belonged  to  the  Federal  Gcov- 
ernment  at  the  time  of  its  formation,  the  history  of  the  clause  in  the  Constitution  which  relates  to  that 
Territory,  and  the  Constitution  itself,  all  show  clearly  that  it  was  not  contemplated  or  intended  that 
Delegates  which  might  be  sent  from  said  Territory,  then  immediately  under  the  Constitution,  should 
have  the  same  qualifications  as  Members  of  Congress. 

2.  The  Constitution  does  not  extend  over  Utah,  except  as  a  part  of  the  statute  law  provided  for  that 
Territory  by  Congress,  and  there  is,  therefore,  more  reason  for  holding  that  the  qualifications  required 
for  Members  of  Congress  by  the  Constitution  do  not  extend  to  Delegates  from  that  Territory  than  there 
is  in  relation  to  Delegates  from  Territory  immediately  under  the  Constitution. 

3.  The  Constitution  not  only  does  not  provide  that  Delegates  shall  have  the  same  qualifications  as 
Members  of  Congress,  but  no  law,  in  almost  a  century  of  legislation  on  the  subject,  has  so  provided. 

4.  There  is  no  reason  why  the  qualifications  of  Delegates  should  be  the  same  as  those  of  Members  of 
Congress.  Their  status  and  duties  and  powers  are  widely  different,  and  their  qualifications  should  be 
made  to  conform  to  those  powers  and  duties,  which  in  case  of  Delegates  are  purely  of  a  local  and  business 
character. 

5.  The  Territories  can  only  be  held  and  governed  by  Congress  with  one  single  purpose  in  view,  which 
is  to  adapt  and  prepare  them  for  admission  as  States  of  the  Union.  It  will  hardly  be  contended  that 
Utah  will  ever  be  admitted  as  a  State  while  polygamy  dominates  it,  or  that  it  is  preparing  it  for  admission 
as  a  State  to  hold  out  to  its  people  the  delusive  doctrine  that  a  polygamist  is  not  disqualified  as  a  Member 
of  Congress,  and  therefore  that  polygamy  is  no  bar  to  the  admission  of  Utah  to  the  Union. 

6.  No  law  fixing  the  qualifications  of  Delegates  passed  by  any  former  Congress  would  be  binding  on 
any  subsequent  Congress.  Each  House  shall  be  the  judge  of  the  qualifications  of  its  own  Members,  and, 
for  a  much  stronger  reason,  it  should  be  the  exclusive  judge  of  the  qualifications  of  the  Delegates,  which 
are  its  creatures  and  which  it  admits  as  matter  of  its  own  discretion. 

7.  Congress  has  held,  from  1862  down  to  this  time,  that  it  has  the  right  to  prevent  the  admission  of 
persons  as  Members  who  are  hostile  to  the  Government  by  excluding  them  on  that  ground,  although  they 
possess  all  the  other  qualifications  required  by  the  Constitution;  with  much  more  propriety,  and  much 
less  stretch  of  power,  Congress  has  the  right  to  exclude  a  Delegate  who  is  not  well  disposed  toward  the 
Government,  and  who  openly  defies  its  laws. 

Mr.  Ambrose  A.  Ranney,  of  Massachusetts,  took  a  different  view  as  to  the 
coiirse  of  procedure  desirable: 

2.  I  agree  in  the  main  with  the  report  of  the  chairman,  wherein  he  says,  in  substance,  that  it  is 
clear  that  the  clause  of  the  Constitution  relative  to  elections,  returns,  and  qualifications  of  Members 
applies  and  extends  to  Delegates,  and  that  substantially  the  same  qualifications  (unless  it  be  as  to  age) 
are  prescribed  for  both  Member  and  Delegate. 

I  would  add  to  the  concession  the  assertion  that  the  rule  of  construction  which  has  been  established 
in  regard  to  Constitution  relating  to  Members,  to  wit,  that  other  qualifications  can  not  be  added  to  those 
specified,  and  none  taken  away,  applies  for  the  same  reason  to  Delegates,  when  the  qualifications  for 
them  are  prescribed  and  specified  by  statute;  also,  what  is  undoubted  law,  that  judging  of  the  qualifi- 


§  473  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  511 

cations  comprehends  only  a  detennination  of  the  question  whether  the  Member  or  Delegate  answers  the 
qualifications  prescribed  as  the  conditions  of  his  eligibility. 

The  manifest  intent  of  the  Constitution  was  to  fix  certain  things  as  unalterable  conditions  of  eligi- 
bUity,  and  leave  all  else  for  the  electors  to  judge  of  and  determine  for  themselves.  Congress  has  shown 
the  same  intention  in  statutes  erecting  Territorial  govenmients,  and  giving  a  right  of  qualified  represen- 
tation. So  firmly  has  the  House  adhered  to  this  fundamental  principle  of  a  representative  government 
that  the  uniform  rule  of  Congress  has  been  not  to  entertain  questions  of  alleged  bad  personal  character 
in  judging  of  what  are  called  '•qualifications."  In  exercising  the  right  of  expulsion  even  the  established 
rule  has  been  not  to  expel  for  bad  character  or  even  crimes  committed  before  the  election  and  known  to 
the  electors  at  the  time.  ^McCrarj',  sees.  521,  522,  523.)  A  few  cases  connected  with  the  rebellion,  and 
arising  out  of  known  disloyalty,  are  exceptions,  but  they  stand  on  different  grounds.  A  Delegate's  power 
was  so  limited  and  circumscribed  that  some  of  the  organic  acts  did  not  even  prescribe  citizenship  as  a 
condition  of  eligibility,  and  Congress  held  it  to  be  implied,  as  in  the  Michigan  case.  (^Tiite's  case, 
Hall  and  Clark,  p.  85.) 

It  follows  that  all  this  committee  has  to  do  on  this  point  is  to  see  whether  Mr.  Cannon  was  eligible 
or  had  the  prescribed  qualifications. 

3.  It  is  sought  to  avoid  the  conclusion  to  which  the  doctrine  of  the  last  point  leads,  on  what  I  con- 
sider most  untenable  and  dangerous  grounds.  They  contravene  ftmdamental  principles  of  law,  and  a 
practice  which  has  existed  from  the  begiiming  of  the  Government. 

Mr.  Strong,  in  1850,  then  on  Election  Committee  of  the  House,  since  an  Lllustrioue  judge  upon  the 
bench  of  the  United  States  Supreme  Court,  has  forcibly  illustrated  and  stated  that  aU  admissions  of 
Delegates  to  a  seat  are  by  virtue  of  established  laws,  and  not  by  grace  or  within  the  discretion  of  the 
House.  (See  Smith's  case,  Messervy's  case,  Babbitt's  case,  1  Bartlett,  pp.  109,  117,  116.)  Showing  that 
he  has  been  admitted  only  by  right  from  the  formation  of  the  confederation  down  to  the  Constitution, 
and  since  to  this  time. 

It  is  said  that  a  Delegate  is  not  named  in  the  Constitution  and  is  not  the  creature  of  the  same, 
while  a  Member  is,  and  that  his  admission  to  a  seat  is  ex  gratia.  The  legal  purport  of  the  opposite 
contention,  when  expressed  in  words,  is;  "It  is  incompetent  for  Congress  and  the  Executive  to  impose 
on  any  future  House  the  right  of  a  Delegate  to  a  seat;"  "they  (the  acts)  were  persuasive  only  to  the 
Houses  of  future  Congresses;"  and,  "in  short,  it  maybe  said  that  Delegates  sit  in  the  lower  House  by 
its  grace  and  permission,  and  that  it  makes  no  difference  whether  that  permission  is  expressed  in  a 
statute  or  in  a  mere  resolution  of  the  House.  The  House  can  disregard  it  and  refuse  to  be  bound  by  it, 
because  it  affects  (somewhat)  the  organization  and  membership  of  the  House  alone." 

It  does  not  change  the  legal  purport,  in  my  judgment,  to  say  Congress  had  no  power  to  impose  upon 
the  House  a  Delegate  "with  defined  qualifications."  I  concede  that  powers  could  not  be  conferred 
upon  a  Delegate  which  would  infringe  upon  the  constitutional  rights  of  State  representation  or  those  of 
a  full  Member. 

The  gist  of  this  doctrine  is  that  a  statute  which  the  Constitution  authorizes  Congress  to  make  may 
be  set  aside  and  made  null  and  void  at  the  pleasure  of  one  branch  of  the  lawmaking  power. 

If  the  Constitution  authorizes  Congress  to  enact  the  statutes  relating  to  the  Territories,  and  give 
a  Delegate,  duly  elected  and  returned,  with  the  requisite  qualifications,  a  right  to  a  seat  and  to  debate, 
without  a  right  to  vote,  no  power  under  heaven  can  rightfully  deprive  him  of  these  rights  and  privileges 
except  Congress  itself,  by  some  other  statute  passed  by  both  Houses. 

The  doctrine  must  lead  to  this:  That  the  statutes  organizing  the  Territories,  with  such  powers  and 
rights,  are  not  authorized  by  the  Constitution,  and  are  void,  unless  the  House  sees  fit  to  observe  them. 
But  this  clause  of  the  Constitution  has  been  sanctioned  and  sustained  as  authorizing  such  things  too 
often  to  require  any  discussion  of  the  subject. 

How  the  sitting  of  a  Delegate  can  be  said  to  infringe  upon  any  constitutional  rights  of  a  Member 
I  fail  to  see.  Nobody  pretends  that  the  statute  attempts  to  make  him  a  Member  in  the  fuU  sense  of 
that  term,  and  he  is  not  a  creattu^e  of  the  Constitution  in  the  exact  sense  of  that  term,  but  he  is  a  crea- 
ture of  a  statute  which  that  instrument  authorizes,  and  can  subsist  and  enjoy  his  rights  and  privileges 
without  infringing  upon  the  constitutional  rights  of  a  Member,  and  that  is  enough  to  sustain  the  statute 
as  valid;  and,  Lf  so,  it  is  not  merely  " perstiasive "  on  all  futtu-e  Houses,  but  absolutely  binding  on  their 
consciences,  and  must  be  obeyed.  It  can  be  disregarded  only  in  the  exercise  of  a  power  without  the 
right,  as  a  sort  of  usurpation  of  authority. 


512  PRECEDENTS    OF    THE    HOUSE    OF    EEPBESENTATIVES.  §   473 

The  right  of  representation  on  the  part  of  the  Territory  and  of  a  Delegate  to  his  seat  has  always 
been  accorded  as  such,  and  not  as  a  grace  or  favor,  save  as  the  grace  and  favor  of  Congress,  and  not 
of  one  House  alone.  The  doctrine  contended  for  strikes  at  the  very  root  of  the  right  of  representation 
conferred,  and  commits  the  Delegate  to  the  discretion  and  caprice  of  the  House,  instead  of  the  full  law- 
making power. 

"The  organic  law  of  a  Territory  takes  the  place  of  a  constitution  as  the  fundamental  law  of  the  local 
government.  It  is  obligatory  on  and  binds  the  Territorial  authorities,  but  Congres.s  is  supreme,  and 
for  the  purposes  of  this  department  of  its  governmental  authority  has  all  the  powers  of  the  people  of  the 
United  States,  except  such  as  have  been  expressly  or  by  implication  reserved  in  the  prohibitions  of 
the  Constitution.     *    *    * 

"It  may  do  for  the  Territories  what  the  people  under  the  Constitution  of  the  United  States  may 
do  for  the  States."     (Waite,  Ch.  J.,  in  Bank  v.  County  of  Yankton,  101  U.  S.,  133.) 

It  follows  that  Congress,  and  Congress  alone,  can  give  rights  by  statute  law,  adopting  and  applying, 
if  they  please,  the  principles  of  tlie  Constitution  so  far  as  they  can  be  made  applicable,  and  imposing 
likewise  reciprocal  obligations  upon  every  other  branch  of  the  Government  and  the  people,  so  the  rights 
conferred  may  be  guaranteed  and  enforced. 

The  section  1891  of  the  Revised  Statutes  extends  over  Territories  the  laws  and  Constitution  of  the 
United  States,  except  so  far  as  locally  inapplicable,  and  this  was  designed  to  give  a  representative 
form  of  government  and  repuljlican  institutions  to  Territories,  which  were  incipient  or  prospective 
States,  and  give  the  Constitution  effect  as  law,  with  reciprocal  rights  and  obligations. 

A  Delegate  becomes  in  one  sense  a  Member,  and  yet  not  properly  so  called.  He  is  enough  so  to 
render  applicable  in  spirit  the  law  in  regard  to  contested  elections,  which  In  terms  applies  only  to  Mom- 
l)ers,  the  clause  of  the  Constitution  which  makes  the  House  judges  of  the  qualifications,  returns,  etc., 
of  the  Members  and  the  other  one  which  relates  to  the  expulsion  of  Members.  (Maxwell  v.  Cannon, 
Forty-third  Congress.) 

The  analogy,  if  justified  at  all,  must  be  carried  and  applied  all  through,  and  such  has  been  the 
uniform  precedent  and  practice  heretofore.  The  law  should  not  be  changed  to  meet  the  strain  of  a 
special  desire  in  an  individual  case. 

The  discussion  in  Maxwell  v.  Cannon  covers  the  whole  subject-matter,  and  I  adopt  its  doctrine  in 
the  main. 

I  feel  very  clear  that  the  organic  act  of  Utah  and  the  Revised  Statutes,  including  sections  1860, 1802, 
and  1863,  are  constitutional  and  valid  and  as  such  binding  upon  the  House  as  much  as  on  anybody  else. 

Section  1862  reads:  "Every  Territory  shall  have  the  right  to  send  a  Delegate  to  the  House  of  Repre- 
sentatives of  the  United  States,  to  serve  during  each  Congress,  who  shall  be  elected  by  the  voters  in  the 
Territory  qualified  to  elect  members  of  the  legislative  a,ssembly  thereof.  The  person  having  the  greatest 
number  of  votes  shall  be  declared  by  the  governor  duly  elected,  and  a  certificate  shall  be  given  accord- 
ingly. Every  such  Delegate  shall  have  a  seat  in  the  House  of  Representatives,  with  the  right  of  debating, 
but  not  of  voting." 

It  is  to  be  observed  that  the  language  is,  "shall  have  a  seat,"  etc.,  and  we  may  as  well  reject  every- 
thing else  as  that. 

4.  It  follows,  in  my  judgment,  that  Mr.  Cannon,  being  eligible  and  didy  elected  and  returned, 
makes  out  his  legal  right  to  a  seat  under  the  statutes,  and  having  found  thus  much  his  "final  right"  is 
determined,  subject  only  to  the  right  which  the  House  has  to  expel  him  by  a  two-thirds  vote. 

The  resolution  of  reference  is  not  to  determine  which  claimant  has  the  strongest  case  of  favor  or 
grace,  but  which  has  the  "right,"  i.  e.,  the  legal  right,  and  we  must  find  this  much  only.  If  no  legal 
right  whatever,  then  we  can  find  that  and  say  so  only  under  this  resolution. 

5.  The  only  objection  urged  is  polygamy. 

My  position  on  that  point  is:  It  is  not  a  disqualification  affecting  (he  legal  right,  but  concerns  only 
the  dignity  of  the  House,  and  an  investigation  into  matters  which  concern  that  alone  must  be  instituted 
in  the  House,  and  can  not  bo  started  in  a  contest  made  by  a  contestant;  for  the  contest  embraced  and 
committed  to  the  committee  under  chapter  8,  page  17,  Revised  Statutes,  affects  only  the  legal  right. 
(Maxwell  r.  Cannon,  adopted  by  McCrary,  S.  528.) 

The  reason  for  it  is  apparent  and  sound,  otherwise  any  outsider,  or  pretender,  or  a  real  contestant, 
or  contestee,  may  proceed  to  take  evidence  of  and  spread  upon  the  record  any  amount  of  scandal  or  any 
charge  affecting  the  moral  character — the  private  character — of  any  Member  of  the  House. 


§   473  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  513 

The  House  must  alone  proceed  to  vindicate  its  own  dignity  and  character,  and  does  not  allow  any- 
one outside  of  it  to  start  and  take  evidence  for  them  on  that  subject  unless  liy  special  order.  Such  an 
investigation  is  usually  referred  to  a  special  committee. 

The  principle  involved  is  of  more  importance  than  the  seating  or  unseating  of  any  one  Member. 

I  agree  with  all  that  is  in  the  report  against  polygamy,  and  in  the  dut}-  of  Congress  to  obviate  by 
law  its  evils,  so  far  as  is  possible,  but  let  it  be  done  by  law  and  not  in  violation  of  law. 

If  Mr.  Cannon  is  eligible  under  existing  law  and  was  duly  elected  and  returned,  as  we  find,  we 
give  him  his  legal  right  to  a  seat  because  the  law  (sec.  1862)  says  he  shall  have  it. 

We  can  then  exercise  our  right  and  expel  him  under  another  independent  provision  of  the  Con- 
stitution upon  a  proceeding  started  and  conducted  in  the  usual  and  the  legal  way.  We  have  hLs 
admission,  put  in  under  protest,  and  may  act  on  that  if  sufficient  and  if  he  does  not  demand  a  hearing. 

Minority  views  signed  by  Messrs  S.  W.  Moultou,  of  Illinois;  Gibson  Atberton, 
of  Ohio;  L.  H.  Davis,  of  Mssouri;  and  G.  W.  Jones,  of  Texas,  took  the  view  that 
Mr.  Cannon  was  not  disqualified,  and  was  entitled  to  the  seat. 

The  grave  and  important  question  as  to  whether  polygamy  is  a  disqualification  for  the  office  of 
Delegate  from  the  Territories  we  think  is  settled  by  the  Constitution,  the  laws,  and  the  uniform  practice 
of  the  Government  since  its  formation,  now  nearly  one  hundred  years. 

As  to  who  shall  hold  seats  in  Congress,  there  are  two  distinct  provisions  of  the  Constitution: 

Section  5,  Article  I  of  the  Constitution  is  as  follows: 

"Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  Members; 
and  a  majority  of  each  shall  constitute  a  quorum  to  do  business.     *     *     *" 

This  provision  in  its  operation  requires  only  a  majority  vote. 

Such  has  been  the  general  practice  of  the  House. 

The  other  provision  is,  "  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its  Members 
for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a  Member."  (Second  clause, 
sec.  5,  Art.  I.) 

The  qualifications  of  Representatives  are  prescribed  by  the  second  section  of  the  first  article  of  the 
Constitution:  They  shall  be  25  years  of  age,  seven  years  a  citizen  of  the  United  States,  and,  when  elected, 
be  inhabitants  of  the  State  in  which  they  shall  be  chosen. 

This  committee  is  to  report  upon  "the  prima  facie  right  or  the  final  right  of  the  claimants  to  the 
seat  as  the  committee  shall  deem  proper." 

It  must  be  conceded,  as  we  have  seen,  that  Cannon  has  an  overwhelming  majority  of  the  votes  cast 
for  Delegate  to  Congress. 

We  think,  also,  it  must  be  conceded,  fnim  the  facts  evidenced  in  the  case  by  the  record,  that  Cannon 
possesses  the  constitutional  qualifications  prescribed  by  second  section  of  Article  I  of  the  Constitution. 

Mr.  Cannon,  at  the  time  of  his  election,  was  over  25  years  of  age,  had  been  seven  years  a  citizen  of 
the  United  States,  and  was  an  inhabitant  of  the  Territory  in  which  he  was  chosen.  These  are  the  only 
qualifications  to  be  considered. 

There  is  no  power.  State  or  Federal,  under  the  Constitution  by  which  these  qualifications  can  be 
changed,  enlai^ed,  or  modified  in  any  manner. 

The  authorities  upon  this  question  are  all  one  way. 

In  the  report  of  the  Committee  on  Elections  of  the  House  in  the  Forty-third  Congress,  in  the  case 
of  Maxwell  against  Cannon,  and  upon  this  point,  the  committee  say: 

"The  practice  of  the  House  has  been  so  uniform  and  seems  so  entirely  in  harmony  with  the  letter  of 
the  Constitution  that  the  committee  can  but  regard  the  jurisdictional  question  as  a  bar  to  the  considera- 
ti  in  of  qualifications  other  than  those  above  specified." 

This  is  the  rule  we  think  should  be  applied  to  the  case  before  the  House. 

The  following  are  some  of  the  authorities  on  this  point:  Story  on  the  Constitution,  sections  625-627; 
the  contested-election  cases  of  Fouk  v.  Trumbull  and  Turney  v.  Marshall  from  the  State  of  Illinois 
(1  Bartlett,  168;  McCrary,  Election  Laws,  sections  227,  228,  252);  Donnelly  r.  Washburn,  Forty-sixth 
Congress;  the  case  of  Wittemore  in  Forty-first  Congress:  the  case  of  Matteson  in  the  Thirty-fifth  Congress; 
the  case  of  Benjamin  G.  Harris,  are  all  in  point. 

5994 — VOL  1—07 33 


514  PRECEDENTS   OF   THE   HOUSE   OF   KEPBESENTATIVES.  §  473 

But  it  is  said  that  it  may  be  conceded  that  the  rule  above  stated  as  to  the  power  of  the  House 
relating  to  Members  is  correct,  but  that  a  Delegate  from  the  Territories  is  not  a  constitutional  officer, 
and  does  not  as  to  qualification  stand  upon  the  same  ground  as  a  Member  from  a  State,  and  that  the 
constitutional  provision  does  not  apply  to  a  Delegate;  that  he  is  a  nondescript,  and  has  no  right  and  can 
claim  no  protection  under  the  Constitution. 

So  far  as  our  research  has  extended  since  the  formation  of  the  Government  we  can  find  no  case 
reported  that  makes  any  distinction  between  the  qualifications  of  a  Member  from  a  State  and  a  Delegate 
from  the  Territory. 

Whenever  that  question  has  arisen  the  rule  as  to  qualifications  has  been  the  constitutional  provision, 
and  this  has  been  applied  to  the  Delegates  from  the  Territories.  The  case  of  James  White,  decided  in 
1794,  is  not  an  exception. 

It  may  be  that  in  express  terms  the  Constitution  does  not  apply  to  Territories;  but  the  spirit  and 
reason  of  the  Constitution  does  apply  and  establishes  a  proper  standard. 

If  the  constitutional  standard  is  not  adopted  as  to  qualifications,  then  there  is  no  rule  for  the  govern- 
ment of  the  House  as  to  Delegates. 

The  House  at  this  session  may  establish  one  rule,  and  the  next  session  may  revoke  or  establish 
another  and  different  one,  and  the  right  of  a  Delegate  would  be  wholly  uncertain. 

There  are  laws  that  have  been  passed  by  Congress  touching  this  subject  that  give  color  to  the  views 
we  present.  These  laws  show  that  a  Delegate,  except  as  to  a  vote  in  the  House,  is  put  upon  the  same 
footing  as  a  Member  from  a  State. 

Besides,  there  has  always  been  the  same  practice  from  the  formation  of  the  Government  as  to 
Delegates  and  Members  by  referring  their  cases  to  the  Committee  on  Elections,  both  being  treated  alike 
in  this  respect. 

The  time,  manner,  and  places  of  elections  of  Members  of  Congress,  including  Delegates  from  the 
Territories,  are  prescribed  and  made  the  same  by  14  United  States  Statutes,  sections  25,  26,  and  27. 

By  section  30,  Revised  Statutes,  the  oath  of  office  of  Members  of  Congress  and  Delegates  from  the 
Territories  is  prescribed,  and  is  the  same  for  a  Delegate  as  a  Member. 

It  is  important  to  remark  that  this  statute  was  passed  June  1,  1789,  and  has  ever  since  been  the  law. 

Section  35,  Revised  Statutes,  provides  that  Members  and  Delegates  are  to  be  paid  the  same  salarj-. 

Section  51  provides  that  vacancies  in  the  case  of  Delegates  are  to  be  filled  in  the  same  way  as  in 
case  of  Members. 

The  organic  law  for  Utah,  September,  1850,  provides: 

"That  the  Constitution  and  laws  of  the  United  States  are  hereby  extended  over  and  declared  to 
be  in  force  in  said  Territory  of  Utah,  so  far  as  the  same  or  any  provision  thereof  may  be  applicable." 

This  is  a  law  of  Congress  passed  by  virtue  of  the  Constitution,  and  is  binding  on  Congress  until 
repealed. 

Now,  why  is  the  provision  of  the  Constitution  relating  to  qualification  of  Members  not  applicable 
to  the  Territories?  What  reason  can  be  given  why  it  should  not  apply?  What  better  standard  for 
qualification  can  be  made? 

The  adoption  of  the  rule  establishes  uniformity  and  certainty,  the  operation  is  salutary,  and  its 
adoption  since  the  formation  of  the  Government  demonstrates  its  advantages  and  necessity. 

The  argument  is  made  that  a  Delegate  is  not  a  constitutional  officer,  and,  therefore,  not  a  Member 
of  the  House  in  the  sense  of  the  Constitution,  and  that  the  House  may  seat  or  unseat  a  Delegate  at  will. 
We  believe  this  is  the  first  time  since  the  formation  of  the  Government  that  this  argument  has  been 
advanced. 

If  a  Delegate  from  a  Territory  is  not  a  Member  by  virtue  of  the  Constitution  and  laws,  then  what 
rule  or  law  do  you  apply  to  him?     Is  it  the  arbitrary  will  or  caprice  of  the  House  at  each  session? 

If,  as  is  said,  a  Delegate  is  not  a  Member,  certainly  you  can  not  invoke  any  provision  of  the  Constitu- 
tion as  to  qualification  or  expulsion. 

The  constitutional  rule  wholly  fails  upon  this  theory. 

It  would  follow  from  this  view  that  the  constitutional  right  of  the  House  to  judge  of  the  election, 
retiu-ns,  and  qualifications  of  its  Members  does  not  apply  to  Delegates,  and  therefore  the  House  is  without 
constitutional  power  in  the  premises,  and  that  whatever  power  the  House  possesses  as  to  Delegates  it 
must  be  derived  from  some  other  source. 

The  extraordinary  and  dangerous  doctrine  is  advanced  by  the  majority  of  the  committee — 


§473 


POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  515 


"That  the  Delegates  sit  in  the  lower  House  by  its  grace  and  permission,  and  it  makes  no  difference 
whether  that  permission  is  expressed  in  a  statute  or  mere  resolution  of  the  House. 
"The  House  can  at  any  time  disregard  it  and  reftise  to  be  bound  by  it. 

"  It  [Congress]  can  not  affix  a  qualification  by  law  for  a  Delegate  and  bind  any  House  except  the  one 
assenting  thereto.     Congress  can  not  bind  the  Hotise  by  any  law  as  to  the  qualification  of  a  Delegate." 

Our  opinion  is  that  it  is  competent  for  Congress,  by  a  proper  statute,  to  provide  for  the  election  in  the 
Territories  of  Delegates  to  Congress,  under  Article  IV,  section  3,  clause  2: 

''The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rides  and  regulations  respecting 
the  territory  or  other  property  belonging  to  the  United  States." 

It  has  been  decided  under  this  article  of  the  Constitution  a  great  many  times  that  it  gives  Congress 
the  right  to  legislate  for  the  Territories,  and  to  make  such  laws  and  rules  as  may  be  for  the  advantage  of 
the  Territories  and  of  the  country. 

Xow,  under  this  clause  of  the  Constitution,  if,  in  the  opinion  of  Congress,  in  making  needful  rules 
and  regulations  respecting  the  Territories,  it  should  be  necessary  to  provide  for  the  election  of  a  Delegate 
from  said  Territon,'  to  this  House,  and  Congress  should  so  provide  that  said  Delegate  should  have  a  seat 
and  the  right  to  debate,  could  the  House  alone  nullify  that  law  and  refuse  to  seat  the  Delegate? 

Why  is  not  the  House  bound  by  constitutional  laws?  What  right  has  the  House  to  nullify  and 
refuse  to  obey  a  law  it  has  helped  to  make? 

We  have  already  referred  to  various  laws  of  Congress  making  express  provisions  for  the  election  of 
Delegates  from  the  Territories,  giving  them  a  right  to  a  seat  in  the  House,  and  generally  applying  the 
same  rules  to  Delegates  as  Members,  except  Delegates  have  not  the  right  to  vote. 

Also,  as  we  have  seen,  the  organic  law  of  Utah  adopts  the  Constitution  and  laws  of  the  United 
States,  so  far  as  applicable,  as  a  part  of  that  organic  law. 

Also,  section  1891,  Revised  Statutes,  gives  the  Constitution  and  laws  force  and  effect  in  all  the 
Territories,  so  far  as  applicable. 

The  law-making  department  of  the  Government  has  made  these  various  laws  in  a  constitutional 
way,  and  until  repealed  they  are  binding  upon  every  individual  in  the  land  and  every  department  of  the 
Government,  including  Congress.     No  one  is  above  the  laws  in  this  country. 

Certainly  one  House  alone  can  not  repeal  a  law  of  Congress  nor  nullify  it  by  any  direct  or  indirect 
proceeding.     It  is  absolutely  bound  by  the  law. 

If  Congress  has  the  right  to  make  a  law  and  provide  for  the  election  of  Delegates  to  this  House,  and 
if  the  constitutional  qualifications  do  not  apply  to  them,  and  there  is  no  statute  fixing  their  qualifications, 
it  would  seem  to  follow  that  the  House  would  be  bound  to  admit  as  a  Delegate  under  the  law  such  persons 
as  the  people  of  the  Territory'  might  elect  to  represent  them,  however  obnoxious  they  might  be  to  the 
House.     The  people  of  the  Territory  being  satisfied,  no  one  else  can  complain. 

Suppose  Congress  should  pass  a  law  providing  that  Cabinet  officers  should  be  allowed  seats  in  the 
House,  with  the  privilege  of  answering  questions  put  to  them  relating  to  the  Executive  Department,  and 
the  other  Departments  of  which  they  were  chief,  and  with  the  right  to  debate. 

Then,  could  the  House  refuse  to  permit  these  officers  seats  and  the  privileges  accorded  to  them 
under  the  law? 

Could  the  House  refuse  them  a  seat  on  the  ground  that  they  were  not  qualified,  and  set  up  some 
fanciful  standard  of  qualifications  not  prescribed  by  the  statute? 

Could  the  House  exclude  them  under  the  law  upon  the  ground  that  they  were  heretics,  or  Mormons, 
or  polygamists — Catholics,  Democrats,  Republicans,  or  Greenbackers? 

Would  not  the  House  be  bound  to  obey  the  law  that  had  been  made  by  Congress  and  permit  the 
Cabinet  to  seats,  however  offensive  they  might  be  personally? 

The  logic  of  the  majority  of  the  committee  is  that  one  House  alone  could  nullify  the  laws  and  exclude 
ad  libitum. 

In  the  Forty-third  Congress,  in  the  case  of  Maxwell  v.  Cannon,  precisely  the  same  question  was 
involved  in  that  case  as  in  the  one  before  the  committee. 

The  question  was  stated  this  way: 

'•  That  George  Q.  Cannon  is  not  qualified  to  represent  said  Territory'  or  to  hold  his  seat  in  the  Forty- 
third  Congress,  for  the  reason,  as  shown  by  the  evidence,  that  he,  on  and  before  the  day  of  the  election,  in 
August,  18T2,  was  openly  living  and  cohabiting  with  four  women,  as  his  wives,  in  Salt  Lake  City,  in 
Utah  Territory,  and  he  is  still  living  and  cohabiting  with  them." 


516  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   473 

On  the  question  of  qualifications,  and  the  effect  of  making  the  Constitution  a  part  of  the  law  by  act 
of  Congress,  the  committee  say: 

"It  being  conceded  that  the  contestee  has  these  qualifications,  one  other  inquiry  only  under  this 
head  remains,  to  wit:  Does  the  same  rule  apply  in  considering  the  case  of  a  Delegate  as  a  Member  of  this 
House?  This  question  seems  not  to  have  been  raised  heretofore.  The  act  organizing  the  Territory  of 
Utah,  approved  September  9,  1850,  enacts  that  the  Constitution  and  laws  of  the  United  States  are  hereby 
extended  over,  and  declared  to  be  in  force  in,  said  Territory  of  Utah,  so  far  as  the  same,  or  any  provision 
thereof,  may  be  applicable.  It  was  said,  on  the  argument,  that  the  Constitution  can  not  be  extended 
over  the  Territories  by  act  of  Congress,  and  the  views  of  Mr.  Webster  were  quoted  in  support  of  this 
position. 

"We  do  not  deem  it  necessary  to  consider  that  question,  because  it  will  not  be  denied  that  Congress 
had  the  power  to  make  the  Constitution  a  part  of  the  statutorj-  law  of  the  Territory  as  much  as  any  portion 
of  the  organic  act  thereof.  For  the  purposes  of  this  inquiry  it  makes  no  difference  whether  the  Constitu- 
tion is  to  be  treated  as  constitutional  or  statutorj-  law.  If  either,  it  is  entitled  to  be  considered  in  dispos- 
ing of  this  case." 

Upon  this  point  there  does  not  seem  to  have  been  any  difference  of  opinion  in  the  committee. 

The  committee,  in  the  same  case,  referring  to  the  question  of  polygamy,  say: 

"The  question  raised  in  the  specification  of  contestant's  counsel,  and  above  transcribed,  is  a  grave 
one,  and  unquestionably  demands  the  consideration  of  the  House.  This  committee,  while  having  no 
desire  to  shrink  from  its  investigation,  finds  itself  confronted  with  the  question  of  jurisdiction  under  the 
order  referring  the  case. 

"The  Committee  on  Elections  was  organized  under  and  pursuant  to  article  1,  section  5,  of  the 
Constitution,  which  declares:  'Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifica- 
tions of  its  own  Members.'  The  first  standing  committee  appointed  by  the  House  of  Representatives 
was  the  Committee  on  Elections.  It  was  chosen  by  ballot,  on  the  13th  day  of  April,  1789;  and  from 
that  time  to  this,  in  the  vast  multitude  of  cases  considered  by  it,  with  a  few  unimportant  exceptions,  in 
which  the  point  seems  to  have  escaped  notice,  the  range  of  its  inquiry  has  been  limited  to  the  execution 
of  the  power  conferred  by  the  above  provision  of  the  Constitution. 

"  What  are  the  qualifications  here  mentioned  and  referred  to  the  Committee  on  Elections?  Clearly, 
the  constitutional  qualifications,  to  wit,  that  the  claimant  shall  have  attained  the  age  of  25  years,  been 
seven  years  a  citizen  of  the  United  States,  and  shall  be  an  inhabitant  of  the  State  in  which  he  shall  be 
chosen.  The  practice  of  the  House  has  been  so  uniform,  and  seems  so  entirely  in  harmony  with  the 
letter  of  the  Constitution,  that  the  committee  can  but  regard  the  jurisdictional  question  as  a  bar  to  the 
consideration  of  qualifications  other  than  those  above  specified,  mentioned  in  the  notice  of  contest,  and 
hereinbefore  alluded  to. 

"We  conclude  that  the  question  submitted  to  us,  under  the  order  of  the  House,  comes  within  the 
same  principles  of  jurisidiction  as  if  the  contestee  were  a  Member,  instead  of  a  Delegate." 

The  minority  said: 

"  It  is  admitted  in  the  report,  and  the  fact  has  not  been  and  is  not  denied,  that  Mr.  Cannon  possesses 
the  constitutional  qualifications,  unless  the  qualifications  of  a  Delegate  in  Congress  from  a  Territorj' 
differ  from  the  qualifications  fixed  by  the  Constitution  for  a  Member  of  the  House.  There  can  be  no 
sufficient  reason  assigned  for  the  position  that  the  qualifications  are  any  different.  *  *  *  The  line 
of  demarkation  between  these  two  great  powers  of  the  House,  the  power  to  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  Members,  by  a  mere  majority  vote,  and  the  power  to  expel  its  Members  by 
a  two-thirds  vote,  is  clear  and  well  defined." 

The  "views"  of  the  minority  on  the  point  were  further  expressed  in  these  words: 

"But  a  graver  question  than  those  we  have  considered  is  the  question  whether  the  House  ought,  as 
a  matter  of  policy,  or  to  establish  a  precedent,  to  expel  either  a  Delegate  or  Member  on  account  of 
alleged  crimes  or  immoral  practices,  unconnected  with  their  duties  or  obligations  as  Members  or  Dele- 
gates, when  the  Member  or  Delegate  possesses  all  the  qualifications  to  entitle  him  to  his  seat. 

"If  we  are  to  go  into  the  question  of  the  moral  fitness  of  a  Member  to  occupy  a  seat  in  the  House, 
where  will  the  inquiry  stop?  What  standard  shall  we  fix  in  determining  what  is  and  what  is  not  suffi- 
cient cause  for  expulsion?  If  a  number  of  Members  engage  in  the  practice  of  gaming  for  money  or  other 
valuable  thing,  or  are  accused  of  violating  the  marital  vow  by  intimate  association  with  four  women, 
three  of  whom  are  not  lawful  wives,  or  are  charged  with  any  other  offense,  and  a  majority  of  the  House, 


§  473  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  517 

or  even  two-thirds,  expel  them,  it  may  be  the  recognition  of  a  dangerous  power  and  policy.  If  exercised 
and  adopted  by  one  political  party  to  accomplish  partisan  ends,  it  furnishes  a  precedent  which  it  will 
be  insisted  justifies  similar  action  by  the  opposite  party,  when  they  have  a  majority  or  a  two-thirds 
majority  in  the  House;  and  thus  the  people  are  deprived  of  representation,  and  their  Representatives, 
possessing  the  necessary  qualifications,  are  expelled  for  causes  outside  of  the  constitutional  qualifica- 
tions of  Members,  or  those  which  a  Delegate  must  possess,  so  far  as  his  qualifications  are  fixed  by  reason 
or  analogy,  or  are  drawn  from  the  principles  of  our  representative  system  of  government." 

It  may  be  stated  that  the  reports,  both  of  the  majority  and  minority,  were  made  by  Republicans. 

That  is  a  precedent  that  covers  the  case  before  this  committee  in  every  particular.  It  was  exhaust- 
ively discussed  in  the  committee  and  in  the  House,  and  was  adopted  by  the  House  by  an  overwhelming 
majority,  and  it  stands  to-day  as  the  rule  and  law  of  the  House,  unless  it  shall  be  reversed. 

The  issue  in  that  case  was  sharply  made,  and  the  rule  established  that  Delegates  from  Territories 
are  entitled  to  the  benefit  of  the  constitutional  limitations  as  to  qualifications,  and  that  polygamy  was 
not  a  disqualification. 

Xow,  if  the  rule  that  has  been  established  and  practiced  since  the  formation  of  the  Government 
as  to  qualification  for  Members  and  Delegates  to  the  House  is  to  be  reversed  and  a  different  rule  adopted, 
what  standard  shall  it  be? 

This  House  may  exclude  a  Member  on  a  charge  of  polygamy.  The  next  House  may  exclude  a 
person  elected  because  he  is  a  heretic  or  a  Catholic  or  a  Methodist,  or  because  he  had  been  charged  by 
his  opponent  with  adultery  or  some  other  offense. 

Everyone  can  see  that  such  a  rule  or  license  would  be  dangerous  to  the  rights  and  liberties  of  the 
citizens  and  an  end  to  republican  government. 

The  party  in  power  would  be  governed  by  arbitrary  will  and  caprice  alone. 

Mr.  Cannon,  the  contestant  here,  claims  in  good  faith  that  polygamy  is  a  religious  conviction  and 
principle  with  him  and  his  people,  and  in  this  he  is  entitled  to  protection  under  the  Constitution. 

The  people  he  represents  have  elected  him  and  are  satisfied  with  him,  and  this  House  should  be 
content. 

The  sixth  article  of  the  Constitution  provides  that — 

"\o  religious  test  shall  ever  be  required  as  a  qualification  for  any  oflSce  of  public  trust  under  the 
United  States." 

It  seems  to  us  that  the  contestant  is  entitled  to  the  above  provision  of  the  Constitution  as  a  pro- 
tection. He  has  been  convicted  of  no  crime  and  there  is  no  law  on  the  statute  book  that  disqualifies 
him  as  a  Delegate. 

On  the  majority  view  that  Mr.  Cannon  was  disqualified  and  should  be  excluded 
another  question  arose  as  to  whether  or  not  Mr.  Campbell  should  be  admitted  to 
the  seat.  The  majority  of  the  committee  took  the  view  that  as  he  had  only  a  minor- 
ity of  the  votes  he  could  not  be  admitted  under  the  American  practice. 

The  question  was  debated  at  length  on  April  18  and  19,  1882,'  the  main  point 
at  issue  being  the  status  of  a  Delegate  in  reference  to  qualifications.  On  the  latter 
day  the  resolution  of  the  minority  declaring  Mr.  Cannon  elected  and  entitled  to 
the  seat  was  offered  as  a  substitute  for  the  majority  resolutions  and  was  disagreed 
to — yeas  79,  nays  123. 

Then  the  resolutions  of  the  majority  were  agreed  to  without  division,^  as  follows: 

Resolved,  That  Allen  G.  Campbell  is  not  entitled  to  a  seat  in  this  Congress  as  a  Delegate  from  the 
Territory  of  Utah. 

Resolved.  That  George  Q.  Cannon  is  not  entitled  to  a  seat  in  this  Congress  as  a  Delegate  from  the 
Territory  of  Utah. 

Resohed.  That  the  seat  of  the  Delegate  from  the  Territory  of  Utah  be,  and  the  same  hereljy  is, 
declared  vacant. 

'  Record,  pp.  3001,  3045-3075.  ^  Journal,  pp.  1072-1074. 


518  PRECEDENTS   OF   THE   HOUSE    OF   EEPKESENTATIVES.  §  474 

474.   The  case  of  Brigham  H.  Roberts,  in  the  Fifty-sixth  Congress. 

The  House  declined  to  permit  the  oath  to  be  administered  to  Brigham 
H.  Roberts  pending  an  examination  of  his  qualifications  by  a  committee. 

In  1899  a  Member  who  challenged  the  right  of  a  Member-elect  to  be 
sworn  did  so  on  his  responsibility  as  a  Member  and  on  the  strength  of 
documentary  evidence. 

In  1899  a  Member-elect,  challenged  as  he  was  about  to  take  the  oath, 
stood  aside  on  request  of  the  Speaker. 

The  House,  by  unanimous  consent,  deferred  until  after  the  comple- 
tion of  the  organization  the  question  of  Brigham  H.  Roberts's  right  to 
take  the  oath. 

The  right  of  Brigham  H.  Roberts  to  take  the  oath  and  his  seat  being 
under  consideration,  he  was  permitted  to  speak,  by  unanimous  consent. 

In  1899  the  House  referred  the  case  of  Brigham  H.  Roberts  to  a  com- 
mittee, with  directions  to  report  on  both  the  prima  facie  and  final  right. 

In  the  case  of  Brigham  H.  Roberts  the  committee  reported  at  one  and 
the  same  time  on  both  the  prima  facie  and  final  right. 

On  December  4,  1899,'  at  the  time  of  the  organization  of  the  House,  and  while 
the  swearing  in  of  the  Members  was  proceeding,  the  State  of  Utah  was  called.  There- 
upon Mr.  Robert  W.  Tayler,  of  Ohio,  said: 

Mr.  Speaker,  I  object  to  the  swearing  in  of  the  Representative-elect  from  Utah  and  to  his  taking 
a  seat  in  this  body.  I  do  so,  Mr.  Speaker,  on  my  responsibility  as  a  Member  of  this  House,  and  because 
specific,  serious,  and  apparently  well-grounded  charges  of  ineligibility  are  made  against  him.  A  tran- 
script of  the  proceedings  of  court  in  Utah  evidences  the  fact  that  the  claimant  was  in  1889  convicted, 
or  that  he  pleaded  guilty,  of  the  crime  of  unlawful  cohabitation.  Affidavits  and  other  papers  in  my 
possession  indicate  that  ever  since  then  he  has  been  persistently  guilty  of  the  same  crime,  and  that 
ever  since  then  he  has  been  and  is  now  a  polygamist.  If  this  transcript  and  these  affidavits  and  papers 
tell  the  truth,  the  Member-elect  from  Utah  is,  in  my  judgment,  ineligible  to  be  a  Member  of  this  House 
of  Representatives  both  because  of  the  statutory  disqualification  created  by  the  Edmunds  law  and 
for  higher  and  graver  and  quite  as  sound  reasons.  I  ought  also  to  say,  in  addition  to  what  I  have  just 
said,  that  I  have  in  my  possession  a  certified  copy  of  the  court  record  under  which  the  claimant  to  this 
seat  was  supposed  to  be  naturalized,  and  that  eminent  counsel  assert  that  if  that  be  the  record  in  the 
case  there  is  grave  doubt  if  the  claimant  is  a  citizen  of  the  United  States.  I  offer  and  express  no  opinion 
upon  that  proposition. 

Mr.  Speaker,  if  it  were  possible  to  emphasize  the  gravity  of  these  charges  and  of  the  responsibility 
that  is  at  this  moment  imposed  upon  this  House,  we  will  find  that  emphasis  in  the  memorials,  only  a 
small  part  of  which  could  be  physically  cared  for  in  this  Hall,  but  all  of  which  I  now  present  to  the 
House,  from  over  7,000,000  American  men  and  women,  protesting  against  the  entrance  into  this  House 
of  the  Representative-elect  from  Utah. 

The  Speaker  requested  the  Member-elect  from  Utah  to  step  aside  until  the 
remainder  of  the  Members-elect  were  sworn  in. 
Then  Mr.  Tayler  offered  this  resolution: 

Whereas  it  is  charged  that  Brigham  H.  Roberts,  a  Representative-elect  to  the  Fifty-sixth  Con- 
gress from  the  State  of  Utah,  is  ineligible  to  a  seat  in  the  House  of  Representatives;  and 

AMiereas  such  charge  is  made  through  a  Member  of  this  House,  on  his  responsibility  as  such  Mem- 
ber and  on  the  basis,  as  he  asserts,  of  public  records,  affidavits,  and  papers  evidencing  such  ineligibility: 

Resolved,  That  the  question  of  the  prima  facie  right  of  Brigham  H.  Roberts  to  be  sworn  in  as  a  Rep- 

'  First  session  Fifty-sixth  Congress,  Record,  p.  5;  Journal,  p.  6. 


§   4:74  POLYGAMY    AND   OTHER    CRIMES    AS    DISQITALIDTCATIONS.  519 

resentative  from  the  State  of  Utah  in  the  Fifty-sixth  Congress,  as  -well  as  of  his  final  right  to  a  seat  therein 
as  such  Representative,  be  referred  to  a  special  committee  of  nine  Members  of  the  House,  to  be  appointed 
by  the  Speaker;  and  untQ  such  committee  shall  report  upon  and  the  House  decide  such  question  and 
right  the  said  Brigham  H.  Roberts  shall  not  be  sworn  in  or  be  permitted  to  occupy  a  seat  in  this  House; 
and  said  committee  shall  have  power  to  send  for  persons  and  papers  and  examine  witnesses  on  oath  in 
relation  to  the  subject-matter  of  this  resolution. 

By  unanimous  consent  the  consideration  of  the  resolution  was  postponed  until 
after  the  organization  of  the  House  had  been  completed  and  the  President's  message 
had  been  received  and  read.' 

On  December  5,-  the  resolution  being  considered,  Mr.  James  D.  Richardson,  of 
Tennessee,  offered  the  following  amendment  in  the  nature  of  a  substitute : 

Whereas  Brigham  H.  Roberts,  from  the  State  of  Utah,  has  presented  a  certificate  of  election  in 
due  and  proper  form  as  a  Representative  from  said  State:  Therefore,  be  it 

Resolved,  That  without  expressing  any  opinion  as  to  the  right  or  propriety  of  his  retaining  his  seat 
in  advance  of  any  proper  investigation  thereof,  the  said  Brigham  H.  Roberts  is  entitled  to  be  sworn 
in  as  a  Member  of  this  House  upon  his  prima  facie  case. 

Resolved  further,  That  when  sworn  in  his  credentials  and  all  the  papers  in  relation  to  his  right  to 
retain  his  seat  be  referred  to  the  Committee  on  the  Judiciary,  with  instructions  to  report  thereon  at 
the  earliest  practicable  moment. 

During  the  debate  Mr.  Roberts,  by  imanimous  consent,  addressed  the  House. 

On  a  division  the  amendment  was  disagreed  to — 59  ayes,  247  noes.  The  reso- 
lution was  then  agreed  to — 304  j'eas,  32  nays. 

The  Speaker  appointed  the  following  special  committee:  Robert  W.  Tayler,  of 
Ohio;  Charles  B.  Landis,  of  Indiana;  Page  Morris,  of  Minnesota;  R.  H.  Freer,  of 
West  Virginia;  Charles  E.  Littlefield,  of  Maine;  Smith  McPherson,  of  Iowa;  David 
A.  DeArmond,  of  Missouri;  Samuel  W.  T.  Lanham,  of  Texas;  Robert  W.  Miers,  of 
Indiana. 

The  committee  reported'  on  January  20,  1900,  the  majority  holding  that  Mr. 
Roberts  ought  not  to  have  a  seat  in  the  House  and  declaring  his  seat  vacant.  As  to 
the  prima  facie  right  the  committee  say: 

Upon  this  question  little  need  be  said  except  what  is  hereafter  said  in  relation  to  the  final  right 
to  a  seat.  The  questions  are  inextricably  interwoven,  and  for  convenience  the  main  body  of  authority 
against  his  prima  facie  right  to  be  sworn  in  is  presented  in  the  argument  made  against  his  final  right 
to  a  seat. 

Both  Houses  of  Congress  have  in  innumerable  instances  exercised  the  right  to  stop  a  Member-elect 
at  the  threshold  and  refuse  to  permit  him  to  be  sworn  in  until  an  investigation  had  been  made  as  to 
his  right  to  a  seat.     In  some  cases  the  final  right  was  accorded  the  claimant;  in  many  cases  it  was  denied. 

This  question,  as  we  veiw  it,  is  always  to  be  answered  from  the  standpoint  of  expediency  and 
propriety.  The  inherent  right  exists  of  necessity.  The  danger  of  disorder  and  of  blocking  the  way  to  an 
organization  vanishes  in  veiw  of  the  proper  procedure.  The  most  strenuous  objection  is  made  by  those 
who  imagine,  for  instance,  that  if  the  person  whose  name  was  first  called  should  be  objected  to,  he  might 
refuse  to  stand  aside  until  the  remaining  Members  were  sworn  in.  The  claim  is  made  that  this  must 
inevitably  result  in  confusion  and  demoralization,  and  in  furnishing  an  opportunity  for  an  arbitrary 
and  unjust  exercise  of  power  on  the  part  of  the  House. 

'  Mr.  Roberts  did  not  vote  on  the  roll  call  which  occurred  after  this  action  took  place.     His  name 
was  stricken  from  the  roll  and  not  again  called. 

^  First  session  Fifty-sixth  Congress,  Record,  pp.  38-53;  Journal,  p.  34. 
^  House  Report  Xo.  85,  first  session  Fifty-sixth  Congress. 


520 


PEECEDENTS    OF   THE   HOUSE    OF   REPRESENTATIVES. 


§475 


The  answer  to  this  is  that  every  person  holding  a  certificate,  whose  name  is  on  the  Clerk's  roll,  where 
it  is  placed  by  operation  of  law,  is  entitled  to  participate  in  the  organization  of  the  House,  whether  sworn 
in  or  not.  Such  is  the  effect  and  the  only  effect  of  the  certificate.  If  the  Members-elect,  other  than 
the  person  objected  to,  desire  so  to  do  they  can  prevent  his  being  sworn  in.  This  lodges  no  more  power 
in  the  majority,  however  arbitrary  it  may  be,  than  that  majority  always  has,  whether  on  the  day  of  the 
organization  or  a  week  or  a  month  thereafter. 

The  fear  that  injustice  may  be  done  by  it  in  time  of  great  party  excitement  is  not  justly  grounded 
in  theory,  nor  has  it  occurred  in  practice;  while  on  the  other  hand  injustice  has  often  occurred  in  the 
unseating  of  Members  in  case  of  contested  elections.  It  is  always,  whether  at  the  threshold  or  after  the 
House  is  fully  organized,  a  question  of  the  power  of  the  majority.  It  is  no  more  dangerous  or  disor- 
ganizing in  the  one  instance  than  in  the  other.  There  can  be  no  injustice  done  when  every  man  holding 
a  certificate,  whether  sworn  in  or  not,  is  entitled  to  vote  for  a  Speaker  and  upon  the  right  of  every 
other  Member-elect  to  be  sworn  in. 

If,  by  way  of  illustration,  Mr.  Roberts  had  been  the  first  person  whose  name  was  called,  and  he  had 
objected  to  standing  aside,  the  House,  for  the  purpose  of  organization,  and  for  the  purpose  of  voting  upon 
the  question  as  to  whether  he  should  then  be  sworn  in,  would  be  completely  organized,  and  every 
other  Member  present,  although  not  one  of  them  had  been  sworn  in,  would  be  entitled  to  vote  upon  that 
question.  This,  it  seems  to  us,  dissolves  every  imagined  difficulty  and  permits  the  easy  organization 
of  the  House. 

If  every  individual  Member  had  been  objected  to,  seriatim,  the  only  objectionable  result  would 
have  been  the  inconvenience  and  delay  involved  in  the  time  necessary  to  vote  upon  all  the  cases. 

Judge  McCrary's  statement  (sections  283  and  284  in  his  work  on  Elections)  is  a  sound  and  correct 
declaration  of  the  law  applicable  to  the  right  of  the  House  to  compel  a  Member  who  is  objected  to  to 
stand  aside,  and  not  permit  him  to  be  sworn  in  until  his  case  is  investigated.     It  is  as  follows: 

"If  a  specific  and  apparently  well-grounded  allegation  be  presented  to  the  House  of  Representa- 
tives of  the  United  States  that  a  person  holding  a  certificate  of  election  is  not  a  citizen  of  the  United 
States,  or  is  not  of  the  requisite  age,  or  is  for  any  other  cause  ineligible,  the  House  will  defer  action  upon 
the  question  of  swearing  in  such  person  until  there  can  be  an  investigation  into  the  truth  of  such 
allegations. 

"It  is  necessary,  however,  that  such  allegations  should  be  made  by  a  responsible  party.  It  is 
usually  made,  or  vouched  for,  at  least,  by  some  Member  or  Member-elect  of  the  House.  It  is  to  be 
presented  at  the  earliest  possible  moment  after  the  meeting  of  the  House  for  organization,  and  generally 
at  the  time  that  the  person  objected  to  presents  himself  to  be  sworn  in.  The  person  objected  to  upon 
such  grounds  as  these  is  not  sworn  in  with  the  other  Members,  but  stands  aside  for  the  time  being,  and 
the  House,  through  its  committee,  will  with  all  possible  speed  proceed  to  inquire  into  the  facts. 

"The  certificate  of  election  does  not  ordinarily,  if  ever,  cover  the  grounds  of  the  due  qualifications 
of  the  person  holding  it.  It  may  be  said  that  by  declaring  the  person  duly  elected  the  certificate  by 
implication  avers  that  he  was  qualified  to  be  elected  and  to  hold  the  office.  But  it  is  well  known  that 
canvassing  officers  do  not  in  fact  inquire  as  to  the  qualifications  of  persons  voted  for;  they  certify  what 
appears  upon  the  face  of  the  returns  and  nothing  more." 

This  is  not  quoted  as  being  authoritative  in  itself,  but  because  it  is  an  exact  statement  of  what  the 
precedents  and  authorities  on  that  subject  clearly  disclose. 

The  minority  of  the  committee,  Messrs.  Littlefield  and  De  Armond,  filed  views 
in  opposition,  holding  that  Mr.  Roberts  had  the  constitutional  right  to  take  the 
oath  of  office  and  be  admitted  to  his  seat  on  his  prima  facie  right.' 

475.   The  case  of  Brigham  H.  Roberts,  continued. 

In  the  investigation  of  the  qualifications  of  Brigham  H.  Roberts,  the 
committee  permitted  his  presence  and  suggestions  during  discussion  of 
the  plan  and  scope  of  the  inquiry. 

Witnesses  were  examined  under  oath  and  in  the  presence  of  Brigham 
H.  Roberts  during  the  committee's  investigation  of  his  qualifications. 


'  House  Report  No.  85,  Part  II,  first  session  Fifty-sixth  Congress,  pp.  53-77. 


§  476  POLYGAMY    AND    OTHER   CRIMES    AS    DISQUALIFICATIONS.  521 

In  considering  the  qualifications  of  Brigham  H.  Roberts  the  commit- 
tee tendered  to  him  the  opportunity  to  testify  in  his  own  behalf. 
The  committee  also  state  in  regard  to  the  method  of  procedure : 

The  committee  met  shortly  after  its  appointment,  and  in  Mr.  Roberts's  presence  discussed  the  plan 
and  scope  of  its  inquiry.  Mr.  Roberts  submitted  certain  motions  and  supported  them  by  argument, 
questioning  the  jurisdiction  of  the  committee  and  its  right  to  report  against  his  prima  facie  right  to  a 
seat  in  the  House  of  Representatives.  The  determination  of  these  questions  was  postponed  by  the 
committee,  to  be  taken  up  in  the  general  consideration  of  the  case. 

Subsequently  certain  witnesses  appeared  before  the  committee  and  were  examined  under  oath, 
in  the  presence  of  Mr.  Roberts  and  by  him  cross-examined,  relating  to  the  charge  that  ho  was  a  polyga- 
mist.     This  testimony  has  been  printed  and  is  at  the  disposal  of  the  Members  of  the  House. 

The  committee  fully  heard  Mr.  Roberts  and  gave  him  opportunity  to  testify  if  he  so  desired,  which 
he  declared  he  did  not  wish  to  do.^ 

476.   The  case  of  Brigham  H.  Roberts,  continued. 

In  a  sustained  report  in  1900  the  majority  of  the  committee  favored 
the  exclusion  and  not  the  expulsion  of  a  Member-elect  admitted  to  be 
engaged  in  practice  of  polygamy. 

Discussion  of  the  power  of  expulsion  under  the  Constitution. 

May  the  House  expel  a  Member-elect  before  he  is  sworn  in? 

Preliminary  to  the  discussion  the  committee  agreed  unanimously  on  the  follow- 
ing finding  of  facts : 

We  find  that  Brigham  H.  Roberts  was  elected  as  a  Representative  to  the  Fifty-sixth  Congress 
from  the  State  of  Utah  and  was  at  the  date  of  his  election  above  the  age  of  25  years;  that  he  had  been 
for  more  than  seven  years  a  naturalized  citizen  of  the  United  States  and  was  an  inhabitant  of  the  State 
of  Utah. 

We  further  find  that  about  1878  he  married  Louisa  Smith,  his  first  and  lawful  wife,  with  whom 
he  has  ever  since  lived  as  such,  and  who  since  their  marriage  has  borne  him  six  children. 

That  about  1885  he  married  as  his  plural  wife  Celia  Dibble,  with  whom  he  has  ever  since  lived 
as  such,  and  who  since  such  marriage  has  borne  him  six  children,  of  whom  the  last  were  twins,  born 
August  11,  1897. 

That  some  years  after  his  said  marriage  to  Celia  Dibble  he  contracted  another  plural  marriage 
with  Margaret  C.  Shipp,  with  whom  he  has  ever  since  lived  in  the  habit  and  repute  of  marriage.  Your 
committee  is  unable  to  fix  the  exact  date  of  this  marriage.  It  does  not  appear  that  he  held  her  out 
as  his  wife  before  January,  1897,  or  that  she  before  that  date  held  him  out  as  her  husband,  or  that  before 
that  date  they  were  reputed  to  be  husband  and  wife. 

That  these  facts  were  generally  known  in  Utah,  publicly  charged  against  him  during  his  cam- 
paign for  election,  and  were  not  denied  by  him. 

That  the  testimony  bearing  on  these  facts  was  taken  in  the  presence  of  Mr.  Roberts,  and  that  he 
fully  cross-examined  the  witnesses,  but  declined  to  place  himself  upon  the  witness  stand. 

The  examination  of  the  law  and  the  precedents  applicable  to  the  facts  stated 
above  involved  an  examination  of  several  subjects: 

1.  As  to  whether  the  proper  remedy  should  be  exclusion  or  expulsion. 
The  majorit}^  of  the  committee  held: 

The  objection  is  made  to  the  refusal  to  admit  Roberts  that  the  Constitution  excludes  the  idea  that 
any  objection  can  be  made  to  his  coming  in  if  he  is  25  years  of  age,  has  been  seven  years  a  citizen 
of  the  United  States,  and  was  an  inhabitant  of  Utah  when  elected,  no  matter  how  odious  or  treasonable 
or  criminal  may  have  been  his  life  and  practices. 

'  The  meetings  of  the  committee  during  this  examination  were  open  and  not  secret. 


522  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  476 

To  this  we  reply: 

1.  That  the  language  of  the  constitutional  provision,  the  history  of  its  framing  in  the  Constitu- 
tional Convention,  and  its  context  clearly  show  that  it  can  not  be  construed  to  prevent  disqualification 
for  crime. 

2.  That  the  overwhelming  authority  of  text-book  writers  on  the  Constitution  is  to  the  effect  that 
such  disqualification  may  be  imposed  by  the  House,  and  no  commentator  on  the  Constitution  specifically 
denies  it.     Especial  reference  is  made  to  the  works  of  Gushing,  Pomeroy,  Throop,  Burgess,  and  Miller. 

3.  The  courts  of  several  of  the  States,  in  construing  analogous  provisions,  have  with  practical 
unanimity  declared  against  such  narrow  construction  of  such  constitutional  provisions. 

4.  The  House  of  Representatives  has  never  denied  that  it  had  the  right  to  exclude  a  Member-elect, 
even  when  he  had  the  three  constitutional  requirements. 

5.  In  many  instances  it  has  distinctly  asserted  its  right  so  to  do  in  cases  of  disloyalty  and  crime. 

6.  It  passed  in  1862  the  test-oath  act,  which  imposed  a  real  and  substantial  disqualification  for 
membership  in  Congress,  disqualifying  hundreds  of  thousands  of  American  citizens.  This  law  remained 
in  force  for  twenty  years,  and  thousands  of  Members  of  Congress  were  compelled  to  take  the  oath  it 
required. 

7.  The  House  in  1869  adopted  a  general  rule  of  order,  providing  that  no  person  should  be  sworn 
in  as  a  Member  against  whom  the  objection  was  made  that  he  was  not  entitled  to  take  the  test  oath, 
and  if  upon  investigation  such  fact  appeared,  he  was  to  be  permanently  debarred  from  entrance. 

The  interesting  proposition  is  made  that  the  claimant  be  sworn  in  and  then  turned  out.  Upon 
the  theory  that  the  purpose  is  to  permanently  part  company  with  Mr.  Roberts,  this  is  a  dubious  pro- 
ceeding. Such  action  requires  the  vote  of  two-thirds  of  the  Members.  We  ask  if  such  a  vote  is  possible 
or  right,  in  view  of  the  following  observations. 

The  expulsion  clause  of  the  Constitution  is  as  follows: 

"Each  House  may  determine  the  rules  of  its  proceedings,  pimish  its  Members  for  disorderly  beha- 
vior, and,  with  the  concurrence  of  two-thirds,  expel  a  Member." 

No  lawyer  can  read  that  provision  without  raising  in  his  own  mind  the  question  whether  the  House 
has  any  power  to  expel,  except  for  some  cause  relating  to  the  context.  The  ablest  lawyers,  from  the 
beginning  of  the  Republic,  have  so  insisted  and  their  reasoning  has  been  so  cogent  that  these  proposi- 
tions are  established,  namely: 

1.  Neither  House  of  Congress  has  ever  expelled  a  Member  for  acts  unrelated  to  him  as  a  Member 
or  inconsistent  with  his  public  trust  and  duty  as  such. 

2.  Both  Houses  have  many  times  refused  to  expel  where  the  guilt  of  the  Member  was  apparent; 
where  the  refusal  to  expel  was  put  upon  the  ground  that  the  House  or  Senate,  as  the  case  might  be, 
had  no  right  to  expel  for  an  act  unrelated  to  the  member  as  such,  or  because  it  was  committed  prior  to 
his  election. 

The  majority  then  proceed  to  quote  and  comment  on  the  cases  of  Humphrey 
Marshall,  John  Smith,  and  WilHam  N.  Roach  in  the  Senate;  and  those  of  O.  B. 
Matteson,  Oakes  Ames  James  Brooks,  George  Q.  Cannon,  and  Schumacher  and 
King  in  the  House. 

After  commenting  on  the  bearing  of  these  cases,  the  majority  continue: 

If  there  is  any  fact  apparent  in  this  case  it  is  that  the  constituents  of  Mr.  Roberts  knew  all  about 
him  before  his  election. 

Can  there  be  room  to  doubt  the  proper  action  of  the  House?  Is  it  prepared  to  yield  up  this  salu- 
tary power  of  exclusion?    Will  it  declare  itself  defenseless  and  ridiculous? 

Nor  are  those  who  assert  that  expulsion  is  the  remedy  necessarily  barred  from  voting  for  the  reso- 
lution declaring  the  seat  vacant.  He  must,  indeed,  be  technical  and  narrow  in  his  construction  of  the 
Constitution  who  will  not  admit  that  if  a  vote  to  declare  the  seat  vacant  is  sustained  by  a  two-thirds 
majority  the  Constitution  is  substantially  complied  with.  He  may  not  agree  with  the  committee  that 
a  mere  majority  can  exclude,  but  he  can  reserve  the  right  to  make  the  point  of  order  that  the  resolution 
is  not  carried  if  two-thirds  do  not  vote  for  it. 


§  476  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS,  523 

Recurring  again  in  their  report  to  the  right  to  expel,  the  majority  say: 

Upon  this  alternative  proposition  that  the  proper  method  of  procedure  is  to  permit  the  claimant 
to  be  sworn  in,  and  then,  if  a  two-thirds  vote  can  be  obtained  to  expel  him,  we  desire  to  call  attention 
first  of  all  to  what  Storj'  says  on  that  subject,  section  837: 

"The  next  clause  is,  '  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its  Members 
for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a  Member.'  No  person  can 
doubt  the  propriety  of  the  provision  authorizing  each  House  to  determine  the  rules  of  its  own  proceed- 
ings. If  the  power  did  not  exist,  it  would  be  utterly  impracticable  to  transact  the  business  of  the  nation, 
either  at  all,  or  at  least  with  decency,  deliberation,  and  order.  The  humblest  a^^sembly  of  men  is  under- 
stood to  possess  this  power,  and  it  would  be  absurd  to  deprive  the  councils  of  the  nation  of  a  like  authority. 
But  the  power  to  make  rules  would  be  nugatorj',  unless  it  was  coupled  with  a  power  to  punish  for  dis- 
orderly beha\'ior  or  disobedience  to  those  rules.  And  as  a  Member  might  be  so  lost  to  all  sense  of  dignity 
and  duty  as  to  disgrace  the  House  by  the  grossness  of  his  conduct,  or  interrupt  its  deliberations  by  per- 
petual violence  of  clamor,  the  power  to  expel  for  very  aggravated  misconduct  was  also  indispensable, 
not  as  a  common  but  as  an  ultimate  redress  for  the  grievance." 

And  again,  section  8.38: 

"What  must  be  the  disorderly  behavior  which  the  House  may  punish,  and  what  punishment  other 
than  expulsion  may  be  inflicted,  do  not  appear  to  have  been  settled  by  any  authoritative  adjudication 
of  either  House  of  Congress.  A  learned  commentator  supposed  that  Members  can  only  be  punished  for 
misbehavior  committed  during  the  session  of  Congress,  either  within  or  without  the  walls  of  the  House, 
though  he  is  also  of  opinion  that  expulsion  may  be  inflicted  for  criminal  conduct  committed  in  any 
place." 

And  after  a  reference  to  the  Blount  case  Story  says: 

"It  seems,  therefore,  to  be  settled  by  the  Senate  upon  full  deliberation  that  expulsion  may  be  for 
any  misdemeanor  which,  though  not  punishable  by  any  statute,  is  inconsistent  with  the  trust  and  duty 
of  a  Senator." 

On  the  subject  of  expulsion,  Rawle  says,  second  edition,  page  48: 

"Both  the  Senate  and  the  House  of  Representatives  possess  the  usual  power  to  judge  of  the  elec- 
tions and  qualifications  of  their  own  Members,  to  punish  them  for  disorderly  behavior,  which  may  be 
carried  to  the  extent  of  expulsion,  provided  two-thirds  concur.  It  had  not  been  yet  precisely  settled 
what  must  be  the  disorderly  behavior  to  incur  the  punishment,  nor  what  kind  of  punLshment  is  to  be 
inflicted.     *    »    *" 

Paschal  on  the  Constitution,  page  87: 

"It  seems  to  be  settled  that  a  Member  may  be  expelled  for  any  misdemeanor  which,  though  not 
punishable  by  any  statute,  is  inconsistent  with  the  trust  and  duty  of  a  Member." 

We  do  not  need  to  call  particular  attention  to  the  phraseologj'  of  the  constitutional  provision,  nor 
do  we  think  it  verj'  important  to  consider  the  evolution,  from  the  standpoint  of  punctuation,  through 
which  that  provision  went  in  the  constitutional  convention.  It  now  appears  as  following  in  the  same 
sentence  as  the  provision  for  disorderly  behavior,  with  only  the  rhetorical  separation  of  a  comma  from  it. 

It  thus  appears  that  the  language  of  the  provision  for  expulsion,  in  the  view  of  the  ablest  com- 
mentators, furnishes  clear  and  cogent  reasons  for  its  construction,  and  that  neither  House  ought  to  expel 
for  any  cause  unrelated  to  the  trust  or  duty  of  a  Member. 

This  has  been  the  uniform  practice  of  both  Houses  of  Congress. 

The  case  of  Hiss  v.  Bartlett  (3  Gray,  468)  is  cited  as  showing  the  imlimited  power  of  a  legislative 
body  to  expel. 

A  casual  reading  of  this  case,  which  a  careful  reading  confirms,  will  show  that  it  directly  sustains 
the  position  of  the  majority. 

As  there  was  no  constitutional  provision  in  Massachusetts  respecting  expulsion,  the  legislature  of 
that  State  was,  of  course,  clothed  with  all  the  powers  incident  to  expulsion  which  are  inherent  in  a 
legislative  body  whose  powers  are  not  limited  by  a  constitution. 

In  addition  to  that,  Hiss  was  expelled  on  the  ground  that  his  "conduct  on  a  visit  to  Lowell,  as 
one  of  a  committee  of  the  house,  was  highly  improper  and  disgraceful,  both  to  himself  and  to  the  house 
of  which  he  was  a  member." 


524  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   476 

Everything  said  by  the  court  had  relation  to  such  a  state  of  facts.  The  case  is  one  of  expulsion 
for  gross  misconduct  as  a  member  and  in  the  performance  of  his  duty  as  a  member. 

Neither  House  has  ever  expelled  a  Member  for  any  cause  unrelated  to  the  trust  or  duty  of  a  Member. 

Botli  Houses  have  refused  to  expel  where  the  proof  of  guilt  was  clear,  but  where  the  offense  charged 
was  unrelated  to  the  trust  or  duty  of  a  Member. 

Again  the  majority  review  the  precedents  in  the  House  and  Senate,  including 
the  case  of  Herbert  in  the  Thirty-fourth  Congress. 

The  mmority  views,  after  discussing  the  cases  of  Matteson  ua  the  House  and 
Smith  in  the  Senate,  say: 

The  Matteson  case  was  in  1858.  With  the  exception  of  a  suggestion  that  a  case  had  been  decided 
in  Massachusetts,  the  purport  of  which  was  not  stated,  no  reference  was  made  to  a  leading  Massachusetts 
case.  The  opinion  of  the  court  in  that  case,  an  authoritative  construction  of  the  clause  of  the  consti- 
tution under  which  they  were  acting,  was  written  by  Chief  Justice  Shaw,  conceded  to  be  one  of  the 
greatest  judges  that  ever  sat  in  any  court  in  any  land  at  any  time.  The  report  containing  it  was  pub- 
lished in  1857.  It  is  the  only  case  which  we  have  been  able  to  find  where  the  court  has  had  occasion, 
with  authority,  to  determine  this  precise  question.  The  constitution  of  Massachusetts  contained  no 
provision  authorizing  the  expulsion  of  a  member  of  the  house  of  representatives.  Joseph  Hiss  was 
expelled  by  the  house  upon  the  ground  that  his  conduct  on  a  committee  at  Lowell  "was  highly  improper 
and  disgraceful,  both  to  himself  and  to  this  body  of  which  he  is  a  member."  This  was  not  disorderly- 
conduct  in  the  house,  and  it  is  significant  that  the  facts  that  made  it  "improper  and  disgraceful "  were 
not  disclosed  by  the  case. 

Hiss,  after  his  expulsion,  was  arrested  at  the  instance  of  one  of  his  creditors  on  mesne  process  and 
committed  to  jail.  He  brought  a  petition  for  habeas  corpus  on  the  ground  that  he  was  a  member  of 
the  house  of  representatives,  and  as  such  privileged  from  arrest.  This  raL^ed  the  precise  question  of 
the  legality  of  his  expulsion,  and  speaking  through  Chief  Justice  Shaw,  the  court,  among  other  things, 
said: 

"The  question  is  whether  the  house  of  representatives  have  the  power  to  expel  a  member." 

After  adverting  to  the  fact  that  the  constitution  did  not  in  terms  authorize  expulsion,  he  says: 

"There  is  notliing  to  show  that  the  framers  of  the  constitution  intended  to  withhold  this  power. 
It  may  have  been  given  expressly  in  other  States,  either  ex  majori  cautela,  or  for  the  purpose  of  limiting 
it.  by  requiring  a  vote  of  more  than  a  majority." 

In  the  Constitution  of  the  United  States  it  was  given  evidently  "for  the  purpose  of  limiting  it," 
as  a  two-thirds  vote  is  required. 

Again: 

"The  power  of  expulsion  is  a  necessary  and  incidental  power,  to  enable  the  house  to  perform  its 
high  functions,  and  is  necessary  to  the  safety  of  the  State.  It  is  a  power  of  protection.  A  member 
may  be  physically,  mentally,  or  morally,  wholly  unfit;  he  may  be  afflicted  with  a  contagious  disease, 
or  insane,  or  noisy,  violent  and  disorderly,  or  in  the  habit  of  using  profane,  obscene,  and  abusive  lan- 
guage.    It  is  necessary  to  put  extreme  cases  to  test  a  principle. 

"If  the  power  exists,  the  house  must  necessarily  be  the  sole  judge  of  the  exigency  which  may 
justify  and  require  its  exercise." 

After  having  fully  examined  the  law  and  practice  of  Parliament,  he  says: 

"But  there  is  another  consideration,  which  seems  to  render  it  proper  to  look  into  the  law  and  practice 
of  Parliament  to  some  extent.  I  am  strongly  inclined  to  believe,  as  above  intimated,  that  the  power 
to  commit  and  to  expel  its  Members  was  not  given  to  the  House  and  Senate,  respectively,  because  it  was 
regarded  as  inherent,  incidental,  and  necessary,  and  must  exist  in  every  aggregate  and  deliberative  body, 
in  order  to  the  exercise  of  its  functions,  and  because  without  it  such  body  would  be  powerless  to  accom- 
plish the  pm-poses  of  its  constitution;  and  therefore  any  attempt  to  express  or  define  it  would  impair 
rather  than  strengthen  it.  This  being  so,  the  practice  and  usage  of  other  legislative  bodies  exercising 
the  same  functions  imder  similar  exigencies  and  the  reason  and  groimds,  existing  in  the  nattrre  of 
things,  upon  which  the  irrules  and  practice  have  been  founded,  may  serve  as  an  example  and  as  some 
guide  to  the  adoption  of  good  rules,  when  the  exigencies  arise  under  our  Constitution. 

"But  independently  of  pailiamentary  custom  and  usages,  our  legislative  houses  have  the  power  to 
protect  themselves,  by  the  punishment  and  expulsion  of  a  Member. 


§  476  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  525 

■■ '  It  is  urged  that  this  court  will  inquire  whether  the  petitioner  has  been  tried.  But  if  the  House 
have  jurisdiction  for  any  cause  to  expel,  and  a  court  of  justice  finds  that  they  have  in  fact  expelled — ' " 

He  then  held  that  their  action  was  conclusive,  and  dismissed  the  petition.  (Hiss  v.  Bartlett.  3 
Gray,  468.) 

It  is  instructive  on  this  point  to  note  that  this  paragraph  of  the  Constitution,  as  originally  drawn, 
read: 

"Each  House  may  determine  the  rules  of  its  proceedings;  may  punish  its  Members  for  disorderly 
beha-vior:  and  may  expel  a  Member; "  making  three  distinct  clauses  separated  by  semicolons. 

This  extract  from  the  records  of  the-debates  in  the  Federal  Convention  shows  clearly  why  the 
two-thirds  provision  was  inserted  in  the  expulsion  clause: 

■'Mr.  Madison  observed  that  the  right  of  expulsion  (art.  6,  sec.  6)  was  too  important  to  be  exercised 
by  a  bare  majority  of  a  quorum;  and,  in  emergencies  of  faction,  might  be  dangerously  abused.  He 
moved  that  "with  the  concurrence  of  two-thin'.s,"  might  be  inserted  between  'may"  and  "expel." 

■'Mr.  Randolph  and  Mi-.  Mason  approved  the  idea. 

"  Mr.  (louvemeur  Morris.  This  power  maybe  safely  trusted  to  a  majority.  A  few  men,  from 
factious  motives,  may  keep  in  a  Member  who  ought  to  be  expelled. 

"Mr.  Carroll  thought  ihat  the  concurrence  of  two-thirds,  at  least,  ought  to  be  required. 

"On  the  question  requiring  two-thirds,  in  cases  of  expelling  a  Member,  ten  States  were  in  the 
affirmative;  Pennsylvania  divided." 

Article  6,  sec.  6,  as  thus  amended,  was  then  agreed  to,  nem  con.     (Madison  Papers,  Vol.  V,  p.  406.) 

While  we  think  this  Hiss  case  establishes  beyond  successful  controversy  the  power  of  expulsion  os 
discretioudjy  and  unlimited,  it  is  proper  to  note  that  no  decided  case  or  elementary  writer  militates 
against  it.     ^^  e  give  all  that  we  have  found  on  the  question. 

In  discussing  this  question  the  court,  in  State  v.  Jersey  City  (25  JJ.  J.  L.,  539\  said: 

"The  power  vested  in  the  two  Houses  of  Congress  by  the  Constitution,  article  1,  section  5,  paragraph 
2,  is  in  different  phraseology;  it  is,  that  "each  House  may  determine  the  rules  of  its  proceedings,  punish 
its  Members  for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a  Member."  Under 
this  power,  the  Senate  in  1797  expelled  a  Member  of  that  body  for  an  offense  not  committed  in  his  official 
character  as  a  Member,  nor  during  a  session  of  Congress,  nor  while  the  Member  was  at  the  seat  of  govern- 
ment. (Blount's  case.  Story's  Commentaries  on  the  Constitution,  ch.  12,  sec.  836.)  But  it  is  not  clear 
that  the  power  to  expel  is  limited  by  the  Constitution  to  the  caiise  of  disorderly  behavior. 

E\'idently  without  having  in  mind  the  accurate  use  of  the  term  "qualification"  as  used  in  the 
Constitution,  the  court,  in  State  ex  rel.  v.  Gilmore  (20  Kansas,  554),  said: 

"The  Constitution  declares  (art.  2,  sec.  8)  that  'EachHouseshaUbe  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  Members.'  This  is  a  grant  of  power,  and  constitutes  each  House  the  ulti- 
mate tribunal  as  to  the  qualifications  of  its  own  Members.  The  two  Houses  acting  conjointly  do  not 
decide.  Each  House  acts  for  itself  and  by  itself,  and  from  its  decision  there  is  no  appeal,  not  even  to 
the  two  Houses.  And  this  power  is  not  exhausted  when  once  it  has  been  exercised  and  a  Membe 
admitted  to  his  seat.  It  is  a  continuous  power  and  nms  through  the  entire  term.  At  any  time  and  at 
cU  times  during  the  term  of  office  each  House  is  empowered  to  pass  upon  the  present  qualifications  of 
its  own  Members." 

Story  says; 

"And  as  a  Member  might  be  so  lost  to  all  sense  of  dignity  and  duty  as  to  disgrace  the  House  by  the 
grossness  of  his  conduct,  or  interrupt  its  deliberations  by  perpetual  violence  or  clamor,  the  power  to 
expel  for  very  aggravated  misconduct  was  also  indispensable,  not  as  a  common,  but  as  an  ultimate  redress 
for  the  grievance.  But  such  a  power,  so  summarj-  and  at  the  [same]  time  so  subversive  of  the  rights  of  the 
people,  it  was  foreseen,  might  be  exerted  for  mere  purposes  of  faction  or  party,  to  remove  a  patriot  or 
to  aid  a  corrupt  measitre;  and  it  has,  therefore,  been  wisely  guarded  by  the  restriction  that  there  shall 
be  a  concurrence  of  two-thirds  of  the  Members  to  justify  an  expulsion.     *    *    * 

"In  July,  1797,  WLUiam  Blount  was  expelled  from  the  Senate  for  'a  high  misdemeanor,  entirely 
inconsistent  with  his  public  trust  and  duty  as  a  Senator.'  The  offense  charged  against  him  was  an 
attempt  to  seduce  an  American  agent  among  the  Indians  from  his  duty,  and  to  alienate  the  affections 
and  confidence  of  the  Indians  from  the  public  authorities  of  the  United  States,  and  a  negotiation  for 
services  in  behalf  of  the  British  Government  among  the  Indians.  It  was  not  a  statutable  offense,  nor 
was  it  committed  in  his  official  character;  nor  was  it  committed  during  the  session  of  Congress,  nor  at 


526  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   476 

the  seat  of  government.  Yet,  by  an  almost  unanimous  vote  he  was  expelled  from  that  body;  and  he 
was  afterwards  impeached  (as  has  been  already  stated)  for  this,  among  other  charges.  It  seems,  there- 
fore, to  be  settled  by  the  Senate,  upon  full  deliberation,  that  expulsion  may  be  for  any  misdemeanor 
which,  though  not  punishable  by  any  statute,  is  inconsistent  with  the  trust  and  duty  of  a  Senator."  (Story 
on  the  Constitution,  vol.  1,  p.  C07.) 
Paschal  states: 

"  It  seems  to  be  settled  that  a  Member  may  be  expelled  for  any  misdemeanor  which,  though  not 
punishable  by  any  statute,  is  inconsistent  with  the  trust  and  duty  of  a  Member.  (Blount's  Case,  1  Story 
Const.,  sec.  838;  Smith's  Case,  1  Hall's  L.  J.,  459;  Brook's  Case,  for  assaulting  Senator  Sumner  in  the 
Senate  Chamber,  for  words  spoken  in  debate.)  It  extends  to  all  cases  where  the  offense  is  such,  as  in 
the  judgment  of  the  House,  unfits  him  for  parliamentary  duties.  (Paschal's  Annotated  Constitution, 
p.  87,  par.  49.) 

"It  has  not  yet  been  precisely  settled  what  must  be  the  disorderly  behavior  to  incur  punishment, 
nor  what  kind  of  punishment  is  to  be  inflicted;  but  it  can  not  be  doubted  that  misbehavior  out  of  the 
walls  of  the  House  or  within  them,  when  it  is  not  in  session,  would  fall  within  the  meaning  of  the 
Constitution.  Expulsion  may,  however,  be  founded  on  criminal  conduct  committed  in  any  place, 
and  either  before  or  after  conviction  in  a  court  of  law."     (Rawle  on  the  Constitution,  2d  ed.,  47.) 

Cooley  is  specific: 

' '  Each  House  has  also  power  to  punish  Members  for  disorderly  behavior,  and  other  contempts  of 
its  authority,  as  well  as  to  expel  a  Member  for  any  cause  which  seems  to  the  body  to  render  it  unfit  that 
he  continue  to  occupy  one  of  its  seats.  This  power  is  generally  enumerated  in  the  Constitution  among 
those  which  the  two  Houses  may  exercise,  but  it  need  not  be  specified  in  that  instrument,  since  it  would 
exist  whether  expressly  conferred  or  not.  It  is  'a  necessary  and  incidental  power  to  enable  the  House 
to  perform  its  high  functions,  and  it  is  necessary  to  the  safety  of  the  state.  It  is  a  power  of  protection. 
A  Member  may  be  physically,  mentally,  or  morally  wholly  unfit:  he  may  be  afflicted  with  a  contagious 
disease,  or  insane,  or  noisy,  violent,  and  disorderly,  or  in  the  habit  of  using  profane,  obscene,  and  abusive 
language.'  And,  'independently  of  parliamentaiy  customs  and  usages,  our  legislative  houses  may 
have  the  power  to  protect  themselves  by  the  punishment  and  expulsion  of  a  Member,'  and  the  courts 
can  not  inquire  into  the  justice  of  the  decision,  or  even  so  much  as  examine  the  proceedings  to  see 
whether  or  not  the  proper  opportunity  for  defense  was  furnished.  (Cooley's  Constitutional  Limita- 
tions, pp.  159,  IGO.) 

"  Since  there  has  been  repeated  occasion  to  take  steps  against  Members  of  each  House  under  each  of 
these  two  clauses,  and  since  the  majority  has  never  taken  this  standpoint,  it  may  now  be  regarded  as 
finally  settled  that  that  interpretation  is  correct  which  is  the  broader  and  at  the  same  time  according 
to  ordinary  speech,  unquestionably  the  more  natural  one.  Both  Houses  of  Congress  must  have  been 
granted  every  power  needed  to  guard  themselves  and  their  Members  against  any  impropriety  on  the 
part  of  a  Member,  and  to  preserve  their  dignity  and  reputation  among  the  people.  It  is  wholly  for 
them  to  say  what  conduct  they  are  to  regard  as  dishonorable  enough  to  require  expulsion.  An  appeal 
from  their  decision  lies  only  to  the  court  of  public  opinion,  a  court  which  brings  in  its  verdict  at  the 
elections.     (Von  Hoist's  Constitutional  Law  of  the  United  States,  102.) 

"  The  power  of  expulsion  is  unlimited,  and  the  judgment  of  a  two-thirds  majority  is  final.  (Pomeroy 
on  Constitutional  Law,  p.  139,  1895.) 

"  It  seems  necessary  also  to  remark  that  a  Member  may  be  expelled,  or  discharged  from  sitting,  as 
such,  which  is  the  same  thing  in  milder  terms,  for  many  causes,  for  which  the  election  could  not  be 
declared  void.     (Cushing,  Law  and  Practice  Legislative  Assemblies,  p.  33,  sec.  84.) 

"The  power  to  expel  a  Member  is  naturally  and  even  necessarily  incidental  to  all  aggregate  and 
especially  all  legislative  bodies;  which,  without  such  power,  could  not  exist  honorably,  and  fulfill  the 
object  of  their  creation.  In  England  this  power  is  sanctioned  by  continued  usage,  which,  in  part, 
constitutes  the  law  of  Parliament.     (Ibid.,  p.  251,  sec.  625.) 

"Blount  was  expelled  from  the  Senate  for  an  offense  inconsistent  with  public  duty,  but  it  was  not 
for  a  statutory  offense,  nor  was  it  in  his  official  character,  nor  during  the  session  of  Congress,  nor  at  the 
seat  of  government;  the  vote  of  expulsion  was  25  to  1. 

' '  The  motion  to  expel  a  Member  may  be  for  disorderly  behavior,  or  disobedience  to  the  rules  of  the 
House  in  such  aggravated  form  as  to  show  his  unfitness  longer  to  remain  in  the  House,  and  the  cases  above 
cited,  as  well  as  the  reason  of  the  provision,  would  justify  the  expulsion  of  a  Member  from  the  House 


§   477  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  527 

where  his  treasonable  and  criminal  misconduct  would  show  his  unfitness  for  the  public  trust  and  duty  of 
a  Member  of  either  House.  But  expulsion,  which  is  an  extreme  punishment,  denying  to  his  constitu- 
ency the  right  to  be  represented  by  him,  can  only  be  inflicted  by  the  concurrence  of  two-thirds  of  the 
House,  and  not  by  a  bare  majority  only.  (Citing  Story  on  the  Constitution,  sec.  837;  Tucker  on  the 
Constitution,  p.  429.) 

"It  has  since  been  held  by  the  House  of  Representatives  that  a  Member  duly  elected  could  not  be 
disqualified  for  a  cause  not  named  in  the  Constitution,  such  as  immorality,  and  that  the  remedy  in  such 
a  case,  if  any,  was  expulsion.  The  distinction  between  the  right  to  refuse  admission  and  the  right  of 
expulsion  upon  the  same  ground  is  important,  since  the  former  can  be  done  by  a  majority  of  a  quorum, 
whereas  expulsion  requires  the  vote  of  two-thirds.  The  question  can  not  be  said  to  have  been  authori- 
tatively decided.     (Foster  on  the  Constitution,  p.  367.) 

Mr.  Foster's  attention  does  not  appear  to  have  been  directed  to  the  case  of  Hiss  r.  Bartlett,  as  it  is 
in  point  on  his  doubt  if  the  doubt  relates  to  the  power  of  expulsion;  he  does  not  refer  to  it. 

It  is  proper  to  observe  that  the  determinations  of  the  court  and  the  opinions  of  eminent  legal  authors, 
unexcelled  m  reputation  and  learning,  are  entitled  upon  these  propositions  to  great  weight,  as  they  are 
in  everj-  instance  the  result  of  careful,  dispassionate,  and  disinterested  research  and  sound  reasoning, 
unaffected  by  considerations  that  must  necessarily  have  been  involved  in  legislative  precedents.  The 
two-thirds  limitation  upon  the  right  to  expel  not  only  demonstrates  the  wisdom  of  the  fathers,  but 
illustrates  the  broad  distinction  Ijetween  exclusion  and  expulsion. 

A  small  partisan  majority  might  render  the  desire  to  arbitrarily  exclude,  by  a  majority  vote,  in 
order  to  more  securely  intrench  itself  in  power,  irresistible.  Hence  its  exercise  is  controlled  by  legal 
rules.  In  case  of  expulsion,  when  the  requisite  two-thirds  can  be  had,  the  motive  for  the  exercise  of 
arbitrary  power  no  longer  exists,  as  a  two-thirds  partisan  majority  is  sufficient  for  every  purpose.  Hence 
expulsion  has  been  wisely  left  in  the  discretion  of  the  House,  and  the  safety  of  the  Members  does  not 
need  the  protection  of  legal  rules. 

It  seems  to  us  settled,  upon  reason  and  authority,  that  the  power  of  the  House  to  expel  is  unlimited, 
and  that  the  legal  propositions  involved  may  be  thus  fairly  summarized:  The  power  of  exclusion  is  a 
matter  of  law,  to  be  exercised  by  a  majority  vote,  in  accordance  with  legal  principles,  and  exists  only 
where  a  Member-elect  lacks  some  of  the  qualifications  required  by  the  Constitution.  The  power  of 
expulsion  is  made  by  the  Constitution  purely  a  matter  of  discretion,  to  be  exercised  by  a  two-thirds  vote, 
fairly,  intelligently,  conscientiously,  with  a  due  regard  to  propriety  and  the  honor  and  integrity  of  the 
House,  and  the  rights  of  the  individual  Member.  For  the  abuse  of  this  discretion  we  are  responsible 
only  to  our  constituents,  our  consciences,  and  our  God. 

We  believe  that  Mr.  Roberts  has  the  legal,  constitutional  right  to  be  sworn  in  as  a  Member,  but  the 
facts  are  such  that  we  further  believe  the  House,  in  the  exercise  of  its  discretion,  is  not  only  justified, 
but  required  by  everj-  proper  consideration  involved,  to  expel  him  promptly  after  he  becomes  a  Member. 

In  the  coiu-se  of  the  debate,  on  January  24,  1900,  Mr.  John  F.  Lacey  raised 
and  discussed  the  proposition  that  the  House  might  expel  a  Member  before  he 
was  sworn  in.' 

477.   The  case  of  Brigham  H.  Roberts,  continued. 

In  the  case  of  Brigham  H.  Roberts,  the  House  assumed  its  right  to 
impose  a  qualification  not  specified  by  the  Constitution;  and  excluded 
him. 

2.  As  to  the  qualifications  of  a  Member  under  the  Constitution. 

The  majoritA"  of  the  committee  held  that  the  clause  of  the  Constitution 
specifying  the  qualifications  of  a  Member  did  not  preclude  the  imposition  of  other 
disqualifications  by  the  Congress  or  by  either  House,  arguing  thus: 

This  question  meets  us  at  the  threshold:  Does  the  constitutional  provision,  ''No  person  shall  be 
a  Representative  who  shall  not  have  attained  to  the  age  of  twenty-five  years,  and  been  seven  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  the  State  in  which 
he  shall  be  chosen,"  preclude  the  imposition  of  any  disqualification  by  Congress  or  by  either  House? 

1  Record,  p.  1135. 


528  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   477 

Must  it  be  said  that  the  constitutional  provision,  phrased  as  it  is,  really  means  that  everj'  person 
who  is  twenty-five  years  of  age,  and  who  has  been  for  seven  years  a  citizen  of  the  United  States,  and 
was,  when  elected,  an  inhabitant  of  that  State  in  which  he  was  chosen,  is  eligible  to  be  a  Member  of 
the  House  of  Representatives  and  must  be  admitted  thereto,  even  though  he  be  insane,  or  disl<jyal,  or 
a  leper,  or  a  criminal? 

Is  it  conceivable  that  the  Constitution  meant  that  crime  could  not  disqualify?  The  whole  .spirit 
of  government  revolts  against  any  such  conception. 

Not  now  discussing  the  question  as  to  whether  or  not  that  constitutional  provision  is  exclusive, 
so  far  as  ordinary  qualifications  are  concerned,  is  it  to  be  said  that  there  is  in  it  no  implied  power  of 
disqualification  for  reasons  which  appeal  to  the  common  judgment  of  mankind,  and  which  are  vital 
and  essential  to  the  very  constitution  and  integrity  of  the  legislative  body  as  such? 

We  are  compelled  to  answer  that  that  provision,  in  the  sense  to  which  we  have  just  adverted,  is 
not  exclusive,  and  that  reasonable  disqualifications  may  attach  to  certain  individuals,  which  may,  for 
the  sake  of  argument,  be  assumed  to  amount  in  practice  to  added  qualifications. 

A  marked  distinction  is  to  be  made  between  arbitrary-  disqualifications  and  those  which  arise  out 
of  the  voluntary  act  of  the  individual  who  places  himself,  by  the  commission  of  an  offense  against 
the  law  or  civilization,  within  the  prohibited  class.  We  believe,  whatever  general  statements  may 
have  been  made  by  public  men,  that  no  commentator  on  the  Constitution,  no  court,  or  either  House  of 
Congress  has  over  questioned  the  propriety  of  that  distinction,  but  that  the  contrary  doctrine  has 
been  universally  hel<]  wherever  the  question  was  clearly  raised. 

In  our  opinion  it  is  demonstrable  that  no  such  exclusive  meaning  can  be  given  to  the  provision 
above  quoted  as  is  contended  for  on  the  other  side  of  this  proposition,  and  that  the  sound  rale  is  declared 
by  Burgess  in  his  work  on  Political  Science  and  Constitutional  Law,  when  on  page  02,  he  says: 

"I  think  it  certain  that  either  House  [of  Congress]  might  reject  an  insane  person  *  *  *  or 
might  exclude  a  grossly  immoral  person." 

We  desire  at  the  very  threshold  of  this  discussion  to  lay  down  these  general  propositions,  never 
to  be  forgotten  and  always  to  be  kept  clearly  in  mind: 

First.  That  the  House  has  never  denied  that  it  had  the  right  to  refuse  to  permit  a  Member-elect 
to  be  sworn  in,  although  he  had  all  of  the  three  constitutional  qualifications. 

Second.  That  it  has  in  many  instances  affirmatively  declared  that  it  had  the  right  to  thus  refuse. 

Third.  That  the  right  to  so  refuse  is  supported  on  principle  and  by  the  overwhelming  weight  of 
authority  of  constitutional  writers  and  judicial  opinions  on  analogous  constitutional  questions;  and 

After  reviewing  the  status  of  Roberts  the  majority  continue: 

We  assert  that  it  is  our  duty,  as  it  is  our  right,  to  exclude  him;  to  prevent  his  taking  the  oath  and 
participating  in  the  councils  of  the  nation. 

Three  methods  present  themselves  by  which  to  test  the  soundness  of  this  view: 
First.  On  principle,  and  this  involves — 

(1)  The  nature  of  the  legislative  assembly  and  the  power  necessarily  arising  therefrom; 

(2)  The  express  language  of  the  constitutional  provision; 

(3)  The  reasons  for  that  language; 

(4)  Its  context  and  its  relation  to  other  parts  of  the  instrument; 

(5)  The  obvious  construction  of  other  portions  of  the  same  instrument  necessarily  subject  to  the 
same  rule  of  construction. 

Second.  The  text-books  and  the  judicial  authorities. 

Third.  Congressional  precedents.     These  are  of  two  classes — 

(1)  Action  respecting  the  rights  of  individual  Members; 

(2)  Acts  of  Congress  and  general  resolutions  of  either  House. 

First. — On  principle. 

As  to  the  first  proposition,  what  is  the  argument  on  principle?  We  think  it  will  be  undoubted  that 
every  legislative  body  has  unlimited  control  over  its  own  methods  of  organization  and  the  qualifications 
or  disqualifications  of  its  members,  except  as  specifically  limited  by  the  organic  law.  We  do  not  think 
that  this  proposition  needs  amplifying;  it  is  axiomatic.  It  is  apparent  that  every  deliberative  and 
legislative  body  must  have  supreme  control  over  its  owti  membership,  except  in  so  far  as  it  may  be 


§  477  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  529 

specifically  limited  by  a  higher  law;  there  is  a  distinction  to  be  drawn  between  the  legislative  power  of  a 
legislative  body  and  its  organizing  power,  or  those  things  which  relate  to  its  membership  and  its  control 
over  the  methods  of  performing  its  allotted  work.  That  is  to  be  distinguished  from  the  legislative  power 
to  be  expressed  in  its  final  results. 

When  our  Constitution  was  framed  there  was  practically  no  limit  to  the  right  and  power,  in  these 
respects,  of  the  English  Pailiament.  Such  power  is  necessary  to  the  preservation  of  the  body  itself  and 
to  the  dignity  of  its  character.  In  England  it  was  at  one  time  admissible  to  permit  the  admission  into  the 
House  of  Commons  of  minors,  of  aliens,  and  of  persons  not  inhabitants  of  the  political  subdivision  in 
which  they  were  elected.  To  this  day  it  is  well  known  that  an  inhabitant  of  London  may  be  elected  by 
a  Scotch  constituency,  and  a  member  has  been  elected  by  more  than  one  constituency  to  the  same 
Parliament. 

The  framers  of  the  Constitution,  familiar  with  these  facts,  proposed  to  prevent  their  happening  in 
this  coimtry.  They  knew  also  that  a  similar  latitude  of  choice  had  been  exercised  in  the  original  colonies 
and  in  the  States  of  the  Federation,  and  it  was  proposed  to  put  a  stop  to  it  so  far  as  Congress  was  concerned . 
A  verj'  liuninous  argument  was  made  on  this  subject  by  John  Randolph  in  the  House  of  Representatives 
In  1807. 

We  quote  as  follows  from  his  remarks: 

' '  If  the  Constitution  had  meant  (as  was  contended)  to  have  settled  the  qualifications  of  Members,  its 
words  would  have  naturally  run  thus:  'Every  person  who  has  attained  the  age  of  twenty-five  years  and 
been  seven  years  a  citizen  of  the  United  States,  and  who  shall,  when  elected,  be  an  inhabitant  of  the 
State  from  which  he  shall  be  chosen,  shall  be  eligible  to  a  seat  in  the  House  of  Representatives.'  But  so 
far  from  fixing  the  qualifications  of  Members  of  that  House,  the  Constitution  merely  enumerated  a  few 
disqualifications  within  which  the  States  were  left  to  act." 

"It  is  said  to  the  States,  '  You  have  been  in  the  habit  of  electing  young  men  barely  of  age.  You 
shall  send  us  none  but  such  as  are  five  and  twenty.  Some  of  you  have  elected  persons  just  naturalized. 
You  shall  not  elect  any  to  this  House  who  have  not  been  some  seven  years  citizens  of  the  United 
States.  Sometimes  mere  sojourners  and  transient  persons  have  been. clothed  with  legislative  authority. 
You  shall  elect  none  whom  your  laws  do  not  consider  as  inhabitants.'  " 

In  pursuance  of  the  idea  in  the  mind  of  the  framers  of  the  Constitution,  we  have  the  peculiar  words 
"no  person  shall  be  a  Representative  who  shall  not  have  attained,  etc."  How  happy  indeed  are  these 
words  Lf  we  give  them  precisely  the  force  and  meaning  for  which  we  contend.  How  unhappy  and  how 
misleading,  how  impossible,  in  fact,  to  the  masters  of  the  English  language  who  wrote  them,  if  they  were 
intended  to  exclude  all  other  possible  requirements  or  disqualifications.  We  might  admit  such  con- 
struction if  suitable  language  was  difiicult  to  find  or  frame;  but  note  how  easily  such  a  purpose  coidd 
have  been  served  in  fewer  words  and  with  unmistakable  meaning.  Thus:  "Any  person,"  or  "a  person," 
or  "every  person,  may  be  a  Representative  who  shall  have  attained  the  age  of  twenty-five  years,"  etc. 

The  provision  seems  to  be  worded  designedly  in  the  negative  so  as  to  prevent  the  suspicion  that 
it  was  intended  to  be  exclusive,  and  so  as  to  prevent  the  application  of  the  rule,  "the  expression  of  one 
thing  is  the  exclusion  of  another."  The  immediately  preceding  clause  is  affirmative,  and  says:  "The 
electors  in  each  State  shall  have  the  qualifications,"  etc.  With  some  show  of  propriety  it  can  be  claimed 
that  this  provision  is  exclusive.     It  at  least  does  not  have  the  negative  form  to  condemn  such  construction 

Story  says  (Constitution,  sec.  448): 

"The  truth  is,  that  in  order  to  ascertain  how  far  an  aflBrmative  or  negative  proposition  excludes  or 
implies  others,  we  must  look  to  the  nature  of  the  provision,  the  subject-matter,  the  objects,  and  the 
scope  of  the  instrument.  These,  and  these  only,  can  properly  determine  the  rule  of  construction.  There 
can  be  no  doubt  that  an  affirmative  grant  of  powers  in  many  cases  will  imply  an  exclusion  of  all  others." 

It  is  a  notable  fact  that  in  the  first  draft  of  this  constitutional  provision  which  provides  for  quali- 
fications of  Representatives  in  Congress  the  language  was  affirmative  and  positive  and  that  when  it 
was  finally  presented  for  adoption  it  appeared  in  the  form  in  which  we  now  find  it. 

The  slight  contemporaneous  discussion  in  the  constitutional  convention  was  upon  the  provision 
in  the  affirmative  form,  ^"hy  was  it  changed  in  the  negative?  Surely  not  for  the  sake  of  euphony, 
and  certainly  not  to  make  it  more  explicitly  exclusive. 

In  the  report  of  the  committee  of  detail,  submitting  the  first  draft  of  the  Constitution,  this  section 
read  in  the  affirmative  and  as  follows: 

.5994 — VOL  1—07 34 


530  PRECEDENTS    OF    THE    HOUSE    OF   EEPRESENTATIVES.  §   477 

"Every  Member  of  the  House  of  Representatives  shall  be  of  the  age  of  25  years  at  least;  shall 
have  been  a  citizen  of  the  United  States  for  at  least  three  years  before  his  election,  and  shall  be  at  the 
time  of  his  election  a  resident  of  the  State  in  which  he  shall  be  chosen." 

In  the  discussion  Mr.  Dickinson  opposed  the  section  altogether,  expressly  because  it  would  be  held 
exclusive,  saying  he  "was  against  any  recitals  of  qualifications  in  the  Constitution.  It  was  impossible 
to  make  a  complete  one,  and  a  partial  one  would,  by  implication,  tie  up  the  hands  of  the  legislature 
from  supplying  omissions." 

Mr.  Wilson  took  the  same  view,  saying: 

"Besides,  a  partial  enumeration  of  cases  will  disable  the  legislature  from  disqualifying  odious  and 
dangerous  characters." 

The  next  day  after  this  discussion,  and  when  the  clause  respecting  age,  etc.,  had,  in  its  general 
sense,  been  informally  approved,  a  proposed  section  respecting  a  property  qualification  was  discussed. 
Mr.  Wilson  said  (Madison  Papers,  vol.  5,  p.  404)  that  he  thought  "it  would  be  best,  on  the  whole,  to 
let  the  section  go  out;  this  particular  power  would  constructively  exclude  every  other  power  of  regulating 
qualifications."  What  did  Mr.  Wilson  mean  if  the  result  of  the  discussion  in  which  he  participated  on 
the  preceding  day  was  to  "constructively  exclude  every  other  power  of  regulating  qualifications?" 

In  view  of  the  objections  urged  by  Dickinson  and  Wilson  and  their  opinions  as  to  the  construction 
that  would  result  and  the  consequences  thereof,  the  conclusion  seems  reasonable,  if  not  absolutely 
irresistible,  that  the  change  from  the  affirmative  to  the  negative  form  was  intentionally  made  and  with 
the  very  purpose  of  obviating  such  objections,  and  hence  that  in  being  negatively  stated  it  was  con- 
sidered by  the  convention  that  the  particular  qualifications  mentioned  would  not  be  exclusive  and 
would  not  render  impossible  the  "disqualifying odious  and  dangerous  characters "  and  would  not  prevent 
"supplying  omissions." 

This  section  was  finally  reported  and  adopted  in  the  negative  form  in  which  it  now  appears.  The 
report  of  the  committee  seems  to  have  been  elaborately  discussed. 

\^Tiere  do  we  find  ourselves  in  such  a  case  as  this?  Suppose  that  Brigham  H.  Roberts,  instead  of 
being  charged  with  polygamy,  was  charged  with  treason,  not  constructive  treason,  but  actual  treason, 
and  suppose  that  a  witness  appeared  before  the  committee — a  credible  witness,  whose  testimony  was 
undisputed — who  testified  that  he  had  seen  Brigham  H.  Roberts  wage  war  against  the  United  States  in 
the  Spanish  war,  giving  aid  and  comfort  to  Spain,  not  constructively,  but  actively;  and  suppose  that 
Roberts  appeared  himself  before  the  committee  and  said,  "All  that  this  man  says  is  true;  I  did  wage  war 
against  the  United  States;  I  did  give  aid  and  comfort  to  its  enemies  in  time  of  war  against  a  foreign  foe, 
and  I  glory  in  it."  Now,  in  that  state  of  facts  the  law  could  not  lay  its  hand  upon  him  for  the  crime 
treason,  for  the  Constitution  provides  that  no  person  shall  be  convicted  of  treason  except  upon  the 
testimony  of  two  witnesses  to  the  same  over  fact  or  by  confession  in  open  court.  So  that  under  the 
state  of  facts  thus  presented  he  could  not  be  convicted  of  treason. 

Suppose  he  was  here  with  a  certificate  of  election  from  a  great  State  and  demanded  admission. 
Upon  the  theory  of  the  other  side  we  must  admit  him.  The  minority  insist  that  in  such  a  case  he  must 
be  sworn  in.  It  will  not  do  to  say  that  practically  no  wrong  would  be  done  on  the  ground  or  on  the 
theory  that  he  might  be  immediately  thereafter  expelled,  for  he  would  have  a  right  to  be  heard  in  his 
own  defense,  he  would  have  a  right  to  be  heard  as  to  whether  the  House  had  a  right  upon  those  facts 
to  expel,  and  it  might  take  much  time.  In  any  event  he  would  be  there  fully  armed  with  all  of  the 
powers  and  privileges  of  a  Member  of  the  American  House  of  Representatives.  We  think  that  the  civi- 
lized world  would  declare  that  it  made  itself  ridiculous  if  it  confessed  its  want  of  power  to  keep  out  from 
the  councils  of  the  nation  a  man  who  was  a  confessed  traitor. 

Another  illustration.  Suppose  that  on  the  1st  day  of  January,  1899,  two  months  after  his  election 
and  two  montlis  before  his  term  as  a  Representative  should  commence,  he  had  been  convicted  of  the 
crime  of  bigamy  or  of  adultery,  either  one  of  which  is  a  felony  under  the  statutes  of  Utah,  for  an  offense, 
we  wiU  presume,  committed  prior  to  his  election,  so  that  it  can  not  be  charged  that  after  his  election  he 
voluntarily  pxit  himself  in  that  position,  and  he  was  tried,  convicted,  and  sentenced  to  the  penitentiary 
for  a  term  of  two  years;  and  it  so  occurs  that  his  term  of  imprisonment  should  expire  on  the  3d  day  of 
March,  1901,  the  day  before  his  term  as  Representative  in  Congress  expires.  Suppose  he  presented 
himself  on  the  3d  day  of  March,  1901,  no  action  having  been  previously  taken  in  his  case,  would  the  House 
have  to  admit  him,  or  would  not  the  proper  proceeding  be,  while  he  was  still  in  the  penitentiary,  for  such 


§  477  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  531 

an  olfense,  for  the  House  to  declare  his  seat  vacant;  that  he  ought  not  to  have  or  retain  a  seat  in  the 
American  House  of  Representatives? 

It  may  be  said  that  that  imprisonment  would  amount  to  a  constructive  resignation.  There  is  no 
precedent  for  that.  The  Yell  case  is  entirely  different.  An  election  was  held  for  a  successor  to  Yell, 
and  the  seat  was  recognized  to  be  vacant  upon  the  express  ground  that  he  had  taken  another  office  incom- 
patible with  his  position  as  a  member  of  Congress,  and  that  since  he  was  occupj-ing  and  exercising  the 
functions  of  that  office,  of  course  that  vacated  ipso  facto  his  position  as  Representative  in  Congress. 

It  is  well  settled  that  whUe  the  mere  appointment  or  election  to  an  office  the  duties  of  which  are 
incompatible  with  those  of  one  already  held  will  not  vacate  such  an  office,  the  acceptance  of  the  incom- 
patible office  ipso  facto  vacates  the  first  office  held.  This  doctrine  is  laid  down  inWillcox,  in  Angel  and 
Ames  on  Corporation,  section  434;  in  \Miitney  against  Canique,  2  Hill,  93;  Cushing's  Law  on  Practice 
of  Legislative  Assemblies,  section  479,  and  many  other  authorities. 

Let  us  assume,  further,  that  that  sentence  of  imprisonment  would  not  expire  until  after  the  4th  of 
March,  1901,  so  that  during  all  of  that  period  Roberts  would  be  incapacitated  from  being  present  to 
demand  the  right  to  be  sworn  in;  what  is  she  remedy?  We  think  it  clear  that  the  seat  is  not  vacated 
by  the  mere  fact  that  he  does  not  present  himself;  by  the  mere  fact  that  he  remains  absent.  A 
man  might  be  sick,  and  he  might  remain  away  the  entire  session,  hoping  that  he  might  become  well 
enough  to  attend,  and  Roberts  might  indulge  the  hope  that  he  would  be  pardoned,  and  thus  get  in.  Is 
it  to  be  said  that  the  House  on  that  state  of  facts  can  not  declare  the  seat  vacant  and  permit  the  governor 
to  issue  a  new  writ  and  call  another  election?  If  it  can  not,  then  we  are  face  to  face  with  the  proposition 
that  the  people  of  the  State  must  remain  um-epresented  during  the  entire  term  of  Congress. 

Suppose  another  case.  That  in  the  midst  of  the  organization,  and  before  being  sworn  in,  a  Member- 
elect  should  so  indecently  and  outrageously  conduct  himself  before  the  eyes  of  the  House  and  the 
assembled  multitude  as  to  demand  and  justify  expulsion  if  he  had  so  conducted  himself  after  he  had 
been  sworn  in.  What  would  the  House  do?  In  the  midst  of  his  outrageous  misconduct  must  the  House, 
with  tender  persuasiveness,  beg  him  to  honor  it  by  being  sworn  in  so  that  he  may  be  turned  out,  or 
would  it  refuse  to  swear  him  in  and  proceed  to  declare  his  seat  vacant?  Could  the  strictest  constructionist 
of  the  Constitution  deny  that  the  Constitution  was  substantially  complied  with  if  he  was  excluded  by 
a  two-thirds  vote,  even  if  he  did  not  assent  to  our  view  in  all  respects. 

Suppose  that  the  claimant  to  this  seat,  while  enjoying  through  the  courtesy  of  the  House  the 
privilege  of  the  floor,  should  declare  his  contempt  for  this  body  and  for  the  Government;  that  he 
respected  none  of  its  decrees  or  the  laws  of  the  land  as  having  any  binding  force  upon  him;  that  if  he 
became  a  Member  of  the  House  he  should  become  so  merely  for  the  purpose  of  obstructing  its  business 
and  to  tear  down  the  Government.  WTiat  would  the  House  do?  Swear  him  in  that  it  might  have  the 
ineffable  privilege  of  turning  him  out?  Or  would  it  declare  him  unfit  to  have  a  seat  in  that  body  and 
declare  his  seat  vacant? 

As  Judge  Shaw  says  in  Hiss  v.  Bartlett  (3  Gray,  473),  "it  is  necessary  to  put  extreme  cases  to  test 
a  principle." 

So  much  for  illustrations  upon  that  question.  Look,  now,  at  the  last  paragraph  of  Article  VI  of 
the  Constitution: 

"The  Senators  and  Representatives  before  mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both  of  the  United  States  and  of  the  several  States, 
shall  be  bound  by  oath  or  affirmation  to  support  this  Constitution." 

Here  is  an  affirmative  declaration  that  a  certain  oath  shall  be  administered  to  certain  officials.  If 
the  theory  of  exclusion  is  applied  to  the  qualification  clause  as  to  Representatives,  it  must  be  applied 
to  this  clause,  and  therefore  Congress  has  no  power  to  demand  any  other  oath,  or  superadd  to  this  oath 
any  other  provisions. 

And  yet  the  very  oath  we  took  as  Members  of  this  House  has  additional  provisions.  Congress 
passed  also  the  test  oath  act  in  1862,  making  \'ital  additions  to  the  constitutional  oath,  and,  indeed, 
adding  a  new  ground  of  disqualification  for  Members  of  Congress.  This  act  was  passed  by  a  large  majority 
and  compelled  Members  of  Congress  to  submit  to  that  oath  for  many  years.  Chief  Justice  Marshall,  the 
great  expounder  of  the  Constitution,  in  the  case  of  McCuUoch  v.  Maryland,  declared  that  "He  would  be 
charged  with  insanity  who  should  contend  that  the  legislature  might  not  superadd  to  the  oath  directed 
by  the  Constitution  such  other  oath  or  oaths  as  its  wisdom  might  suggest,"  and  the  whole  opinion  in 
that  case  is  addressed  in  principle  to  the  very  doctrine  that  is  here  advocated. 


532  PRECEDENTS   OF    THE   HOUSE   OF   REPRESENTATIVES.  §  477 

If  Congress  could  add  to  the  constitutional  oath,  the  same  theory  of  construction  must  permit  it 
to  at  least  add  reasonable  qualifications  to  the  requirements  for  members  of  the  legislative  body,  at 
least  to  the  extent  of  declaring  disqualifications  which  in  their  nature  ought  to  bar  a  man  from  entrance 
into  a  great  legislative  body. 

The  same  clause  to  whicli  we  have  just  referred  has  this  provision: 

"  But  no  religious  test  shall  ever  be  required  as  a  qualification  to  any  office  or  public  trust  under  the 
United  States." 

If  the  Constitution  had  laid  down  all  the  qualifications  wliicli  Congress  or  any  other  power  had  the 
right  to  impose  it  was  unnecessary  to  go  on  and  declare  that  no  religious  test  should  be  required. 
That  great  instrument  is  inconsistent  in  its  parts  and  contradictory  of  itself  if  it  be  true  that  it  meant 
that  no  disqualifications  should  be  provided  except  those  named.  Nor  was  it  necessary,  if  the  proviso 
means  an  oath  merely,  that  such  exception  should  be  made,  for  the  preceding  words  of  the  paragraph 
set  out  the  required  oatli. 

The  effort  to  make  tlie  negative  declaration  of  minimum  qualifications  exclusive  of  all  others, 
whatever  the  necessities  of  the  House  may  bo,  falls  to  the  ground  if  we  admit  that  the  paragraph  respect- 
ing oaths  is  in  the  same  instrument  as  that  which  defines  the  qualifications  of  Members  of  Congress. 

Second. —  The  text-books. 

Let  us  now  proceed  with  what  we  have  called  the  text-book  and  judicial  authority. 

There  is  a  statement  in  Story's  work  on  the  Constitution  to  the  effect  that  the  clause  in  the  Con- 
stitution describing  the  qualifications  for  Representatives  in  Congress  would  seem  to  imply  that  other 
qualifications  could  not  be  added. 

Now,  whether  or  not  that  be  sound,  these  two  obsei'vations  are  to  be  made  upon  it: 

First.  That  it  is  dismissed  in  a  very  few  words.  Justice  Story  himself  disclaims  explicitly  in 
his  work  that  he  gives  his  own  opinion  as  to  what  the  Constitution  means,  but  asserts  that  he  under- 
takes merely  to  give  the  statements  of  others. 

Second.  This  statement  of  Judge  Story  does  not  at  all  interfere  with  the  proposition  we  have  laid 
down:  That  the  power  of  the  House  to  exclude  from  its  membership  a  person  who  is,  for  instance, 
disloyal,  a  criminal,  insane,  or  infected  with  a  contagious  disease  is  not  superadding  any  qualification, 
within  the  meaning  of  Stoiy,  such  as  a  property  qualification  or  an  educational  qualification. 

We  find,  however,  that  Story's  expression,  if  it  means  all  that  is  claimed  for  it  by  tlie  minority, 
does  not  accord  with  the  opinion  of  other  commentators,  with  the  courts,  or  with  the  Congressional 
precedents.  We  have  already  quoted  and  will  not  now  repeat  what  is  said  by  Prof.  John  W.  Burgess, 
professor  of  history,  political  science,  and  international  law,  and  dean  of  the  university  of  political 
science  in  Columbia  College,  New  York.  This  ambitious  work,  published  in  189C,  must  be  considered 
an  autiiority  on  the  subject  of  constitutional  law. 

In  Pomeroy's  Constitutional  Law,  3d  edition,  page  138,  is  the  following: 

"The  power  given  to  the  Senate  and  to  the  House  of  Representatives,  each  to  pass  upon  the  valid- 
ity of  the  elections  of  its  own  Members,  and  upon  their  personal  qualifications,  seems  to  be  unbounded. 
But  I  am  very  strongly  of  the  opinion  that  the  two  Houses  together,  as  one  House,  can  not  pass  any 
statute  containing  a  general  rule  by  which  the  qualifications  of  Members  as  described  in  the  Consti- 
tution are  either  added  to  or  lessened.  Such  a  statute  would  not  seem  to  be  a  judgment  of  each  House 
upon  the  qualifications  of  its  own  Members,  but  a  judgment  upon  the  qualifications  of  the  Members  of 
the  other  branch.  The  power  is  sufficiently  broad  as  it  stands.  Indeed,  there  is  absolutely  no  restraint 
upon  its  exercise  except  the  responsibility  of  the  Representatives  to  their  constituents.  Under  it  the 
House  inquires  into  the  validity  of  the  elections,  going  behind  the  certificates  of  the  election  officers, 
examining  the  witnesses,  and  deciding  whether  the  sitting  Member  or  the  contestant  received  a  majority 
of  legal  votes.  The  House  has  also  applied  the  test  of  personal  loyalty  to  those  claiming  to  be  duly 
elected  Representatives,  deeming  this  one  of  the  qualifications  of  which  it  might  judge." 

Pomeroy  is  discussing  the  power  of  the  House,  not  stating  what  somebody  may  have  said. 

So,  also,  in  the  lectures  of  Justice  Miller  on  the  Constitution  of  the  United  States,  page  194,  is  the 
following: 

"Very  few  controversies,  if  any,  have  ever  arisen  in  either  body  (that  is,  of  Congress)  concerning 
the  qualifications  of  its  Members.     It  was  at  one  time  a  question  somewhat  mooted  whether  the  States 


§  477  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  533 

could  add  to  the  qualifications  which  the  Constitution  has  prescribed  for  the  Members  of  the  Senate  or 
the  House  of  Representatives,  hut  it  is  now  conceded  that  this  must  be  decided  by  the  Constitution 
alone,  because,  though  it  might  be  conceivable  that  Congress  might  make  some  conditions  or  limitations 
concerning  the  eligibility  of  its  Members,  it  has  not  been  done,  and  the  constitutional  qualifications 
alone  regulate  that  subject." 

It  a  profound  constitutional  authority  like  Justice  Miller  had  believed  that  the  provision  we  are 
considering  was  absolutely  exclusive  and  prevented  the  House  or  the  Senate  from  exerting  any  such 
power  it  seems  to  us  that  he  would  have  so  declared. 
Throop  on  Public  Offices,  section  73,  says: 

"The  general  rule  is  that  the  legislature  has  full  power  to  prescribe  qualifications  for  holding 
office  in  addition  to  those  prescribed  by  the  Constitution,  if  any,  provided  that  they  are  reasonable 
and  not  opposed  to  the  constitutional  provisions  or  to  the  spirit  of  the  Constitution." 

^\lio  shall  say  that  the  exclusion  of  Roberts  on  the  ground  of  polygamy  is  "opposed  to  the  spirit 
of  the  Constitution?  " 

Cushing  (Law  and  Practice  of  Legislative  Assemblies,  p.  195,  sec.  477)  says: 

"To  the  disqualifications  of  this  kind  may  be  added  those  which  may  result  from  the  commission 
of  some  crime  which  would  render  the  Member  ineligible." 

The  courts. 

What  have  the  courts  said  on  similar  propositions?  We  first  have  the  case  of  Barker  v.  The  People 
(3d  Cowen)  [New  York].  In  that  case  it  was  held  that  every  person  not  specifically  disqualified  by  the 
Constitution  was  eligible  to  election  or  appointment  to  ofiice.  In  so  far  as  that  particular  statement 
goes,  it  is  a  denial  of  the  broad  right  to  superadd  to  the  constitutional  provision  as  to  qualifications. 
But  that  statement,  as  applied  to  this  case,  loses  all  of  its  applicability,  for  two  reasons: 

(1)  Because  it  was  not  the  question  that  it  had  to  decide. 

(2)  Because  the  judge  distinctly  and  positively  declares — and  that  was  the  point  involved  in 
the  case — that  notwithstanding  that  want  of  power  in  the  legislature  to  add  to  the  Constitution  quali- 
fications it  did  have  the  right  to  disqualify  for  crime.  He  proceeds  to  say  that  it  might  disqualify  for 
crime  upon  conviction  thereof.  We  apprehend  that  that  is  unimportant  here,  for  if  the  House  of 
Representatives  has  a  right  to  disqualify  for  crime  it  has  the  power  and  the  right  to  determine  for 
itself  whether  the  crime  was  committed,  and  not  to  depend  upon  a  judicial  conviction.  The  necessity 
for  a  judicial  conviction  is  the  more  apparent  where  the  person  who  seeks  to  take  office  undertakes  to 
assume  an  executive  office  to  which  he  has  been  elected  or  appointed,  for  there  may  not  be  any  other 
than  the  ordinarily  constituted  court  in  which  to  try  the  question  of  his  guilt  of  the  offense  that  created 
his  ineligibility. 

But  it  is  not  the  settled  doctrine  of  the  law  that  disqualification  for  crime  must  be  first  adjudicated 
in  the  courts.  The  authorities  are,  the  most  of  them,  against  that  proposition,  and  for  the  sake  of 
convenience  we  shall  refer  to  them  here. 

We  quote  from  Royall  v.  Thomas  (28  Gratton  (Va.),  130).     The  syllabus  is  as  follows: 

"Under  the  constitution  and  statute  of  Virginia,  a  party  who  has  aided  and  assisted  in  a  duel 
fought  with  deadly  weapons  may  be  removed  from  office  by  proceeding  of  quo  warranto,  or  if  that  writ 
be  not  in  use,  by  information  in  the  nature  of  a  quo  warranto,  though  he  has  not  been  convicted  of 
the  offense  in  any  criminal  prosecution  against  him." 

The  court  in  this  case  say  that  the  principal  authority  relied  on  in  support  of  the  contrary  position 
to  that  stated  in  the  syllabus  is  the  Kentucky  case  of  Commonwealth  v.  Jones. 

"It  was  held  in  that  case  that  the  clause  of  the  Kentucky  constitution  imposing  the  disqualifi- 
cation for  office  of  the  offense  of  dueling  is  not  self-executing,  except  so  far  as  it  prevents  those  who  can 
not  or  will  not  take  the  requisite  oath  from  entering  upon  office.  It  was  there  held  that  a  citizen  willing 
to  take  such  oath  could  not  be  proceeded  against  for  usurpation  of  such  office  until  he  had  been  first 
indicted,  tried,  and  convicted  of  the  disqualifying  offense. 

"It  was  found,  however'  said  the  Virginia  court  in  the  Gratton  case],  on  examination,  that  much 
of  the  reasoning  of  the  court  in  the  Jones  case  turns  upon  the  peculiar  phraseology  of  the  Kentucky 
constitution,  in  which  it  is  declared  that  the  offender  shall  be  deprived  of  the  right  to  hold  any  office, 
post,  or  trust  under  the  authority  of  the  State. 


534  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   477 

"The  court  agreed  that  if,  instead  of  the  words  'shall  he  deprived'  the  phrase  'shall  not  be 
eligible'  had  been  used,  some  of  the  difficulties  attending  the  argument  to  show  that  the  provision  is 
self-executing  would  have  been  obviated. 

"In  the  case  of  Cochran  v.  Jones,  involving  the  same  question,  the  board  for  the  determination 
of  contested  elections  arrived  at  a  very  different  conclusion  upon  the  same  clause  of  the  Kentucky 
constitution.  It  will  thus  be  seen  that  even  in  Kentucky  there  is  such  conflict  of  opinion  in  respect 
to  the  true  interpretation  of  the  constitutional  provisions  in  question  as  deprives  the  decision  relied  on 
by  the  defendants  of  the  weight  of  being  considered  even  persuasive  authority. 

"The  provision  in  the  Virginia  constitution  is  as  follows:  'No  person  who,  while  a  citizen  of  this 
State,  has,  since  the  adoption  of  this  constitution,  fought  a  duel  with  a  deadly  weapon,  sent  or  accepted 
a  challenge  to  fight  a  duel  with  a  deadly  weapon,  shall  l)o  allowed  to  vote  or  hold  any  office  of  honor, 
profit,  or  trust  under  this  constitution. '" 

The  court  goes  on  to  explicitly  hold  that  previous  conviction  was  unnecessary,  arguing  it  with 
great  force. 

The  same  doctrine  is  held  in  Mason  v.  The  State  (58  Ohio  State),  where  Mason,  who  had  been 
elected  probate  judge  of  a  county  in  Ohio,  had  expended  more  money  to  bring  about  his  election  than 
the  corrupt  practices  act  allowed,  and  as  this  act  disqualified  such  person  from  holding  the  position  to 
which  he  was  elected,  the  supreme  court  held  that  he  could  be  thus  disqualified  and  kept  out  of  office 
without  conviction. 

To  the  same  effect  is  the  case  of  Commonwealth  v.  Walter  (83  Pennsylvania  State,  105). 

Proceeding  with  the  enumeration  of  authorities  as  to  the  exclusive  effect  of  the  constitutional 
provision  defining  or  declaring  qualifications  for  office,  the  next  case  to  which  we  call  attention  is  Rogers 
V.  Buffalo  (123  New  York).     We  quote  from  page  184: 

"The  case  of  Barker  v.  The  People  (3  Cowan,  686)  has  been  cited  by  counsel.  That  case  holds 
the  act  to  suppress  dueling,  which  provided  as  a  punishment  for  sending  a  challenge  that  the  person  so 
sending  should,  on  conviction,  be  disqualified  from  holding  any  puljlic  office,  was  constitutional.  The 
chancellor,  in  the  course  of  his  opinion,  said  he  thought  it  entirely  clear  that  the  legislature  could  not 
establish  arbitrary  exclusions  from  office,  or  any  general  regulation  requiring  qualifications  which  the 
constitution  had  not  required.  What  he  meant  by  such  expression  is  rendered  clear  by  the  example 
he  gives.  Legislation  would  be  an  infringment  upon  the  constitution,  he  thought,  wliich  should  enact 
that  all  physicians,  or  all  persons  of  a  particular  religious  sect,  should  be  ineligible  to  hold  office,  or  that 
all  persons  not  possessing  a  certain  amount  of  property  should  be  excluded,  or  that  a  member  of  assembly 
must  be  a  freeholder,  or  any  such  regulation. 

"But,  in  our  judgment,  legislation  which  creates  a  board  of  commissioners  consisting  of  two  or 
more  persons,  and  which  provides  that  not  more  than  a  certain  proportion  of  the  whole  number  of  com- 
missioners shall  be  taken  from  one  party,  does  not  amount  to  an  arbitrary  exclusion  from  office,  nor  to  a 
general  regulation  requiring  qualifications  not  mentioned  in  the  constitution.  The  'qualifications' 
which  were  in  the  mind  of  the  learned  chancellor  were  obviously  those  which  were,  as  he  said,  arbitrary, 
such  as  to  exclude  certain  persons  from  eligibility  under  any  circumstances.  Thus,  a  regulation  exclud- 
ing all  physicians  would  he  arbitrary.  But  would  a  regulation  which  created  a  board  of  health  and 
provided  that  not  more  than  one  physician  from  any  particular  school,  or  none  but  a  physician,  should 
be  appointed  thereon  be  arbitrary  or  unconstitutional  as  an  illegal  exclusion  from  office?     I  tliink  not. 

"The  purpose  of  the  statiite  must  be  looked  at  and  the  practical  results  flowing  from  its  enforce- 
ment. If  it  be  obvious  that  its  purpose  is  not  to  arbitrarily  exclude  any  citizen  of  the  State,  but  to 
provide  that  there  shall  be  more  than  one  party  or  interest  represented,  and  if  its  provisions  are  apt  for 
such  purposes,  it  would  be  difficult  to  say  what  constitutional  provision  is  violated  or  wherein  its  spirit 
is  set  at  naught." 

And,  again,  on  page  188 — 

"  It  is  said  that  the  legislature  had  no  right  to  enact  that  a  person  who  shall  be  appointed  to  a  public 
oflice  shall  have  the  qualifications  necessary  to  enable  him  to  discharge  the  duties  of  such  office,  nor  to 
provide  that  the  fact  that  he  does  possess  such  qualifications  shall  be  ascertained  by  a  fair,  open,  and 
proper  examination.  Nothing  but  the  bare  oath  mentioned  in  the  constitution  can  be  asked  of  any 
applicant  for  an  appointive  office  is  the  claim  of  the  appellant.  We  do  not  think  that  the  provision 
above  cited  was  ever  intended  to  have  any  such  broad  construction.  Looking  at  it  as  a  matter  of  common 
sense  we  are  quite  sure  that  the  framers  of  our  organic  law  never  intended  to  impose  a  constitutional 


§   477  POLYGAMY    AXD    OTHER    CRIMES    AS    DISQUALIFICATIONS.  535 

barrier  to  the  right  of  the  people  through  their  legislature  to  enact  laws  which  snould  aave  for  their  sole 
object  the  possession  of  fit  and  proper  qualifications  for  the  performance  of  the  duties  of  a  public  office  on 
the  part  of  him  who  desired  to  be  appointed  to  such  ofiice.  So  long  as  the  means  to  accomplish  such  end 
are  appropriate  therefor  they  must  be  within  the  legislative  power. 

"The  idea  can  not  be  entertained  for  one  moment  that  any  intelligent  people  would  ever  consent 
to  so  bind  themselves  with  constitutional  restrictions  on  the  power  of  their  own  representatives  as  to 
prevent  the  adoption  of  any  means  by  which  to  secure,  if  possible,  honest  and  intelligent  sennce  in 
oflBce.  Xo  law  involving  any  test  other  than  fitness  and  ability  to  discharge  the  duties  of  the  office  could 
be  legally  enacted  under  cover  of  a  purpose  to  ascertain  or  prescribe  such  fitness.  Statutes  looking  only 
to  the  purpose  of  ascertaining  whether  candidates  for  an  appointive  office  are  possessed  of  those  qualifi- 
cations which  are  necessarj-  for  a  fit  and  intelligent  discharge  of  the  duties  pertaining  to  such  office  are 
not  dangerous  in  their  nature,  sind  in  their  execution  they  are  not  liable  to  abuse  in  any  manner  involving 
the  liberties  of  the  people." 

And,  again,  on  page  190 — 

■'  In  this  case  we  simply  hold  that  the  imposing  of  a  test  by  means  of  which  to  secure  the  qualifica- 
tions of  a  candidate  for  an  appointive  office,  of  a  nature  to  enable  him  to  properly  and  intelligently 
perform  the  duties  of  such  office,  violates  no  provision  of  our  constitution." 

This  opinion  was  delivered  by  Justice  Peckham,  now  a  member  of  the  Supreme  Court  of  the  United 
States. 

Another  instructive  case  is  that  of  Ohio  ex  rel.  Attomey-Greneral  r.  Codington,  29  Ohio  State,  page 
102.  The  opinion  is  by  Judge  Mcllvaine.  one  of  the  ablest  and  most  careful  judges  that  ever  sat  in  the 
supreme  court  of  Ohio.     He  sij-s: 

"The  last  objection  made  to  the  validity  of  this  act  is  based  on  section  4  of  article  15  of  the 
constitution,  which  declares:  '  No  person  shall  be  elected  or  appointed  to  any  office  in  this  State  unless 
he  possesses  the  qualifications  of  an  elector.' 

'■  The  question  arises  under  the  fourth  section  of  the  act  (which  the  court  is  construing),  which  pro- 
vides: '  Each  member  and  officer  of  the  police  force  shall  be  a  citizen  of  the  United  States,  and  a  resident 
citizen  for  three  years  of  the  city  in  which  he  shall  be  appointed,  and  able  to  read  and  write  the  English 
language.' 

"There  is  no  claim  made  that  the  qualifications  prescribed  in  the  act,  in  view  of  the  nature  of  the 
duties  to  be  performed,  are  unreasonable,  or  even  unnecessarj*,  to  the  discharge  of  the  duties.  The 
point  made  is  that  disqualifications  are  imposed  by  the  statute  which  are  not  imposed  by  the  constitution. 

"It  is  apparent  that  this  statute  is  not  in  conflict  with  the  terms  of  this  constitutional  pro-s-ision. 
It  does  not  authorize  the  appointment  of  a  person  who  is  not  an  elector.  The  express  provision  of  the 
constitution  is  that  a  person  not  an  elector  shall  not  be  elected  or  appointed  to  any  office  in  this  State. 
Now,  unless  the  clear  implication  is  that  everj-  person  who  has  the  qualifications  of  an  elector  shall  be 
eligible  to  any  office  in  this  State,  there  is  no  conflict  between  the  statute  and  the  constitution.  I  do 
not  believe  that  such  implication  arises.  There  are  many  offices  the  duties  of  which  absolutely  require 
the  abilitj-  of  reading  and  writing  the  English  language.  There  are  many  electors  who,  from  habit  of 
life  or  otherwise,  are  wholly  unfit  to  discharge  the  duties  of  many  offices  within  this  State.  If  the  fram- 
ers  of  the  constitution  had  intended  to  take  away  from  the  legislature  the  power  to  name  disqualifica- 
tions for  office  other  than  the  one  named  in  the  constitution,  it  would  not  have  been  left  to  the  very 
doubtful  implication  which  is  claimed  from  the  provision  under  consideration.  The  power  under  the 
general  grant  being  ample  and  certain,  a  statute  should  not  be  declared  void  because  in  conffict  with  an 
alleged  implication,  unless  such  implication  be  clear  and  indubitable." 

We  find  the  same  doctrine  in  the  case  of  Darrow  r.  The  People,  8  Colorado,  page  417.  The  sj^llabua 
relating  to  this  question  is  as  follows: 

"The  statute  designating  the  paj-ment  of  taxes  as  a  necessary  qualification  of  membership  in  the 
board  of  aldermen  is  not  in  conflict  with  section  6,  article  7,  of  the  constitution." 

The  pro\Tsion  of  that  section  is  as  foUows: 

"No  person  except  a  qualified  elector  shall  be  elected  or  appointed  to  any  civil  or  military  office 
in  the  State." 

The  court  saj-s,  on  page  420,  that  it  is  argued  that  this  provision  "by  implication  inhibits  the  legis- 
lature from  adding  the  property  qualification  under  consideration.  There  is  nothing  in  the  constitution 
which  expressly  designates  the  qualifications  of  councilmen  in  a  city  or  town,  and  this  section  contains 


536  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   477 

the  only  language  that  can  possibly  be  construed  as  applicable  thereto.  But  it  will  be  observed  that  the 
language  used  is  negative  in  form — that  it  simply  prohibits  the  election  or  appointment  to  office  of  one 
not  a  qualified  elector.  There  is  no  conflict  between  it  and  the  statute.  By  providing  that  a  supervisor 
or  an  alderman  shall  be  a  taxpayer  the  legislature  does  not  declare  that  he  need  not  be  an  elector.  Nor 
is  the  provision  at  all  unreasonable.  On  the  contrary,  it  is  a  safeguard  of  the  highest  importance  to 
property  owners  within  the  corporation. 

"The  right  to  vote  and  the  right  to  hold  office  must  not  be  confused.  Citizenship,  and  the  requi- 
site sex,  age,  and  residence  constitute  the  individual  a  legal  voter;  but  other  qualifications  are  abso- 
lutely essential  to  the  eflBcient  performance  of  the  duties  connected  with  almost  every  office.  And 
certainly  no  doubtful  implication  should  be  favored  for  the  purpose  of  denying  the  right  to  demand  such 
additional  qualifications  as  the  nature  of  the  particular  office  may  reasonably  require.  We  do  not  believe 
that  the  framers  of  the  constitution  by  this  provision  intended  to  say  that  the  right  to  vote  should  be 
the  sole  and  exclusive  test  of  eligibility  to  all  civil  offices,  except  as  otherwise  provided  in  the  instru- 
ment itself;  that  no  additional  qualifications  should  ever  be  demanded,  and  no  other  qualifications 
should  be  imposed." 

Third. — LegMalive  precedents. 

\^'e  proceed  now  to  the  legislative  precedents  upon  this  matter  of  exclusion,  without  admitting  the 
person  objected  to  to  be  sworn  in. 

JEBEMUH   LABNED. 

One  Jeremiah  Larned,  as  long  ago  as  1785,  was  elected  to  the  legislature  of  Massachusetts,  but  it 
turned  out  that  he  had  violated  a  law  that  that  legislature  had  passed.  And  what  was  it?  On  election 
day  he  headed  a  riot  for  the  purpose  of  preventing  the  collection  of  taxes.  What  did  the  fathers  of  that 
day  do?  They  were  not  men  who  were  regardless  of  human  rights;  they  held  that  inasmuch  as  Larned 
had  violated  the  law  he  was  unworthy  to  take  a  seat  upon  that  floor,  and  they  kept  him  out. 

The  majority  further  cite  and  discuss  the  cases  of  John  M.  Niles,  Philip  F. 
Thomas,  and  Benjamin  Stark  in  the  Senate,  and  the  Kentucky  cases  and  those  of 
Whittemore  and  George  Q.  Cannon  in  the  House.     The  majority  then  say: 

Thus  we  see  that  the  Senate  and  the  House  have  taken  the  ground  that  they  had  the  right  to 
exclude  for  insanity,  for  disloyalty,  and  for  crime,  including  polygamy,  and,  as  we  believe,  there  is  no 
case  in  either  the  House  or  the  Senate,  where  the  facts  were  not  disputed,  in  which  either  the  Senate  or 
House  has  denied  that  it  had  the  right  to  exclude  a  man,  even  though  he  had  the  three  constitutional 
qualifications.  There  is  a  large  amount  of  debate,  where  opinions  are  given  on  both  sides  of  the  propo- 
sition, but  as  against  that  is  the  never- varying  action  of  the  two  bodies  themselves. 

Some  importance  is  given  by  the  minority  to  the  final  action  of  the  House  of  Commons  in  the 
Wilkes  case.  We  are  asked  to  infer  from  some  remark  attributed  to  Edmund  Burke  that  he  had  written 
"finis"  to  the  chapter  on  exclusions  from  parliamentary  bodies. 

As  to  that,  we  have  to  say  that  after  diligent  search  we  find  no  cases  where  the  House  of  Commons 
ever  held  or  decided  that  it  had  not  the  right  to  exclude  at  the  verj'  threshold  a  member  whose  certifi- 
cate or  credentials  were  perfect  and  uncontested,  although  the  ground  of  exclusion  was  not  a  want  of 
legal  qualifications,  and  there  are  scores  of  cases  since  1780  where  it  has  claimed  and  exercised  that 
right.  We  have  found  several  cases  where  the  House  of  Commons  has  declared  that  it  possessed  (and 
exercised)  the  right  not  only  to  exclude  and  suspend,  but  in  a  few  instances  to  expel,  a  member  for  an 
offense  untrelated  to  the  functions  of  a  member  of  Parliament,  which  offense  was  in  a  few  instances 
committed  before  his  election  to  Parliament,  but  was  held  to  be  of  a  continuing  character. 

The  Houses  of  the  American  Congress  have  not  accepted  or  followed  these  last-named  precedents, 
due  undoubtedly  to  the  radical  differences  between  organization,  jurisdiction,  and  powers  of  the  English 
Parliament  and  the  American  Congress.  The  most  striking  of  these  differences,  as  stated  by  Mr.  Cush- 
ing,  are  that  in  this  countrj'  Members  of  both  branches  of  Congress  are  elected  for  specified  terms  and  that 
the  Members  of  the  House  of  Representatives  arc  apportioned  among  and  elected  liy  their  several  con- 
stituencies— so  far  as  possible — upon  the  principle  of  equality;  whereas  in  England  the  House  of  Lords 
is  composed  of  members  who  are  not  elected  at  all,  but  who  sit  as  members  during  their  lives  by  virtue 
of  hereditarj'  or  conferred  right,  as  the  nobility,  or  temporal  lords,  or  of  their  appointment  to  places  of 


§   477  POLYGAMY    AXD    OTHER    CRIMES    AS    DISQUALIFICATIONS.  537 

high  dignity  in  the  church,  as  the  archbishops  and  bishops,  or  lords  spiritual;  and  the  members  of  the 
House  of  CVjmmons,  though  elected,  are  not  apportioned  among  the  several  constituencies  and  elected 
upon  the  principle  of  equality  or  representation,  but  chiefly  upon  the  principle  of  corporate  or  municipal 
right,  and  for  no  fixed  period  of  time. 

Another  important  difference  is  that  the  existence  and  powers  of  the  House  of  Commons  rest  largely 
on  custom  and  tradition,  aided,  of  late  years,  by  statute  pro\'L=ions,  whereas  in  the  House  of  Represent- 
atives (as  well  as  the  Senate)  these  powers  are  founded  in  and  for  a  great  part  regulated,  limited,  and 
controlled  by  a  written  Constitution  and  laws. 

It  may  be  said  that  the  House  of  Commons  has  uniformly  taken  the  \-iew  that  under  the  right  to 
judge  of  the  "qualifications"  of  its  members — their  l^al  election  and  return  being  conceded — it  rests 
wholly  within  the  discretion  of  that  body  to  estaljlish  a  new  test  or  requirement  of  qualification  for 
membership,  and  that  it  may  be  either  mental,  such  as  for  imbecility  or  insanity;  physical,  as  for 
paralysis;  or  for  grave  offenses  against  criminal  laws. 

The  minorit}^  of  the  committee,  arguing  that  the  three  qualifications  specified 
in  the  Constitution  are  the  only  ones  which  may  be  imposed,  say: 

The  Constitution,  article  1,  section  5,  provides  that  "each  House  shall  be  the  judge  of  the  elections 
returns,  and  qualifications  of  its  own  Members." 

As  to  qualifications  of  Representatives,  it  provides: 

"  No  person  shall  be  a  Represntative  who  shall  not  have  attained  to  the  age  of  twenty-five  years  and 
been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  in  which  he  shall  be  chosen.     (Constitution,  article  1,  section  2.)'' 

Is  it  seriously  contended  that  this  House  can  of  its  own  motion,  by  its  own  independent  action, 
create  for  the  purposes  of  this  case  a  legal  qualification  or  disqualification?  This  House  alone  can  not  make 
or  unmake  the  law  of  the  land.  Before  any  one  of  its  acts  can  become  law  it  must  must  be  concurred  in 
by  the  Senate  and  approved  by  the  President,  or  passed  by  two-thirds  of  each  House  over  his  veto.  It 
is  quite  clear  that  the  House,  by  its  independent  action,  can  not,  if  it  would,  make  for  this  case  any 
disqualifying  regulation  that  would  have  the  force  of  law. 

The  qualifications  being  negatively  stated  in  the  Constitution,  it  is  said  that  Mr.  Roberts  is  ineligible 
under  the  pro\Tsions  of  the  act  of  March  22,  1882,  section  8,  known  as  the  Edmunds  law,  viz: 

"Sec  8.  That  no  polygamist,  bigamist,  or  any  perscjn  cohabiting  with  more  than  one  woman,  and 
no  woman  cohabiting  with  any  of  the  persons  described  as  aforesiad  in  this  section,  in  any  Territory  or 
other  place  over  which  the  United  States  have  exclusive  jurisdiction, s  hall  be  entitled  to  vote  at  any 
election  held  in  any  such  Territory  or  other  place,  or  be  eligible  for  election  or  appointment  to  or 
be  entitled  to  hold  any  office  or  place  of  public  trust,  honor,  or  emolument  in,  under,  or  for  any  such 
Territory  or  place,  or  under  the  United  States." 

The  existence  of  the  disqualification  in  this  act  is  predicated  not  upon  a  conviction  of  or  as  a  punish- 
ment for  the  offenses  of  polygamy  or  unlawful  cohabitation,  but  simply  as  incident  to  the  existence  of 
those  conditions. 

It  is  a  verj'  grave  question  as  to  whether  Congress  can,  by  a  law  duly  enacted,  add  to  the  qualifica- 
tions n^atively  stated  in  the  Constitution.  There  is  no  decision  of  the  United  States  Supreme  Court 
directly  or  indirectly  construing  this  pro\asion.  There  is  no  decision  of  any  State  court  directly  in  point. 
In  Ohio  V.  Covington  (29  Ohio  Stat.,  102),  relied  upon,  the  court  was  passing  upon  the  right  of  the 
defendants  to  hold  the  offices  of  police  commissioner  and  member  of  the  board  of  health  for  the  city  of 
Cincinnati.     The  constitution  provided  that — 

"  No  person  shall  be  elected  or  appointed  to  any  office  in  this  State  unless  he  possesses  the  qualifica- 
tions of  an  elector." 

The  court  distinctly  held  that  "the  defendants,  as  members  of  the  board  of  police  commissioners 
*  *  *  are  officers  for  whose  election  and  appointment  no  provision  is  made  in  the  Constitution  of  the 
State  or  of  the  United  States,"  and  were  therefore  such  as  the  legislature  had,  by  the  express  provisions 
of  the  Constitution,  authority  to  create.  WTien  the  legislature  created  the  offices  in  question,  it  attached 
to  them  the  condition  that  each  officer  should  be  "a  resident  citizen  for  three  years  of  the  city  in  which 
he  shall  be  appointed,  and  able  to  read  and  write  the  English  language." 

The  offices  in  question  were  creatures  of  the  statute,  and  not  of  the  constitution.  It  is  familiar  law 
that  whatever  office  the  legislature  creates  it  can  create  with  such  conditions,  limitations,  qualifications, 


538 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§477 


and  restrictions  as  it  sees  fit  to  impose;  and  this  was  all  that  it  was  necessary  for  the  court  to  say  in 
that  case  in  upholding  the  validity  of  the  statute.  It  is  true  that  it  did  go  further  than  that,  further 
than  the  case  required,  and  held  that  no  implication  arose,  from  the  negative  language  of  the  constitu- 
tion, that  other  qualifications  could  not  be  added  by  the  legislature.  In  so  far,  however,  as  the  opinion 
goes  beyond  the  requirements  of  the  case,  it  certainly  is  doubtful  authority.  It  should  be  stated  that 
this  case  has  been  fully  approved  in  the  recent  case  of  Mason  v.  State  (58  Ohio  St.,  54). 

The  case  of  Darrow  v.  People  (8  Colo.,  420),  relied  on,  is  also  subject  to  the  same  criticism  as  State 
V.  Covington,  as  the  oflice  there  considered  was  that  of  alderman,  the  creature  of  the  statute. 

The  case  of  People  v.  May  (3  Mich.,  598)  is  relied  upon  to  support  the  proposition  that  statutory 
additions  may  be  made  to  the  constitutional  qualifications.  We  submit  that  so  far  as  that  case  is  an 
authority  it  is  directly  in  point  against  the  contention.  In  that  case  a  layman  had  been  elected  to  an 
office  designated  in  the  constitution  as  "a  prosecuting  attorney."  The  question  was  whether  any  person 
not  a  lawyer  was  eligible  to  the  office.  It  was  objected  that  to  hold  that  eligibility  was  confined  to  the 
legal  profession  would  be  adding  a  qualification  in  violation  of  the  constitution. 

The  court  held  that  they  must  give  to  the  words  "a  prosecuting  attorney"  such  a  construction  as 
would  be  consistent  with  the  sense  in  which  they  were  used,  and  that  the  obvious  intention  of  the  con- 
stitution was  that  the  office  should  be  held  by  an  attorney  at  law.  Certainly  not  a  very  violent  inference. 
This  did  not  add  a  qualification;  merely  held  that  one  already  existed.  But  the  court  did  not  stop  there, 
or  leave  their  position  as  to  the  right  to  add  qualifications  open  to  doubt,  as  they  emphatically  said: 

"  We  concede  to  the  fullest  extent  that  it  is  not  in  the  power  of  the  judiciary  or  even  the  legislature, 
to  establish  arbitrary  exclusions  from  office,  or  annex  qualifications  thereto,  when  the  Constitution  lias 
not  established  such  exclusions,  nor  annexed  such  qualifications.  But  it  is  begging  the  question  to 
assume  that  the  act  of  construing  the  Constitution  has  that  effect.  "     (610.) 

It  is  not  perceived  how  this  case  gives  any  aid  or  comfort  to  those  who  promote  the  contention 
adverted  to. 

The  remark  of  the  court  in  McCulloch  v.  Maryland  (4  Wheaton,  416),  purely  a  dictum  made  by  way 
of  illustration,  when  discussing  the  powers  reasonably  to  be  implied  from  the  concise  and  general  pro- 
visions of  the  Constitution,  necessary,  appropriate,  and  plainly  adapted  to  effectuate  its  purposes,  that — 
"he  would  be  charged  with  insanity  who  should  contend  that  the  legislature  might  not  superadd  to  the 
oath  directed  by  the  Constitution,  such  other  oath  of  office  as  its  wisdom  might  suggest "  does  not  impress 
us  as  entitled  to  much  weight  in  construing  a  provision  of  the  Constitution  which  the  court  was  not  con- 
sidering and  to  which  the  doctrine  "that  a  government  intrusted  with  such  ample  powers,  on  the  due 
execution  of  which  the  happiness  and  prosperity  of  the  nation  so  vitally  depends,  must  also  be  intrusted 
with  ample  means  for  their  execution,"  can  have  little,  if  any,  application.  This  seems  to  us  more 
obvious  when  it  is  noted  that  the  oath  prescribed  by  the  Constitution  is  simply  to  support  the  Constitu- 
tion. In  the  line  of  the  doctrine  stated  it  might  be  said  that  an  oath  to  faithfully  discharge  the  duties 
of  the  office  was  a  proper  "means  for  their  execution,"  and  one  reasonably  involved  in  the  implied 
powers. 

It  is  suggested  that  the  existence  of  the  clause  "but  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United  States,"  which  is  found  in  Article  VI  of  the 
Constitution,  in  a  paragraph  relating  wholly  to  oaths,  has  a  direct  tendency  to  show  that  the  previous 
paragraph  in  Article  I,  section  2,  prescribing  qualifications,  was  not  intended  to  be  exclusive,  inas- 
much as  this  paragraph  in  Article  VI  is  said  to  add  a  qualification  which  is  entirely  inconsistent  with  the 
idea  that  the  prior  paragraph  was  exclusive.  Reflection,  however,  leads  us  to  the  conclusion  that  this 
paragraph  in  Article  VI  has  no  proper  connection  with  or  relation  to  the  paragraph  in  Article  I,  sec- 
tion 2.  We  think  the  word  "qualification"  in  connection  with  "religious  test"  is  used  in  an  entirely 
different  sense  from  that  in  which  the  word  "qualification"  is  used  in  Article  I,  section  5.  It  is  clearly 
applied  to  and  is  a  description  of  the  "religious  test,"  and  must  be  construed  in  connection  with  that 
phrase,  no  "religious  test  *  *  *  as  a  qualification."  The  clause  is  found  in  a  paragraph  which 
relates  solely  to  the  oath  to  be  administered. 

Qualification,  when  in  used  in  discussing  the  elements  which  a  member-elect  must  possess  in 
order  to  be  entitled  to  enter  upon  the  office,  is  synonymous  with  eligibility.  This  is  substantially  the 
definition  of  legal  lexicographers — Bouvier,  Rapalje,  and  Anderson.  "  The  recognized  legal  meaning 
in  our  constitutions"  of  the  word  "test"  "  is  derived  from  the  English  test  acts,  all  of  which  related 
to  matters  of  opinion,  and  most  of  them  to  religious  opinion.     Such  has  been  the  general  understanding 


§  477  POLYGAMY    AND   OTHER    CRIMES    AS    DISQUALIFICATIONS.  539 

of  framers  of  constitutions."  (Attorney-General  r.  Detroit  Common  Council  (58  Mich.,  217);  Anderson's 
Dictionary  of  Law,  -'Test;"  "Test  act;"  "Test  oath.") 

The  English  test  acts  (25  Geo.  II,  c.  2)  required  persons  holding  office  within  six  months  after 
appointment  to  take  the  oath  of  allegiance  and  supremacy,  and  subscribe  a  declaration  against  tran- 
substantiation,  and  receive  the  sacrament  according  to  the  usage  of  the  Church  of  England.  The  qualifi- 
cation of  a  "religious  test"  thus  prohibited  relates  clearly  to  something  "required"  to  be  done  by  an 
officer  when  entering  upon  or  after  having  entered  upon  the  office,  and  not  to  qualifications  or  elements 
of  eligibility  which  he  must  possess  or  disqualifications  or  elements  of  ineligibility  which  he  must  not 
possess  before  he  can  enter  upon  the  office.  Qualification  or  disqualification,  eligibility  or  ineligibility 
is  a  status  that  either  does  or  does  not  exist  at  the  time  of  entering  upon  the  office.  The  qualification 
of  a  religious  test  has  no  existence  as  a  status;  it  is  not  a  status,  it  is  simply  a  condition  to  be  performed. 
No  member  can  change  his  status  as  to  the  elements  of  eligibility  or  qualification  as  defined  in  Article  I, 
section  2,  at  the  time  of  entering  upon  the  office;  but  if  the  qualification  of  a  religious  test  existed 
every  member  could,  if  his  conscience  were  sufficiently  elastic,  comply  with  the  test.  One  is  predi- 
cated upon  the  past  and  the  other  upon  the  future.  One  relates  to  things  done  or  not  done;  the  other 
to  things  to  be  done. 

An  examination  of  the  constitutional  history  of  this  clause  fully  corroborates  this  view.  The  last 
paragraph  of  Article  VI,  with  the  exception  of  the  clause  as  to  the  test  oath  and  the  word  "affirmation" 
(which  was  added  by  amendment),  is  substantially  Article  XX  of  the  first  draft  of  the  Constitution,  as 
reported  by  the  committee  of  detail  August  6,  1787.  (The  Madison  papers,  containing  debates  on  the 
Confederation  and  Constitution,  vol.  5,  p.  381;  Elliott's  Debates.) 

The  clause  in  question  first  appears  in  the  proceedings  August  20,  1787,  and  was  introduced  by 
Mr.  Pinckney,  as  an  independent  proposition  to  be  referred  to  the  committee  of  detail,  and  then  read: 

"No  religious  test  or  qualification  shall  ever  be  annexed  to  any  oath  of  office  under  the  authority 
of  tne  United  States."     (Ibid.,  446.) 

That  the  word  "qualification"  as  here  used  related  to  the  oath,  and  to  nothing  else,  is  too  clear 
for  argument,  and  that  it  was  not  used  in  the  sense  in  which  it  was  used  in  Article  I,  section  5,  is 
likewise  clear.  This  conclusion  is  emphasized  by  the  fact  hereafter  noted  that  it  was  at  one  time 
proposed,  by  an  independent  constitutional  provision,  to  confer  upon  the  legislature  express  authority 
to  add  one  qualification.  The  effort  failed,  and  it  is  hardly  to  be  supposed  that  the  Constitution  makers 
would  do  indirectly  by  this  clause  what  they  had  directly  decided  not  to  do.  Later,  when  Article  XX 
was  being  considered,  Mr.  Pinckney  moved  as  an  amendment  to  the  article  his  original  proposition  in 
precisely  the  language  in  which  it  now  appears  in  the  Constitution.     (Ibid.,  498.) 

There  is  nothing  in  the  proceedings  to  indicate  that  by  a  change  in  the  phraseologj'  he  intended 
any  change  in  its  meaning.  The  selection  by  him  for  amendment  of  the  clause  as  to  the  oath,  and  not 
that  relating  to  the  qualification,  is  in  harmony  with  this  view. 

For  these  reasons  it  seems  to  us  that  the  clause  relating  to  religious  tests  can  serve  no  legitimate 
purpose  in  enlarging  that  prescribing  the  elements  of  eligibility. 

With  the  exception  of  Barker  r.  The  People  (20  Johns.  (N.  Y.),  457),  which  is  affirmed  in  Barker  v. 
The  People  (3  Cowen,  636)  and  Rogers  r.  Buffalo  (123  N.  Y.,  173),  hereinafter  discussed,  we  do  not 
find  any  case  construing  a  similar  constitutional  provision  which  sustains  the  right  to  add  qualifications. 

Among  the  elementary  writers,  Throop  on  Public  Offices,  section  73,  says: 

"The  general  rule  is  that  the  legislature  has  full  power  to  prescribe  qualifications  for  holding  office, 
in  addition  to  those  prescribed  by  the  Constitution,  if  any,  provided  that  they  are  reasonable  and  not 
opposed  to  the  constitutional  provisions  or  to  the  spirit  of  the  Constitution." 

But  he  cites  no  authority  to  sustain  his  text  as  to  constitutional  offices. 

Cushing  (Law  and  Practice  of  Legislative  Assemblies,  p.  195,  sec.  477)  says:  "To  the  disqualifi- 
cations of  this  kind  may  be  added  those  which  result  from  the  commission  of  some  crime,  which  would 
render  the  Member  ineligible,"  and  cites  no  authority. 

Burgess,  in  his  work  on  Political  Science  and  Constitutional  Law,  without  gi\'ing  any  authority, 


"I  do  not  think  that  either  of  these  bodies  can  add  anj'tning.  in  principle,  to  these  constitutional 
qualifications.  Certainly  the  Commonwealths  can  not  add  anj^hing  in  principle  or  in  detail.  They 
have  attempted  to  do  so,  but  Congress  has  always  disregarded  these  attempts.  If  the  Congress  can  add 
anything  by  law,  or  if  either  House  can  do  so  through  the  power  of  judging  of  the  qualifications  of  its 


540  PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   477 


I 


Members,  it  muBt  be  something  already  existing,  by  reasonable  implication,  in  these  constitutional 
qualifications.  For  example,  I  think  it  certain  that  either  House  might  reject  an  ineane  person,  i.  e., 
miglit  require  sanity  of  mind  as  a  qualification,  or  might  exclude  a  grossly  immoral  person,  i.  e.,  might 
require  fair  moral  character  as  a  qualification.     (Vol.  II,  p.  52.) 

"The  Commonwealths  can  not  add  to  or  substract  from  these  qualifications.     On  the  other  hand, 
the  Congress  may  by  law,  or  either  House  may,  in  the  exercise  of  the  power  to  judge  of  the  qualifica-        i 
tions  of  its  Members,  make  anything  a  disqualification  that  is  reasonably  implied  in  the  constitutional 
provisions  in  regard  to  this  subject.     Certainly  they  may  make  the  corrupt  use  of  his  powers  by  a 
legislator  a  disqualification;  and  they  have  done  so."     (Vol.  II,  pp.  52,  53.) 

The  case  of  Whittemore,  in  the  Forty-first  Congress,  is  suggested  as  a  legislative  precedent  for  the 
right  to  exclude.  We  have  examined  that  case  with  care,  and  we  feel  bound  to  say  that  we  do  not  think 
it  entitled  to  any  weight  as  a  precedent.  The  argument  upon  which  it  was  based  shows  the  action  of 
the  House  to  have  been  unwarranted  and  ill  advised  in  excluding  \\'hiftemore.  The  only  speeches 
made  in  support  of  the  proposition  were  by  Mr.  Logan.  He  does  not  in  any  way  refer  to  the  one  great 
legal  question  involved,  as  to  whether  Congress,  to  say  nothing  of  the  House,  acting  alone,  had  the 
power  to  add  to  the  qualifications  specified  in  the  Constitution,  and  that  question  was  not  raised  during 
the  debate,  although  at  that  time  (1870)  several  State  courts,  one  at  least,  had  discussed  it,  People  v. 
Barker  having  been  decided  in  1824. 

The  House  had,  apparently,  never  heard  that  there  was  such  a  question.  The  only  provision  of 
the  Constitution  that  could  possibly  justify  the  action  of  the  House,  that  constituting  the  House  the 
judge  of  the  "election  returns  and  qualifications  of  its  own  Members,"  was  not  referred  to  directly  or 
indirectly,  and,  if  the  debate  is  the  criterion,  the  House  acted  without  any  reference  to  it  whatever. 
The  clause  stating  the  qualification  was  incidentally  referred  to  once.  Indeed,  they  apparently  acted 
upon  an  entirely  different  provision  that  does  not  relate  to  exclusion  or  determining  eligibility  or 
qualifications,  and  Mr.  Logan  distinctly  based  his  case  upon  it  when  he  says: 

"I  base  my  opinion,  first,  upon  the  Constitution  of  the  United  States,  which  authorizes  Congress 
to  prescribe  rules  and  regulations  for  the  government  of  their  Members,  and  provides  thr.t  by  a  two-thirds 
vote  either  House  may  expel  any  one  of  its  Members  without  prescribing  the  offenses  for  which  either 
House  may  expel." 

He  then  proceeded  to  make  this  gratuitous  and  unwarranted  assumption: 

"This  being  the  theory  with  which  I  start  out,  I  then  assume  that  where  the  House  of  Representa- 
tives has  power  to  expel  for  an  offense  against  its  rules  or  a  violation  of  any  law  of  the  land,  it  has  the 
same  power  to  exclude  a  person  from  its  body." 

Without  giving  any  attention  to  the  legal  distinctions  involved,  or  even  referring  to  the  constitu- 
tional right  of  passing  upon  qualifications,  or  adverting  to  the  fact  that  exclusion  is  the  act  of  a  majority 
and  expulsion  of  two-thirds,  he  begs  the  whole  question  and  assumes  their  identity.  He  quotes  a 
statute  which  makes  a  disqualification  to  hold  office  absolutely  dependent  upon  a  conviction,  and  then 
assumes  it  disqualified  \Miittemore,  although  there  had  been  no  conviction.  He  admits  there  was  no 
Congressional  precedent  for  the  action  which  he  proposed.  He  cites  the  Wilkes  case  in  the  English 
Parliament  as  a  precedent,  when,  as  he  states  it,  that  case  was  directly  in  point  against  him.  Wilkes, 
he  says,  was  elected  four  successive  times  to  the  same  Parliament,  three  times  without  opposition  and 
the  fourth  time  against  an  opposing  candidate.  Three  times  he  was  expelled.  The  fourth  time  his 
opponent  was  seated.     Neither  time,  according  to  his  statement,  was  Wilkes  excluded. 

Just  how  that  case  could  be  an  authority  for  excluding  as  against  expelling  Whittemore  we  can  not 
see.  These  considerations  (and  many  more  could  be  suggested),  in  view  of  the  fact  that  the  House, 
under  Mr.  Logan's  lead,  absolutely  refused  to  allow  any  committee  to  examine,  for  the  information  of 
the  House,  the  legal  questions  involved  or  to  have  the  case  referred  to  any  committee — though  such  a 
course  was  desired  by  such  men  as  Poland  of  Vermont,  Farnsworth  of  Illinois,  and  Schenck  and 
Garfield  of  Ohio — and  would  not  allow  Schenck  and  Garfield  to  be  heard  on  the  law  for  even  ten 
minutes  each,  deprive  this  case,  in  oiu'  opinion,  of  all  weight  as  a  precedent. 

As  might  perhaps  be  expected,  Mr.  Logan's  statement  of  the  Wilkes  case  was  by  no  means  accurate. 
It  is  extremely  interesting,  as  well  as  important,  to  note  that  the  whole  history  of  that  case  is  a  striking 
condemnation  of  the  position  of  Mr.  Logan.  While  the  record  is  not  full,  and  the  distinction  between 
the  power  of  exchision  and  that  of  expulsion  was  not  emphasized  in  argument,  the  result  makes  it  the 


§  477  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  541 

conspicuous  proposition.  On  the  occasion  of  Wilkes's  third  election  the  House  of  Commons  adopted 
this  resolution: 

"That  John  Wilkes,  esq.,  having  been  in  this  session  of  Parliament  expelled  this  House,  was,  and 
is,  incapable  of  being  elected  a  member  to  serve  in  the  present  Parliament."  (CavendL'ih,  Debates,  vol. 
1,  p.  231.) 

In  opposing  the  adoption  of  this  resolution,  Edmund  Burke  said: 

"I  rise  to  obtain  some  information  \ipon  this  great  constitutional  point.  You  are  going  to  make  a 
disqualification  of  a  member  to  sit  in  Parliament;  you  are  going  to  make  a  disqualification  contrarj- 
to  the  unanimous  opinion  of  a  whole  county.  Words  have  been  thrown  out  by  the  noble  lord  importing 
that  this  is  the  law  of  Parliament.  Is  that,  sir,  a  fact?  Is  this  the  law  of  Parliament?  I  wish  to  have 
that  law  established  on  the  ground  which  establishes  all  laws.  Has  it  acts  of  Parliament?  It  has  none. 
Has  it  records?     Has  it  custom?     I  have  not  heard  a  variety  of  precedents  used."     (Ibid.,  p.  231.) 

Here  it  will  be  seen  that  of  all  who  took  any  part  in  that  debate,  the  only  man  who  lives  in  historj' 
made  the  specific  point  that  the  House  of  Commons  was  adding,  in  violation  of  law,  l)y  its  own  action,  a 
disqualification  in  Wilkes's  case.  The  resolution  which  declared  Wilkes  ineligible  in  effect  was  adopted 
by  an  overwhelming  majority  February  17,  17G9.  Before  this  he  had  been  twice  expelled.  May  3, 
1782,  when  reason  had  resumed  its  sway  and  the  House  was  no  longer  overawed  by  power,  a  resolution 
revising  in  emphatic  terms  a  portion  of  its  prior  action  in  the  Wilkes  case  was  adopted.  It  is  significant 
that  it  did  not  attempt  to  impeach  the  propriety  or  validity  of  the  action  of  the  House  in  twice  expelling 
Wilkes,  but  it  wholly  reversed  its  action  in  establishing  a  disqualification  and  then  excluding  him 
therefor.     The  resolution  adopted  on  the  motion  of  Wilkes  himself  reads: 

"That  the  said  resolution  [that  of  February  17,  1769,  declaring  him  incapable  of  being  elected] 
be  expunged  from  the  journals  of  this  House,  as  being  subversive  of  the  rights  of  the  whole  body  of 
electors  of  this  Kingdom."     (Hansard,  vol.  22,  p.  1409.) 

That  the  significance  of  this  resolution  and  its  vital  importance,  as  declaring  the  lack  of  power  of 
one  branch  of  the  legislature  to  add  a  qualification,  was  fully  appreciated  at  that  time,  clearly  appears 
from  the  discussion  on  its  adoption,  ^^'hile  Fox  conceded  the  principle,  he  thought  the  resolution 
unnecessary,  as  it  would  not  have  the  force  of  law  and  would  not  change  the  doctrine.  The  Lord- 
Advocate  agreed  with  Mr.  Fox  and  spoke  principally  to  the  "idea  of  excluding  anyone  from  a  seat  in 
that  House  by  a  mere  resolution  of  the  House,  and  without  the  concurrence  of  the  other  branches  of  the 
legislature.  Such  a  resolution  would  be  contrary  to  all  law,  and  to  the  very  spirit  of  the  constitution, 
according  to  which  no  one  right  or  franchise  of  an  individual  was  to  be  taken  away  from  him  but  by 
law."     (Ibid,  p.  Mil.) 

May,  in  his  able  work  on  Parliament,  very  clearly  states  the  law  when  he  says: 

"But,  notwithstanding  their  extensive  jurisdiction  in  regard  to  elections,  the  Commons  have  no 
control  over  the  eligibility  of  candidates,  except  in  administration  of  the  laws  which  define  their  quali- 
fications."    (May  on  Parliament,  p.  53.) 

Thus  at  that  early  day  was  the  distinction  between  exclusion  and  expulsion  emphasized  by  the 
House  of  Commons  and  the  first  legislative  precedent  established  against  the  pretended  right  to  add  a 
disqualification  for  office  in  violation  of  law. 

So  far  as  the  Edmunds  Act,  which  does  not  require  a  conviction  for  disqualification,  goes,  the 
case  of  Barker  r.  The  People  (3  Cowen,  686)  is  distinctly  adverse  to  the  conclusion  of  the  majority  of 
the  committee.  The  court  were  passing  upon  the  validity  of  a  statute  authorizing  a  judgment  rendering 
a  party  ineligible  to  office  on  a  conviction  for  sending  a  challenge  to  fight  a  duel,  and  the  court  sustained 
the  judgment  in  the  following  expressive  language: 

"Wliether  the  legislature  can  exclude  from  public  trusts  any  person  not  excluded  by  the  express 
niles  of  the  Constitution,  is  the  question  which  I  have  already  examined;  and  according  to  my  views 
of  that  question,  there  may  be  an  exclusion  by  law,  in  punishment  for  crimes,  but  in  no  other  manner 
and  for  no  other  cause." 

Again — 

"I  therefore  conceive  it  to  be  entirely  clear,  that  the  legislature  can  not  establish  arbitrary  exclu- 
sions from  office,  or  any  general  regiUation  requiring  qualifications  which  the  Constitution  has  not 
required." 

It  appeared  that  no  qualification  whatever  in  respect  to  membei-s  of  the  assembly  was  required 


542  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  477 

by  the  Constitution,  and  the  court  said,  arguendo,  that  a  regulation  requiring  a  member  of  the  assembly 
to  V)e  a  freeholder  "would  be  an  infringement  of  the  Constitution."  There  was  a  blank,  not  even  a 
negative  provision. 

We  do  not  understand  that  Rogers  v.  Buffalo  (123  N.  Y.,  173)  in  any  way  affects  the  authority  of 
Barker  v.  The  People,  supra,  but  on  the  other  hand  cites  it  with  approval,  and  clearly  distinguishes 
from  it  the  case  which  they  were  deciding.  They  were  construing  a  statute  which  created  a  board  of 
civil-service  commissioners,  and  after  citing  and  assenting  to  Barker  v.  The  People,  supra,  said  (p.  184): 

"But,  in  our  judgment,  the  legislation  which  creates  a  board  of  commissioners  consisting  of  two 
or  more  persons,  and  wliich  provides  that  not  more  than  a  certain  proportion  of  the  whole  number  of 
commissioners  shall  he  taken  from  one  party,  does  not  amount  to  an  arbitrary  exclusion  from  office,  nor 
to  a  general  regulation  requiring  qualification  not  mentioned  in  the  Constitution." 

The  opinion  thus  clearly  eliminated  the  constitutional  question  as  to  oligiljility  and  determined 
the  case  upon  another  ground. 

Sound  reason  does  not  sustain  this  claimed  right  to  exclude.  If  the  construction  contended  for 
is  admitted,  it  must  be  conceded  that  the  power  of  adding  qualifications  is  unlimited,  as  there  is  nothing 
in  the  Constitution  which  circumscribes  it.  The  suggestion  in  Barker  v.  The  People  that  the  only  power 
to  add  is  in  case  of  a  conviction  of  crime  is  purely  arbitrary  and  gratuitous,  and  absolutely  no  constitu- 
tional authority  is  given  therefor.  The  rigid  confinement  by  the  court  of  the  right  to  break  away  from 
the  Constitution  to  a  conviction  for  crime  must  have  been  in  the  nature  of  expiation,  a  satisfying  of  the 
judicial  conscience  for  the  departure  thus  made  from  the  Constitution.  If  the  power  exists,  it  must  be 
unlimited,  and,  therefore,  while  you  can  not  take  from  or  narrow  the  two  elements  first  specified,  you 
have  unlimited  power  to  add  to  them.  For  instance,  unless  a  man  is  at  least  25  years  of  age  he  is  not 
eligible,  therefore  the  Constitution  does  not  undertake  to  say  that  a  greater  age  may  not  be  required. 
In  fact,  the  necessary  inference  is  that  only  the  minimum  limit  as  to  age  has  been  established,  and  the 
legislature  has  unlimited  power  to  add  to  that  qualification,  and  hence  may  require  all  Representatives 
to  be  50  years  of  age.  The  same  course  could  l)e  pursued  with  reference  to  the  seven  years'  citizenship 
clause:  You  can  not  act  within  the  domain  to  which  the  Constitution  has  confined  itself.  Outside  of 
it,  you  can  do  anything.  We  can  not  indorse  any  such  doctrine  or  help  to  work  it  into  a  decision  of  the 
House  in  the  case  now  under  consideration. 

The  consequences  just  suggested  are  the  logical  result  of  the  theory,  and  while  tlie  illustrations 
are  extreme,  they  are  the  best  test  of  the  principle.  Would  anyone  feel  justified  in  asserting  that  any 
such  change  in  the  age  qualification  was  either  contemplated  or  is  possible?  Yet  it  must  have  been, 
and  must  be,  if  tlie  argument  is  sound. 

Inasmuch  as  the  argument  of  John  Randolph  in  1807  is  thought  to  be  able,  ingenious,  and  per- 
suasive upon  this  clause,  we  have  taken  occasion  to  examine  it,  and  find  him  expressing  "extreme 
surprise"  because  the  Committee  on  Elections  had  so  construed  this  clause  as  to  restrict  "the  States 
from  annexing  qualifications  to  a  seat  in  the  House  of  Representatives.  He  could  not  view  it  in  that 
light.  Mark  the  distinction  between  the  first  and  second  paragraphs.  The  first  is  affirmative  and 
positive."  Then  he  draws  a  contrast  between  the  affirmative  and  negative  provisions.  He  conceded 
that  if  the  Constitution  had  read  in  the  affirmative  it  would  have  settled  the  question  of  qualification  and 
been  exclusive.  He  does  not  appear  to  have  gone  for  light  to  the  proceedings  of  the  Federal  Conven- 
tion. The  House  in  that  case,  Barney  v.  McCreery  (Digest  Election  Cases,  vol.  1,  p.  157),  decided 
against  his  contention,  and  his  proposition  has  long  been  obsolete. 

The  whole  case  of  the  right  to  add  qualifications  is  based  upon  the  fact  that  such  qualifications  as 
are  prescribed  are  negatively  expressed.  The  juxtaposition  of  the  affirmative  and  negative  clauses,  it 
is  said,  has  some  significance.  It  does  not  appear  that  any  of  the  courts'  elementary  writers  or  lawyers 
that  have  had  occasion  to  insist  upon  this  have  ever  availed  themselves  of  the  debates  in  the  Federal 
Convention  for  the  purpose  of  ascertaining  the  intention  of  the  framers  of  the  Constitution.  While 
this  precaution  has  not  hitherto  been  observed,  common  fairness  and  a  due  regard  for  a  thorough  inves- 
tigation require  that  these  great  men,  whose  handiwork  has  so  well  withstood  the  assaults  of  time,  should 
now  and  upon  this  important  question  be  allowed  to  speak  for  themselves.  An  inquiry  as  to  the  origin 
of  this  clause  will  not  only  be  interesting  and  instructive,  but  possibly  determining.  This  course  is 
stated  by  Cooley  to  be  proper.     (Cooley's  Constitutional  Limitations,  p.  80.) 

And  Story,  in  his  great  work  on  the  Constitution,  makes  constant  use  of  the  debates  in  the  Federal 
Convention. 


§477 


POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  543 


In  the  report  of  the  committee  of  detail  giving  the  first  draft  of  the  Constitution,  August  6,  1787 
(Madison  Papers,  etc.,  vol.  5,  p.  376),  the  paragraph  in  question  appears  as  an  independent  section,  i.  e., 
section  2,  Article  IV,  and  reads: 

"Sec.  2.  Every  Member  of  the  House  of  Representatives  shall  be  of  the  age  of  twenty-five  years 
at  least,  shall  have  been  a  citizen  of  the  United  States  for  at  least  three  years  before  his  election,  and 
shall  be  at  the  time  of  his  election  a  resident  of  the  State  in  which  he  shall  be  chosen." 

It  is  significant  that  this  section  is  affirmative,  and  is  therefore  exclusive,  as  is  conceded,  in  its 
character.  It  is  important  to  inquire  whether  the  change  in  phraseology  was  made  for  the  purpose  of 
changing  its  legal  effect.  That  it  was  understood  by  the  framers  of  the  Constitution  to  be  exclusive  will, 
we  think,  clearly  appear.  The  first  consideration  which  indicates  this  is  the  incorporation  in  the  same 
draft  of  the  Constitution  of  section  2  of  Article  VI,  which  reads: 

"Sec.  2.  The  Legislature  of  the  United  States  shall  have  authority  to  establish  such  uniform 
qualifications  of  the  Members  of  each  House,  with  regard  to  property,  as  to  the  said  Legislature  shall 
seem  expedient." 

The  inference  that  the  framers  of  this  draft  must  have  understood  that  section  2  of  Article  IV  was 
exclusive,  and  that  in  order  that  the  legislature  might  have  any  power  at  all  over  qualifications  it  was 
necessary  to  confer  it  by  a  later  and  specific  provision,  is  imperative  and  obvious.  The  debates  confirm 
this  idea. 

Madison  opposed  the  proposed  section  2,  Article  VI,  "as  vesting  an  improper  and  dangerous 
power  in  the  legislature.  The  qualifications  of  elector  and  elected  were  fundamental  articles  in  a  repub- 
lican government,  and  ought  to  be  fixed  by  the  Constitution.  If  the  legislature  could  regulate  those 
of  either,  it  can  by  degrees  subvert  the  Constitution. 

"A  republic  may  be  converted  into  an  aristocracy  or  oligarchy,  as  well  by  limiting  the  number 
capable  of  being  elected  as  the  number  authorized  to  elect.  In  all  cases  where  the  representatives  of 
the  people  will  have  a  personal  interest  distinct  from  that  of  their  constituents,  there  was  the  same 
reason  for  being  jealous  of  them  as  there  was  for  relying  upon  them  with  full  confidence  when  they  had  a 
common  interest.     This  was  one  of  the  former  cases." 

Gouvemeur  Morris  moved  to  strike  out  "with  regard  to  property,"  in  order,  as  he  said,  "to  leave 
the  legislature  entirely  at  large  " — precisely  what  is  now  claimed  without  any  such  constitutional  pro- 
vision. This  was  objected  to  by  Mr.  Williamson  on  the  ground  that  should  "a  majority  of  the  legislature 
be  composed  of  any  particular  description  of  men — of  lawyers,  for  example — which  is  no  improbable 
supposition,  the  future  elections  might  be  secured  to  their  own  body." 

Mr.  Madison  further  observed  that  "the  British  Parliament  possessed  the  power  of  regulating  the 
qualifications  both  of  the  electors  and  the  elected,  and  the  abuse  they  had  made  of  it  was  a  lesson  worthy 
of  our  attention.  They  had  made  changes  in  both  cases,  subservient  to  their  own  views  of  political  or 
religious  parties."     (Madison  Papers,  etc.,  vol.  5,  p.  404.) 

This  article  was  not  agreed  to. 

Note  the  significance  and  primal  importance  of  Mr.  Madison's  assertion  that  "the  qualifications  of 
electors  and  elected  were  fundamental  articles  in  a  republican  government,  and  ought  to  be  fixed  by  the 
Constitution,"  as  otherwise  the  legislature  might  "subvert  the  Constitution." 

His  insistence  upon  these  grounds  prevented  the  adoption  of  the  provision  that  only  conferred  this 
power  upon  the  legislature  in  one  particular,  and  the  convention  thus  evidently  adopted  his  views  as  to 
the  exclusiveness  of  the  provisions  of  Article  IV,  section  2. 

Again,  when  the  original  proposition  which  resulted  in  Article  IV,  section  2,  was  under  discus- 
sion prior  to  the  draft  reported  by  the  committee  of  detail,  Mr.  Dickinson  opposed  the  section  altogether, 
expressly  because  it  would  be  held  exclusive,  saying  he  "was  against  any  recitals  of  qualifications  in  the 
Constitution.  It  was  impossible  to  make  a  complete  one,  and  a  partial  one  would,  by  implication,  tie 
up  the  hands  of  the  legislature  from  supplying  omissions."     (Ibid.,  p.  371.) 

Mr.  Wilson  took  the  same  view,  saying,  "Besides,  a  partial  enumeration  of  cases  will  disable  the 
legislature  from  disqualifying  odious  and  dangerous  characters."     (Ibid.,  373.) 

When  this  section  in  the  draft  was  under  discussion,  after  "three"  had  been  stricken  out  and 
"seven"  inserted  as  to  citizenship,  Alexander  Hamilton  moved  "that  the  section  be  so  altered  as  to 
require  merely  citizenship  and  inhabitancy,"  and  suggested  that  "the  right  of  determining  the  rule  of 
naturalization  will  then  leave  a  discretion  to  the  legislature  on  the  subject  which  will  answer  every 
purpose."     (Ibid.,  p.  411.) 


544  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   477 

Here  it  ia  clear  that,  as  Hamilton  construed  this  provision,  without  this  latitude  as  to  naturalization, 
the  legislature  iiad  no  discretion  or  power.  From  the  affirmative  language  of  this  provision,  then,  as  it 
stood  in  the  report  of  tlie  committee  of  detail,  and  the  understanding  of  the  framers  of  the  Constitution,  it 
is  clear  that  it  was  exclusive.  This  section  was  not  changed  to  the  negative  form  by  amendment  or  as 
the  result  of  any  debate.  In  its  affirmative  form  with  other  sections  that  had  been  finally  acted  upon, 
and  their  construction  and  terms  definitely  settled,  it  was  referred  to  a  committee  "to  revise  the  style  of 
and  arrange  the  articles  which  had  been  agreed  to  by  the  House,"  and  this  committee  consisted,  among 
others,  of  Mr.  Hamilton,  Mr.  Gouvemeur  Morris,  and  Mr.  Madison.     (Ibid.,  p.  530.) 

This  committee  had  no  power  to  make  any  change  in  the  legal  effect  of  any  of  the  clauses  submitted 
to  them.  They  were  simply  "to  revise  the  style  of  and  arrange."  Certainly,  with  his  very  pronounced 
views,  Mr.  Madison  would  not  have  made  a  change  in  Article  IV,  section  2,  that  would,  in  his  opinion, 
have  placed  it  within  the  power  of  the  legislature  to  "subvert  the  Constitution." 

Yet,  when  the  committee  reported  the  Constitution  as  it  now  stands.  Article  IV  is  rearranged  so  as 
to  be  included  in  Article  I,  and  the  original  affirmative  section  2  of  Article  IV  appears  in  the  negative 
form  as  the  second  independent  paragraph  of  Article  I ,  somewhat  changed,  il  is  true,  but  in  no  sense  con- 
nected with  or  dependent  upon  the  preceding  paragraph,  which,  with  an  improvement  in  phraseology, 
is  section  1  of  Article  IV  of  the  draft.  This  reference  to  the  original  sources  of  information,  we  submit, 
deprives  the  argument  sought  to  be  derived  from  the  juxtaposition  of  all  significance.     (Ibid.,  p.  559.) 

An  examination  of  the  finished  work  discloses  the  fact  that  the  rearrangement  and  changes  in 
phraseology  by  the  committee  were  extensive.  The  object  unquestionably  was  to  make  the  arrangement 
more  orderly  and  lucid  and  the  language  more  perspicuous  and  felicitous.  To  hold  that  in  any  partic- 
ular any  change  was  intended  to  be  made  in  the  legal  effect  is  to  impeach  the  integrity  of  men  whose 
characters  are  of  the  most  illustrious  in  our  history.  To  assert  that  they  unwittingly  made  such  changes  is 
a  much  more  grievous  assault  upon  their  intelligence  and  ability. 

Moreover,  we  are  not  left  to  inference  as  to  how  this  clause  in  its  present  form  was  interpreted  by 
the  most  eminent  of  the  framers  of  the  Constitution.  The  Federalist,  as  is  well  known,  was  published 
while  the  Constitution  was  undergoing  public  discussion,  and  while  it  was  being  ratified  by  the  States. 
It  had  been  ratified  by  six  States  only  when  the  numbers  of  the  Federalist  hereafter  referred  to  appeared. 
The  author  of  No.  52  evidently  assumes  that  all  of  the  qualifications  of  representatives  had  been  "very 
properly  considered  and  regulated  by  the  convention." 

He  says: 

"The  qualifications  of  the  elected,  being  less  carefully  and  properly  defined  by  the  State  constitu- 
tions, and  being  at  the  same  time  more  susceptible  of  uniformity,  have  been  very  properly  considered 
and  regulated  by  the  convention.  A  Representative  of  the  United  States  must  be  of  the  age  of  25  years; 
rau.st  have  been  seven  years  a  citizen  of  the  United  States;  must  at  the  time  of  his  election  be  an  inhabi- 
tant of  the  State  he  is  to  represent,  and  during  the  time  of  his  service  must  be  in  no  office  under  the 
United  States.  Under  these  reasonable  limitations,  the  door  of  this  part  of  the  Federal  Government  i.-^ 
open  to  merit  of  every  description,  whether  native  or  adoptive,  whether  young  or  old,  and  without 
regard  to  poverty  or  wealth  or  to  any  particular  profession  of  religious  faith." 

If  the  learned  author  had  supposed  that  any  limitations  in  addition  that  might  appeal  to  the  caprice 
of  a  legLslature  could  be  added,  he  would  hardly  have  used  the  term  "these  reasonable  limitations,"  as 
he  evidently  did,  as  descriptive  of  all  of  the  limitations  to  be  imposed.  In  No.  57  a  general  reference  to 
this  clause  is  made,  which  evidently  proceeds  upon  the  idea  that  the  qualifications  to  be  required  are 
stated  in  the  Constitution.  It  reads:  "Who  are  to  be  the  objects  of  popular  choice?  Every  citizen 
whose  merit  may  recommend  him  to  the  esteem  and  confidence  of  the  country.  No  qualification  of 
wealth,  of  birth,  of  religious  faith,  or  of  civil  professions  is  permitted  to  fetter  the  judgment  or  disappoint 
the  inclination  of  the  people." 

How  could  he  know  that  unless  the  Constitution  settled  the  qualifications?  The  authorship  of 
these  two  numbers  is  in  doubt  between  Madison  and  Hamilton.  Hamilton  is  conceded  to  be  the  author 
of  No.  60,  and  with  many  no  authority  is  greater  than  his;  and  this,  .so  far  as  his  authority  goes,  settles  it 
beyond  cavil.     lie  says: 

"The  truth  is  that  there  is  no  method  of  securing  to  the  rich  the  preference  apprehended  but  by 
prescribing  qualifications  cf  property,  either  for  those  who  may  elect  or  be  elected.  But  this  forms  no 
part  of  the  power  to  be  conferred  upon  the  National  Government.  Its  authority  would  be  expressly 
restricted  to  the  regulation  of  the  times,  the  places,  the  manner  of  elections.     The  qualifications  of  the 


§  477  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  545 

persons  who  may  choose  or  be  chosen,  as  has  been  remarked  upon  other  occasions,  are  defined  and  fixed 
in  the  Constitution  and  are  unalterable  by  the  legislature." 

This  unequivocal  declaration  was  made  after  the  negative  form  of  expression  had  been  adopted; 
made  concerning  the  provision  as  it  now  exists  in  the  Constitution.  It  is  not  contended  that  the  Feder- 
alist was  a  determining  factor  in  securing  the  ratification  of  the  Constitution,  though  it  was  undoubtedly 
published  for  that  purpose.  So  far,  however,  as  this  clause  weighed  in  the  public  mind,  as  this  is  the 
only  construction  that  appears  to  have  been  placed  upon  it,  it  may  be  inferred  that  this  construction 
was  adopted  by  the  States  which  afterwards  ratified. 

In  the  light  of  these  facts  it  is  to  be  deplored  that  exigencies  arise  which  are  supposed  to  justify  a 
construction  in  direct  conflict  with  the  intention  and  interpretation  of  those  who  framed  and  assisted  in 
ratifying  the  Constitution.  It  seems  clear  that  the  negative  form  of  expression  has  no  interpretive  sig- 
nificance, and  as  it  affords  no  support  for  the  proposition  which  involves  the  right  to  add  qualifications, 
that  proposition  must  fall  with  the  erroneous  construction  upon  which  it  is  based. 

The  great  weight  of  the  other  authorities  sustains  this  conclusion. 

In  Thomas  v.  Owens  (4  Md.,  223)  the  court  said: 

"Where  a  constitution  defines  the  qualifications  of  an  officer,  it  is  not  within  the  power  of  the  legis- 
lature to  change  or  superadd  to  it,  unless  the  power  be  expressly,  or  by  necessary  implication,  given 
to  it." 

And  in  Page  v.  Hardin  (8  Ben.  Mon.,  661)  the  court  said: 

"We  think  it  entirely  clear  that  so  far  as  residence  is  to  be  regarded  as  a  qualification  for  receiving 
or  retaining  office,  the  constitutional  provision  on  the  subject  covers  the  whole  ground,  and  is  a  denial  of 
power  to  the  legislature  to  impose  greater  restrictions." 

In  Black  v.  Trover  (79  Va.,  125),  also,  the  court  said: 

"Now,  it  is  a  well-established  rule  of  construction,  as  laid  down  by  an  eminent  writer,  that  when  the 
Constitution  defines  the  qualifications  for  office,  the  specification  is  an  implied  prohibition  against  legis- 
lative interference  to  change  or  add  to  the  qualifications  thus  defined." 

Mr.  Justice  Story  is  conceded  to  be  one  of  the  greatest  authorities  upon  the  construction  of  the 
Constitution,  and  upon  this  point  he  states  the  law  as  follows: 

"It  would  seem  but  fair  reasoning  upon  the  plainest  principles  of  interpretation,  that  when  the 
Constitution  established  certain  qualifications  as  necessary  for  office,  it  meant  to  exclude  all  others  as 
prerequisites.  From  the  very  nature  of  such  a  provision,  the  affirmation  of  these  qualifications  would 
seem  to  imply  a  negative  of  all  others."     (Story  on  the  Constitution,  sec.  625.) 

Cooley  certainly  stands  equal  in  authority  to  Story,  and  he  says: 

"Another  rule  of  construction  is  that  where  the  Censtitution  defines  the  circumstances  under  which 
a  right  may  be  exercised,  or  a  penalty  imposed,  the  specification  is  an  implied  prohibition  against  legis- 
lative interference,  to  add  to  the  condition,  or  to  extend  the  penalty  to  other  cases.  On  this  ground  it 
has  been  held  by  the  supreme  court  of  Maryland  that  where  the  Constitution  defined  the  qualifica- 
tions of  an  officer  it  was  not  in  the  power  of  the  legislature  to  change  or  superadd  to  them,  unless  the 
power  to  do  so  was  expressly,  or  by  necessary  implication,  conferred  by  the  Constitution."  (Cooley's 
Constitutional  Limitations,  p.  78.) 

Cashing,  as  against  his  former  statement,  says: 

"The  Constitution  of  the  United  States  having  prescribed  the  qualifications  required  of  Repre- 
sentatives in  Congress,  the  principal  of  which  is  inhabitancy  within  the  State  in  which  they  shall  be 
respectively  chosen,  leaving  it  to  the  States  only  to  prescribe  the  time,  place,  and  manner  of  holding 
the  election,  it  is  a  general  principle  that  neither  Congress  nor  the  States  can  impose  any  additional 
qualifications.  It  has  therefore  been  held,  in  the  first  place,  that  it  is  not  competent  for  Congress  to  pre- 
scribe any  further  qualifications  or  to  pass  any  law  which  shall  operate  as  such."  (Cushing  on  Law  and 
Practice  of  Legislative  Assemblies,  second  edition,  p.  27,  sec.  65.) 

John  Randolph  Tucker,  one  of  the  latest  writers  on  the  Constitution,  and  an  able  one,  is  explicit 
on  this  point: 

"Nor  can  the  Congress  nor  the  House  change  these  qualifications.  To  the  latter  no  such  power  was 
delegated,  and  the  assumption  of  it  would  be  dangerous,  as  invading  a  right  which  belonged  to  the  con- 
stituent body,  and  not  to  the  body  of  which  the  representative  of  such  constituency  was  a  member. 
(Tucker  on  the  Constitution,  394.) 

5094— VOL  1—07 35 


546  PBECEDENXS   OF   THE   HOUSE   OF   KEPEESENTATIVES.  §  478 

"The  principle  that  each  House  has  the  right  to  impose  a  qualification  upon  its  membership  which 
is  not  prescribed  in  the  Constitution,  if  established,  might  be  of  great  danger  to  the  Republic.  It  was 
on  this  excuse  that  the  French  directory  procured  an  annulment  of  elections  to  the  Council  of  Five  Hun- 
dred, and  thus  maintained  themselves  in  power  against  the  will  of  the  people,who  gladly  accepted  the 
despotism  of  Napoleon  as  a  relief.     (Foster  on  the  Constitution,  p.  367.) 

"It  is  a  fair  presumption  that  where  the  Constitution  prescribed  the  qualifications  it  intended  to 
exclude  all  others.     (Paschal's  Annotated  Constitution,  second  edition,  p.  305,  sec.  300.) 

"Where  the  Constitution  prescribed  the  qualifications  for  an  office,  the  legislature  can  not  add 
others  not  therein  prescribed."     (McCrary  on  Elections,  sec.  312.) 

McCrary  also  takes  the  ground  that  statutory  and  constitutional  provisions  making  ineligible  to 
office  any  person  who  has  been  guilty  of  crime  presuppose  a  conviction  before  the  ineligibility  attaches. 
(Ibid,  p.  345.) 

Paine,  in  his  work  on  elections,  takes  the  same  view  (pp.  104-108). 

Certainly  the  great  weight  of  authority  is  against  the  right  to  add,  even  by  law,  to  the  qualifications 
mentioned  in  the  Constitution. 

478.   The  case  of  Brigham  H.  Boberts,  continued. 

In  1900,  in  a  sustained  report,  the  majority  of  the  committee  held 
that  a  Member  of  Congress  ■was  an  officer,  subject  to  statutory  disquali- 
fications as  such. 

Discussion  of  the  la"ws  of  Congress  against  polygamy  as  creating  a 
statutory  disqualification. 

Discussion  of  the  oath  of  July  2,  1862,  as  creating  a  statutory  dis- 
qualification. 

3.  As  to  the  status  of  the  Member  as  an  officer,  and  disqualifications  under  the 
statute : 

The  majority  report  says: 

We  present  now  the  statutory  declarations  where  disqualifications  have  been  imposed. 

Section  21  of  the  act  of  April  30,  1790,  is  as  follows: 

"That  if  any  person  shall,  directly  or  indirectly,  give  any  sum  or  sums  of  money,  or  any  other 
bribe,  present,  or  reward,  or  any  promise,  contract,  obligation,  or  security,  for  the  payment  or  delivery 
of  any  money,  present,  or  reward,  or  any  other  thing,  to  obtain  or  procure  the  opinion,  judgment,  or 
decree  of  any  judge  or  judges  of  the  United  States,  in  any  suit,  controversy,  matter,  or  cause  depending 
before  him  or  them,  and  shall  be  thereof  convicted,  and  so  forth,  shall  be  confined  and  imprisoned,  at 
the  discretion  of  the  court,  and  shall  forever  be  disqualified  to  hold  any  office  of  honor,  trust,  or  profit 
under  the  United  States." 

Section  5499,  which  was  passed  in  1791,  provides:  "That  every  judge  of  the  United  States  who  in 
any  wise  accepts  or  receives  any  sum  of  money  or  other  bribe,  etc.,  shall  be  fined  and  imprisoned,  and 
shall  be  forever  disqualified  to  hold  any  office  of  honor,  trust,  or  profit  under  the  United  States." 

Is  a  Member  of  Congress  an  officer'^ 

Before  citing  other  acts  of  Congress  it  is  proper  to  discuss  the  question  as  to  whether  a  Member  of 
Congress  is  an  officer  within  the  meaning  of  the  statute.' 

If  a  Member  of  Congress  is  not  an  officer,  if  the  qualifications  of  a  Member  of  Congress  are  only 
those  named  in  the  Constitution,  then,  of  course,  the  makers  of  the  Constitution  meant  that  nobody 
could  be  made  ineligible  for  Congress,  either  by  law  or  by  the  act  of  either  body,  even  though  laws  passed 
immediately  after  the  adoption  of  the  Constitution  made  him  ineligible  for  all  other  positions  under  the 
Government. 

'  The  question  as  to  whether  or  not  a  Member  of  the  Senate  or  House  is  an  officer  of  the  United  States 
was  discussed  incidentally  in  a  learned  debate  in  the  Senate  on  December  19,  1863,  and  January  20,  21, 
and  25,  1864,  the  occasion  being  a  proposed  rule,  which  was  agreed  to,  providing  that  Senators  should 
take  and  subscribe  in  open  Senate  to  the  oath  or  affirmation  provided  by  the  act  of  July  2,  1862.  (First 
session  Thirty-eighth  Congress,  Globe,  pp.  48,  275,  290,  320-331.) 


§478 


POLYGAMY    AND    OTHER    CRTMES    AS    DISQUALIFICATIONS.  547 


Now,  upon  that  proposition  we  make  these  observations  as  to  the  meaning  of  the  word  "office." 

First.  Undoubtedly  under  the  Constitution,  in  one  or  two  instances,  the  word  "office"  does  not 
include  Representatives  in  Congress,  as,  for  example,  the  last  paragraph  of  section  6,  article  1:  "No  per- 
son holding  any  office  under  the  United  States  shall  be  a  Member  of  either  House  during  his  con- 
tinuance in  office." 

In  that  case  the  words  "holding  any  office"  means  an  office  other  than  a  Member,  but  the  context 
is  absolutely  unmistakable,  and  no  person  is  in  danger  of  assuming,  even  if  a  Member  of  Congress  hold 
an  office,  that  it  meant  to  say  that  no  Member  of  Congress  shall  be  eligible  to  be  a  Member  of  Congress. 

In  the  second  place,  the  provision  in  the  last  paragraph  of  section  3  of  article  2,  relating  to  the 
duties  of  the  President,  that  he  shall  commis.sion  all  the  officers  of  the  United  States,  does  not  mean  that 
he  is  to  commission  Members  of  Congress,  but  he  is  himself  an  officer,  and  he  does  not  commission  himself, 
nor  does  he  commission  the  Vice-President,  who  is  also  an  officer  under  the  United  States. 

So  also  paragraph  2,  section  1,  article  2:  "But  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an  elector." 

There  the  distinction  is  made  "No  Senator  or  Representative,  or  person  holding  an  office  of  trust." 

But  under  the  Constitution  the  word  "office"  must  include  in  certain  of  its  provisions  a  Repre- 
sentative in  Congress. 

It  is  inconceivable  that  in  the  Constitution  the  word  "office"  never  includes  a  Member  of  Congress. 
Look  at  the  last  paragraph  of  section  3,  article  1. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to  removal  from  office  and  dis- 
qualification to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under  the  United  States. 

It  is  conceivable  that  the  framers  of  the  Constitution  meant  that  a  man  might  be  adjudged  guilty 
in  case  of  impeachment,  and  that  that  judgment  of  guilty  could  carry  with  it  a  judgment  disqualifying 
him  from  holding  any  office,  save  only  to  be  a  Representative  or  Senator  in  Congress? 

Paragraph  8,  section  9,  article  1,  is  as  follows:  "No  title  of  nobility  shall  be  granted  by  the  United 
States,  and  no  person  holding  any  office  of  profit  or  trust  under  them  shall,  without  the  consent  of  the 
Congress,  accept  of  any  present,  emolument,  office,  or  title  of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  state." 

Did  the  Constitution  mean  that  Representatives  and  Senators  in  Congress  could  receive  emolu- 
ments, presents,  office,  or  title  from  some  king,  prince,  or  foreign  state,  but  no  other  person  holding  an 
office  could  without  the  consent  of  Congress? 

But  in  the  next  place,  as  to  statutes.  Whatever  may  be  held  to  be  the  meaning  of  the  word  ' "  office  " 
m  the  Constitution,  it  does  not  follow  that  the  same  meaning  must  be  given  to  it  in  the  statutes.  We 
find  a  varying  meaning  in  the  Constitution,  and  we  find  a  varying  meaning  in  the  statutes.  The  act  of 
1790  has  always  been  assumed  to  cover  Members  of  Congress. 

Section  5500  of  the  Revised  Statutes,  originally  passed  in  1853,  and  now  in  substantially  the  form 
in  which  it  was  when  originally  passed,  provides:  "Any  Member  of  either  House  of  Congress  who  asks, 
accepts,  or  receives  any  money,  or  any  promise,  contract,  undertaking,  obligation,  gratuity,  or  security 
for  the  payment  of  money,  *  *  *  either  before  or  after  h-h  has  been  qualified  or  has  taken  his  seat 
as  such  Member,  with  intent  to  have  his  vote  or  decision  on  any  question,  matter,  cause,  or  proceeding 
*    *    *     pending  in  either  House,     *     *     *     shall  be  punished  by  a  fine,  etc." 

Section  5502  is  as  follows:  "Every  Member,  officer,  or  person  convicted  under  the  provisions  of 
the  two  preceding  sections  who  holds  any  place  of  profit  or  trust  shall  forfeit  his  office  or  place,  and  shall 
thereafter  be  forever  disqualified  from  holding  any  office  of  honor  or  trust  or  profit  under  the  United 
States." 

This  section  applies  explicitly  to  a  Member  of  Congress,  and  brings  forfeiture  of  the  office  or  place 
held  by  him.  If  "office"  in  this  section  does  not  include  a  Member  of  Congress  the  word  "place"  must 
include  him. 

Now,  the  word  "office"  in  that  concluding  part  of  this  section  must  refer  to  "Member."  First, 
because  the  word  ' '  office ' '  is  used  in  the  preceding  line  as  necessarily  including  a  place  that  is  held  by 
a  Member.  It  can  not  fail  to  include  that,  for  it  refers  to  a  "Member"  and  what  shall  happen  to  him. 
In  the  next  place,  because  it  is  not  conceivable  that  the  legislative  body  intended  that  the  violation  of 
that  law  by  a  Member  should  forfeit  the  position  that  the  Member  had  and  then  not  intend  to  disqualify 
him  from  being  elected  again  as  a  Member  of  the  House  when  it  disqualifies  him  from  holding  all  other 
offices  or  places  under  the  United  States. 


548  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   478 

But  that  is  not  the  only  statutory  construction  of  the  word  office.  It  is  still  more  explicitly  declared 
in  the  test-oath  act,  of  July  2  1862:  "That  hereafter  every  person  elected  or  appointed  to  any  office  of 
honor  or  profit  under  the  Government  of  the  United  States,  either  in  the  civil,  military,  or  naval  depart- 
ments of  the  public  service,  excepting  the  President  of  the  United  States,  shall,  before  entering  upon 
the  duties  of  such  office  and  before  being  entitled  to  any  of  the  salary  or  other  emoluments  thereof,  take 
and  subscribe  the  following  oath  or  affirmation: 

'■ '  I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  have  never  voluntarily  borne  arms  against  the  United 
States  since  I  have  been  a  citizen  thereof;  that  I  have  voluntarily  given  no  aid,  countenance,  counsel,  or 
encouragement  to  persons  engaged  in  armed  hostility  thereto;  that  I  have  neither  sought  nor  accepted, 
nor  attempted  to  exercise  the  functions  of  any  office  whatever  under  any  authority  or  pretended  author- 
ity in  hostility  to  the  United  States;  that  I  have  not  yielded  a  voluntary  support  to  any  pretended  gov- 
ernment, authority,  power,  or  constitution  within  the  United  States  hostile  or  inimical  thereto. 

"'And  I  do  further  swear  (or  affirm)  that  to  the  best  of  my  knowledge  and  ability  I  will  support 
the  Constitution  of  the  United  States  against  all  enemies,  foreign  and  domestic;  that  I  will  bear  true 
faith  and  allegiance  to  the  same;  that  I  take  this  obligation  freely,  without  any  mental  reservation  or 
purpose  of  evasion,  and  that  I  will  well  and  faithfully  discharge  the  duties  of  the  office  on  which  I  am 
about  to  enter,  so  help  me  God." ' 

"Which  said  oath,  so  taken  and  signed,  shall  be  preserved  among  the  files  <>f  the  court.  House  of 
Congress,  or  department  to  which  the  said  office  may  appertain. 

"Any  person  who  shall  falsely  take  the  said  oath  shall  Ije  guilty  of  perjurj',  and  on  conviction,  in 
addition  to  the  penalties  now  prescribed  for  that  offense,  shall  be  deprived  of  his  office  and  rendered 
incapable  forever  thereafter  of  holding  any  office  of  trust  under  the  United  States." 

It  will  be  noticed  that  the  only  person  required  to  take  that  oath  is  an  officer,  a  person  elected  or 
appointed  to  any  office  of  honor  or  profit,  but  it  does  not  include  in  this  phraseology  a  Member. 

By  reference  to  the  concluding  portion  of  the  act  it  will  appear  that  the  word  office  does  not  include 
a  Member  of  Congress. 

"Which  said  oath  so  taken  and  signed  shall  be  preserved  among  the  files  of  the  court.  House  of 
Congress,  or  department  to  which  the  said  office  may  appertain." 

We  not  only  have  the  use  of  the  word  "Congress"  as  indicating  towhat  the  word  "office"  appertains, 
but  also  the  universal ,  unquestioned  construction  by  the  acts  of  the  Senate  and  of  the  House  in  compelling 
the  test  oath  to  be  taken  year  after  year  until  it  was  repealed.  Each  House  of  Congress  recognized  that 
that  oath  was  an  oath  to  be  taken  by  a  Representative  in  Congress,  notwithstanding  the  fact  that  the 
act  passed  made  it  apply  only  to  a  person  elected  or  appointed  to  an  office  of  honor  or  trust  in  the  United 
States. 

We  quote  this  section  here,  as  well  for  the  purpose  of  showing  the  Congressional  precedents 
imposing  a  substantial  qualification,  or  disqualification,  upon  the  Members  of  Congress,  really  substantial 
in  its  character,  as  the  facts  of  history  show,  as  to  exhibit  what  is  meant  in  the  statutes  by  the  word 
"office." 

There  are  many  other  statutory  provisions,  passed  from  time  to  time  since  1790,  disqualifying  for 
office  of  trust  or  profit  under  the  United  States  persons  guilty  of  the  several  crimes  defined  in  those 
statutes.     We  do  not  refer  to  them  specifically,  but  they  are  illustrated  by  the  statutes  already  quoted. 

It  ought  also  to  be  said  that  section  8  of  the  Edmunds  Act,  whatever  meaning  may  be  given  to  it, 
evidences  the  legislative  will  to  disqualify  polygamists  for  office.  It  indicated  the  legislative  purpose 
so  aptly  described  by  Justice  Matthews,  in  the  Ramsey  case,  when  he  said  that  no  more  cogent  or  salutary 
method  could  be  taken  than  was  taken  by  the  Edmunds  Act,  which  undertook  to  withdraw  from  all 
political  influence  those  persons  who  showed  a  practical  hostility  to  the  development  of  a  common- 
wealth based  upon  the  idea  of  the  union  for  life  of  one  man  and  one  woman  in  the  holy  estate  of 
matrimony. 

The  statutory  declaration,  if  we  may  use  that  form  of  expression  as  applicable  to  the  joint  action  of 
the  House,  coupled  with  the  President's  approval,  is  only  a  more  solemn  declaration  by  both  Houses  of 
the  principle  that  it  has  the  right  to  exclude  under  certain  conditions;  that  either  House  may  do  it. 
That  very  point  was  made  in  the  discussion  on  the  test  oath  in  the  Senate — that  of  course  that  law  could 
not  with  certainty  bind  any  succeeding  Senate  or  any  succeeding  House,  but  that  it  was  apparent  that 
BO  long  as  there  existed  any  necessity  for  such  an  oath,  and  in  the  very  nature  of  things  the  time  would 
come  in  a  few  years  when  it  would  not  be  necessarv',  either  House  would  respect  its  requirements  and 
compel  a  submission  to  it;  and  that  was  the  action  of  the  Senate  and  House  for  nearly  twenty  years. 


§  478  POLYGAMr    AND   OTHER    CRIMES    AS    DISQUALIFICATIONS.  549 

The  minority,  in  their  views,  hold: 

Ii  the  right  to  add  a  disqualification  by  law  be  assumed,  the  disqualification  imposed  V)y  the 
Edmunds  Act  does  not  apply  to  a  Member  of  Congress,  and  therefore  does  not  affect  Mr.  Roberts.  The 
only  portion  of  the  section  that  can  be  said  to  have  any  application  to  a  Member  of  the  House  of  Repre- 
sentatives is  thai  which  declares  that  no  polygamist,  etc.,  shall  "be  entitled  to  hold  any  office  or  place 
of  public  trust,  honor,  or  emoltiment,  *  *  *  under  the  United  States."  Unless  a  Member  of  the 
House  holds  an  office  "imderthe  United  States,"  within  the  meaning  of  the  Constitution  and  the  law, 
there  is  no  disqualification. 

As  to  the  nature  of  their  offices,  whether  "under  the  United  States"  or  otherwise.  Members  of 
the  House  and  Senate  are  evidently  the  same.  The  words  "ofiice"  and  "offices"  occur  in  the  Consti- 
tution and  amendments  twenty-three  times,  and  the  words  "oflicer"  and  officers"  fifteen  times,  and, 
with  the  exception  of  possibly  two  instances,  these  terms  are  never  used,  either  directly  or  indirectly, 
as  relating  to  or  in  connection  with  a  Representative  or  Senator. 

One  possible  exception  referred  to  is  found  in  Article  I,  section  3,  and  reads:  "Judgment  in  cases 
of  impeachment  shall  not  extend  further  than  to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust,  or  profit  under  the  United  States." 

The  term  "office"  in  the  first  clause,  as  to  "removal  from  office,"  clearly  does  not  relate  to  a  Mem- 
ber of  either  House,  as  it  will  be  seen  that  the  provisions  as  to  impeachment  do  not  apply  to  them.  It 
would  seem  that  a  civil  officer  guilty  of  conduct  that  would  justify  impeachment  ought  not  to  be  eligible 
to  a  seat  in  Congress,  though  unless  the  clause  "office  of  honor,  trust,  or  profit,  under  the  United  States" 
be  held  to  include  a  Member,  he  could  not  be  disqualified  thereby.  StQl,  if  a  Member  is  not  the  sub- 
ject of  impeachment,  there  is  perhaps  as  much  reason  in  exempting  him  from  the  disqualifications  of 
impeachment. 

The  other  possible  exception  is  in  Article  I,  section  9,  paragraph  8:  "Xo  title  of  nobility  shall 
be  granted  by  the  United  States:  and  no  person  holding  any  office  of  profit  or  trust  under  them,  shall, 
without  the  consent  of  Congress,  accept  of  any  present,  emolument,  office,  or  title,  of  any  kind  whatever, 
from  any  king,  prince,  or  foreign  state." 

Standing  alone,  we  might  understand  the  paragraph  as  broad  enough  and  comprehensive  enough 
to  include  Members  of  Congress,  but.  taken  with  the  other  provisions  of  the  Constitution — and  they 
are  numerous — wherein  the  like  terms  do  not  embrace  or  apply  to  Senators  or  Representatives  in  Con- 
gress, what  support  can  this  paragraph  possibly  afford  to  those  who  invoke  it  as  authority  for  adding 
anything  whatever  to  the  prescribed  qualifications  of  a  Representative? 

The  clause  in  Article  I,  section  6,  provides:  "And  no  person  holding  any  office  imder  the  United 
States  shall  be  a  Member  of  either  House  during  his  continuance  in  office." 

Here  it  is  verj'  clear  that  "any  office  under  the  United  States"  can  not  include  a  Member,  as  other- 
wise it  would  be  equivalent  to  a  provision  that  no  Member  of  either  House  shall  be  a  Member  of  either 
House  during  his  continuance  in  office — an  absurdity.  A  clause  in  Article  II,  section  1,  provides: 
"But  no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit  tmder  the  United  States, 
shall  be  appointed  an  elector." 

Here  "  Senator  or  Representative  "  and  "person  holding  an  office  of  trust  or  profit  under  the  United 
States"  are  used  in  the  alternative,  or  in  contradistinction  from  each  other.  If  they  were  one  and 
the  same,  their  separate  enumeration  was  unnecessary.  If  identical,  there  would  be  no  occasion  to 
particularize  "Senator  or  Representative." 

If  identical,  the  adjective  "other"  should  have  been  used,  so  that  the  clause  should  read,  "or 
person  holding  any  other  office  of  trust  or  profit  under  the  United  States."  etc. 

These  observations  apply  to  the  following  provisions: 

"The  Senators  and  Representatives  before  mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both  of  the  United  States  and  of  the  several  States, 
shall  be  bound  by  oath  or  affirmation,  etc.     (Constitution,  Art.  VI.) 

"Xo  person  shall  be  a  Senator  or  Representative  in  Congress,  or  ele<tor  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  militarj',  under  the  United  States,  or  under  any  State,  who  having 
previously  taken  an  oath,"  etc.     (Fourteenth  Amendment,  sec.  3.) 

Article  II,  section  4 — "The  President,  Vice-President,  and  all  civil  officers  of  the  United  States 
shall  be  removed  from  office  on  impeachment  for,  and  conviction  of,  treason,  briben.',  or  other  high 
crimes  and  misdemeanors" — has  been  construed  by  the  only  tribunal  therefor  known  to  the  Constitution, 


550  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   478 

the  Senate  sitting  as  a  court  of  impeachment,  which  held  that  a  Senator  was  not  a  "civil  officer,"  and 
therefore  was  not  liable  to  impeachment.  It  was  the  case  of  William  Blount,  a  Senator,  who  was 
impeached  before  the  bar  of  the  Senate  by  the  House  of  Representatives.  In  his  plea  he  claimed  that 
as  a  Member  of  the  Senate  he  was  not  one  of  the  "ci^al  officers  of  the  United  States,"  and  on  the  11th 
of  February,  1797,  the  Senate  announced  its  conclusion  as  follows: 

'The  court  is  of  the  opinion  that  the  matter  alleged  in  the  plea  of  the  defendant  is  sufficient  in 
law  to  show  that  this  court  ought  not  to  hold  jurisdiction  of  the  said  impeachment,  and  that  said  impeach- 
ment is  dismissed."     (Annals  of  Congress,  vol.  8,  p.  2319.) 

Story  concurs  in  this  view.     (Story  on  the  Constitution,  sec.  792.) 

Who  can  be  said  to  hold  office  "  under  the  United  States  "  was  practically  decided  in  United  States 
V.  Germaine  (99  U.  S.,  508-512),  where  the  court  said: 

"The  Constitution  for  pvu^soses  of  appointment  very  clearly  divides  all  its  officers  into  two  classes. 
The  primary  class  requires  a  nomination  by  the  President  and  confirmation  by  the  Senate.  But  fore- 
seeing that  when  officers  become  numerous  and  sudden  removals  necessary,  this  mode  might  be  incon- 
venient, it  was  provided  that,  in  regard  to  officers  inferior  to  those  specially  mentioned,  Congress  might 
by  law  vest  their  appointment  in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of  departments 
That  all  persons  who  can  be  said  to  hold  an  office  under  the  Government  about  to  be  established  under 
the  Constitution  were  intended  to  be  included  within  one  or  the  other  of  these  modes  of  appointment 
there  can  be  but  little  doubt." 

In  United  States  v.  Mouat  (124  U.  S.,  303-308),  the  Germaine  case  is  cited  and  approved,  the  court 
saying:  "In  that  case  it  was  distinctly  pointed  out  that,  under  the  Constitution  of  the  United  States, 
all  its  officers  were  appointed  by  the  President,  by  and  with  the  consent  of  the  Senate,  or  by  a  court 
of  law  or  the  head  of  a  department." 

The  same  principle  is  affirmed  in  United  States  r.  Hendee  (124  U.  S.,  309-315). 

If,  then,  "all  its  officers,"  "under  the  Constitution,"  are  appointed  in  the  manner  above  indicated, 
clearly  a  Member  of  either  House  does  not  hold  an  office  "under  the  United  States,"  and  the  Edmunds 
Act  can  not  apply. 

(4)  Applying  the  law  to  the  facts  the  majority  of  the  committee  found  three 
distinct  grounds  of  disqualification  of  Roberts: 

(a)  By  reason  of  his  violation  of  the  Edmunds  Act  and  the  declared  policy  of 
disqualification  in  section  8. 

On  this  point  the  majority  report  holds — 

Let  us  see  in  what  attitude  and  status  the  claimant  appears  and  claims  the  right  to  be  sworn  in. 
No  appreciative  opinion  as  to  his  status  can  be  formed  without  some  knowledge  of  the  judicial  and 
statutory  characterization  of  his  offense. 

Section  5352,  passed  by  Congress  in  18G2,  declared:  "Every  person  having  a  husband  or  wile 
living  who  marries  another,  whether  married  or  single,  in  a  Territory'  or  other  place  over  which  the 
United  States  have  exclusive  jurisdiction,  is  guilty  of  bigamy,  and  shall  be  punished  by  a  fine  of  not 
more  than  $500,  and  by  imprisonment  for  a  term  of  not  more  than  five  years.' 

It  did  not,  however,  make  unlawful  the  practice  of  polygamous  living.  There  was  no  pretense  of 
obedience  to  this  law  in  Utah,  the  claim  being  made  that  it  was  unconstitutional  because  an  interference 
with  the  religion  of  the  Mormons.  There  is  no  doubt  but  that  a  large  body  of  the  Mormons,  not  only 
those  who  practiced  polygamy,  but  those  that  did  not,  believed  that  the  act  of  1862  was  an  uncon- 
stitutional infraction  of  their  rights. 

In  1878,  however,  in  the  case  of  Reynolds  v.  The  United  States  (98  U.  S.,  145)  the  Supreme  Court 
held  that  section  5352  was  "in  all  respects  valid  and  constitutional."  So  that  after  1878  no  man  in  Utah 
could  claim  that  the  practice  of  polygamy  was  right  as  related  to  the  laws  of  the  land  without  doing 
violence,  not  only  to  the  statute,  but  to  the  unanimous  opinion  of  the  highest  court  of  the  land. 

The  opinion  in  this  case  was  by  Chief  Justice  Waite,  and  in  the  course  of  it  polygamy  receives 
judicial  characterization  as  follows  (we  think  it  highly  important  to  quote  it  because  it  is  a  judicial 
declaration  and  leads  us  up  to  a  proper  recognition  of  Mr.  Roberts's  status): 

"Polygamy  has  always  been  odious  among  the  northern  and  western  nations  of  Europe,  and, 
until  the  establishment  of  the  Mormon  Church,  was  almost  exclusively  a  feature  of  the  life  of  Asiatic 
and  of  African  people. 


§  478  POLYGAMY    AND    OTHER   CRIMES    AS   DISQITALIFIOATIONS.  551 

"By  the  statute  of  James  I  the  offense  was  made  punishable  by  death. 

"It  is  a  significant  fact  that  on  the  8th  of  December,  1788,  after  the  passage  of  the  act  establishing 
religious  freedom,  and  after  the  convention  of  Virginia  had  recommended  as  an  amendment  to  the 
Constitution  of  the  United  States  the  declaration  of  the  bUl  of  rights  that '  all  men  have  an  equal,  natural, 
and  unalienable  right  to  the  free  exercise  of  religion,  according  to  the  dictates  of  conscience,'  the 
legislature  of  that  State  substantially  enacted  the  statute  of  James  I,  death  penalty  included,  because 
as  recited  in  the  preamble,  'it  hath  been  doubted  whether  bigamy  and  polygamy  be  punishable  by  the 
laws  of  this  Commonwealth.'  From  that  day  to  this  we  think  it  may  safely  be  said  there  never  has 
been  a  time  in  any  State  of  the  Union  where  polygamy  has  not  been  an  offense  against  society,  cognizable 
by  the  civil  courts  and  punishable  with  more  or  less  severity." 

And  continuing  the  quotation: 

"Marriage,  while  from  its  very  nature  a  sacred  obligation,  is  nevertheless,  in  most  civilized  nations, 
a  civil  contract,  and  usually  regulated  by  law.  Upon  it  society  may  be  said  to  be  built,  and  out  of  its 
fruits  spring  social  relations  and  social  obligations  and  duties,  with  which  government  is  necessarily 
required  to  deal.  In  fact,  according  as  monogamous  or  polygamous  marriages  are  allowed,  do  we  find 
the  principles  on  which  the  government  of  the  people  to  a  greater  or  less  extent  rests.  Professor  Lieber 
says  polygamy  leads  to  the  patriarchal  principle,  and  which,  when  applied  to  large  communities,  fetters 
the  people  in  stationary  despotism,  while  that  principle  can  not  long  exist  in  connection  with  monogamy. 
CTiancellor  Kent  observes  that  this  remark  is  equally  striking  and  profound. 

"Can  a  man  excuse  his  practices  to  the  contrary  because  of  his  religious  belief?  To  permit  thia 
would  be  to  make  the  professed  doctrines  of  religious  belief  superior  to  the  law  of  the  land,  and  in  effect 
to  permit  every  citizen  to  become  a  law  unto  himself.  Government  could  exist  only  in  name  under 
such  circumstances." 

So  also  in  Murphy  j'.  Ramsey  (114  U.  S.,  45).  Construing  the  Edmunds  Act,  Justice  Matthews 
says: 

"Certainly  no  legislation  can  be  supposed  more  wholesome  and  necet^ary  in  the  founding  of  a  free 
self-governing  commonwealth,  fit  to  take  rank  as  one  of  the  coordinate  States  of  the  Union,  than  that 
which  seeks  to  establish  it  on  the  basis  of  the  idea  of  the  family,  as  consisting  in  and  springing  from  the 
union  for  life  of  one  man  and  one  woman  in  the  holy  estate  of  matrimony;  the  sure  foundation  of  all  that 
is  stable  and  noble  in  our  civilization;  the  best  guaranty  of  that  reverent  morality  which  is  the  source 
of  all  beneficent  progress  in  social  and  political  improvement.  And  to  this  end  no  means  are  more 
directly  and  immediately  suitalile  than  those  provided  by  this  act,  which  endeavors  to  withdraw  all 
political  influence  from  those  who  are  practically  hostile  to  its  attainment." 

IIow  cogent  and  prophetic  are  these  words.  How  applicable  to  this  situation;  that  all  political 
influence  ought  to  be  withdrawn  from  those  practically  hostile  to  the  establishment  of  a  "Common- 
wealth on  the  basis  of  the  idea  of  the  family  as  consisting  in  and  springing  from  the  union  for  life  of  one 
man  and  one  woman  in  the  holy  estate  of  matrimony." 

There  was  no  machinery  for  enforcing  the  act  of  1862  until  1882,  when  Congress  passed  what  is 
known  as  the  Edmunds  law.  This  act  defined  and  punished  bigamy  and  polygamy  in  the  same  terms  as 
the  act  of  1862,  but  also  punished  unlawful  cohabitation,  and  declared  ineligible  for  office  any  person 
who  maintained  the  status  of  a  polygamist  or  who  cohabited  with  more  than  one  woman. 

Section  8  of  that  act  is  as  follows:  "That  no  polygamist,  bigamist,  or  any  person  cohabiting  with 
more  than  one  woman,  and  no  woman  cohabiting  with  any  of  the  persons  described  as  aforesaid  in  this 
section,  in  any  Territory  or  other  place  over  which  the  United  States  have  exclusive  jurisdiction,  shall 
be  entitled  to  vote  at  any  election  held  in  any  such  Territorj^  or  other  place,  or  be  eligible  for  election 
or  appointment  to,  or  be  entitled  to  hold,  any  office  or  place  of  public  trust,  honor,  or  emolument  in, 
under,  or  for  such  Territory  or  place,  or  under  the  United  States." 

This  law  had  not  only  the  force  of  a  public  law,  but  it  was  the  outcome  of  years  of  agitation  and 
reflection.  It  crystallized  thesobersenseof  the  American  people;  it  represented  thesettled  views  of  our 
wisest  and  most  conservative  statesmen,  and  later  received  the  stamp  of  approval  from  the  Supreme 
Coiut  of  the  United  States  in  many  well-considered  cases. 

Prior  to  1882  Brigham  H.  Roberts  had  married  one  Louisa  Smith.  She  has  borne  him  six  children, 
and  is  still  living. 

About  1885,  when  Utah  was  fairly  ringing  with  the  blows  of  the  Edmunds  Act  of  1882;  while 
numerous  prosecutions  were  going  on  and  after  the  Supreme  Court  had  passed  upon  the  validity  of  the 


552  PRECEDENTS   OF    THE   HOUSE    OF   REPRESENTATIVES.  §  478 

act;  when  the  American  people  supposed  that  polygamy  had  received  its  deathblow;  when  no  man  of 
the  many  whose  cases  went  to  the  United  States  Supreme  Court  pretended  that  the  provisions  against 
polygamous  marriages  were  invalid,  with  all  these  facts  insistently  before  him,  Brigham  H.  Roberts  took 
another  wife — his  first  polygamous  wife — Celia  Dibble  by  name,  who  in  the  following  twelve  years,  bore 
him  six  children. 

This  second  wife  he  married  in  defiance  of  the  Edmunds  law.  He  spat  upon  that  law;  he  declared 
by  his  act  that  he  recognized  no  binding  rule  upon  him  of  a  law  of  Congress;  he  declared  by  it  that  he 
recognized  a  higher  law.  The  Congress  of  the  United  States  was  to  him  an  object  of  contempt.  The 
Supreme  Court  of  the  United  States  might  declare  the  law  for  others,  but  not  for  him.  He  laughed  at  its 
futile  decrees  and  spumed  its  admonitions.  The  Executive  which  had  declared  in  solemn  messages  its 
gratification  that  polygamy  seemed  gone  forever  he  defied  and  despised.  Of  what  consequence  to  him 
were  laws  of  Congress  and  declarations  of  the  highest  court  and  proclamations  of  Presidents  as  against  his 
sensual  interpretation  of  a  sensual  doctrine? 

And  all  the  time  the  Edmunds  law  declared  not  only  polygamy  but  cohabitation  with  more  than 
one  woman  unlawful.  Roberts  not  only  bigamously  married  a  second  wife,  but  he  persisted  in  violating 
and  defiantly  trampling  under  foot  every  other  provision  of  the  act. 

But  he  had  not  yet  sufficiently  proclaimed  his  utter  contempt  for  the  Supreme  Court,  for  Congress 
and  its  most  solemn  enactments.     A  few  years  later  he. took  a  third  wife. 

From  the  time  of  his  second  marriage  to  the  third  he  cohabited  with  two  women.  From  the  date  of 
his  third  marriage  down  to  his  election,  and,  we  doubt  not,  to  the  present  time,  he  haa  been  cohabiting 
with  three  women. 

As  recently  as  December  6,  1899,  he  defined  his  position  as  follows: 

"These  women  have  stood  by  me.  They  are  good  and  true  women.  The  law  has  said  I  shall  part 
from  them.  My  church  has  bowed  to  the  command  of  Congress  and  relinquished  the  practice  of  plural 
marriage.  But  the  law  can  not  free  me  from  obligations  assumed  before  it  spoke.  No  power  can  do  that. 
Even  were  the  church  that  sanctioned  these  marriages  and  performed  the  ceremonies  to  turn  its  back 
upon  us  and  say  the  marriages  are  not  valid  now,  and  that  I  must  give  these  good  and  loyal  women  up, 
I'll  be  damned  if  I  would." 

In  this  statement  he  adheres  to  the  audacious  assumption  that  the  law  of  1882  did  not  speak  to  him 
and  that  he  did  not  recognize  it  as  a  rule  of  conduct  to  him. 

The  amnesty  proclamation  of  1893  and  1894  never  embraced  him.  There  was  never  a  moment 
when  its  provisions  were  complied  with  by  him.  There  has  never  been  a  moment  since  he  married  Celia 
Dibble  down  to  the  present  moment  when  he  has  not  been  a  persistent,  notorious,  defiant,  demoralizing, 
audacious  violator  of  every  provision  of  the  State  and  Federal  law  relating  to  polygamy  and  its  attendant 
crimes.     And  this  is  the  man  who  seeks  admission  to  this  body. 

It  was  declared  in  the  Kentucky  cases,  and  in  the  Thomas  case  in  the  Senate,  and  in  the  Test  Oath 
Act  of  1862  that  disloyalty  created  ineligibility;  that  fidelity  to  the  Constitution  was  a  necessary  quali- 
fication to  membership  in  this  body.  What  is  loyalty?  It  is  faithfulness  to  the  sovereign  or  the  lawful 
government.  A  mere  violator  of  the  law  may  not  necessarily  be  disloyal.  One  may  violate  the  law 
and  still  recognize  the  sovereign  and  the  lawfulness  of  the  government.  His  only  concern  may  be  that 
he  shall  not  be  found  out  and  punished.  But  that  man  is  surely  disloyal,  and  in  the  fullest  sense  disloyal, 
when  by  his  words,  his  acts,  and  his  persistent  practices  he  declares  unequivocally  in  this  wise:  "You 
have  solemnly  enacted  certain  laws;  you  have  crystallized  into  statute  the  will  of  the  sovereign  people. 
I  bid  defiance  to  your  law.  I  will  not  recognize  it.  I  here  and  now  before  your  very  eyes  do  the  things 
you  say  I  shall  not  do.  I  recognize  a  higher  law  than  your  man-made  law — no  law  of  yours  can  relieve 
me  from  the  obligations  which  I  thus  take  in  defiance  of  your  enactments.  The  only  thing  I  promise 
not  to  do  is  to  take  a  fourth  wife." 

The  case  of  a  bribe  taker,  or  of  a  burglar,  or  of  a  mui'derer  is  trivial,  is  a  mere  ripple  on  the  surface 
of  things,  compared  with  this  far-reaching,  deep-rooted,  audacious  lawlessness. 

What  was  the  case  of  Whittemore,  who  was  excluded,  as  hereafter  set  out?  He  had  not  been 
convicted  of  any  crime,  but  a  committee  had  found  that  he  had  sold  a  cadetship.  He  did  not  pretend 
that  he  was  wiser  or  greater  than  the  people,  or  that  he  had  the  right  to  sell  cadetships  and  was  above 
the  law.  The  acts  of  Roberts  are  essentially  disloyal.  They  deny  the  sovereign;  they  repudiate  the 
lawful  government.  Look  at  them  from  whatever  point  you  will,  they  are  subversive  of  government. 
They  do  not  merely  breed  anarchy,  they  are  anarchy. 


§  478  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  553 

We  observe  that  this  is  not  a  moral  question.  It  goes  to  the  root  of  our  own  constitutional  govern- 
ment.    What  we  have  just  quoted  from  Justice  Waite  and  Justice  Matthews  are  as  much  a  part  of  our 

Constitution  as  the  written  instnunent  itself. 

*  *  *  *  *  *  * 

Having  in  mind  that  portion  of  this  report  in  which  we  have  heretofore  set  out  the  status  and 
condition  of  Brigham  H.  Roberts,  we  would  inquire  where  the  specific  provisions  of  the  Edmunds  Act 
place  him. 

Two  facts  appear  as  pertinent  to  this  inquiry: 

First.  That  he  was  convicted  in  1889  of  unlawful  cohabitation  under  that  act,  and  served  a  term 
in  the  penitentiarj'  therfeor. 

Second.  That  he  has  been  ever  since  1885,  and  is  now,  a  polygamist,  as  that  word  is  used  in  section 
8  of  the  Edmunds  Act  and  defined  by  the  Supreme  Court  of  the  United  States  in  the  cases  of  Murphy  v. 
Ramsey  (114  U.  S.,  15)  and  Cannon  v.  The  United  States  (116  U.  S.,  55).     Section  8  is  as  follows: 

"Xo  polygamist,  bigamist,  or  any  person  cohabiting  with  more  than  one  woman,  and  no  woman 
cohabiting  with  any  of  the  persons  described  as  aforesaid  in  this  section  in  any  Territory  or  other  place 
over  which  the  United  States  have  exclusive  jurisdiction,  shall  be  entitled  to  vote  at  any  election  held 
in  any  such  Territory  or  other  place,  or  be  eligible  for  election  or  appointment  to,  or  be  entitled  to  hold, 
any  office  or  place  of  public  trust,  honor,  or  emolument  in,  under,  or  for  any  such  Territory  or  place, 
or  under  the  United  States." 

Reading  that  act  as  applicable  to  this  case,  eliminating  the  irrelevant  portions,  it  appears  as  follows: 
"No  polygamist  shall  be  entitled  to  hold  any  office  or  place  of  public  trust,  honor,  or  emolument  under 
the  United  States." 

In  the  Ramsey  case,  above  referred  to,  a  specific  distinction  is  made  between  a  polygamist  and  a 
person  cohabiting  with  more  than  one  woman.  A  polygamist  is  a  person  having  a  certain  status  respect- 
ing more  than  one  woman.  The  condition,  therefore,  of  a  polygamist  may  be  merely  passive  and  requir- 
ing no  affirmative  act.  To  cohabit  with  more  than  one  woman  is,  however,  to  do  an  affirmative  thing. 
The  result  is  that  one  who  has  two  or  more  wives  that  he  holds  out  to  the  world  as  such  is  a  polygamist, 
wherever  he  may  be,  while  one  who  cohabits  with  more  than  one  woman  is  not  cohabiting  except  in 
the  place  in  which,  of  necessity,  cohabitation  must  occur. 

In  the  Ramsey  case  the  court  illustrated  its  definition  of  a  polygamist  as  being  a  status  or  condi- 
tion like  any  other  qualification  for  elector,  or  for  office,  and  declared  that  it  was  as  if  Congress  had 
undertaken  to  make  a  married  man  ineligible.  It  would  be  the  status  in  that  event  of  being  a  mar- 
ried man  which  would  create  and  continue  the  ineligibility. 

It  therefore  appears  that  the  fact  that  a  man  is  a  polygamist  is  a  fact  that  inheres  in  him  and  stays 
with  him,  and  persists  in  remaining  with  him  wherever  he  may  go,  so  long  as  he  is  the  possessor  of  more 
than  one  wife;  and  just  as  one  who  is  a  married  man  in  the  State  of  Maryland  continues  to  be  a  mar- 
ried man  if  he  leaves  his  wife  at  home  and  comes  to  the  District  of  Columbia,  so  Mr.  Roberts,  being 
in  the  condition  or  status  of  a  polygamist  in  the  State  of  Utah,  does  not  leave  that  status  behind,  nor 
does  he  dissociate  himself  from  that  status  or  cast  off  the  garb  of  a  polygamist  by  leaving  his  wives  at 
home  and  traveling  from  that  State  into  the  District  of  Columbia. 

In  the  very  nature  of  things  the  House  of  Representatives,  wherever  it  is  as  a  House  of  Represent- 
atives, is  in  a  place  under  the  exclusive  jurisdiction  of  the  United  States;  therefore  when  Roberts 
comes  into  the  District  of  Columbia,  in  the  status  of  a  polygamist,  he  is  ineligible  under  the  Edmunds 
Act  to  hold  any  office  or  place  under  the  United  States,  and  therefore  ineligible  to  hold  the  position 
of  Member  of  the  House  of  Representatives. 

The  minority,  in  their  views,  say  that  if  the  propositions  of  law  already  laid 
down  by  them  are  not  conclusive,  then — 

it  seems  to  us  very  clear  that  no  ineligibility  can  be  predicated  upon  section  8  of  the  Edmunds  Act, 
upon  the  facts  as  they  must  be  conceded  to  exist.  A  brief  statement  of  the  history  of  the  legislation 
involved  may  be  useftil. 

The  Edmunds  Act  became  a  law  March  22,  1882.  Section  1  amended  section  5352  of  the  Revised 
Statutes  of  the  United  States,  and  defined  and  prohibited  polygamy.  Section  3  defined  and  prohib- 
ited unlawful  cohabitation,  and  reads  as  follows: 

"Sec.  3.  That  if  any  male  person,  in  a  Territorj'  or  other  place  over  which  the  United  States  have 


554 


PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES. 


§478 


exclusive  jurisdiction,  hereafter  cohabits  with  more  than  one  woman,  he  shall  be  deemed  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  be  punished  by  a  fine  of  not  more  than  three  hundred 
dollars,  or  by  imprisonment  for  not  more  than  six  months,  or  by  both  said  punishments,  in  the  dis- 
cretion of  the  court." 

Section  8,  relating  to  eligibility  to  hold  office,  has  already  been  quoted. 

The  Edmunds-Tucker  Act,  which  became  a  law  March  3, 1887,  supplemented  the  Edmunds  law, 
imposed  penalties  for  various  kindred  offenses,  dissolved  the  corporation  known  as  the  Church  of  Jesus 
Christ  of  Latter-Day  Saints,  and  contained,  among  other  things,  various  provisions  as  to  dower  and 
the  law  of  descent.  With  reference  to  eligibility  to  office  it  contained,  among  others,  this  paragraph, 
in  the  last  part  of  section  24: 

"No  person  who  shall  have  been  convicted  of  any  crime  imder  this  act,  or  under  the  act  of  Con- 
gress aforesaid,  approved  March  twenty-second,  eighteen  hundred  and  eighty-two,  or  who  shall  be  a 
polygamist,  or  who  shall  associate  or  cohabit  polygamously  with  persons  of  the  other  sex,  shall  be  entitled 
to  vote  in  any  election  in  said  Territory,  or  be  capable  of  jury  service,  or  hold  any  office  or  emolument 
in  said  Territory." 

It  will  be  noticed  that  this  act  applied  only  to  "office  or  emolument  in  said  Territory."  It  did 
not  go  as  far  as  the  similar  provision  in  the  Edmunds  Act  and  apply  to  "any  office  under  the  United 
States. ' ' 

February  4,  1892,  Chapter  VII  of  the  laws  of  the  Territory  of  Utah  was  enacted.  Section  1  defined 
and  punished  polygamy  substantially  as  did  section  1  of  the  Edmunds  Act.  Section  2,  relating  to 
cohabitation,  in  all  material  parts  is  an  exact  transcript  of  section  3  of  the  Edmunds  Act.  There  is 
no  provision  whatever  in  this  act  relating  to  ineligibility  to  office  by  reason  of  any  of  these  offenses. 
(Laws  of  Utah,  1892,  p.  5.) 

The  enabling  act,  authorizing  the  people  of  Utah  to  form  a  constitution  and  State  government  and 
to  be  admitted  into  the  Union,  became  a  law  July  16,  1894.  This  act  required  the  convention  to  provide 
by  ordinance  irrevocable  without  the  consent  of  the  United  States  and  the  people  of  the  State — 

"First.  That  perfect  toleration  of  religious  sentiment  shall  be  secured,  and  that  no  inliabitant  of 
said  State  shall  ever  be  molested  in  person  or  property  on  account  of  his  or  her  mode  of  religious  worship: 
Provided,  That  polygamous  or  plural  marriages  are  forever  prohibited." 

The  constitution  of  Utah  was  adopted  by  the  convention  May  8,  1895,  by  the  people  November  5, 
1895,  and  the  proclamation  of  the  President  of  the  United  States  announcing  the  result  of  the  election 
and  admitting  the  State  into  the  Union  was  issued  January  4,  1896.  Article  III,  ordinance  of  the 
constitution,  contained  the  provision  as  to  religious  liberty  and  polygamous  or  plural  marriages  in 
the  exact  language  of  the  enabling  act.     (R.  S.  Utah,  1898,  p.  40.) 

Article  XXIV,  section  2,  of  the  constitution  reads  as  follows: 

"Sec.  2.  All  laws  of  the  Territory  of  Utah  now  in  force,  not  repugnant  to  this  constitution,  shall 
remain  in  force  until  they  expire  by  their  own  limitations  or  are  altered  or  repealed  by  the  legislature. 
The  act  of  the  governor  and  the  legislative  assembly  of  the  Territory  of  Utah  entitled  'An  act  to  punish 
polygamy  and  other  kindred  offenses,'  approved  February  4,  A.  D.  1892,  in  so  far  as  the  same  defines 
and  imposes  penalties  for  polygamy,  is  hereby  declared  to  be  in  force  in  the  State  of  Utah."  (R.  S. 
Utah,  1898,  p.  67.) 

This  did  not  give  the  State  of  Utah  any  law  making  persons  ineligible  to  any  office  by  reason  of 
polygamy  or  cohabitation,  as  no  such  provisions  existed  in  the  act  of  1892,  chapter  24,  or  in  any  of  the 
"laws  of  the  Territory  of  Utah." 

Sections  4208  to  4216,  inclusive,  of  the  Revised  Statutes  of  Utah  (R.  S.  Utah,  1898,  p.  899)  are 
substantially  the  act  of  1892.  Section  2  of  the  act  of  1892  and  section  4209  of  the  Revised  Statutes, 
relating  to  unlawful  cohabitation,  are  precisely  alike.     This  statute  has  not  been  changed. 

The  laws  of  the  State  of  Utah,  then,  do  not  now  impose  and  never  have  imposed  any  disqualification 
for  holding  office  by  reason  of  polygamy  or  unlawful  cohabitation.  Mr.  Roberts  was  a  resident  of  the 
Territory  of  Utah,  and  since  its  organization  as  a  State  has  been  a  resident  of  the  Stale  of  Utah.  Under 
these  circumstances  we  do  not  think  that  the  disqualifications  imposed  by  the  Edmunds  Act  have  had 
any  operation  as  to  him  since  the  organization  of  the  State  of  Utah.  It  is  settled  by  an  unbroken  line  of 
decisions  that  all  Territorial  Congressional  legislation  is  superseded  by  the  adoption  of  a  State  constitution 
and  the  organization  of  a  State. 


§  478  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  555 

In  discussing  the  effect  of  the  adoption  of  the  constitution  of  Louisiana  upon  the  laws  of  Congress, 
the  court,  in  Permoli  r.  First  Municipality  (3  How.,  610),  said: 

"So  far  as  they  conferred  political  rights,  and  secured  civil  and  religious  liberties  (which  are 
political  rights),  the  laws  of  Congress  were  all  superseded  by  the  State  constitution;  nor  is  any  part  of 
them  in  force  unless  they  were  adopted  by  the  constitution  of  Ixiuisiana  as  the  laws  of  the  State." 

The  case  of  Strader  et  al.  v.  Graham  (10  How.,  94)  determines  the  same  question,  and  says: 

"The  argument  assumes  that  the  six  articles  which  that  ordinance  declares  to  be  perpetual  are  still 
in  force  in  the  State  since  formed  within  the  Territory  and  admitted  into  the  Union.  If  this  proposition 
could  be  maintained,  it  would  not  alter  the  question;  for  the  regulation  of  Congress,  under  the  old 
confederation  or  the  present  Constitution,  for  the  government  of  a  particular  territory,  could  have  no 
force  beyond  its  limits.  It  certainly  could  not  restrict  the  power  of  the  States  within  their  respective 
territories,  nor  in  any  manner  interfere  with  their  laws  and  institutions,  nor  give  this  court  any 
control  over  them.  The  ordinance  in  question,  if  still  in  force,  could  have  no  more  operation  than  the 
laws  of  Ohio  in  the  State  of  Kentucky,  and  could  not  influence  the  decision  upon  the  rights  of  the  master 
or  the  slaves  in  that  State,  nor  give  this  court  jurisdiction  upon  the  subject. 

"  But  it  has  been  settled  by  judicial  decision  in  this  court,  that  this  ordinance  is  not  in  force. 

"The  case  of  Permoli  r.  The  First  Municipality  (3  How.,  589)  depended  upon  the  same  principles 
with  the  case  before  us." 

The  same  doctrine  is  held  in  Pollard  et  al.  v.  Hagan  (3  How.,  212). 

It  is  approved  by  all  of  the  court,  from  Chief  Justice  Taney  to  Judge  Curtis,  in  Dred  Scott  v. 
Sandford  (19  How.,  490). 

It  is  approved  in  Woodman  v.  Kilboume  Manufacturing  Company  (1  Abb.  U.  S.,  162),  opinion  by 
Justice  Miller,  of  the  United  States  Supreme  Court.  Columbus  Insiuance  Company  v.  Curtenius  (6 
McLean,  212). 

This  precise  question,  in  the  application  to  the  State  of  Utah  of  a  law  of  Congress  which  was  not 
continued  in  force  by  any  legislation,  has  been  determined  in  Moore  v.  United  States  (85  Fed.  Rep.,  468). 

The  court  were  determining  whether  a  law  of  Congress  against  unlawful  combinations  was  in  force 
in  Utah,  and  held: 

"By  its  terms  the  provision  of  the  statute  under  which  this  indictment  was  found  applies  only 
to  the  Territories  of  the  United  States,  and  while  it  may  yet  be  in  full  force  within  the  Territories,  it  is 
clear  that  no  prosecution  could  be  maintained  under  it  for  entering  into  a  combination  or  conspiracy  in 
restraint  of  trade  in  Utah  after  the  date  of  her  admission  as  a  State.  *  *  *  When  Utah  became  one  of 
the  States  of  the  Union,  this  statute  ceased  to  be  in  force  within  its  boundaries,  unless,  by  appropriate 
legislation  it  was  continued  in  force  for  the  purpose  of  prosecuting  violations  thereof  committed 
during  the  existence  of  a  Territorial  form  of  government.  *  *  *  The  act  of  July  2  was  not  repealed 
by  the  enabling  act,  for  it  yet  applies  to  the  Territories  of  the  United  States.  It  ceased  to  be  in 
force  in  Utah  only  because  it  was  superseded  by  the  constitution  upon  the  admission  of  the  State." 

We  have  seen  that  there  was  no  legislation  of  any  kind  continuing  in  force  section  8  of  the  Edmunds 
Act,  relating  to  disqualification.  It  is  to  be  observed  that  this  section  does  not  undertake  by  its  terms 
to  operate  within  the  limits  of  any  State.  It  is  expressly  confined  in  its  operation,  by  its  terms,  to  "any 
Territory  or  other  place  over  which  the  United  States  have  exclusive  jurisdiction."  The  meaning  of 
the  terms  "polygamist"  or  "person  cohabiting,"  with  reference  to  the  restriction  as  to  voting,  has  been 
fully  settled  by  the  United  States  Supreme  Court  in  Murphy  v.  Ramsey.     (114  U.  S.,  39;  29  L.  C.  P.,  47.) 

This  was  an  action  for  damages  sustained  by  reason  of  being  deprived,  under  this  section,  of  the 
right  to  vote  in  the  Territory  of  Utah,  and  among  other  things  the  court  held: 

"The  requirements  of  the  eighth  section  of  the  act,  in  reference  to  a  woman  claiming  the  right  to 
vote,  are  that  she  does  not,  at  the  time  she  offers  to  register,  cohabit  with  a  polygamist,  bigamist,  or 
person  cohabiting  with  more  than  one  woman.  *  *  *  Upon  this  construction  the  statute  is  not  open 
to  the  objection  that  it  is  an  ex  post  facto  law.  It  does  not  seek  in  this  section  and  by  the  penalty  of 
disfranchisement  to  operate  as  a  punishment  upon  any  offense  at  all.  *  *  *  The  disfranchisement 
operates  upon  the  existing  state  and  condition  of  the  person,  and  not  upon  a  past  offense.  It  is, 
therefore,  not  retrospective.  He  alone  is  deprived  of  his  vote  who,  when  he  offers  to  register,  is 
then  in  the  state  and  condition  of  a  bigamist  or  a  polygamist,  or  is  then  actually  cohabiting  with  more 
than  one  woman.     *    *    *    So  that,  in  respect  to  those  disqualifications  of  a  voter  imder  the  act  of 


556  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   478 

March  22,  1882,  the  objection  is  not  well  taken  that  represents  the  inquiry  into  the  fact  by  the 
officers  of  registration  as  an  unlawful  mode  of  prosecution  for  crime. 

"In  respect  to  the  fact  of  actual  cohabitation  with  more  than  one  woman,  the  objection  is  equally 
groundless,  for  the  inquiry  into  the  fact,  so  far  as  the  registration  officers  are  authorized  to  make  it,  or 
the  judges  of  election,  on  challenge  of  the  right  of  the  voter  if  registered,  are  required  to  determine  it, 
is  not,  in  view  of  its  character  as  a  crime,  nor  for  the  purpose  of  punishment,  but  for  the  sole  purpose  of 
determining,  as  in  case  of  every  other  condition  attached  to  the  right  of  suffrage,  the  qualification  of  one 
who  alleges  his  right  to  vote.  It  is  precisely  similar  to  an  inquiry  into  the  fact  of  nativity,  of  age,  or  of 
any  other  status  necessary  by  law  as  a  condition  of  the  elective  franchise." 

The  principles  which  apply  to  eligibility  as  a  voter  must  apply  to  eligibility  to  office,  as  they  are 
in  the  same  section  and  the  same  language  is  employed  as  to  each,  and  in  order  to  be  affected  by  the 
disqualification  prescribed  by  this  section  a  peraon  must  be  a  polygamist  or  unlawfully  cohabiting 
within  the  meaning  of  the  section  "at  the  time"  of  entering  upon  the  office.  It  is  not  enough  to  show 
that  at  some  former  period  Mr.  Roberts  was  a  polygamist  or  unlawfully  cohabiting,  as  the  disfranchise- 
ment does  not  operate  "upon  a  past  offense."  It  would  have  been  entirely  competent  for  Roberts  to 
have  taken  himself  from  under  the  operation  of  this  section  while  Utah  was  still  a  Territory,  simply 
by  ceasing  to  be  a  polygamist  or  cohabiting,  or  by  moving  into  a  State,  as  the  "disfranchisement" 
operates  upon  "  the  existing  state  and  condition  of  the  person"  only.  In  other  words,  the  offense  must 
be  continuous.     The  offense  and  the  disqualification  are  coterminous. 

There  is  a  further  legal  proposition,  too  well  settled  to  require  the  citation  of  authority,  and  that 
is,  no  statute  can  operate,  either  directly  or  indirectly,  extraterritorially.  The  statute  in  question  doea 
not  undertake  to. 

The  offense  of  polygamy  and  unlawfully  cohabiting  is  localized  by  the  statute.  The  provision  is 
not  general.  No  polygamist  or  person  thus  cohabiting  "anywhere,  without  any  restriction  as  to  place," 
is  not  the  language;  on  the  other  hand,  the  prohibition  is  confined  to  a  specified  locality.  No  polygamist 
or  any  person  thus  cohabiting — where?  "In  any  Territory  or  other  place  over  which  the  United  States 
have  exclusive  jurisdiction."  The  United  States  had  no  power  to  make  the  prohibition  apply  to  any 
other  place,  and  did  not  attempt  it.  The  offense  and  the  place  defined  must  coexist.  He  must  be  a 
polygamist  or  person  unlawfully  cohabiting  in  "any  Territory,"  or  the  statute  does  not  apply.  The 
statute  applies  only  to  residents  of  the  Territory. 

In  the  light  of  these  propositions  let  us  analyze  the  case  as  it  is. 

Mr.  Roberts  presents  himself  as  a  Member-elect  of  this  House.  It  is  objected  that  he  is  disqualified 
under  this  section  as  a  polygamist  or  person  unlawfully  cohabiting.  The  disqualification  must  exist  at 
the  time  of  his  becoming  a  Member.  But  since  January,  1896,  he  has  resided  in  the  State  of  Utah,  and 
this  statute  has  not  since  then  operated  upon  him,  and  does  not  now  operate  upon  him.  It  can  not, 
therefore,  now  disqualify  him.  The  conditions  of  offense  and  place  required  by  the  statute  to  coexist 
do  not  coexist  in  his  case,  and  therefore  the  statute  does  not  apply.  In  other  words,  it  is  said  he  is 
ineligible.  Why?  Because  there  is  a  statute  of  the  United  States  which  says  that  no  polygamist  or 
person  unlawfully  cohabiting  in  "any  Territory"  is  eligible,  and  he  is  a  polygamist  or  person  thus 
cohabiting.     It  is  a  complete  answer  to  say  ,"  while  I  am  a  polygamist  I  am  not  such  in  'any  Territory.'" 

\Miile  the  penal  provisions  of  the  Edmunds  Act  are  in  full  force  in  "any  Territory,"  it  would  not 
for  a  moment  be  contended  that  Mr.  Roberts  would  be  liable  to  prosecution  thereunder  since  January, 
1896.  Why?  Simply  because  since  that  time  he  has  committed  no  crime  within  "any  Territory,"  as  all 
of  his  acts  have  been  in  the  State  of  Utah.  A  fortiori,  the  disqualifying  provisions  do  not  apply  to  him, 
as  they  do  not  even  "operate  as  a  punishment  upon  any  offense  at  all."  The  moment  Utah  became  a 
State  he,  living  in  Utah,  became  a  resident  of  the  State,  and  one  of  the  indispensable  elements  of  the 
condition  to  which  the  disqualification  attaches — residence  within  "any  Territory" — ceased  to  exist, 
and  the  disqualification  ceased  to  apply.  The  offense  of  polygamy  or  unlawful  cohabitation  in  "any 
Territory"  and  the  disqualification  were  no  longer  coterminous.  He  is  now  doing  no  act  in  "any  Terri- 
tory" to  which  the  disqualification  applies,  and  therefore,  as  to  him,  it  does  not  exist. 

It  is  true  that  while  Utah  was  a  Territory  Roberts  was  unlawfully  cohabiting,  and  the  disqualifica- 
tion existed,  and  his  status  was  then  that  of  ineligibility,  and  therefore,  it  may  be  suggested,  it  continues. 
But  this  would  make  the  disqualification  the  result  of  a  past  offense,  and  the  law  says  that  it  "operates 
upon  the  existing  state  and  condition  of  the  person  and  not  upon  a  past  offense."  It  does  not  "operate 
as  a  punishment"  at  all.  all  of  which  it  clearly  would  do  if  the  supposition  were  correct. 


§479 


POLYGAMY    AND    OTHER   CRIMES    AS    DISQUALIFICATIONS.  557 


If  the  disqualification  attaches  to  Roberts  by  reason  of  acts  committed  in  Utah,  the  State,  then 
the  act  would  be  operating  extraterritorily,  outside  of  "any  Territory"  to  which  by  its  specific  terms  it 
is  expressly  confined.  The  fact  that  Roberts  still  resides  in  the  same  place  where  he  resided  in  1895, 
though  Utah  is  now  a  State,  but  then  was  a  Territory  to  which  the  law  applied,  undoubtedly  is  the  cause 
of  some  confusion  of  thought.  It  is  clear  that  his  legal  rights  are  precisely  the  same  as  though  since  1896 
he  had  been  residing  in  Maine,  and  had  been  elected  to  Congress  from  that  State.  It  would  not  be  con- 
tended that  this  act  could  have  any  application  to  him  in  such  case  to  affect  his  present  status,  as  it 
never  operated  there.     No  more  has  it  in  Utah  since  Januarj-,  1896. 

It  seems  to  us  beyond  question  that  this  act  does  not  now  apply  to  Mr.  Roberts.  Then  there  is  no 
law  having  any  application  to  this  case  by  which  the  attempt  is  made  to  add  anything  to  the  consti- 
tutional qualifications.  This  House,  by  its  independent  action,  can  not  make  law  for  any  purpose. 
The  adding  by  this  House,  acting  alone,  of  a  qualification  not  established  by  law  would  not  only  be  a 
violation  of  both  the  Constitution  and  the  law,  but  it  would  establish  a  most  dangerous  precedent, 
which  could  hardly  fail  to  "return  to  plague  the  inventor."  You  might  feel  that  the  grave  moral  and 
social  aspects  of  this  case  allowed  you  to — 

"Wrest  once  the  law  to  your  authority 
To  do  a  great  right,  do  a  little  wrong.'' 

But  what  warrant  have  you,  when  the  barriers  of  the  Constitution  are  once  broken  down,  that  there 
may  not  come  after  us  a  House  with  other  standards  of  morality  and  propriety,  which  will  create  other 
qualifications  with  no  rightful  foundations,  that,  in  the  heat  and  unreason  of  partisan  contest — since 
there  will  be  no  definite  standard  by  which  to  determine  the  existence  of  qualifications — will  add  any- 
thing that  may  be  necessary  to  accomplish  the  desired  result?  Exigency  will  determine  the  sufficiency. 
It  would  no  longer  be  a  government  of  laws,  but  of  men.  To  thus  depart  from  the  Constitution  and 
substitute  force  for  law  is  to  embark  upon  a  trackless  sea.  without  chart  or  compass,  with  almost  a  cer- 
tainty of  direful  shipwreck. 

479.    The  case  of  Brigham  H.  Roberts,  continued. 

The  question  of  loyalty  as  a  qualification  of  a  Member. 

(6)  By  reason  of  disloyalty  thus  described  by  the  majority  report — 

He  is  disqualified  because  for  years  he  has  been  living  in  open,  flagrant,  and  notorious  defiance 
of  the  statutes  of  Utah  and  in  open,  flagrant,  and  notorious  defiance  of  the  statutes  of  Congress — of  the 
very  body  which  he  now  seeks  to  enter;  in  defiance  of  the  law  as  declared  by  the  Supreme  Court  of  the 
United  States,  and  in  defiance  of  the  proclamations  of  Presidents  Harrison  and  Cleveland.  He  has 
persistently  held  himself  above  the  law.  This  is  disloyalty  in  its  very  essence.  In  the  language  of 
Chief  Justice  Waite,  in  the  Reynolds  case,  this  would  in  effect  "permit  every  citizen  to  become  a  law 
unto  himself.     Government  could  exist  only  in  name  under  such  circumstances." 

The  majority  say  on  this  point: 

The  principles  underlying  the  second  main  ground  of  disqualification,  hereinbefore  asserted, 
have  already  been  fully  discussed,  but  the  ground  is  appropriately  restated  at  this  point. 

We  assert  before  the  House,  the  countrj-,  and  history  that  it  is  absolutely  and  impregnably  sound, 
not  to  be  eSectively  attacked,  consonant  with  every  legislative  precedent,  in  harmony  with  the  law 
and  with  the  text-books  on  the  subject: 

That  Brigham  H.  Roberts's  persistent,  notorious,  and  defiant  \'iolation  of  one  of  the  most  solemn 
acts  ever  passed  by  Congress,  by  the  very  body  which  he  seeks  now  to  enter,  on  the  theorj'  that  he  is 
above  the  law,  and  his  defiant  violation  of  the  laws  of  his  own  State,  necessarily  render  him  ineligible, 
disqualified,  unfit,  and  unworthy  to  be  a  member  of  the  Hoiise  of  Representatives.  And  this  proposi- 
tion is  asserted  not  so  much  for  reasons  personal  to  the  membership  of  the  House  as  because  it  goes  to 
the  ver\-  integrity  of  the  House  and  the  Republic  as  such. 

The  minorit}"  do  not  specifically  refer  to  this  point,  but  discuss  it  generallv  in 
their  treatment  of  the  subject  of  qualifications. 


558 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§   480 


480.   The  case  of  Brigham  H.  Roberts,  continued. 

A  constituency  having  violated  the  understanding  on  which  it  came 
into  the  Union,  was  the  status  of  a  Member-elect  thereby  affected? 
(f)  Because,  in  the  words  of  the  majority  report — 

His  election  as  Representative  is  an  explicit  and  most  offensive  violation  of  the  understanding 
by  which  Utah  was  admitted  as  a  State.  It  is  an  act  of  unmatched  audacity,  the  possibility  of  which 
could  no  more  have  been  considered  when  the  State  of  Utah  was  admitted  than  that  a  specific  permis- 
sion would  have  been  given  to  renew  the  practice  of  polygamous  marriages. 

The  majority  say  on  this  point: 

Utah  was  admitted  to  the  Union  with  the  distinct  understanding  upon  both  sides  that  polygamous 
practices  were  under  the  ban  of  the  church,  prohibited  and  practically  eradicated,  both  as  a  practice 
and  a  belief,  and  that  they  would  not  be  renewed. 

The  effort  is  made  to  alarm  people  upon  this  proposition  that  some  similar  objection  might  be 
made  to  representation  from  States  in  which  the  claim  might  be  made  that  the  right  to  vote  was  denied 
to  some  citizens.  It  is  a  sufficient  answer  to  this  to  say  that  if  such  ground  of  complaint  exists  the  Con- 
stitution specifically  tells  us  what  our  remedy  is,  and  declares  precisely  in  the  fourteenth  amendment 
what  we  may  do  in  any  event  when  the  right  of  suffrage  is  improperly  denied.  There  is  no  possible 
escape  from  that  position,  even  assuming  that  there  was  anj^hing  in  the  bogie  man. 

But  as  to  Utah,  she  was  admitted  on  the  express  statement  that  the  practice  of  polygamoiis  living 
was  interdicted  by  the  church,  was  practically  abandoned  by  the  people  and  eradicated  as  a  belief. 
Of  course,  that  sporadic  instances  of  the  violation  of  the  law  against  cohabitation  might  occur  no  one 
doubted. 

The  manifesto  forbidding  plural  marriages  and  enjoining  obedience  to  the  laws  relating  thereto 
was  issued  by  Wilford  Woodruff,  president  of  the  Church  of  Jesus  Christ  of  Latter-Day  Saints,  Septem- 
ber 25,  1890. 

Some  doubt  having  arisen  as  to  whether  that  manifesto  prohibited  association  in  the  plural  mar- 
riage relation,  as  well  as  the  contracting  of  plural  marriages  as  a  ceremony.  President  Woodruff  himself 
testified  under  oath  as  follows: 

"Q.  Did  you  intend  to  confine  this  declaration  and  advice  to  the  church  solely  to  the  question  of 
forming  new  marriages  without  reference  to  those  that  were  existing — plural  marriages? — A.  The  inten- 
tion of  the  proclamation  was  to  obey  the  law  myself — all  the  laws  of  the  land  on  that  subject — and 
expecting  that  the  church  would  do  the  same. 

"Q.  You  mean  to  include,  then,  in  your  general  statement  the  laws  forbidding  association  in 
plural  marriages  as  well  as  the  forming  of  new  marriages? — A.  Whatever  there  is  in  the  law  with  regard 
to  that — the  law  of  the  land. 

"Q.  Let  me  read  the  language  and  you  will  understand  me,  perhaps,  better:  'Inasmuch  as 
laws  have  been  enacted  by  Congress  forbidding  plural  marriages,  *  *  *  I  hereby  declare,'  etc. 
Did  you  intend  by  that  general  statement  of  intention  to  make  the  application  to  existing  conditions 
where  the  plural  marriages  already  existed? — A.  Yes,  sir. 

"Q.  As  to  living  in  the  state  of  plural  marriage? — A.  Yes,  sir;  that  is,  to  the  obeying  of  the  law. 

"Q.  In  the  concluding  portion  of  your  statement  you  say,  'I  now  publicly  declare  that  my  advice 
to  the  Latter-Day  Saints  is  to  refrain  from  contracting  any  marriage  forbidden  by  the  laws  of  the  land.' 
Do  you  understand  that  that  language  was  to  be  expanded  to  include  the  further  statement  of  living 
or  associating  in  plural  marriage  by  those  already  in  the  status? — A.  Yes,  sir;  I  intended  the  procla- 
mation to  cover  the  ground — to  keep  the  laws,  to  obey  the  law  myself — and  expected  the  people  to 
obey  the  law." 

The  significance  of  this  statement  by  the  spiritual  head  of  the  church  is  the  more  apparent  when 
we  remember  that  it  was  made  but  a  short  time  before  the  question  of  tlie  admission  of  Utah  was 
debated  in  the  House  of  Representatives. 

Is  it  to  be  an  occasion  for  wonder,  therefore,  that  the  proclamation  of  amnesty  issued  by  Presi- 
dent Harrison  January  4,  1893,  should  contain  these  words: 

■'Whereas  it  is  represented  that  since  the  date  of  said  declaration  the  members  and  adherents  of 


§  480  POLYGAMY    AND   OTHER    CRIMES    AS    DISQUALIFICATIONS.  559 

said  church  have  generally  obeyed  said  laws  and  abstained  from  plural  marriages  and  polygamous 
cohabitation;  and 

■■\Miereas  by  a  petition  dated  December  the  19th,  1891,  the  officials  of  said  church,  pledging  the 
membership  thereof  to  the  faithful  obeyance  of  the  laws  against  plural  marriages  and  unlawful  cohabita- 
tion, applied  to  me  to  grant  amnesty  for  past  offenses  against  said  laws." 

Is  it  strange  that  the  House  Committee  on  Territories  in  1893  should  report  that  ''polygamy  is 
dead?  "  And  if  that  is  not  fully  convincing,  let  the  unprejudiced  mind  consider  the  following  extracts 
from  the  debate  in  the  House  of  Representatives  on  the  admission  of  Utah,  December  12,  1893:  (Here 
the  report  quotes  the  debate  at  length.) 

And  so  the  enabling  act  was  passed.  Everj-  incredulous  Member  who  cast  doubt  upon  the  sincerity 
of  polygamists  in  Utah  was  whistled  down  the  wind.  Everj'  legislator  who  doubted  if  the  funeral  of 
polygamy  had  really  taken  place,  was  laughed  to  scorn.  Polygamy  was  dead!  That  was  the  battle  cry, 
and  on  it  the  battle  was  fought  and  won. 

What  would  have  become  of  the  bill  if  ilr.  Rawlins  had  declared  that  the  State  of  Utah,  just  about 
to  be  bom,  would  resers-e  the  right  to  send  a  polygamist  to  Congress?  His  bill  would  have  been  buried 
beneath  an  avalanche  of  votes  beyond  the  hope  of  resurrection. 

The  language  of  the  enabling  act  is,  "provided  that  polygamous  or  plural  marriages  are  forever 
prohibited." 

The  understanding  was  that  those  words  prohibited  the  practice  of  li\'ing  in  the  status  or  condition 
of  polygamous  marriage. 

Bouvier's  Law  Dictionary  says: 

'^Marriage. — A  contract  made  in  due  lorm  of  law  by  which  a  man  and  woman  reciprocally  engage  to 
live  with  each  other  during  their  joint  lives,  and  to  discharge  toward  each  other  the  duties  imposed  by 
law  on  the  relation  of  husband  and  wife.  Marriage,  as  distinguished  from  the  agreement  to  marry,  the 
mere  act  of  becoming  married,  is  the  civil  status  of  one  man  and  one  woman  united  in  law  for  life,  for  the 
discharge  to  each  other  and  the  community  of  the  duties  legally  incumbent  on  themselves. 

' ' '  Marriage '  is  the  legal  status  or  condition  of  husbands  and  wives  just  as  infancy  is  the  legal  relation 
or  condition  of  persons  under  age.     (1  American  and  English  Encyclopedia  of  Law,  vol.  14,  p.  470.) 

"The  act  of  marriage  having  been  once  accomplished,  the  word  becomes  afterwards  to  denote  the 
relation  itself.     (Schouler  on  Domestic  Relations,  22.) 

"Marriage  is  the  civil  status  of  one  man  and  one  woman  united  in  law  for  life  under  the  obligation  to 
discharge  to  each  other  and  to  the  community  those  duties  which  the  community,  by  its  laws,  holds 
incumbent  on  persons  whose  association  is  founded  on  the  distinction  of  sex.  (1  Bishop  on  Marriage  and 
Divorce,  3.) 

"Marriage  is  a  personal  relation  arising  out  of  a  civil  contract  to  which  the  consent  of  parties  capable 
of  making  it  is  necessarj'.     (Hart's  California  Civil  Code,  55.) 

"Marriage  is  the  union  of  one  man  and  one  woman  so  long  as  they  shall  both  live  together  to  the 
exclusion  of  all  others  by  an  obligation  which  during  the  lifetime  the  parties  can  not  of  their  own  volition 
or  will  dissolve,  but  which  can  be  dissolved  only  by  the  authority  of  the  State."     (19  Indiana,  p.  57.) 

Senator  Rawlins  was  asked  before  this  committee  the  following  question: 

"Without  reference  to  any  assumed  facts  in  this  case,  do  you  think  that  Congress  would  have 
admitted  Utah  to  statehood  if  it  had  been  predicted  that  Utah  would  send  here  in  a  few  years  a  man  as 
her  Representative  who  was  polygamously  living  with  more  than  one  wife?  " 

He  answered:  "  I  do  not  think  the  Congress  of  the  United  States  would  have  admitted  Utah  if  they 
at  that  time  had  believed  that  a  revival  of  the  practice  of  polygamy  would  occur." 

It  is  not  to  be  assumed  from  the  fact  that  a  rare  or  sporadic  case  of  polygamous  marriage  occurred 
in  Utah,  or  sporadic  instances  of  unlawful  cohabitation  had  come  to  light,  that  that  would  be  a  violation 
of  the  agreement;  but  we  take  it  that  it  is  in  the  last  degree  a  violation  of  the  agreement  or  understanding 
when  that  State  sends  to  Congress  a  man  who  is  himself  engaged  in  the  persistent  practice  of  the  verj' 
thing  the  abandonment  of  which  was  the  condition  precedent  to  its  admission;  and  that  man  the  most 
conspicuous  defier  of  the  law  and  violator  of  the  covenant  of  statehood  to  be  found  in  Utah. 

As  bearing  on  this,  we  here  quote  the  manifesto  issued  a  few  days  ago  by  the  Mormon  Church  and 
presented  by  Senator  Rawlins  to  the  Senate: 

"  In  accordance  with  the  manifesto  of  the  late  President  Wilford  Woodruff,  dated  September  the 
2-5th,  1890,  which  was  presented  to  and  unanimously  accepted  by  our  general  conference  on  the  6th  of 


560 


PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES. 


§   480 


October,  1890,  the  church  has  positively  abandoned  the  practice  of  polygamy,  or  the  solemnization  of 
plural  marriages,  in  this  and  every  other  State,  and  that  no  member  or  officer  thereof  has  any  authority 
whatever  to  perform  a  plural  marriage  or  enter  into  such  a  relation.  Nor  does  the  church  advise  or 
encourage  unlawful  cohabitation  on  the  part  of  any  of  its  members." 

In  other  words,  the  Mormon  Church  has  left  it  to  us  and  not  to  the  church  to  say  what  shall  be 
done  with  Mr.  Roberts.     Is  the  House  of  Representatives  to  respond  in  any  uncertain  tone? 

The  minority,  in  their  views,  say: 

It  is  contended  that  if  aU  other  reasons  assigned  for  exclusion  are  found  to  be  insufficient,  as  we 
believe  they  are,  still  Mr.  Roberts  should  be  excluded,  upon  the  alleged  ground  that,  by  virtue  of  the 
enabling  act,  a  compact  now  exists  between  tlie  United  States  and  Utah  which  has  been  violated  by  the 
election  of  Roberts  to  Congress,  and  that  the  State  can  be  in  this  manner  punished  for  such  breach  of 
the  compact.  Compact  is  synonymous  with  contract.  The  idea  of  a  compact  or  contract  is  not  predi- 
cable  upon  the  relations  that  exist  between  the  State  and  the  General  Government.  They  do  not  stand 
in  the  position  of  contracting  parties.  The  condition  upon  which  Utah  was  to  become  a  State  was 
fully  performed  when  she  became  a  State.  The  enabling  act  authorized  the  President  to  determine 
when  the  condition  was  performed.  He  discharged  that  duty,  found  that  the  condition  was  complied 
with;  and  that  condition  no  longer  exists. 

What  did  Congress  require  by  the  enabling  act?  Simply  that  "said  convention  shall  provide 
by  ordinance  irrevocable,"  etc.,  and  the  convention  did  in  terms  what  it  was  required  to  do.  It  was 
a  condition  upon  the  performance  of  which  by  the  "convention"  the  admission  of  Utah  depended. 
Its  purpose  accomplished,  its  office  is  gone,  and  as  a  condition  it  ceases  to  exist.  No  power  was  reserved 
in  the  enabling  act,  nor  can  any  be  found  in  the  Constitution  of  the  United  States,  authorizing  Con- 
gress, not  to  say  the  House  of  Representatives  alone,  to  discipline  the  people  or  the  State  of  Utah, 
because  the  crime  of  polygamy  or  unlawful  cohabitation  has  not  been  exterminated  in  Utah.  Where 
is  the  warrant  to  be  found  for  the  exercise  of  this  disciplinary,  supervisory  power?  This  theory  is 
apparently  evolved  for  the  purposes  of  this  case;  is  entirely  without  precedent;  and  has  not  even  the 
conjecture  or  dream  of  any  writer  or  commentator  on  the  Constitution  to  stand  upon. 

In  accordance  with  the  facts  and  arguments  as  set  forth  in  their  report  the 

majority  recommended  the  following: 

Resolved,  That  under  the  facts  and  circumstances  of  this  case,  Brigham  H.  Roberts,  Representative- 
elect  from  the  State  of  Utah,  ought  not  to  have  or  hold  a  seat  in  the  House  of  Representatives,  and  that 
the  seat  to  which  he  was  elected  is  hereby  declared  vacant. 

The  minority  proposed  as  a  substitute  the  following: 

Resolved,  That  Brigham  H.  Roberts,  having  been  duly  elected  a  Representative  in  the  Fifty-sixth 
Congress  from  the  State  of  Utah,  with  the  qualifications  requisite  for  admission  to  the  House  as  such, 
is  entitled,  as  a  constitutional  right,  to  take  the  oath  of  office  prescribed  for  Members-elect,  his  status 
as  a  polygamist,  unlawfully  cohabiting  with  plural  wives,  affording  constitutional  ground  for  expulsion, 
but  not  for  exclusion  from  the  House. 

The  resolutions  were  called  up  in  the  House  on  January  23,  1900,'  and  debated 
until  January  25,  when  the  question  was  taken  on  substituting  the  minority  for 
the  majority  resolutions,  and  resulted — yeas  81,  nays  244.  The  question  then 
recurring  on  the  adoption  of  the  majority  resolution,  there  were — yeas  268,  nays  50. 
So  the  majority  resolution  was  agreed  to  unamended.^ 

During  the  debate,  on  January  23,'  Mr.  Roberts  was  permitted,  by  unanimous 
consent,  to  address  the  House. 

>  First  session  Fifty-sixth  Congress,  Record,  pp.  1072-1104,  1123-1149,  1175-1217;  Journal,  pp.  187, 
192,  196-198. 

2  Mr.  John  F.  Lacey,  of  Iowa,  had  proposed  an  amendment  for  expelling  Mr.  Roberts  without 
swearing  him  in;  but  it  was  ruled  out  on  a  point  of  order  as  not  germane.  First  session  Fifty-sixth 
Congress,  Record,  pp.  1215,  1210;  Journal,  p.  196. 

3  Record,  p.  1101. 


§  481  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  561 

481.  The  Senate  case  relating  to  the  qualifications  of  Reed  Smoot, 
of  Utah,  in  the  Fifty-eighth  Congress. 

Although  it  was  understood  that  objection  was  made  to  a  Senator-elect 
on  the  question  of  qualification,  yet  the  oath  was  administered  on  his 
prima  facie  showing. 

Form  of  resolution  authorizing  the  investigation  of  the  right  and  title 
of  Keed  Smoot  to  a  seat  in  the  Senate. 

It  was  objected  that  Senator  Smoot,  by  reason  of  fealty  to  a  "  higher 
law^  "  than  the  law  of  the  nation,  was  disqualified  to  hold  a  seat  in  the 
Senate. 

Argument  that  expulsion  applies  only  to  acts  of  a  Senator  or  Member 
done  by  him  while  in  such  office  or  in  relation  to  his  functions  as  such 
officer. 

Contention  that  a  Senator  may  be  excluded  for  disqualification  by 
majority  vote,  even  though  he  may  have  been  sworn  in. 

Discussion  as  to  the  right  of  the  Senate  to  exclude  by  majority  vote 
for  lack  of  qualifications  other  than  those  enumerated  in  the  Constitution. 

Complaint  in  the  Smoot  investigation  that  the  rules  of  evidence  were 
not  adhered  to  by  the  Senate  committee. 

On  March  5,  1903,'  at  the  special  session  of  the  Senate,  and  before  the  newly 
elected  Senators  had  been  called  for  the  administration  of  the  oath,  Mr.  George  F. 
Hoar,  of  Massachusetts,  was  permitted  by  unanimous  consent  to  make  the  following 
statement : 

The  chairman  of  the  Committee  on  Privileges  and  Elections,  the  Senator  from  Michigan  [Mr. 
Burrows],  is  obliged  to  be  absent.  He  desired  me  to  state  in  his  behalf  that  he  understands  the  orderly 
and  constitutional  method  of  procedure  in  regard  to  administering  the  oath  to  newly  elected  Senators 
to  be  that  when  any  gentleman  brings  with  him  or  presents  a  credential,  consisting  of  the  certificate 
of  his  due  election  from  the  executive  of  his  State,  he  is  entitled  to  be  sworn  in,  and  that  all  questions 
relating  to  his  qualification  should  be  postponed  and  acted  upon  by  the  Senate  aftei-wards. 

If  there  were  any  other  procedure,  the  result  would  be  that  a  third  of  the  Senate  might  be  kept 
out  of  their  seats  for  an  indefinite  time  on  the  presenting  of  objection  without  responsibility,  and  never 
established  before  the  Senate  by  any  judicial  inquiry.  The  result  of  that  might  be  that  a  change  in 
the  political  power  of  this  Government  which  the  people  desired  to  accomplish  would  be  indefinitely 
postponed. 

I  make  this  statement  at  the  request  of  the  Senator  from  Michigan  [Mr.  Burrows]. 

The  oath  was  then  administered  to  the  Senators-elect,  among  that  number 
being  Mr.  Reed  Smoot,  of  Utah,  who  took  the  oath  without  question. 

On  January  27,  1904,^  the  Senate  agreed  to  the  following  resolution: 

Resolved,  That  the  Committee  on  Privileges  and  Elections  of  the  Senate,  or  any  subcommittee 
thereof,  be  authorized  and  directed  to  investigate  the  right  and  title  of  Reed  Smoot  to  a  seat  in  the 
Senate  as  Senator  from  the  State  of  Utah;  and  said  committee,  or  any  subcommittee  thereof,  is 
authorized  to  sit  during  the  sessions  of  the  Senate,  to  employ  a  stenographer,  to  send  for  persons  and 
papers,  and  to  administer  oaths;  and  that  the  expense  of  the  inquiry  shall  be  paid  from  the  contingent 
fund  of  the  Senate  upon  vouchers  to  be  approved  by  the  chairman  of  the  committee. 

'  Special  session  Senate,  Fifty-eighth  Congress,  Record,  pp.  1,  2. 
-  Second  session  Fifty-eighth  Congress,  Record,  p.  1329. 

.5994— VOL  1—07 •■',(•) 


562 


PBECEDENTS   OF   THE    HOUSE   OF   KEPRESENTATIVES. 


§481 


The  investigation  continued  during  the  third  session  of  the  Congress,  and 
during  that  session  the  arguments  '  were  made. 

The  investigation  had  shown  that  Mr.  Smoot  was  an  officer  of  the  Mormon 
Church.  No  claim  was  made  that  he  was  himself  a  polygamist.  Mr.  Robert  W. 
Tajler,  who  had  conducted  the  presentation  of  the  case  against  him,  stated  in  his 
argument : 

Now,  gentlemen,  this  is  the  broad  claim  we  make:  That  the  church  is  in  fact  higher  than  the 
law;  that  the  hierarchy  and  its  members  are  in  fact  higher  than  the  law.  I  do  not  mean  that  they 
consciously  realize  that  in  every  act  that  they  perform  they  are  above  the  law,  or  that  they  do  not 
quite  unconsciously  generally  obey  the  law,  as  most  men  obey  it,  but  that  after  all  when  we  get  to 
the  inner  consciousness  that  controls  them  they  are  obedient  to  a  higher  law,  and  they  are  so,  because 
as  I  indicated  incidentally  earlier  in  my  argument,  they  or  it  receive  revelations,  because  its  member- 
ship, especially  the  hierarchy,  are  in  immediate  contact  with  God.  I  shall  have  more  to  say  about 
that  as  we  go  along.  This  is  basic.  I  should  like  that  every  word  I  say  from  now  on  should  be  con- 
sidered in  view  of  the  fact  and  with  constant  apprehension  of  the  fact  that  revelation  runs  through 
the  Mormon  mind  and  is  the  basis  of  the  Mormon  religion  and  of  its  hold  on  the  Mormon  people  to-day — 
revelation  liy  actual  contact  with  the  Almighty. 

In  that  thought  we  discover  the  explanation  of  everything  that  has  happened.  The  defiance  of 
law,  not  because  it  was  law — that  is,  the  law  of  the  land — not  because  it  was  the  law  of  the  land,  but 
because  there  was  a  law  of  God  that  was  higher  than  the  law  of  the  land;  the  constant  defiance  of  the 
law  of  the  land,  from  Independence,  Mo.,  in  1836  to  1840,  down  to  the  present  hour,  all  are  due  not 
to  lawlessness,  but  to  the  fact  that  there  is  a  higher  law  that  speaks  to  them. 

So,  also,  from  this  spirit  of  authority  growing  out  of  revelation,  and  without  that  they  had  not 
the  right  to  do  it,  we  know  of  their  institution  of  courts,  sometimes  and  in  some  regions  exercised  more 
generally  than  in  others,  but  absolutely  exercised,  as  we  know  by  the  official  records  of  the  case. 

Now,  all  these  things  involve  and  determine  Senator  Smoot's  status,  and  I  am  now  ordy  outlining 
the  claim  as  to  him. 

First,  in  his  attitude  toward  revelation,  to  which  I  have  already  made  reference,  and  to  which 
the  order  that  I  have  in  mind  to  pursue  will  make  it  necessary  for  me  to  refer  again. 

Second.  His  integral  partnership  in  the  hierarchy.  He  is  not  an  independent  person.  No  indi- 
vidual member  of  the  hierarchy  is  independent.     They  are  a  unit.     But  of  that  I  will  speak  further  on. 

His  acts  of  omission  and  commission.  Different  views  will  be  taken  as  to  the  extent  of  his  duty, 
as  well  as  of  the  extent  of  his  power.  But  we  do  know  what  his  relation  is  and  was  to  the  Cluff  incident — 
the  president  of  the  Brigham  Young  University,  an  institution  in  which  there  were  a  thousand  young 
people  of  both  sexes — wherein  Senator  Smoot,  a  trustee  and  member  of  the  executive  committee,  if 
he  did  not  have  knowledge,  said  he  had  reason  to  believe  that  the  president  of  that  institution  was  not 
only  a  polygamist,  but  that  he  had  taken  another  plural  wife,  the  daughter  of  a  high  official  of  the 
church,  as  recently  as  1899,  and  he  permitted  him — that  is  to  say,  he  made  no  objection,  and  made  no 
investigation — this  new  polygamist,  as  well  as  old  polygamist,  to  remain  at  the  head  of  that  institution, 
and  then  when  he  retired  he  voted  or  consented  to,  and  now  approves  of,  the  election  of  another  polyga- 
mist in  his  place;  his  participation  since  this  case  commenced  in  the  election  of  Penrose,  a  polygamist, 
to  the  apostleship  to  succeed  one  who  was  not  a  polygamist;  his  relation  to  Joseph  F.  Smith,  whom  he 
voted  to  make  the  president  of  the  church,  and  whom  he  has  sustained  regularly  ever  since,  and  also 
the  other  apostles. 

Next,  his  determination  not  to  interfere  with  polygamists,  his  statement  not  only  that  he  has  not 
complained  of  it,  that  he  has  not  disapproved  of  it,  that  he  has  not  criticised  his  associates  in  the  hier- 
archy, but  also  that  he  will  not,  and  does  not  intend  to,  speak  to  them  or  to  take  any  steps  toward  seeing 
that  they,  his  associates  in  this  close  institution,  should  either  be  prosecuted  or  disciplined  in  the 
chiurch,  whose  rules  they  violate. 

His  attitude  with  respect  to  this  endowment  ceremony,  his  refusal  to  disclose  what  it  was,  and 
his  statement  made  here  in  the  presence  of  this  committee  that  he  could  imagine  nothing  that  could 
induce  him  to  reveal  it,  not  even  the  Senate,  not  even  the  courts,  not  even  the  power  of  the  law. 


'  See  arguments  in  the  Smoot  case,  M'ashington,  Government  Printing  Office,  1905. 


§  481  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  563 

Mr.  Tavler  then  proceeded  to  discuss  the  method  of  reaching  3klr.  Smoot : 

I  do  not  need  to  say  to  this  committee  that  the  power  of  the  Senate  on  any  subject  within  its  general 
scope  is  exceedingly  broad.  There  is  no  limitation  upon  its  power  except  that  which  the  Constitution 
imposes,  and  the  Constitution  imposes  very  few  limitations.  It  imposes  absolutely  no  conditions  upon 
the  power  of  the  Senate  respecting  the  matter  of  the  elections,  returns,  and  the  qualifications  of  its  mem- 
bers. It  is  the  sole  judge  of  all  questions  which,  within  the  Senatorial  mind,  may  be  encompassed  within 
that  inquiry.  It  does  limit  the  power  of  expulsion  by  requiring  that  two-thirds  of  the  members  shall 
concur  in  such  a  motion.  The  constitutional  provision  giving  the  power  to  expel  is  verj'  peculiar,  and 
has  given  rise  to  much  discussion  since  the  institution  of  the  Government.  I  myself  have  verj-  decided 
convictions  upon  the  meaning  of  that  provision,  and  I  do  not  think  there  ought  to  be  any  great  difficulty 
in  construing  it.     The  language  is; 

'"  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its  members  for  disorderly  behav- 
ior, and,  with  the  concurrence  of  two-thirds,  expel  a  member." 

Xow,  if  we  construe  that  according  to  the  ordinary  rules  which  apply  to  the  construction  of  the 
English  language,  we  of  course  take  it  all  together.  The  context  relates  to  the  words  "with  the  con- 
currence of  two-thirds  expel  a  member; "  and  I  have  always  assumed  that  the  power  to  expel  referred 
to  that  conduct  which  the  Senate  could  carry  on  respecting  a  member  who  had  a  right  to  be  there,  whose 
title  there  was  unquestioned,  and  for  something  that  he  did.  or  for  some  status  in  which  he  was  while 
a  Senator.  I  think  that  is  the  only  sound  construction  of  that  clause  in  the  Constitution.  It  has  never 
had  another  construction,  in  fact,  by  the  acts  of  the  Senate. 

No  Senator  has  ever  been  expelled,  no  Member  of  the  House  has  ever  been  expelled,  except  for 
some  act  done  by  him  while  a  Senator  or  Representative,  or  relative  to  his  functions  as  a  Senator  or 
Representative;  and  I  think  no  serious  effort  was  ever  made  to  expel  for  any  other  reason  than  that. 

In  the  present  case  the  power  of  expulsion  could  be  invoked,  because  the  claim  is  made  that  the 
status  of  Senator  Smoot,  his  relation  to  this  law-defying  hierarchy,  his  own  attitude  toward  law,  the  view 
that  he  takes  of  his  capacity  to  receive  revelations  from  Almighty  God,  all  indicate  a  present  status  that, 
if  necessarj-,  brings  it  within  the  power  of  the  Senate  to  expel.  But  if  what  I  have  said  concerning  Sena- 
tor Smoot  be  true,  that  status  and  that  state  of  mind — that  personal  relation  that  he  must  sustain,  if 
he  understands  himself,  to  law  and  respect  for  law — of  course  preceded  his  entrance  into  the  Senate 
and  is  a  part  of  his  constitutional  temperamental  make-up. 

The  broad  power  of  the  Senate  is  that  it  is  the  judge  of  the  elections,  returns,  and  qualifications 
of  its  own  members.  We  have  heard  a  good  deal  of  talk  about  the  Constitution  makingthree  qualifica- 
tions for  membership  in  either  House;  that  one  must  be  an  inhabitant  of  the  district  from  which  he  is 
elected;  that  he  mtist  be  a  citizen  of  the  United  States,  and  must  be  of  a  certain  age.  That  is  true. 
Those  three  things  must  exist. 

Beyond  that  legislation  is  vain.  Congress  can  add  no  qualifications,  can  take  none  away,  for  one 
Congress  can  not  limit  the  power  of  another  Congress.  The  Constitution  has  done  the  limiting.  But 
that  is  very  far  from  denying  that  under  the  constitutional  power  of  each  House  to  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  members  either  House  may  not  upon  proper  occasion  define 
and  declare  ineligibility  or  disqualification  in  one  who  seeks  to  enter  the  body,  or  who,  having  entered 
it.  is  charged  with  want  of  eligibility  or  qualification.  That  occurs  constantly  in  the  House,  where  elec- 
tions are  contested  for  various  reasons — sometimes  for  invalidity  in  the  election  itself;  sometimes  for 
want  of  qualification  in  the  elected  himself.  But  always  the  question  is  answered  by  the  House  to 
which  it  is  put.  controlled  only  by  the  general  provision  of  the  Constitution  that  makes  it  the  judge. 

Suppose  it  were  true  that  Senator  Smoot  was  a  polygamist?  If  a  polygamist,  he  would  have  no 
other  relation  to  his  seat — he  could  not  be  looked  upon  by  the  Senate  in  any  other  light — than  as  a  law- 
breaker or  as  a  defier  of  law.  So,  continuing  the  use  of  that  expression,  if  Senator  Smoot  were  in  law 
to  be  defined  as  a  lawbreaker,  or  a  defier  of  law,  what  would  be  the  duty  of  the  Senate?  What  would 
he  be?  Would  he  be  merely  the  subject  of  expulsion,  assuming  this  defiance  to  have  continued,  to  have 
commenced  back  of  his  election,  back  of  his  entrance  into  the  Senate,  the  condition  that  exists  now 
being  a  condition  that  antedated  his  entrance  here?  The  acts  that  he  thus  committed,  the  status 
that  he  thus  sustained  toward  law,  would,  according  to  my  \'iew  of  it,  render  him  ineligible  to  become 
a  member  of  the  legislative  body.  I  do  not  think  that  any  man  who  came  marching  down  the  aisle  of 
the  Senate  to  be  sworn  in,  proclaiming  himself  a  lawbreaker,  if  that  were  possible,  would  have  the 
right  to  be  sworn  in,  or,  being  sworn  in,  could  not  be  ejected  by  a  majority  vote.     The  Senate  would 


564  PRECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §  481 

be  the  judge  of  the  qualifications  of  its  members;  and  it  would  say  then,  as  the  House  has  said  in 
more  cases  than  one,  and  which  neither  body  has  ever  declared  that  it  had  not  the  right  to  say,  that  the 
time  to  settle  that  question  was  when  he  thus  presented  himself. 

Senator  Beveridge.  You  asked  for  interruptions  from  members  of  the  committee? 

Mr.  Tayler.  Yes. 

Senator  Beveridge.  Do  I  understand  your  contention  at  this  point  to  be — and  I  imagine  it  is 
very  important — tliat  if  Senator  Smoot  is  not  legally  a  member  of  the  Senate,  then  a  majority  of  the 
Senate  may  determine.  If  he  is  legally  a  member  of  the  Senate,  then  all  questions  affecting  his  expul- 
sion would  require  two-thirds.     Is  that  the  contention? 

Mr.  Tayler.  No,  not  exactly,  Senator.  When  one  is  sworn  in,  no  matter  what  may  be  the  infir- 
mity in  his  title  as  later  developed  by  testimony,  he  has  his  seat.     He  is  a  Senator. 

Senator  Beveridge.  He  is  a  member? 

Mr.  Tayler.  He  is  a  member;  but  the  same  cause  that  would  justify  his  exclusion,  if  all  the  facts 
were  known  and  the  Senate  in  full  knowledge  of  its  power  had  acted  before  he  took  his  seat,  will  suffice 
to  exclude  him  or  declare  his  seat  vacant  by  a  majority  vote  after  he  has  taken  his  seat. 

Senator  Beveridge.  In  other  words,  if  these  facts  had  been  known  at  the  time  and  the  contest 
had  been  raised  before  he  took  the  oath,  it  is  conceded  that  under  such  circumstances  a  majority  would 
have  been  competent  to  act.  Now,  if  those  facts  are  developed  later  on,  do  you  contend  that  although 
he  is  a  member  technically,  nevertheless  a  majority  still  is  competent  to  act? 

Mr.  Tayler.  Undoubtedly.  The  House  does  it  every  session.  Suppose  it  should  appear  to-day 
that  Senator  Smoot  was  not  a  citizen  of  the  United  States,  his  seat  could  be  declared  vacant  by  a  majority 
vote.     Expulsion  would  not  be  the  method. 

Senator  Beveridge.  That  notwithstanding  the  fact  that  he  is  technically  a  member 

Mr.  Tayler.  Actually  a  member. 

Senator  Beveridge.  Let  me  state  my  question. 

Mr.  Tayler.  Yes. 

Senator  Beveridge.  The  two-thirds  rule  does  not  operate.     Is  that  your  contention? 

Mr.  Tayler.  Undoubtedly. 

Senator  Bailey.  Permit  me  to  interrupt  you  here.  The  qualifications  which  the  two  Houses  are 
authorized  to  judge  of  are  the  qualifications  laid  down  in  the  Constitution.  In  other  words,  the  Consti- 
tution provides  that  "no  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  30  years  and 
been  nine  years  a  citizen  of  the  United  States,  and  who  shall  not  when  elected  be  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen."  As  I  have  always  understood  it,  that  provision  fixes  the  qualifi- 
cations of  a  Senator,  and  it  is  not  competent  either  to  add  to  these  qualifications  or  to  subtract  from  them- 
and  that  when  the  two  Houses  are  authorized  to  judge  of  the  elections,  returns,  and  qualifications  of  their 
members,  it  has  reference  to  the  questions  of  age,  citizenship,  and  residence  within  the  State. 

Mr.  Tayler.  No.  If  there  is  any  subject  upon  which  I  have  a  decided  conviction  it  is  on  that — 
that  the  constitutional  provision  does  not  confine  the  inquiry  of  either  House  to  the  question  as  to 
whether  the  member  is  qualified  in  the  three  respects  which  the  Senator  from  Texas  has  suggested. 

Senator  Beveridge.  Then  why  did  the  Constitution  enumerate  those?  If  the  Constitution  leaves 
it  open  for  either  House  to  determine  something  in  addition  to  those,  why  did  it  enumerate  these  at  all? 
MTiy  did  it  not  leave  it  all  open? 

Mr.  Tayler.  That  is  a  long  argument.  But,  for  instance,  the  Constitution  does  have  other  quali- 
fications. Although  it  proceeds  to  set  out  in  the  first  section  that  Representatives  and  Senators  shall 
have  attained  a  certain  age,  and  have  qualifications  with  respect  to  citizenship  and  inhabitance,  yet  the 
Constitution  in  other  places  shows  that  those  three  were  not  intended  to  be  the  only  qualifications 
required.  For  instance,  it  says  that  no  test  oath  shall  be  required.  AMiy  should  the  Constitution  have 
such  a  provision  in  it  if  it  had  already  exhausted  the  subject? 

Senator  Beveridge.  If  the  Constitution  leaves  it  open  with  reference  to  other  qualifications  than 
those  enumerated,  and  which  have  been  read,  why  did  it  not  leave  it  open  with  reference  to  all  the 
qualifications  if  it  meant  that  either  House  might  enlarge  upon  the  qualifications  which  have  just  been 
read? 

Mr.  Tayler.  My  answer  in  the  first  place  is  that  it  did  not  do  that.  It  goes  on  to  siiy  in  another 
part  of  the  Constitution  that  some  other  certain  things  shall  not  be  required  to  qualify  a  person  to  become 
a  member  of  either  Ildu.se. 


! 


§   481  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  565 

Senator  Beveridgb.  Adding  those  things  specifically  enumerated  elsewhere  in  the  Constitution 
to  these,  the  question  still  is,  Why,  if  the  Constitution  enumerates  some  things  and  meant  to  leave  other 
things  open  to  the  sense  of  the  Senate,  it  should  have  enumerated  any? 

Mr.  Tayler.  I  think  I  have  answered  it  by  saying 

Senator  Beveridge.  All  right. 

Mr.  Tayler.  It  proceeds  to  enumerate  the  three  different  qualifications  upon  which  it  is  said  we 
ought  to  base  our  argument,  and  we  find  that  twice  thereafter,  once  with  respect  to  holding  other  offices 
and  once  with  respect  to  taking  an  oath,  it  did  not  do  so.  I  do  not  think  the  Constitution  is  to  be 
construed  as  though  men  wanted  the  Senate  of  the  United  States  or  the  House  to  be  bound  in  some 
Procrustean  bed  that  would  not  permit  it  to  live.  Is  it  not  an  institutional  question  that  the  body 
should  have  some  control  over  the  subject  of  its  membership? 

Senator  Beveridge.  It  may  be. 

Mr.  Tayler.  Suppose  that  a  maniac  walked  down  the  aisle  to  be  sworn  in.  Suppose  he  was  there. 
Suppose  it  was  not  a  case  of  expulsion  at  all.  Suppose  that  he  was  a  traitor,  known  to  be  a  traitor,  with 
respect  to  whom  it  had  been  determined  within  the  constitutional  method  that  he  was  guilty  of  treason. 
Is  it  to  be  said  that,  although  he  possessed  every  constitutional  qualification,  nevertheless  he  is  not 
disqualified  to  be  a  member  of  the  Senate? 

Senator  Bailey.  You  do  not  mean  to  say  that  the  Senate  could  not  protect  itself  in  a  case  of  that 
kind  without  raising  the  question  of  qualification,  as  we  understand  it  in  the  Constitution? 

Mr.  Tayler.  I  do  not  know  how  it  could. 

Senator  B.\iley.  It  could  expel  him  provided  it  could  obtain  the  two-thirds. 

Mr.  Tayler.  Of  course  it  could.  But  why  should  it  require  two-thirds  of  the  Senate  to  keep  out 
a  maniac  or  a  traitor? 

Senator  Bailey.  And  it  could  expel  him  as  being  unfit  for  or  incapable  of  performing  the  duties 
of  his  office.  But  I  will  ask  you  this  question:  Do  you  think  that  Congi-ess  could  provide  that  hereafter 
no  person  shall  be  chosen  a  Senator  who  had  ever  been  convicted  or  who  had  ever  been  accused  of  any 
crime? 

Mr.  Taylee.  No.     Congress  is  absolutely  without  power 

Senator  Bailey.  It,  then,  could  not  by  statute  add  to  those  qualifications? 

Mr.  Tayler.  Not  at  all. 

Senator  Bailey.  But  it  can  by  a  vote 

Mr.  Tayler.  Of  course  not  Congress,  if  the  Senator  please,  but  the  House  into  which  the  Member 
comes;  each  House,  but  not  Congress. 

Senator  Bailey.  You  think  it  would  be  competent  for  one  House  to  establish  with  respect  to  its 
Members  a  rule  of  exclusion  that  the  two  Houses  could  not  establish  by  law? 

Mr.  Tayler.  Undoubtedly,  because  when  the  Senate,  for  instance,  establishes  a  qualification 
for  its  Members  it  establishes  it  for  that  Congress  alone — that  is  to  say,  for  that  session,  for  that  Senate. 

Senator  Bailey.  Is  it  not  compelled  to  establish  those  qualifications  under  the  constitutional 
provision  under  the  protection  of  which  every  man  comes  to  the  House  or  the  Senate? 

Mr.  Tayler.  Undoubtedly. 

Senator  Beveridge.  Narrowing  the  question  from  Congress  to  either  House,  it  is  competent  for 
the  Senate  to  make  rules,  which  it  does  respecting  many  things.  It  is  competent  for  the  Senate  to  pass 
a  rule  for  its  own  government  and  guidance  that  no  man  who  has  ever  been  accused  of  any  crime  shall  be 
permitted  to  take  the  oath? 

Mr.  Tayler.  The  Senate  whose  term  expires  on  the  4th  of  March  has  no  more  power  to  control  the 
action  of  the  Senate  that  begins  on  the  4th  of  March  than  I  have — not  a  particle  more. 

Senator  Beveridge.  The  Senate  is  a  continuing  body. 

Mr.  Tayler.  I  understand  it  is  a  continuing  body. 

Senator  Beveridge.  Is  it  not  like  the  House. 

Mr.  Tayler.  But  the  next  Senate  can  undo  that. 

Senator  Beveridge.  There  is  no  next  Senate.     The  Senate  is  a  continuing  body. 

Mr.  Tayler.  I  understand  that. 

Senator  Beveridge.  To  narrow  the  question  put  to  you,  do  you  think  it  is  competent  for  the 
Senate  to  establish  such  a  rule,  and  that  it  would  be  effective  while  it  lasts? 

Mr.  T.AYLER.  Undoubtedly,  because  when  that  rule  was  not  overthrown  by  the  succeeding  Senate 


566  PRECEDENTS    OF    THE   HOUSE    OF   REPRESENTATIVES.  §   481 

it  would  continue  by  implication  to  be  its  rule.  But  the  Senate  can  not  make  a  rule  to-day  which  it 
can  not  undo  to-morrow.  It  can  not  make  a  rule  now  which  it  can  not  undo  at  1  'clock  on  the  4th  of 
March.  It  is  not  law.  Of  course  the  two  Houses  can  not  pass  laws  laying  qualifications,  because  the 
two  Houses  have  no  power  at  all  over  the  constitution  of  the  membership  of  succeeding  Congresses 
except  as  to  the  number.     But  each  House  is  in  control  of  the  subject  of  its  own  MembeJs. 

Senator  Pettus.  Mr.  Chairman,  I  most  respectfully  ask  that  this  argument  may  be  allowed  to  be 
made  by  counsel.  We  can  get  no  benefit  if  it  is  to  be  a  debate  between  the  members  of  the  committee 
and  the  counsel  on  the  floor.  There  are  places  where  counsel  are  not  allowed  to  make  their  arguments 
to  the  court,  but  must  make  it  with  the  court.  Whenever  counsel  gets  in  that  fix  he  is  in  a  bad 
situation. 

Senator  Bailey.  It  may  be  that  some  members  of  the  committee  are  entirely  satisfied  without 
having  their  minds  enlightened.     I  do  not  happen  to  be  one  of  that  kind. 

I  really  am  trying  to  ascertain  just  how  far  we  can  go,  and  my  opinion  was  not  that  of  the  counsel, 
and  I  thought  if  the  counsel  could  convince  me  that  on  the  question  of  qualifications  we  could  proceed 
outside  of  the  Constitution  it  might  make  a  difference  in  my  opinion. 

But  I  will  conform  to  the  wishes  of  my  senior,  with  this  statement,  that  when  counsel  replied  to 
me  that  the  Constitution  treated  these  as  not  the  only  qualifications  and  then  provided  that  no  test 
oath  should  ever  be  required,  Mr.  Tayler  will,  of  course,  recognize  that  that  did  not  apply  merely  to 
Members  or  Senators.  It  applied  to  everybody,  and  therefore  could  not  have  been  incorporated  in 
the  provision  with  respect  to  Senators.     It  declares,  toward  the  end  of  the  Constitution,  that — 

"The  Senators  and  Representatives  before  mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both  of  the  United  States  and  of  the  several  States, 
shall  be  bound  by  oath  or  affirmation  to  support  this  Constitution,  but  no  religious  test  shall  ever  be 
required  as  a  qualification  to  any  office  or  public  trust  under  the  United  States." 

It  looks  like  that  did  not  exactly  make  a  qualification,  but  excluded  a  disqualification. 

The  Chairman.  The  Chair  will  state  that  Mr.  Tayler  at  the  outset- — possibly  the  Senator  from 
Alabama  was  not  then  here — invited  interruptions  upon  any  point  where  members  of  the  committee 
might  desire  further  explanation,  and  the  Chair  thinks  interrruptions  were  entirely  in  order.  Of  course, 
if  they  were  continued,  they  might  consume  the  entire  hour.  But  with  that  the  committee  has  nothing 
to  do;  and  it  certainly  will  serve  to  enlighten  the  committee  upon  these  points  about  which  there  may 
be  an  honest  difference  of  opinion. 

Senator  Beveridge.  I  should  like  to  state,  if  I  may,  before  Mr.  Tayler  proceeds,  that  Mr.  Tayler 
asked  the  members  of  the  committee  specifically  to  ask  any  questions,  and  said  he  did  so  because  he 
thought  it  would  tend  to  clarify  the  case  and  save  time.  I  think,  so  far  as  I  am  concerned,  I  shall  have 
no  other  questions  to  ask  Mr.  Tayler. 

Mr.  Tayler.  Of  course  it  has  given  me  pleasure  to  be  interrupted.  There  is  no  subject  that  I 
should  like  to  talk  on  more  than  the  one  about  which  I  have  just  been  inquired  of,  because  there  is  not 
any  subject  on  which  I  have  talked  as  much  as  I  have  on  it. 

Senator  Bailey.  I  remember  that  question  was  up  when  we  were  both  Members  of  the  House. 

Mr.  Tayler.  Yes,  sir. 

Senator  Bailey.  I  did  not  agree  with  you  then. 

Mr.  Tayler.  I  recall  the  fact. 

Senator  Bailey.  And  I  voted  the  other  way. 

Mr.  Tayler.  I  was  not  surprised  at  the  question  of  the  Senator  from  Texas,  for  I  knew  that  he 
did  not  agree  with  me  at  that  time. 

I  may,  perhaps,  ask  the  indulgence  of  the  committee,  in  view  of  these  questions,  that  I  may,  in 
my  argument  as  printed,  elaborate  this  question  by  making  some  extracts  from  a  very  full  discussion 
of  it  which  is  in  the  argument  that  I  made  in  the  Roberts  case.  Perhaps,  historically,  it  would  be  better 
that  it  be  inserted. 

Senator  Foraker.  I  wish  to  make  a  remark  at  this  point,  not  to  interrupt  you  or  unduly  take  the 
time  of  the  committee.  I  understand  your  proposition  to  be  that,  notwithstanding  the  grounds  of  dis- 
qualification enumerated  in  the  Constitution,  if  when  a  Member  has  been  elected  and  presents  himself 
to  be  sworn  in  it  be  manifest  that  he  is  a  maniac  or  a  lunatic,  he  may  be,  on  that  ground,  excluded? 

Mr.  Tayler.  Yes. 

Senator  Foraker.  For  want  of  qualification? 


§481 


POLYGAMY   AND   OTHER   CRIMES   AS    DISQUALIFICATIONS.  567 


Mr.  Tatler.  For  want  of  qualification  or  for  a  crime.  My  argument  in  the  Eoberts  case  cites  a 
large  number  of  constitutional  authorities  on  that  proposition. 

Senator  Knox.  In  order  to  get  your  view  absolutely  I  think  there  should  be  added  to  the  question 
of  Senator  Foraker  this:  By  what  vote  may  he  be  excluded? 

Mr.  Tayxer.  By  a  majority  vote. 

Senator  Beveridge.  That  is,  in  the  case  you  have  stated,  when  he  presents  himself? 

Mr.  Tayler.  Yes. 

Senator  Beveridge.  Suppose  later  on  it  should  develop  that  he  is  a  lunatic? 

Mr.  Tati,er.  Of  course,  if  we  consider  that  for  a  moment  the  logical  and  inevitable  conclusion 
from  it  is  that  that  which  may  be  done  before  one  enters  may  be  done  after  he  comes  in.  That  which 
justifies  exclusion  before  getting  rid  of  him  afterwards. 

Senator  Beveridge.  By  the  same  method? 

Mr.  Tayi-er.  By  the  same  vote;  by  the  same  method. 

Senator  Beveridge.  My  mind  does  not  follow  that. 

Mr.  Tayler.  Just  as  is  done  in  the  House. 

Senator  Foraker.  That  is,  his  position  would  not  be  bettered  any,  your  contention  is,  by  having 
been  given  his  seat? 

Mr.  Tay-ler.  Not  at  all.  The  question  of  right  in  him  and  of  power  in  the  Senate  is  precisely 
the  same  in  either  case.  Of  course  if  the  thing  complained  of  occurred  after  taking  his  seat,  then  it 
would  not  be  a  case  of  exclusion,  but  of  expulsion. 

Another  observation  on  that  which  I  leave  with  the  committee  to  work  out  in  its  own  way  is  that 
which  was  made  by  Jeremiah  Wilson,  who  was  the  counsel  of  the  Mormon  Church  and  appeared  for  it 
in  many  of  its  cases.  He  made  an  especially  full  and  able  argument  in  one  of  the  applications  made  by 
Utah  for  admission.  This  pamphlet  is  entitled  "Admission  of  the  State  of  Utah,  1889,"  and  in  con- 
nection with  the  hearing  a  large  number  of  people  bore  testimony  or  made  arguments,  and  among  those 
who  made  arguments  was  Jeremiah  M.  Wilson.  The  subject  of  obedience  to  the  constitutional  provision 
that  was  to  go  in  was  up.     This  is  not  exactly  that,  but  it  is  analogous  to  it.     He  then  said 

The  Chairman.  May  I  call  your  attention  to  the  case  of  Philip  F.  Thomas? 

Mr.  Tayt,er.  I  have  it  here. 

The  Chairman.  It  is  found  on  page  133  of  the  Compilation  of  Senate  Cases.  There  a  party  was 
excluded  because  his  son  had  taken  up  arms  against  the  Government  of  the  United  States,  and  the  party 
seeking  admission  to  the  Senate  had  contributed  $100  in  support  of  his  son  and  in  encouragement  of  his 
entering  the  rebellion.     The  Senate  refused  to  admit  him.     You  will  come  to  that  later? 

Mr.  Tayler.  I  will  refer  to  it  right  now.  Philip  Thomas  had  been  elected  to  the  Senate  from 
Maryland,  and  there  was  a  very  elaborate  debate  in  March,  1867.  The  charge  made  against  him  was 
that  he  was  disloyal,  and  therefore  incapable  of  taking  the  test  oath  which  had  been  provided  in  the  act 
of  July,  1862.  A  resolution  was  then  adopted  and  under  the  provisions  of  it  he  was  excluded  from  the 
Senate  because  he  had  voluntarily  given  aid,  countenance,  and  encouragement  to  persons  engaged  in 
rebellion.  The  vote  on  the  question  of  his  exclusion  was  27  to  20.  Among  those  voting  in  the  negative 
was  Lyman  Trumbull,  but  he  voted  in  the  negative  because  he  thought  the  proof  of  disloyalty  was 
unsatisfactory. 

The  Chairman.  The  evidence  in  the  cause  of  Thomas  was  that  his  son  had  entered  the  Confederate 
service,  and  his  father  had  contributed  §100. 

Mr.  Tayler.  I  do  not  attach  so  much  importance  to  those  cases  growing  out  of  the  war  as  I  do  to 
hose  which  came  under  circumstances  when  passion  was  less  effective  in  dispelling  reason. 

Senator  Foraker.  In  the  Thomas  case  he  was  denied  his  seat. 

Mr.  Tayler.  Yes;  he  was  denied  his  seat. 

Senator  Foraker.  He  was  not  allowed  to  take  his  seat? 

Mr.  T.^YLER.  He  was  not  allowed  to  take  his  seat. 

Senator  Beveridge.  He  was  not  expelled.     He  did  not  become  a  Member. 

Mr.  Tayler.  My  contention  is  that  the  Senate  does  not  lose  its  rights  because  a  man  happens  to 
get  in  whom  it  might  have  excluded  for  conditions  existing  prior  to  that  time.  If  ineligibility  or  other 
cause  that  justified  his  exclusion  existed,  the  same  method  and  the  reason  would  apply  after  he  got  in. 

The  Chairman.  There  was  no  question  in  the  Thomas  case  that  he  was  of  a  proper  age,  a  citizen  of 
the  United  States,  and  a  resident  of  the  State.     He  had  all  the  enumerated  constitutional  qualifications. 


568  PRECEDENTS   OF    THE    HOUSE    OF   REPBESEKTATIVES.  §   481 

Mr.  Waldemar  Van  Cott,  arguing  for  Mr.  Smoot,  discussed  this  subject : 

The  contention  has  no  merit  that  Senator  Smoot  is  subject  to  be  expelled  by  a  majority  vote. 

The  Federal  Constitution,  Article  I,  section  4,  provides  ''Each  House  may  *  *  *  with  the 
concurrence  of  two-thirds,  expel  a  Member." 

To  give  proper  meaning  to  the  above  provision,  it  is  l)est  to  inquire  as  to  the  motive  tliat  induced 
the  constitutional  fathers  to  insert  this  clause.  In  tliose  early  times  tliere  was  considerable  jealousy 
among  the  different  States — that  one  State  should  not  gain  an  advantage  over  another  in  the  matter  of 
representation;  in  other  words,  each  State  wished  to  protect  its  rights  in  the  National  Government, 
and  to  accomplish  that  end  insisted  upon  a  two-thirds  vote  to  expel.  If  the  provision  had  been  that 
a  majority  might  expel,  then  the  States  might  the  more  easily  be  deprived  of  their  representation,  as 
combinations,  corrupt  or  otherwise,  could  be  formed  to  expel  a.  member.  A  majority  vote  might  lie 
successful,  while  a  two-thirds  vote  would  probably  be  unsuccessful.  Therefore,  it  is  reasonable  to 
assume  that  the  two-thirds  rule  was  inserted  in  the  Constitution  so  as  to  guard  the  more  carefully  each 
State's  representation.  This  idea  has  been  expressed  by  the  Supreme  Court  of  the  United  States.  In 
6  Wheaton,  233,  Anderson  v.  Dunn,  it  is  said: 

"The  truth  is  that  the  exercise  of  the  powers  given  over  their  own  Members  was  of  such  a  delicate 
nature  that  a  constitutional  provision  became  necessary  to  assert  or  communicate  it.  Constituted  as 
that  body  is,  of  the  delegates  of  confederated  States,  some  such  provision  was  necessary  to  guard  against 
their  mutual  jealousy,  since  every  proceeding  against  a  Representative  would  indirectly  affect  the  honor 
or  interests  of  the  State  which  sent  him." 

From  the  above  quotation  it  is  apparent  that  the  States  were  jealously  guarding  their  lienor  and 
interests  by  providing  tliat  their  Representative  should  not  be  expelled  without  the  concurrence  of 
two-thirds  of  the  Members  of  the  House  in  which  he  was  sitting. 

In  1  Story  on  the  Constitution,  section  837,  in  speaking  of  the  power  to  expel,  it  is  said: 

"But  such  a  power,  so  summary,  and  at  the  same  time  so  subversive  of  the  rights  of  the  people, 
it  was  foreseen  might  be  exerted  for  mere  purposes  of  faction  or  party  to  remove  a  patriot  or  to  aid  a  cor- 
rupt measure;  and  it  has  therefore  been  wisely  guarded  by  the  restriction  that  there  shall  be  a  concur- 
rence of  two-thirds  of  the  Members  to  justify  an  expulsion." 

This  subject  is  very  fully  discussed  in  1  Story  on  the  Constitution,  sections  837  and  8.38.  They 
are  too  long,  however,  to  quote  in  full. 

Justice  Story  refers  with  approval  to  the  case  of  John  Smith,  Senator  from  Ohio,  decided  in  the 
United  States  Senate.  This  case  will  be  found  in  the  compilation  of  Senate  election  cases,  from  1789 
to  1885,  page  934.  This  case  is  exactly  in  point.  John  Smith  was  elected  Senator  from  Ohio  from 
October  25,  1803,  until  he  resigned,  April  25,  1808.  In  the  statement  it  appears  that  certain  bills  of 
indictment  were  found  in  connection  with  the  Aaron  Burr  conspiracy  in  the  August  before  John  Smith 
took  his  seat  in  the  Senate,  the  latter  date  being  October  25,  1803.  The  case  is  very  lengthy.  There  was 
a  long  debate  on  the  resolution  to  expel.  Nineteen  voted  to  expel  and  ten  not  to  expel,  and  the  syllabus 
of  the  case  says:  "*  *  *  so  that,  two-thirds  of  the  Senate  not  concurring  therein,  he  was  not  expelled." 
It  will  be  observed  that  if  a  majority  had  been  sufficient,  John  Smith  would  have  been  expelled.  This 
case  was  decided  in  the  Tenth  Congress,  first  session,  in  1808. 

Keeping  carefully  in  mind  the  reason  for  the  constitutional  provision,  it  is  apparent  that  it  is  just 
as  logical  to  require  a  two-thirds  vote  to  expel  a  member  for  a  crime  that  was  committed  before  taking 
his  seat  as  there  is  for  a  crime  committed  after  taking  the  seat. 

Suppose  A  commits  an  offense  against  the  laws  of  the  United  States  after  his  election  to  the  United 
States  Senate.  In  such  case  Mr.  Tayler  concedes  that  it  would  take  a  two-thirds  vote  to  expel.  Sup- 
pose, on  the  other  hand,  the  same  Member  had  committed  the  same  offense  before  taking  his  seat.  In 
that  case  Mr.  Tayler  argues  that  such  Senator  might  be  expelled  by  a  majority  vote,  because  the  objec- 
tion existed  at  the  time  of  taking  the  seat.  The  only  difference  in  the  two  cases  is  time;  there  is  no 
difference  in  reason. 

There  is  a  substantive  difference  between  a  constitutional  ineligibility  on  the  part  of  a  man  to  be 
a  United  States  Senator  and  a  mere  personal  objection,  and  the  two  principles  should  be  kept  distinct 
in  the  mind.  Suppose  A  is  elected  to  the  United  States  Senate  and  is  not  a  citizen  of  the  United  States. 
In  that  case  there  is  a  constitutional  ineligibility.  Such  person  may  take  the  Senatorial  oath  and  take 
his  seat,  yet  it  is  evident  that  such  person,  while  he  may  be  for  the  time  a  Senator  de  facto,  he  is  not 


§  481  POLYGAMY    AND    OTHER    CRIMES    AS    DISQUALIFICATIONS.  569 

a  Senator  de  jure,  because  he  has  not  the  necessary  requirements.  In  such  case  it  appears  entirely 
reasonable  that  a  majority  vote  could  oust  him. 

But  suppose  A  is  constitutionally  eligible  to  be  elected  a  United  States  Senator,  and  is  so  elected. 
Further,  suppose  that  A  at  the  time  of  the  election  has  such  personally  offensive  habits  as  to  be  intoler- 
able to  decent  men.  Nevertheless,  suppose  A  presents  himself  to  the  United  States  Senate  and  takes 
the  oath  and  enters  upon  the  performance  of  his  Senatorial  duties,  and  then  these  intolerably  offensive 
habits  are  discovered.  In  the  latter  case  the  objection  to  A  existed  at  the  time  of  his  election.  Who, 
except  Mr.  Tayler,  would  contend  in  such  case  that  A  could  be  expelled  by  a  majority  vote?  The  con- 
stitutional reason  that  a  two-thirds  vote  shall  be  required  to  expel  a  member  applies  with  full  force  in 
such  case;  in  the  latter  instance  the  Senators  may  waive  or  not  the  objection  to  the  personal  habits 
of  A.  Under  the  Constitution,  however,  they  would  not  have  the  power  to  waive  A's  constitutional 
ineligibility,  as  this  in  effect  would  override  the  Constitution. 

Senator  Smoot  was  constitutionally  eligible  to  be  a  United  States  Senator  at  the  time  of  his  election. 
WTien  he  took  the  oath  of  office  and  entered  upon  the  performance  of  his  official  duties  he  was  still  eligible 
under  the  Constitution.  In  argument,  however,  and  objection  is  made  to  Senator  Smoot  for  one  alleged 
reason.  Even  if  it  were  established  as  true,  the  United  States  Senate  has  the  power  to  ignore  it,  and  to 
allow  Senator  Smoot  to  retain  his  seat.  The  United  states  Senate  may  do  this  because  it  has  the  power 
to  pass  on  the  qualifications  of  its  own  members;  but  if  Senator  Smoot  were  not  a  citizen  of  the  United 
States  the  Senate  would  not  have  the  power  to  waive  that  requirement,  and  could  not  waive  it,  unless 
it  should  arbitrarily  override  the  express  provision  of  the  Constitution. 

Mr.  A.  S.  Worthington,  also  arguing  for  Mr.  Smoot,  said: 

I  would  like  to  say,  as  preliminary  to  the  argument  in  this  case,  that  I  have  been  greatly  impressed 
with  the  contrast  between  the  proceedings  in  the  case  when  an  officer  of  the  Government  is  to  be  im- 
peached by  the  Senate,  or  before  the  Senate,  even  though  he  may  be  an  officer  so  comparatively  unim- 
portant as  a  district  judge  of  the  United  States,  and  the  proceedings  which  are  provided  in  case  one 
who  is  a  member  of  the  highest  legislative  body  of  this  great  nation  is  called  to  an  account.  When 
a  district  judge  is  impeached  there  is  a  carefully  prepared  indictment,  setting  forth  exactly  what  he  is 
to  meet,  and  that  he  is  called  to  respond  in  the  Senate  of  the  United  States,  with  his  counsel,  and  there 
the  witnesses  are  heard  before  the  assembled  Senate,  the  presiding  officer,  as  he  did  the  other  day, 
carefully  reminding  Senators  that  it  is  very  important  that  they  should  all  be  present  and  hear  the 
testimony  and  see  the  witnesses.  And  I  see  that  you  have  carefully  provided  rules  for  the  conduct 
of  such  an  investigation  as  that,  and  have  provided  that  counsel  may  be  there  to  make  objections,  and 
that  if  any  Senator  wishes  to  ask  a  question  he  shall  reduce  it  to  writing  and  it  shall  be  handed  to  the 
presiding  officer  and  asked  by  him;  and  that  if  any  objection  is  made  to  testimony,  while  the  presiding 
officer  shall  rule  upon  it  in  the  first  place,  it  may,  upon  his  motion,  or  upon  the  request  of  any  Senator, 
be  submitted  to  the  entire  Senate. 

Yet,  in  the  case  in  which  a  Senator  is  to  be  visited,  if  he  be  found  guilty,  with  punishment  like 
that  which  shall  be  inflicted  upon  the  judge,  of  being  turned  out  of  his  office,  we  find  that  we  are  here, 
as  we  found,  and  as  Senators  have  found  during  the  progress  of  this  case,  compelled  to  scramble  through 
a  record  of  nearly  three  thousand  printed  pages  to  find  out  what  the  issues  are  which  we  are  trying, 
and  that,  in  all  probability,  if  every  member  of  the  committee  should  be  asked  the  question,  no  two 
of  them  would  agree  as  to  precisely  what  the  issues  are.  And  we  find  that,  while  the  testimony  has  been 
taken  and  reduced  to  print,  the  great  mass  of  it  has  been  heard  by  very  few  Senators,  and  that  even 
on  one  occasion  there  was  but  one  Senator  present,  the  distinguished  chairman  of  this  committee,  and 
when  he  was  called  out  of  the  room  for  a  moment,  he  intimated  that  we  might  go  on  in  his  absence; 
which  we  did  not  do. 

I  make  this  suggestion  in  no  spirit  of  complaint  or  fault-finding,  but  as  Ijringing  to  the  attention 
of  the  committee,  and  I  might  hope  of  the  Senate,  a  question  of  importance,  not  only  in  the  determina- 
tion of  this  case,  but  of  all  like  cases  hereafter,  because  Senator  Smoot  is  to  be  tried  and  his  case  decided 
by  a  tribunal  not  one-tenth  of  which  has  seen  any  of  his  witnesses  or  heard  any  of  them  testify.  We 
all  know  how  exceedingly  important  it  is,  in  determining  what  weight  shall  be  attributed  to  the  testi- 
mony of  a  witness,  to  see  him  and  to  hear  him.  I  have  in  mind  some  witnesses  in  this  case  whose  testi- 
mony reads  as  though  it  might  be  credible,  when  I  do  not  beUeve  any  Senator  who  heard  the  witnesses 
would  believe  them  for  a  single  moment. 


570  PRECEDENTS   OF   THE    HOUSE   OF   KEPKESENTATIVES.  §  481 

The  slightest  examination  of  the  record  will  also  show  that,  unlike,  I  should  suppose,  the  proceed- 
ings in  the  impeachment  of  a  judge  or  other  officer  of  the  United  States,  we  are  practically  without 
rules  of  evidence,  because,  as  was  stated  several  times  in  the  progress  of  the  case,  this  is  not  a  trial  at 
aU,  but  an  investigation,  and  the  committee  has  the  right  to  inquire  for  hearsay  evidence,  because  A 
may  tell  that  B  told  him  something,  and  B  may  say  that  he  got  it  from  C,  and  so  we  may  lead  to  the 
original  evidence.  When  my  associate  undertook  to  argue  that  in  that  way  the  record  would  be  filled 
with  matter  which  might  come  before  members  of  the  Senate  who  are  not  lawyers  and  who  would  not 
be  able  to  distinguish  between  legal  and  illegal  evidence,  we  were  told  that  that  was  a  matter  which 
had  become  so  well  settled  in  the  practice  of  the  Senate  that  we  would  not  be  allowed  to  further  argue  it. 

So  that  we  are  here  before  a  great  tribunal  in  which  a  defendant  is  called  upon  to  respond  to  charges 
BO  serious  that  they  may  evict  him  from  the  Senate  of  the  United  States — and  no  greater  punishment 
could  be  inflicted  upon  an  honorable  man,  a  man  with  any  sense  of  the  proprieties  or  honors  of  life — 
and  his  counsel  are  called  upon  to  argue  the  case  for  him,  upon  a  record  which  contains  evidence  nine- 
tenths  of  which  we  believe  is  not  competent  and  may  not  be  considered,  and  yet  we  do  not  know  what 
may  be  in  the  minds  of  even  members  of  the  committee  on  that  subject,  much  less  in  the  minds  of  other 
Members  of  the  Senate  who  probably  have  not  yet  considered  it. 

Under  all  these  difficulties  I  proceed  to  consider  the  questions  which  seem  to  arise  in  the  case, 
guessing  as  to  some  of  them  and  having  probable  ground  as  to  the  others. 

Now,  in  the  first  place,  and  at  the  forefront  of  this  case,  there  lies  a  question,  which  even  if  I  had 
had  the  time  to  prepare  for  it,  I  should  doubt  my  ability  to  properly  present  it  to  such  a  tribunal  as  this, 
and  I  am  going  to  say  very  little  about  it  in  this  argument,  and  that  is  the  question  which  arises  as  to 
the  grounds  upon  which  Senator  Smoot  may  be  expelled  from  the  Senate  at  this  time,  he  having  been 
duly  admitted  to  office,  and  having  been  sworn  in  and  taken  his  seat,  and  as  to  the  grounds  in  any  case, 
whether  they  be  made  as  an  objection  before  a  Senator  is  sworn  or  after  he  is  admitted,  upon  which 
the  Senate  would  proceed. 

Of  course  it  has  the  power  to  proceed  upon  any  ground,  but  we  all  assume,  as  has  been  done  here 
so  far  in  this  discussion,  and  everybody  will  assume  that  the  committee  and  the  Senate  will  act  judicially 
in  the  matter,  and  not  arbitrarily. 

The  whole  learning  on  this  subject,  so  far  as  I  have  been  able  to  ascertain,  is  gathered  up  in  two 
places.  One  is  where  my  friend,  Mr.  Tayler,  as  the  chairman  of  a  special  committee  of  the  House  of 
Representatives,  investigated  the  question  of  the  right  of  Brigham  H.  Roberts  to  a  seat  in  the  House 
of  Representatives,  where  there  was  a  majority  report  and  a  minority  report  on  the  questions  that  were 
involved  there.     With  that  you  are  all  familiar. 

There  is  another  case  with  which  Senators  may  not  be  so  familiar,  because  it  has  not  found  its 
way  into  the  compilation  which  I  have  seen,  and  that  is  the  case  of  Roach. 

Roach  was  at  one  time  the  cashier  of  the  Citizens'  Bank  of  this  city,  and  it  was  charged,  and  appa- 
rently never  denied,  that  he  had  embezzled,  while  cashier,  about  $30,000  of  the  bank's  money.  His 
friends  or  relatives  settled  with  the  bank  and  he  was  never  prosecuted.  He  went  to  North  Dakota, 
and  after  a  while  he  came  back  as  a  Senator  from  that  State  and  was  admitted  and  took  his  seat  without 
objection.  Afterwards,  in  some  way,  the  question  was  raised  tliat  he  should  not  be  entitled  to  his  seat, 
and  great  discussion  took  place  then  as  to  whether  it  was  a  case  in  which  the  Senate  had  any  power  to 
act  at  all,  because  it  was  a  crime  that  lie  had  committed  before  his  election. 

That  matter  was  discussed  by  the  leading  lawyers  of  the  Senate  on  both  sides,  and  all  the  author- 
ities were  gone  over  there,  with  the  result  that  a  resolution  to  refer  the  matter  to  the  Committee  on 
Privileges  and  Elections  was  never  passed  upon  at  all,  and  he  served  out  his  term.  (Vol.  25,  pt.  1, 
Cong.  Rec,  53d  Cong.,  special  sess.,  pp.  37,  111,  137  to  162.) 

I  would  also  like  to  refer  for  just  one  moment  to  the  celebrated  case  in  England  of  John  Wilkes. 

Many  years  ago  Wilkes,  while  a  member  of  the  House  of  Commons,  libeled  the  King  and  was 
expelled  from  the  House  of  Commons  for  that  offense.  His  constituency  immediately  reelected  him, 
and  the  House  refused  to  receive  him  on  the  ground  that  a  man  who  had  been  expelled  was  not  a  fit 
man  to  sit  there.  His  constituency  sent  him  back  once  more,  and  again  the  House  refused  to  receive 
him;  he  was  again  sent  back,  and  again  the  House  refused  to  receive  him.  So  it  went  on,  as  I  remember, 
for  about  fourteen  years,  when  at  last  the  House  came  to  the  conclusion  that  his  constituency  had  a 
right  to  be  represented  in  the  body,  and  he  was  admitted  to  his  seat.     Thereupon  annually  for  several 


§  482  POLYGAMY    AND    OXHEB    CB1ME3    AS    DISQUALIFICATIONS.  571 

years  afterwards  he  moved  that  all  the  previous  resolutions  of  the  House  to  the  effect  that  he  was  not 
entitled  to  have  a  seat  therein  should  be  expunged.  Finally  that  motion  was  carried;  and  the  clerk 
of  the  House,  on  its  table  and  in  the  presence  of  the  assembled  House  of  Commons,  expunged  all  the 
previous  resolutions  to  the  effect  that  a  member  who  represented  his  constituency  could  be  expelled 
from  his  scat  because  the  House  at  some  prior  time  had  adju'dicated  him  to  be  unfit  for  his  seat.  As 
the  resolution  of  expulsion  expressly  stated,  this  was  done,  not  because  the  orders  of  the  House  which 
were  obliterated  were  in  derogation  of  the  rights  of  Wilkes  himself,  but  because  they  were  "subversive 
of  the  rights  of  the  whole  body  of  electors"  of  England.     (Paine  on  Elections,  872-878.) 

And  I  ask  this  committee  to  remember  that  you  have  here  not  merely  the  question  of  whether 
Reed  Smoot  shall  be  entitled  to  retain  his  seat,  but  as  to  the  right  which  a  sovereign  State — Utah — • 
has  in  the  selection  of  persons  to  represent  it  here,  and  whether  it  may  be  said  that  for  causes  which 
lie  back  of  his  election  and  which  were  known  to  his  constituents,  he  shall  be  expelled. 

If  Mr.  Tayler's  present  contention  on  this  point  should,  be  sustained  it  would  come  in  the  end  to 
this,  that  instead  of  the  States  of  this  Union  having  the  right  to  select  the  men  to  represent  them  in 
the  United  States  Senate  they  would  have  the  right  merely  to  nominate  candidates  for  the  office,  who 
would  be  admitted  only  after  obtaining  the  advice  and  consent  of  those  who  were  already  here. 

There  is  one  case,  too,  in  this  country  to  which  I  wish  particularly  to  direct  the  attention  of  the 
committee.  That  is  the  case  of  George  Q.  Cannon,  a  polygamist,  who,  while  a  polygamist  and  living 
in  polygamy,  was  sent  to  the  House  of  Representatives  as  the  Delegate  of  the  Territory  in  the  House, 
and  attention  being  called  to  the  fact  that  he  was  a  polygamist,  it  was  undertaken  to  expel  him  on  that 
ground.  The  House,  by  a  very  large  majority,  a  very  few  Members  voting  to  the  contrary,  decided 
that  notwithstanding  he  was  a  polygamist  and  was  living  in  polygamy,  the  fact  that  he  had  been  admitted 
to  a  seat  and  was  sitting- there  precluded  the  House  from  taking  any  action  in  reference  to  expelling 
him.  That  is  all  set  forth  with  great  strength  and  with  approval  by  Mr.  Tayler  in  the  Roberts  case, 
as  affording  an  instance  of  the  danger  of  letting  Roberts  take  his  seat,  because  then  there  could  not  be 
taken  into  consideration  anything  that  ha;d  happened  before  his  election,  and  it  would  require  a  two- 
thirds  vote  to  expel  him  instead  of  a  vote  of  the  majority  only. 

Mr.  Tayler  has  suggested  and  argued  here*  that  a  majority  vote  only  could  be  required  on  the 
ground  that  the  question  is  as  to  the  qualifications" of  Senator  Smoot,  and  that  you  can  take  into  con- 
sideration other  qualifications  than  those  fixed  by  the  Constitution  itself.  But  when  he  came  to  his 
argument,  he  urged  that  you  should  not  allow  Reed  Smoot  to  take  his  seat  because  of  things  that  have 
happened  since  he  took  his  seat — not  since  the  election  merely,  but  since  he  took  his  seat,  aye,  since 
this  inquiry  began;  and  perhaps  the  part  of  his  argument  upon  which  he  laid  the  most  force  and  strength 
was  that  since  this  investigation  began,  and  since  Senator  Smoot  learned  certain  things  from  the  testi- 
mony of  witnesses  here,  he  had  not  done  certain  things. 

Now,  it  would  be  a  remarkable  thing  if  this  committee  of  the  Senate  should  come  to  the  conclusion 
that  when  the  State  of  Utah  selected  this  man  as  one  of  her  Senators,  and  when  the  Senate  admitted 
him  to  his  seat,  he  was  not  qualified,  and  established  it  by  facts  that  have  happened  since  he  came 
into  the  Senate. 

No  report  on  this  case  was  made  by  the  committe'e  during  the  Fifty-eighth 
Congress. 

482.   Senate  case  of  Reed  Smoot,  continued. 

While  a  majority  of  the  Senate  committee  agreed  that  Reed  Smoot 
was  not  entitled  to  his  seat,  they  could  not  decide  whether  he  should  be 
excluded  or  expelled. 

Consideration  of  the  qualifications,  the  lack  of  which  may  render  a 
person  unfit  to  remain  a  member  of  the  Senate. 

Summary  of  protest  against  Reed  Smoot  as  a  Senator  and  his  answer 
thereto. 

A  majority  of  the  Senate  committee  considered  Reed  Smoot's  member- 
ship in  a  religious  hierarchy  that  countenanced  and  encouraged  polygamy 
a  reason  for  removing  him  from  the  Senate. 


572  PEECEDENTS   OF   THE    HOUSE    OF   EEPBESENTATIVES.  §   482 

Reed  Smoot's  membership  in  a  religious  hierarchy  that  united  church 
and  state  contrary  to  the  spirit  of  the  Constitution  was  held  by  the  ma- 
jority of  the  Senate  conamittee  a  reason  for  vacating  his  seat. 

Convinced  that  Reed  Smoot  had  taken  an  oath  of  hostility  to  the  na- 
tion, a  majority  of  the  Senate  committee  held  this  a  reason  for  vacating 
his  seat  as  a  Senator. 

On  June  2,  1906/  in  the  Senate,  Mr.  Julius  C.  Burrows,  of  Michigan,  said: 

Mr.  President,  I  am  directed  by  the  Committee  on  Privileges  and  Elections  to  report  the  action  of 
the  committee  upon  the  resolution  referred  to  that  committee  to  inquire  into  the  right  and  title  of  Reed 
Smoot  to  hold  a  seat  in  the  Senate  of  the  United  States  as  a  Senator  from  the  State  of  Utah,  and  to  say 
that  the  committee  reached  a  conclusion  at  its  last  meeting  and  authorized  the  chairman  to  report  to  the 
Senate  that  the  senior  Senator  from  Utah  is  not  entitled  to  a  seat  in  the  Senate  of  the  United  States.  The 
committee  directed  the  chairman  to  make  a  formal  report,  which  will  be  done  some  time  during  the 
coming  week. 

An  expression  of  opinion  was  had  by  the  committee  upon  what  steps  would  be  necessary  to  take 
if  the  report  of  the  committee  was  adopted  by  the  Senate  that  the  Senator  from  Utah  is  not  entitled  to 
a  seat,  and  upon  that  there  was  a  difference  of  opinion.  The  committee  were  divided  as  to  whether  it 
would  have  to  be  followed  by  a  resolution  to  expel  the  Senator  from  Utah  or  whether  a  declaration  that 
he  is  not  entitled  to  a  seat  would  be  sulJicient.  That  will  be  a  matter,  however,  for  the  Senate  ta 
determine.^ 

On  June  11  ^  the  formal  report  was  made  in  the  Senate  by  Mr.  Burrows. 

A  preliminary  question  as  to  the  authority  of  the  Senate  was  discussed  at  length: 

Before  proceeding  to  an  examination  of  the  protest  and  answer  and  the  testimony  taken  by  the 
committee,  it  may  be  well  to  examine,  briefly,  the  authority  of  the  Senate  in  the  premises  and  the  nature 
and  scope  of  the  investigation. 

The  Constitution  provides  (art.  1,  sec.  5,  par.  1)  that  "Each  House  shall  be  the  judge  of  the  elec- 
tions, returns,  and  qualifications  of  its  own  memliers."  It  is  now  well  established  by  the  decisions  of  the 
Senate  in  a  number  of  cases  that,  in  order  to  be  a  fit  representative  of  a  sovereign  State  of  the  Union  in  the 
Senate  of  the  United  States,  one  must  be  in  all  respects  obedient  to  the  Constitution  and  laws  of  the 
United  States  and  of  the  State  from  which  ho  comes,  and  must  also  be  desirous  of  the  welfare  of  his 
country  and  in  hearty  accord  and  sympathy  with  its  Government  and  institutions.  If  he  does  not  pos- 
sess these  qualifications,  if  his  conduct  has  been  such  as  to  be  prejudicial  to  the  welfare  of  society,  of  the 
nation,  or  its  Government,  he  is  regarded  as  being  unfit  to  perform  the  important  and  confidential  duties 
of  a  Senator,  and  may  be  deprived  of  a  seat  in  the  Senate,  although  he  may  have  done  no  act  of  which  a 
court  of  justice  could  take  cognizance. 

The  report  then  proceeds  to  discuss  the  Senate  cases  of  William  Blount,  John 
Smith,  Jesse  D.  Bright,  Philip  F.  Thomas,  and  also  the  following  English  cases: 

In  the  British  Parliament  the  same  principle  has  been  recognized  in  a  number  of  cases  and  is  now 
fully  established. 

In  the  year  1812  Benjamin  Walsh  was  expelled  from  the  House  of  Commons  as  "  unworthy  and  unfit 
to  continue  a  member  of  this  House,"  on  account  of  said  Walsh  having  been  guilty  of  "gross  fraud  and 

'  First  session  Fifty-ninth  Congress. 

^  Seven  members  of  the  committee  concurred  that  Mr.  Smoot  was  not  entitled  to  his  seat — Messrs. 
Julius  C.  Burrows,  of  Michigan;  Jonathan  P.  Dolliver,  of  Iowa;  Edward  W.  Pettus,  of  Alabama;  Fred 
T.  Dubois,  of  Idaho;  Lee  S.  Overman,  of  North  Carolina;  James  B.  Frazier,  of  Tennessee,  and  Joseph  W. 
Bailey,  of  Texas.  A  minority  of  five  dissented — Messrs.  J.  B.  Foraker,  of  Ohio;  Albert  J.  Beveridge,  of 
Indiana;  William  P.  Dillingham,  of  Vermont;  Albert  J.  Hopkins,  of  Illinois,  and  Philander  C.  Knox, 
of  Pennsylvania.  While  Mr.  Bailey  concurred  in  the  majority  report  he  did  not  agree  that  Mr.  Smoot 
could  be  excluded,  but  favored  expulsion.  Mr.  Chauncey  M.  Depew,  of  New  York,  the  thirteenth 
member  of  the  committee,  took  no  part  in  the  decision. 

3  Senate  Report  No.  4253. 


§   482  POLYGAMY    AND    OTHER   CRIMES    AS    DISQUALIFICATIONS.  573 

notorious  breach  uf  trust,"  although  his  offense  was  one  "not  amounting  to  felony."  (67  Commons 
Journal,  175-176.)     In  that  case  the  chancellor  of  the  exchequer  said: 

"He  could  not  think  that  because  an  act  of  Parliament  did  not  make  a  moral  crime  a  legal  one  the 
House  of  Commons  should  be  prevented  from  taking  cognizance  of  it."  (Hansard's  Parliamentary 
Debates,  first  series,  vol.  21,  p.  1199.) 

In  the  year  1814  Sir  Thomas  Cochrane  was  expelled  from  the  House  of  Commons  for  being  concerned 
in  a  conspiracy  to  spread  the  false  report  that  the  French  army  had  been  defeated.  Napoleon  lolled,  and 
that  the  allied  sovereigns  were  in  Paris,  the  object  to  be  attained  by  such  false  report  being  "to  occasion 
a  temporary  rise  and  increase  in  the  prices  of  the  pul)lic  Government  funds,"  to  the  injury  of  those  who 
should  purchase  such  funds  "during  such  last-mentioned  temporary  rise  and  increase  in  the  prices 
thereof."     (69  Commons  Journal,  427^33.) 

The  report  then  summarizes  as  follows  the  protest  against  the  seating  of  Mr. 
Smoot,  which  protest  was  signed  by  "eighteen  reputable  citizens"  of  Utah. 

The  protest  before  referred  to  against  the  seating  of  Mr.  Smoot  as  a  Senator  from  the  State  of  Utah 
is  stated  in  such  protest  to  be  "upon  the  ground  and  for  the  reason  that  he  is  one  of  a  self -perpetuating 
body  of  fifteen  men  who,  constituting  the  ruling  authorities  of  the  Church  of  Jesus  Christ  of  Latter-Day 
Saints,  or  'Mormon  Church,'  claim,  and  by  their  followers  are  accorded  the  right  to  claim,  supreme 
authority,  divinely  sanctioned,  to  shape  the  belief  and  control  the  conduct  of  those  under  them  in  all 
matters  whatsoever,  civil  and  religious,  temporal  and  spiritual,  and  who,  thus  uniting  in  themselves 
authority  in  church  and  state,  do  so  exercise  the  same  as  to  inculcate  and  encourage  a  belief  in  polygamy 
and  polyganious  cohabitation;  who  countenance  and  connive  at  violations  of  the  State  law  prohibiting 
the  same,  regardless  of  pledges  made  for  the  purpose  of  obtaining  statehood  and  of  covenants  made  with 
the  people  of  the  United  States,  and  who  by  all  the  means  in  their  power  protect  and  honor  those  who, 
with  themselves,  violate  the  laws  of  the  land  and  are  guilty  of  practices  destructive  of  the  family  and  of 
the  home." 

In  support  of  this  protest  the  protestants  make  certain  charges  and  assertions,  the  substance  of 
which  is  as  follows: 

1.  The  Mormon  priesthood,  according  to  the  doctrines  of  that  church,  is  vested  with  supreme 
authority  in  all  things  spiritual  and  temporal. 

2.  The  first  presidency  and  twelve  apostles  (said  Reed  Smoot  being  one  of  said  twelve  apostles) 
are  supreme  in  the  exercise  of  the  authority  of  the  Mormon  Church  in  all  things  temporal  and  spiritual. 
In  support  of  this  second  proposition  instances  are  given  of  the  interference  of  the  first  presidency  and 
twelve  apostles  in  the  political  affairs  of  the  State  of  Utah,  and  quotations  at  length  are  given  from  the 
declarations  of  officials  in  the  Mormon  Church  regarding  the  authority  of  the  leaders  in  said  church  to 
dictate  to  the  membership  thereof  concerning  the  political  action  of  said  members. 

3  and  4.  That  the  first  presidency  and  twelve  apostles  of  the  Mormon  Church  have  not  abandoned 
the  principles  and  practice  of  political  dictation;  neither  have  they  abandoned  their  belief  in  polygamy 
and  polygamous  cohabitation. 

5.  That  the  first  presidency  and  twelve  apostles  (of  whom  Reed  Smoot  is  one)  also  practice  or  con- 
nive at  and  encourage  the  practice  of  polygamy,  and  have,  without  protest  or  objection,  permitted  those 
who  held  legislative  offices  by  their  will  and  consent  to  attempt  to  nullify  enactments  against  polyga- 
mous cohabitation. 

6.  That  the  supreme  authorities  of  the  Mormon  Church,  namely,  the  first  presidency  and  twelve 
apostles  (of  whom  Mr.  Smoot  is  one),  not  only  connive  at  violations  of  the  law  against  polygamy  and 
polygamous  cohabitation,  but  protect  and  honor  the  violators  of  such  laws. 

The  protest  further  asserts  that  the  leaders  of  the  Mormon  Church  (of  whom  Mr.  Smoot  is  one)  are 
solemnly  banded  together  against  the  people  of  the  United  States  in  the  endeavor  of  said  leaders  to 
baffle  the  designs  and  frustrate  the  attempts  of  the  Government  to  eradicate  polygamy  and  polygamous 
cohabitation. 

The  protest  further  charges  that  the  conduct  and  practices  of  the  first  presidency  and  twelve 
apostles  (of  whom  Mr.  Smoot  is  one)  are  well  known  to  be,  first,  contrary  to  the  public  sentiment  of  the 
civilized  world;  second,  contrary  to  express  pledges  which  were  given  by  the  leaders  of  the  Mormon 
Church  in  procuring  amnesty;  third,  contrary  to  the  express  conditions  upon  which  the  escheated 
property  of  the  Mormon  Church  was  returned;   fourth,  contrary  to  the  pledges  given  by  the  representa- 


574  PRECEDENTS    OF    THE   HOUSE   OF   REPRESENTATIVES.  §  482 

tives  of  tliat  church  in  their  plea  for  statehood;  fifth,  contrary  to  the  pledges  required  in  the  enabling 
act  and  given  in  the  State  constitution  of  Utah;  sixth,  contrary  to  a  provision  in  the  constitution  of  Utah 
providing  that  "there  shall  be  no  union  of  church  and  state,  nor  shall  any  church  dominate  the  State 
or  interfere  with  its  functions;"  and  seventh,  contrary  to  law.  The  protest  concludes  by  asking  that  the 
Senate  make  inquiry  touching  the  matters  stated  in  said  protest. 

This  protest  is  followed  by  certain  charges  made  by  one  John  L.  Leilich  under  oath,  which  are  in 
the  main  of  the  same  tenor  and  effect  as  the  charges  made  in  the  protest,  with  the  additional  charge  that 
Mr.  Smoot  is  a  polygamist,  having  a  legal  wife  and  a  plural  wife,  and  the  further  charge  that  Mr.  Smoot 
has,  as  an  apostleof  the  Mormon  Church,  taken  an  oath  "of  such  a  nature  and  character  as  that  he  is 
thereby  disqualified  from  taking  the  oath  of  office  required  of  a  United  States  Senator." 

Mr.  Smoot  made  answer,  of  which  the  report  says: 

To  the  statements  made  in  the  protest  and  the  charges  by  Mr.  Leilich  Mr.  Smoot  made  answer, 
which  answer  is  in  the  nature  of  a  demurrer  to  all  the  charges  contained  in  the  protest  and  to  the  charges 
made  by  Mr.  Leilich,  except  two,  namely,  that  Mr.  Smoot  is  a  polygamist  and  that  he  is  bound  by  some 
oath  or  obligation  which  is  inconsistent  with  the  oath  taken  by  him  as  a  Senator.  Both  these  charges 
he  denies,  and  further  denies,  specifically  and  categorically,  the  charges  made  in  the  protest  and  by 
Mr.  Ijcilich. 

(1)  The  majority  of  the  committee  in  their  report  first  proceed  to  discuss  the 
nature  of  the  Mormon  hierarchy  and  the  encouragement  of  polygamy  and  polyga- 
mous cohabitation  by  the  Mormon  authorities,  sajring: 

The  first  reason  assigned  by  the  protestants  why  Mr.  Smoot  is  not  entitled  to  a  seat  in  the  Senate 
is,  in  effect,  that  he  belongs  to  a  self-perpetuating  body  of  fifteen  men  who  constitute  the  ruling  author- 
ities of  the  Church  of  Latter-Day  Saints,  or  "Mormon  Church,"  so  called;  that  this  ruling  body  of  the 
chiu-ch  both  claims  and  exercises  the  right  of  shaping  the  belief  and  controlling  the  conduct  of  the 
members  of  that  church  in  all  matters  whatsoever,  civil  and  religious,  temporal  and  spiritual.  It  is 
then  alleged  that  this  self-perpetuating  body  of  fifteen  men,  of  whom  Mr.  Smoot  is  one,  uniting  in 
themselves  authority  in  both  church  and  state,  so  exercise  this  authority  as  to  encourage  a  belief  in 
polygamy  as  a  divine  institution  and  by  both  precept  and  example  encourage  among  their  followers 
the  practice  of  polygamy  and  polygamous  cohabitation. 

That  the  first  presidency  and  twelve  apostles  of  the  Mormon  Church  are  a  self-perpetuating  body 
of  fifteen  men  seems  to  be  well  established  by  the  testimony  of  the  one  most  competent  to  speak  upon 
that  subject,  the  president  of  the  Chiu-ch  of  Latter-Day  Saints,  Mr.  Joseph  F.  Smith,  who  testifies,  as 
will  be  seen  on  pages  91  and  92  of  volume  1  of  the  printed  copy  of  the  proceedings  in  the  investigation, 
that  vacancies  occurring  in  the  number  of  the  twelve  apostles  are  filled  by  the  apostles  themselves, 
with  the  consent  and  approval  of  the  first  presidency.     *    *    * 

It  further  appears  that  any  one  of  the  twelve  apostles  may  be  removed  by  his  fellow-apostles 
without  consulting  the  members  of  the  church  in  general.  It  is  also  in  proof  that  the  first  presidency 
and  twelve  apostles  govern  the  church  by  means  of  so-called  "revelations  from  God,"  which  revelations 
are  given  to  the  membership  of  the  church  as  emanating  from  divine  authority.  It  is  also  shown  that 
those  members  of  the  Mormon  Church  who  refuse  to  obey  the  revelations  so  communicated  by  the 
priesthood  thereby  become  out  of  harmony  with  the  chiu'ch  and  are  thus  practically  excluded  from 
the  blessings,  benefits,  and  privileges  of  membership  in  the  church. 

It  is  also  well  established  by  the  testimony  that  the  members  of  the  Mormon  Church  are  governed 
in  all  things  by  the  first  presidency  and  twelve  apostles;  that  this  authority  is  extended  to  the  mem- 
bership through  a  series  and  succession  of  subordinate  officials,  consisting  of  presidents  of  seventies, 
presiding  bishops,  elders,  presidents  of  stakes,  bishops,  and  other  officials;  that  one  of  the  chief  require- 
ments by  the  leaders  of  the  church  is  that  members  shall  take  counsel  of  their  religious  superiors  in 
all  things  whatsoever,  whether  civil  or  religious,  temporal  or  spiritual;  that  the  failure  to  receive 
and  obey  counsel  in  any  of  these  matters  subjects  the  one  who  refuses  to  the  discipline  of  the  church; 
that  this  discipline  is  administered  in  the  first  instance  by  the  subordinate  officials,  subject  to  the 
right  to  appeal  to  the  higher  officials  of  the  church,  and  ultimately  to  the  first  president  and  twelve 
apostles.  These  rules,  enforced,  as  they  are,  by  the  discipline  of  the  Mormon  Church,  constitute  the 
first  president  and  twelve  apostles  a  hierarchy,  a  body  of  men  at  the  head  of  a  religious  organization 


§482  POLYGAMY   AND   OTHER   CRIMES   AS   DISQUALIFICATIONS.  575 

governing  their  followers  with  absolute  and  unquestioned  authority  in  all  things  relating  to  temporal 
and  political  as  well  as  to  spiritual  affairs. 

The  testimony  taken  before  the  committee  also  shows  beyond  a  reasonable  doubt  that  this  authority 
of  the  first  presidency  and  twelve  apostles  is  so  exercised  over  the  members  of  the  Mormon  Church 
as  to  inculcate  a  belief  in  the  divine  origin  of  polygamy  and  its  rightfulness  as  a  practice,  and  also  to 
encourage  the  membership  of  that  church  in  the  practice  of  polygamy  and  polygamous  cohabitation. 
While  this  is  denied  on  the  part  of  the  officials  of  the  church,  the  truthfulness  of  the  claim  of  the 
protestants  in  this  regard  is  shown  by  a  great  number  of  facts  and  circumstances,  no  one  of  which  is 
perhaps  conclusive  in  itself,  but  when  taken  together  form  a  volume  of  testimony  so  cogent  and  con- 
vincing as  to  leave  no  reasonable  doubt  in  the  mind  that  the  truth  is  as  stated  by  the  protestants.  It 
is  proved  without  denial  that  the  Book  of  Doctrine  and  Covenants,  one  of  the  leading  authorities  of  the 
Mormon  Church,  and  still  circulated  by  that  church  as  a  book  equal  in  authority  to  the  Bible  and 
the  Book  of  Mormon,  contains  the  revelation  regarding  polygamy,  of  which  the  following  is  a  part: 

"61.  And  again,  as  pertaining  to  the  law  of  the  priesthood:  If  any  man  espouse  a  virgin  and 
desires  to  espouse  another  and  the  first  give  her  consent,  and  if  he  espouse  the  second,  and  they  are 
virgins  and  have  vowed  to  no  other  man,  then  he  is  justified — he  can  not  commit  adultery,  for  they 
are  given  unto  him;  for  he  can  not  commit  adultery  with  that  that  belongeth  to  him  and  to  no  one  else. 

"62.  And  if  he  have  ten  virgins  given  unto  him  by  this  law  he  can  not  commit  adultery,  for 
they  belong  to  him  and  they  are  given  unto  him;  therefore  is  he  justified. 

"63.  But  if  one  or  either  of  the  ten  virgins,  after  she  is  espoused,  shall  be  with  another  man,  she 
has  committed  adultery  and  shall  be  destroyed,  for  they  are  given  unto  him  to  multiply  and  replenish 
the  earth,  according  to  my  commandment,  and  to  fulfill  the  promise  which  was  given  by  my  Father 
before  the  foundation  of  the  world;  and  for  their  exaltation  in  the  eternal  worlds,  that  they  may  bear 
the  souls  of  men;  for  herein  is  the  work  of  my  Father  continued,  that  he  may  be  glorified. 

"64.  And  again,  verily,  verily,  I  say  unto  you,  if  any  man  hath  a  wife  who  holds  the  keys  of 
this  power  and  he  teaches  unto  her  the  law  of  my  priesthood  as  pertaining  these  things,  then  shall 
she  believe  and  administer  unto  him  or  she  shall  be  destroyed,  said  the  Lord  your  God,  for  I  will 
destroj'  her;  for  I  will  magnify  my  name  upon  all  those  who  receive  and  abide  in  my  law. 

"65.  Therefore,  it  shall  be  lawful  in  me,  if  she  receives  not  this  law  for  him  to  receive  all  things 
whatsoever  I,  the  Lord  his  God,  will  give  unto  him,  because  she  did  not  minister  unto  him  according 
to  my  word;  and  she  then  becomes  the  transgressor.;  and  he  is  exempt  from  the  law  of  Sarah,  who 
ministered  unto  Abraham  according  to  the  law  when  I  commanded  Abraham  to  take  Hager  to  wife." 

It  is  also  shown  that  numerous  other  publications  of  the  Mormon  Church  are  still  circulated 
among  the  members  of  that  church  with  the  knowledge  and  by  the  authority  of  the  church  officials, 
which  contain  arguments  in  favor  of  polygamy.  The  Book  of  Doctrine  and  Covenants  is  not  only 
stUl  put  forth  to  the  members  of  the  church  as  authoritative  in  all  respects,  but  the  first  presidency 
and  twelve  apostles  have  nevBr  incorporated  therein  the  manifesto  forbidding  the  practice  of  polygamy 
and  polygamous  cohabitation,  nor  have  they  at  any  time  or  in  any  way  qualified  the  reputed  revelation 
to  Joseph  Smith  regarding  polygamy.  And  this  Book  of  Doctrine  and  Covenants,  containing  the 
polygamic  revelation,  is  regarded  by  Mormons  as  being  of  higher  authority  than  the  manifesto  suspend- 
ing polygamy. 

Bearing  in  mmd  tflie  authority  of  the  first  presidency  and  twelve  apostles  over  the  whole  body  of 
the  Mormon  Church,  it  is  very  evident  that  if  polygamy  were  discountenanced  by  the  leaders  of  that 
church  it  would  very  soon  be  a  thing  of  the  past  among  the  members  of  that  church.  On  the  contrary,  it 
appears  that  since  the  admission  of  Utah  into  the  Union  as  a  State  the  authorities  of  the  Mormon  Church 
have  countenanced  and  encouraged  the  commission  of  the  crime  of  polygamy  Instead  of  preventing  it, 
as  they  could  easily  have  done. 

A  sufficient  number  of  specific  instances  of  the  taking  of  plural  wives  since  the  "manifesto  of  1890," 
so  called,  have  been  shown  by  the  testimony  as  having  taken  place  among  officials  of  the  Mormon  Church 
to  demonstrate  the  fact  that  the  leaders  in  this  church,  the  first  presidency  and  the  twelve  apostles, 
connive  at  the  practice  of  taking  plural  wives,  and  have  done  so  ever  since  the  manifesto  was  issued 
which  purported  to  put  an  end  to  the  practice. 

The  report  then  goes  on  to  cite  specific  instances  as  shown  in  the  testimony. 
The  committee  also  charged  that  the  Mormon  Church  had  suppressed  other 
testimony,  and  had  denied  the  committee  access  to  records. 


576  PRECEDENTS   OF   THE    HOUSE    OF    REPRESENTATIVES.  §   482 

The  report  continues : 

Aside  from  this  it  was  shown  by  the  testimony,  and  in  such  a  way  that  the  fact  could  not  possibly 
be  controverted,  that  a  majority  of  those  who  give  the  law  to  the  Mormon  Church  are  now,  and  have  been 
for  years,  living  in  open,  notorious,  and  shameless  polygamous  cohabitation.  The  list  of  those  who  are 
thus  guilty  of  violating  the  laws  of  the  State  and  the  rules  of  public  decency  is  headed  \>y  Joseph  F. 
Smith,  the  first  president,  "prophet,  seer,  and  revelator"  of  the  Mormon  Church. 

The  committee  cites  names  in  support  of  this  and  continues: 

These  facts  abundantly  justify  the  assertion  made  in  the  protest  that  "the  supreme  authorities  in 
the  church,  of  whom  Senator-elect  Reed  Smoot  is  one,  to  wit,  the  first  presidency  and  twelve  apostles, 
not  only  connive  at  violation  of,  but  protect  and  honor  the  violators  of  the  laws  against  polygamy  and 
polygamous  cohabitation." 

It  wUl  be  seen  by  the  foregoing  that  not  only  do  the  first  presidency  and  twelve  apostles  encourage 
polygamy  by  precept  and  teaching,  but  that  a  majority  of  the  members  of  that  body  of  rulers  of  the 
Mormon  people  give  the  practice  of  polygamy  stdl  further  and  greater  encouragement  by  living  the  lives 
of  polygamists,  and  this  openly  and  in  the  sight  of  all  their  followers  in  the  Mormon  Church.  It  can  not 
be  doubted  that  this  method  of  encouraging  polygamy  is  much  more  efficacious  than  the  teaching  of  that 
crime  by  means  of  the  writings  and  publications  of  the  leaders  of  the  church,  and  this  upon  the  familiar 
principle  that  "actions  speak  louder  than  words." 

And  not  only  do  the  president  and  a  majority  of  the  twelve  apostles  of  the  Mormon  Church  practice 
polygamy,  but  in  the  case  of  each  and  every  one  guilty  of  this  crime  who  testified  before  the  committee 
the  determination  was  expressed  openly  and  defiantly  to  continue  the  commission  of  this  crime  without 
regard  to  the  mandates  of  the  law  or  the  prohibition  contained  in  the  manifesto.  And  it  is  in  evidence  that 
the  said  first  president,  addressing  a  large  concourse  of  the  members  of  the  Mormon  Church  at  the  taber- 
nacle in  Salt  Lake  City  in  the  month  of  June,  1904,  declared  that  if  he  were  to  discontinue  the  polyga- 
mous relation  with  his  plural  wives  he  should  be  forever  dammed,  and  forever  deprived  of  the  com- 
panionship of  God  and  those  most  dear  to  him  throughout  eternity.  Thus  it  appears  that  the  "prophet, 
seer,  and  revelator"  of  the  Mormon  Church  pronounces  a  decree  of  eternal  condemnation  throughout  all 
eternity  upon  all  members  of  the  Mormon  Church  who,  having  taken  plural  wives,  fad  to  continue  the 
polygamous  relation.  So  that  the  testimony  upon  that  subject,  taken  as  a  whole,  can  leave  no  doubt 
upon  any  reasonable  mind  that  the  allegations  in  the  protest  are  true,  and  that  those  who  are  in  authority 
in  the  Mormon  Church,  of  whom  Mr.  Smoot  is  one,  are  encouraging  the  practice  of  polygamy  among  the 
members  of  that  church,  and  that  polygamy  is  being  practiced  to  such  an  extent  as  to  call  for  the  severest 
condemnation  in  all  legitimate  ways. 

THE    MANIFESTO    A    DECEPTION. 

Against  these  facts  the  authorities  of  the  Mormon  Church  urge  that  in  the  year  1890  what  is  gen- 
erally termed  "a  manifesto"  was  issued  by  the  first  presidency  of  that  church,  suspending  the  practice 
of  polygamy  among  the  members  of  that  church.  It  may  be  said  in  the  first  place  that  this  manifesto 
misstates  the  facts  in  regard  to  the  solemnization  of  plural  marriages  within  a  short  period  preceding 
the  issuing  of  the  manifesto.  It  now  appears  that  in  a  number  of  instances  plural  marriages  had  been 
solemnized  in  the  Mormon  Church,  and,  in  the  case  of  those  high  in  authority  in  that  church,  within  a 
very  few  months  preceding  the  issuing  of  the  manifesto. 

It  is  also  observable  that  this  manifesto  in  no  way  declares  the  principle  of  polygamy  to  be  wrong 
or  abrogates  it  as  a  doctrine  of  the  Mormon  Church,  but  simply  suspends  the  practice  of  polygamy  to 
be  resumed  at  some  more  convenient  season,  either  with  or  without  another  revelation.  It  is  now 
claimed  by  the  first  president  and  other  prominent  officials  of  the  Mormon  Church  that  the  manifesto 
was  not  a  revelation,  but  was,  at  the  most,  an  inspired  document,  designed  "to  meet  the  hard  conditions 
then  confronting"  those  who  were  practicing  polygamy  and  polygamous  cohabitation,  leaving  what  the 
Mormon  leaders  are  pleased  to  term  "the  principle  of  plural  marriage"  as  much  a  tenet  of  their  faith 
and  rule  of  practice  when  possible,  as  it  was  before  the  manifesto  was  issued.     *    *    * 

And  one  of  the  twelve  apostles  has  declared  the  fact  to  be  that  "the  manifesto  is  only  a  trick  to 
beat  the  devil  at  his  own  game."  Further  than  this,  it  is  conceded  by  all  that  this  manifesto  was 
intended  to  prohibit  polygamous  cohabitation  as  strongly  as  it  prohibited  the  solemnization  of  plural 


§   48ii  POLYGAMY   AND    OTIIEE   CRIMES   AS   DISQU.ALIFICATIONS.  577 

marriages.  In  the  case  of  polygamous  cohabitation,  the  manifesto  has  been  wholly  disregarded  by  the 
members  of  the  Mormon  Church.  It  is  hardly  reasonable  to  expect  that  the  members  of  that  church 
would  have  any  greater  regard  for  the  prohibition  of  plural  marriage. 

The  contention  that  the  practice  of  polygamy  is  rightful  as  a  religious  ceremony  and  therefore 
protected  by  that  provision  of  the  Constitution  of  the  United  States  which  declares  that  -'Congress  shall 
make  no  law  respecting  an  establishment  of  religion  or  prohibiting  the  free  exercise  thereof,"  ought  to 
be  forever  set  at  rest  by  the  repeated  decisions  of  the  Supreme  Court  of  the  United  States.  In  the 
case  of  the  Mormon  Church  v.  The  United  States,  Justice  Bradley,  in  delivering  the  opinion  of  the  court, 
said : 

"One  pretense  for  this  obstinate  course  is  that  their  belief  in  the  practice  of  polygamy,  or  in  the 
right  to  indulge  in  it,  is  a  religious  belief,  and  therefore  under  the  protection  of  the  constitutional  guaranty 
of  r-eligious  freedom.  This  is  altogether  a  sophistical  plea.  No  doubt  the  Thugec  of  India  imagined 
that  their  belief  in  the  right  of  assassination  was  a  religious  belief;  but  their  thinking  so  did  not  make 
it  so.  The  practice  of  suttee  by  the  Hindu  widows  may  have  sprung  from  a  supposed  religious  convic- 
tion. The  offering  of  human  sacrifices  by  our  own  ancestors  in  Britain  was  no  doubt  sanctioned  by 
an  equally  conscientious  impulse.  But  no  one  on  that  account  would  hesitate  to  lirand  these  practices 
now  as  crimes  against  society  and  obnoxious  to  condemnation  and  punishment  by  the  civil  authority." 

In  the  case  of  Davis  v.  Beason  Justice  Field,  in  delivering  the  opinion  of  the  court,  said: 

"Bigamy  and  polygamy  are  crimes  by  the  laws  of  all  civilized  and  Christian  countries.  They  are 
crimes  by  the  laws  of  the  United  States,  and  they  are  crimes  by  the  laws  of  Idaho.  They  tend  to  destroy 
the  purity  of  the  marriage  relation,  to  disturb  the  peace  of  families,  to  degrade  woman,  and  to  debase 
man.  Few  crimes  are  more  pernicious  to  the  best  interests  of  society  and  receive  more  general  or  more 
desei-s'ed  punishment.  To  extend  exemption  from  punishment  for  such  crimes  would  be  to  shock 
the  moral  judgment  of  the  community.  To  call  their  advocacy  a  tenet  of  religion  is  to  offend  the  com- 
mon sense  of  mankind." 

ONE    LIVING   IN    POLTGAMOUS    COHABITATION   IS   IN    LAW   A   POLYGAMIST. 

The  members  of  the  fkst  presidency  and  twelve  apostles  of  the  Mormon  Church  claim  that  there 
is  a  distinction  between  what  they  term  polygamy — that  is,  the  contracting  of  plural  marriages — and 
polygamous  cohabitation  with  plural  wives.  But  under  the  circumstances  his  distinction  is  little 
short  of  ridiculous.  As  is  demonstrated  by  the  testimony,  the  so-called  manifesto  was  aimed  at  polyg- 
amous cohabitation  as  well  as  against  the  taking  of  plural  wives,  and  it  is  the  veriest  sophistry  to  contend 
that  open,  notorious  cohabitation  with  plural  wives  is  less  offensive  to  public  morals  than  the  taking  of 
additional  wives.  Indeed,  it  is  the  testimony  of  some  of  those  who  reside  in  communities  that  are 
cursed  by  the  evils  of  polygamy  that  polygamous  cohabitation  is  fully  as  offensive  to  the  sense  of  decency 
of  the  inhabitants  of  those  communities  as  would  be  the  taking  of  plural  wives. 

And  this  excuse  of  the  Mormon  leaders  is  as  baseless  in  law  as  it  is  in  morals.  In  the  case  of  Murphy 
V.  Ramsay,  decided  by  the  Supreme  Court  of  the  United  States  and  reported  in  the  United  States  Supreme 
Court  Reports,  volume  114,  page  1.5,  it  was  decided  that  any  man  is  a  polygamist  who  maintains  the 
relation  of  husband  to  a  plurality  of  wives,  even  though  in  fact  he  may  cohabit  with  only  one.  The 
court  further  held  in  the  same  case  that  a  man  occupying  this  relation  to  two  or  more  women  can  only 
cease  to  be  a  polygamist  when  he  has  finally  and  fully  dissolved  the  relation  of  husband  to  several  wives. 
In  other  words,  there  is  and  can  be  no  practical  difference  in  law  or  in  morals  between  the  offense  of 
taking  plural  wives  and  the  offense  of  polygamous  cohabitation.  The  same  doctrine  is  affirmed  in  the 
case  of  Cannon  v.  United  States  (116  U.  S.  Supreme  Court  Reports,  p.  5.5). 

The  minority  views  admit  the  existence  of  polygamous  cohabitation,  but  say, 
after  quoting  testimony  in  support  of  their  view: 

In  other  words,  the  conditions  existing  in  Utah  since  Reed  Smoot  became  an  official  of  the  Mormon 
Church  in  1900  have  been  such  that  non-Mormons  and  Mormons  alike  have  acquiesced  in  polygamous 
cohabitation  on  the  part  of  those  who  married  before  the  manifesto  of  1890,  as  an  evil  that  could  best 
be  gotten  rid  of  by  simply  tolerating  it  until  in  the  natural  course  of  events  it  shall  have  passed  out  of 
existence. 

5904— VOL  1—07 37 


578  PRECEDENTS   OF   THE   HOUSE   OF   KEPBESENTATIVES.  §  482 

(2)  The  majority  report  then  proceeds  to  urge  that  Mr.  Smoot  is  responsible 

for  the  conduct  of  the  organization  to  which  he  belongs : 

It  is  urged  in  behalf  of  Mr.  Smoot  that,  conceding  it  to  be  true  that  the  first  president  and  some 
of  the  apostles  are  living  in  polygamy  and  that  some  of  the  leaders  of  the  Mormon  Church  encourage 
polygamous  practices,  Mr.  Smoot  himself  is  not  a  polygamist,  does  not  practice  polygamy,  and  that 
there  is  no  evidence  that  he  has  personally  and  individually  encour£^ed  the  practice  of  polygamy  by 
members  of  the  Mormon  Church,  and  that  he  ought  not  to  be  condemned  because  of  the  acts  of  his 
associates.  This  position  is  wholly  untenable.  Mr.  Smoot  is  an  inseparable  part  of  the  governing 
body  of  the  Mormon  Church — the  first  presidency  and  twelve  apostles — and  those  who  compose  that 
organization  form  a  unit,  an  entirety,  and  whatever  is  done  by  that  organization  is  the  act  of  each  and 
every  member  thereof,  and  whatever  policy  is  adopted  and  pursued  by  the  body  which  controls  the 
Mormon  Church  Mr.  Smoot  must  be  held  to  be  responsible  for  as  a  member  of  that  body.  That  one  may 
be  legally,  as  well  as  morally,  responsible  for  unlawful  acts  which  he  does  not  himself  commit  is  a  rule 
of  law  too  elementary  to  require  discussion.  "What  one  does  by  another  he  does  by  himself"  is  a 
maxim  as  old  as  the  common  law.  And  as  the  first  presidency  and  twelve  apostles  of  the  Mormon 
Church  have  authority  over  the  spiritual  affairs  of  the  members  of  that  church,  it  follows  that  such 
governing  body  of  said  church  has  supreme  authority  over  the  members  of  that  church  in  respect  to 
the  practice  of  polygamy  and  polygamous  cohabitation. 

In  England  in  former  years  and  under  the  canon  law,  matters  of  marriage,  divorce,  and  legiti- 
macy were  under  the  jurisdiction  of  the  ecclesiastical  courts  of  the  Kingdom,  in  which  the  punishment 
was  in  the  nature  of  a  spiritual  penalty  for  the  good  of  the  soul  of  the  offender,  this  penalty  in  many 
cases  being  that  of  excommunication  or  expulsion  from  the  church.  (1  Blackstone's  Commentaries,  431; 
3  Blackstone's  Commentaries,  92;  4  Blackstone's  Commentaries,  153  and  note;  Reynolds  r.  United  States, 
98  U.  S.,  145,  164-165.)  And  in  later  years,  while  the  civil  law  now  prohibits  and  punishes  bigamy, 
the  authorities  of  every  Christian  church  in  this  country  take  cognizance  of  matrimonial  affairs  and  by 
the  authority  of  the  church  in  spiritual  matters  prevent  and  punish  by  censure  or  expulsion  any  infrac- 
tion of  the  rules  of  the  church  regarding  marriage. 

The  testimony  taken  upon  this  investigation  shows  beyond  controversy  that  the  authority  of  the 
first  presidency  and  the  twelve  apostles  of  the  Mormon  Church  over  the  members  of  said  church  is  such 
that  were  the  said  first  presidency  and  twelve  apostles  to  prohibit  the  practice  of  polygamy  and  polyga- 
mous cohabitation  by  its  members  and  abandon  the  practice  themselves  and  expel  from  the  church  all 
who  should  persist  in  the  practice  those  offenses  would  instantly  cease  in  that  church.  And  the  fact 
that  not  a  single  member  of  the  Mormon  Church  has  ever  fallen  into  disfavor  on  account  of  polygamous 
practices  is  conclusive  proof  that  the  ruling  authorities  of  that  church  countenance  and  encourage 
polygamy. 

The  conduct  of  Mr.  Smoot  in  this  regard  can  not  be  separated  from  that  of  his  associates  in  the 
government  of  the  Mormon  Church.  Whatever  his  private  opinions  or  his  private  conduct  may  be, 
he  stands  before  the  world  as  an  integral  part  of  the  organization  which  encourages,  counsels,  and 
approves  polygamy,  which  not  only  fails  to  discipline  those  who  break  the  laws  of  the  country,  but, 
on  the  contrary,  loads  with  honors  and  favors  those  who  are  among  the  most  noted  polygamists  within 
the  pale  of  that  church. 

It  is  an  elementary  principle  of  law  that  where  two  or  more  persons  are  associated  together  in  an 
act,  an  organization,  an  enterprise,  or  a  course  of  conduct  which  is  in  its  character  or  purpose  unlawful 
the  act  of  any  one  of  those  who  are  thus  associated  is  the  act  of  all,  and  the  act  of  any  number  of  the 
associates  is  the  act  of  each  one  of  the  others. 

An  eminent  legal  authority  says: 

"Every  person  entering  into  a  conspiracy  or  common  design  already  formed  is  deemed  in  law  a 
party  to  all  acts  done  by  any  of  the  other  parties  before  or  afterwards  in  furtherance  of  the  common 
design.  The  principle  on  which  the  acts  and  declarations  of  other  conspirators,  and  acts  done  at 
different  times,  are  admitted  in  evidence  against  the  persons  prosecuted  is  that  by  the  act  of  conspiring 
together  the  conspirators  have  jointly  assumed  to  themselves,  as  a  body,  the  attribute  of  individuality 
BO  far  as  regards  the  prosecution  of  the  common  design,  thus  rendering  whatever  is  done  or  said  by 
anyone  in  furtherance  of  that  design  a  part  of  the  res  gesta;  and  therefore  the  act  of  all.  (2  Greenleaf 
on  Evidence,  sees.  93,  94.    See  also  Commonwealth  r.  Warren,  6  Mass.,  74;  People  v.  Mather,  4  Wend., 


§  482  POLYGAMY  AND   OIHEfi   CBIMES  AS  DISQUALIFICATIONS,  579 

229,  260;  People  v.  Peckens,  153  N.  Y.,  576,  586,  593;  United  States  v.  Gooding,  12  Whealon,  459,  469; 
.\merican  Fur  Company  i'.  United  States,  2  Peters,  358,  365;  Nudd  et  al.  v.  Burrows,  91  U.  S.,  426,  438; 
United  States  r.  Mitchell.  1  Hughes,  439  (Federal  Cases,  No.  15790);  Stewart  r.  Johnson,  3  Har.  (X.  J.), 
87;  Hinchman  v.  Ritchie,  Brightley's  N.  P.  (Pa.),  143;  Freeman  v.  Stine,  34  Leg.  Int.  (Pa.),  95;  Spies 
et  al.  V.  People,  122  lUinois,  1.)" 

The  case  last  cited  illustrates  this  principle  more  forcibly  than  any  of  the  others  referred  to.  In 
that  case,  which  is  commonly  known  as  "the  anarchists'  case,"  there  was,  as  to  some  of  the  defendants, 
very  little  evidence,  and  as  to  others  of  the  defendants  no  satisfactory  evidence  that  they  were  present 
at  the  commission  of  the  murder  with  which  they  were  charged,  or  advised  or  intended  the  murder 
which  was  committed  by  an  unknown  person.  But  it  was  proved  that  the  defendants  were  members 
of  an  organization  known  as  the  International  Association  of  Chicago,  having  for  its  object  the  destruc- 
tion of  the  law  and  government  and  incidentally  of  the  police  and  militia  as  the  representatives  of  law 
and  government,  and  that  some  of  the  defendants  had,  by  spoken  and  printed  appeals  to  workingmen 
and  others,  urged  the  use  of  force,  deadly  weapons,  and  dynamite  in  resistance  to  the  law  and  its  officers. 

In  denying  the  motion  for  a  new  trial  in  the  anarchists'  case  the  judge  who  presided  at  the  trial 
used  the  following  language: 

"Now  on  the  question  of  the  instructions,  whether  these  defendants,  or  any  of  them,  anticipated 
or  expected  the  throwing  of  the  bomb  on  the  night  of  the  4th  of  May  is  not  a  question  which  I  need 
to  consider,  because  the  conviction  can  not  be  sustained,  if  that  is  necessary  to  a  conviction,  however 
much  evidence  of  it  there  may  be,  because  the  instructions  do  not  go  upon  that  ground.  The  jury 
were  not  instructed  to  find  the  defendants  guilty  if  they  believed  they  participated  in  the  throwing 
of  that  bomb,  or  advised  or  encouraged  the  throwing  of  that  bomb,  or  anything  of  that  sort.  Conviction 
has  not  gone  upon  the  ground  that  they  did  have  any  personal  participation  in  the  particular  act  which 
caused  the  death  of  Degan,  but  the  conviction  proceeds  upon  the  ground,  under  the  instructions,  that 
they  had  generally  by  speech  and  print  advised  large  classes  of  the  people,  not  particular  individuals, 
but  large  classes,  to  commit  murder,  and  have  left  the  commission,  time,  and  place  to  the  individual 
will  and  whim,  or  caprice,  or  whatever  it  may  be,  of  each  individual  man  how  listened  to  their  advice 
and,  influenced  by  that  advice,  somebody  not  known  did  throw  the  bomb  which  caused  Degan's 
death."     (Century  Magazine,  April,  1893,  p.  835.) 

It  will  be  seen  by  the  decision  of  the  court  upon  the  motion  for  a  new  trial  in  the  case  of  Spies 
et  al.  r.  People  that  the  anarchists  were  not  convicted  upon  the  ground  that  they  had  participated  in  the 
murder  of  which  they  were  convicted.  Whether  they  were  or  were  not  participants  in  the  commission 
of  this  crime  was  not  the  main  question  at  issue.  They  were  convicted  because  they  belonged  to  an 
organization  which,  as  an  organization,  advised  the  commission  of  acts  which  would  lead  to  murder. 

Of  like  import  is  the  decision  in  the  case  of  Davis  i .  Beason,  decided  by  the  Supreme  Court  of  the 
United  States  in  1889,  the  decision  being  reported  in  volume  133,  L'nited  States  Supreme  Cotut  Reports, 
page  333.  At  the  time  of  this  decision  the  Revised  Statutes  of  the  State  of  Idaho  provided  that  no 
person  "who  is  a  member  of  any  order,  organization,  or  association  which  teaches,  advises,  counsels,  or 
encourages  its  members,  devotees,  or  any  other  persons  to  commit  the  crime  of  bigamy  or  polygamy,  or 
any  other  crime  defined  by  law,  either  as  a  rite  or  ceremony  of  such  order,  organization,  or  association  or 
otherwise,  is  permitted  to  vote  at  any  election  or  to  hold  any  position  or  office  of  honor,  trust,  or  profit 
within  this  Territorj'." 

This  provision  of  law  the  Supreme  Court  of  the  United  States  held  to  be  constitutional  and  legal. 
It  will  be  observed  that  this  act  disfranchises  certain  persons  and  makes  them  ineligible  to  any  position 
or  office  of  honor,  trust,  or  profit,  not  for  committing  the  crime  of  polygamy,  nor  for  teaching,  advising, 
counseling,  or  encouraging  others  to  commit  the  crime,  but  because  of  their  membership  in  an  organiza- 
tion which  teaches,  advises,  counsels,  and  encourages  others  to  commit  the  crime  of  polygamy.  In 
Wooley  V.  Watkins  (2  Idaho  Rep.,  555,  566),  the  court  say: 

"Orders,  organizations,  and  associations,  by  whatever  name  they  may  be  called,  which  teach, 
advise,  counsel,  or  encotirage  the  practice  or  commission  of  acts  forbidden  by  law,  are  criminal  organi- 
zations. To  become  and  continue  to  be  members  of  such  organizations  or  associations  are  such  overt 
acts  of  recognition  and  participation  as  make  them  particeps  criminis  and  as  guilty,  in  contemplation 
of  criminal  law,  as  though  they  actually  engaged  in  furthering  their  uidawful  objects  and  purposes." 
(■See  also  Innis  v.  Bolton,  2  Idaho  Rep.,  407,  414.) 


580  PBECEDENTS    OF    THE   HOUSE    OF   BEPEESENTATIVES.  §   482 

It  being  a  fact  that  the  first  presidency  and  the  twelve  apostles  of  the  Mormon  Church  teach,  advise, 
counsel,  and  encourage  the  members  of  that  church  to  practice  polygamy  and  polygamous  cohabitation, 
which  are  contrary  to  both  law  and  morals,  and  Mr.  Smoot,  being  a  member  of  that  organization,  he 
must  fall  under  the  same  condemnation. 

And  the  rule  in  civil  cases  is  the  same  as  that  which  obtains  in  the  administration  of  criminal  law. 
One  who  is  a  member  of  an  association  of  any  nature  is  bound  by  the  action  of  his  associates,  whether  he 
favors  or  disapproves  of  such  action.  He  can  at  any  time  protect  himself  from  the  consequences  of  any 
future  action  of  his  associates  by  withdrawing  from  the  association,  but  while  he  remains  a  member  of 
the  association  he  is  responsiljle  for  whatever  his  associates  may  do. 

But  the  complicity  of  Mr.  Smoot  in  the  conduct  of  the  leaders  of  the  Mormon  Church  in  encouraging 
polygamy  and  polygamous  cohabitation  does  not  consist  wholly  in  the  fact  that  he  is  one  of  the  governing 
body  of  that  church.  By  repeated  acts,  and  in  a  number  of  instances,  Mr.  Smoot  has,  as  a  member  of 
the  quorum  of  the  twelve  apostles,  given  active  aid  and  support  to  the  members  of  the  first  presidency  and 
twelve  apostles  in  their  defiance  of  the  laws  of  the  State  of  Utah  and  of  the  laws  of  common  decency, 
and  their  encouragement  of  polygamous  practices  by  both  precept  and  example. 

It  is  shown  by  the  testimony  of  Mr.  Smoot  himself  that  he  assisted  in  the  elevation  of  Joseph  F. 
Smith  to  the  presidency  of  the  Mormon  Church.  That  he  has  since  repeatedly  voted  to  sustain  said 
Joseph  F.  Smith,  and  that  he  so  voted  after  full  knowledge  that  said  Joseph  F.  Smith  was  living  in 
polygamous  cohabitation  and  had  asserted  his  intention  to  continue  in  this  course  in  defiance  of  the  laws 
of  God  and  man.  He  also  assisted  in  the  selection  of  Heber  J.  Grant  as  president  of  a  mission  when  it 
was  a  matter  of  common  notoriety  that  said  Heber  J.  Grant  was  a  polygamist.  He  voted  for  the  election 
of  Charles  W.  Petirose  as  an  apostle  of  the  Mormon  Church  after  testimony  had  been  given  in  this  inves- 
tigation showing  him  to  be  a  polygamist.  It  is  difficult  to  perceive  how  Mr.  Smoot  could  have  given 
greater  encouragement  to  polygamy  and  polygamous  cohabitation  than  by  thus  assisting  in  conferring 
one  of  the  highest  honors  and  offices  in  the  Mormon  Church  on  one  who  had  been  and  was  then  guilty 
of  these  crimes.  As  trustee  of  an  educational  institution  he  made  no  protest  against  the  continuance  in 
office  of  Benjamin  Cluff,  jr.,  a  noted  polygamist,  as  president  of  that  institution,  nor  made  any  effort 
to  discover  the  truth  that  said  Cluff  had  taken  another  plural  wife  long  after  the  manifesto.  Nor  did  he 
make  any  protest,  as  such  trustee,  against  the  election  of  George  H.  Brimhall,  another  polygamist,  in 
the  place  of  Benjamin  Cluff,  jr. 

Since  his  election  as  an  apostle  of  the  Mormon  Church  Mr.  Smoot  has  been  intimately  associated 
with  the  first  president  and  with  those  who — with  himself — constitute  the  counsel  of  the  twelve  apostles. 
The  fact  that  many  of  these  officials  were  living  in  polygamous  relations  with  a  number  of  wives  was  a 
matter  of  such  common  knowledge  in  the  community  that  it  is  incredible  that  Mr.  Smoot  should  not 
have  had  sufficient  notice  of  this  condition  of  affairs  to  at  least  have  put  him  on  inquiry.  If  he  did  not 
know  of  these  facts  it  was  because  he  took  pains  not  to  lie  informed  of  them.  At  no  time  has  he  uttered 
a  syllable  of  protest  against  the  conduct  of  his  associates  in  the  leadership  of  the  Mormon  Church,  but, 
on  the  contrary,  has  sustained  them  in  their  encouragement  of  polygamy  and  polygamous  cohabitation 
both  by  his  acts  (as  hereinbefore  set  forth)  and  by  his  silence.  In  the  judgment  of  the  committee,  Mr. 
Smoot  is  no  more  entitled  to  a  scat  in  the  Senate  than  he  would  be  if  he  were  associating  in  polygamous 
cohabitation  with  a  plurality  of  wives. 

The  minority  of  the  committee  take  issue  with  this  conclusion: 

The  testimony  on  this  point  is  also  carefully  collated  and  analyzed  in  the  annexed  statement. 

It  will  be  found  by  an  examination  of  that  testimony  that  he  has  never  at  any  time,  and  particularly 
he  has  not  since  the  manifesto  of  1890,  countenanced  or  encouraged  plural  marriages;  but  that,  on  the 
contrary,  he  has  uniformly  upheld  the  policy  of  the  church,  as  announced  by  that  proclamation,  by 
actively  advocating  and  exerting  his  influence  to  effect  a  complete  discontinuance  of  such  marriages, 
and  that  in  the  few  instances  established  by  the  testimony  where  plural  marriages  and  polygamous 
cohabitation,  as  a  result  of  them,  have  occurred  since  1890  they  have  been  without  any  encouragement, 
countenance,  or  approval  whatever  on  his  part. 

As  to  polygamous  cohabitation  in  consequence  of  plural  marriages  entered  into  before  the  manifesto 
of  1890,  there  is  no  testimony  to  show  that  he  has  ever  done  more  than  silently  acquiesce  in  this  offense 
against  law.     In  view  of  his  important  and  influential  position  in  the  church,  this  acquiescence  might  be 


§  482  POLYGAMY   AND   OTHER   CRIMES   AS   DISQUALIFICATIONS.  581 

regarded  as  inexcusable  if  it  were  not  for  the  peculiar  circumstances  attending  the  commission  of  this 
offense. 

To  understand  these  circumstances  it  is  necessary  to  recall  some  historical  facts,  among  which  are 
some  that  indicate  that  the  United  States  Government  is  not  free  from  responsibility  for  these  violations 
of  the  law.  Instead  of  discountenancing  and  prohibiting  polygamy  when  it  was  first  proclaimed  and 
practiced,  the  Congress  remained  silent  and  did  nothing  in  that  behalf.  WTiile  Congress  was  thus  at  least 
manifesting  indifference.  President  Fillmore  and  the  Senate  of  the  United  States,  in  September,  1850, 
gave  both  recognition  and  encouragement  by  the  appointment  and  confirmation  of  Brigham  Young,  the 
then  head  of  the  church  and  an  open  and  avowed  advocate  and  representative  of  polygamy,  to  be 
governor  of  the  Territory  of  Utah.  WTien  his  term  of  office  expired  under  this  appointment  he  was 
reappointed  by  President  Pierce  and  again  confirmed  by  the  Senate. 

There  was  no  legislation  or  action  of  any  kind  by  Congress  on  this  subject  until  the  act  of  July  1, 
1862,  which  was  in  language  as  well  as  legal  effect  nothing  more  than  a  prohibition  of  bigamy  in  the 
Territories  and  other  places  over  which  the  United  States  had  jurisdiction. 

After  this  act  for  a  period  of  twenty  years  plural  marriages  and  polygamous  cohabitation  continued 
in  the  Territory  of  Utah  practically  unrestrained  and  without  any  serious  effort  of  the  part  of  the  United 
States  to  restrict  the  same. 

Finally,  in  response  to  an  aroused  public  sentiment.  Congress  passed  the  act  of  March  22,  1882,  by 
which  it  prohibited  both  plural  marriages  and  polygamous  cohabitation,  but  legitimized  the  children 
of  all  such  marriages  born  prior  to  the  1st  day  of  January,  1883.  Under  this  act  prosecutions  were  inau- 
gurated to  enforce  its  provisions,  but  it  was  soon  demonstrated  that  public  sentiment  was  such  that  only 
partial  and  very  unsatisfactory  success  could  be  secured. 

Then  followed  what  is  known  as  the  "Edmunds-Tucker  Act"  of  March  3, 1887,  by  which,  among 
other  things,  the  rules  of  evidence  were  so  changed  as  to  make  it  less  difficult  to  secure  evidence  in 
prosecutions  for  polygamy  and  polygamous  cohabitation.  Again,  by  the  terms  of  this  act  all  the  chil- 
dren born  within  twelve  months  after  its  passage  were  legitimized. 

This  statute  was  upheld  by  the  Supreme  Court  of  the  United  States,  and  efforts  to  prosecute  such 
offenses  were  redoubled,  with  such  success  that  on  the  26th  day  of  September,  1890,  the  then  president 
of  the  church,  Wilford  Woodruff,  issued  what  is  known  as  the  "manifesto  of  1890,"  forbidding  further 
plural  marriages.  So  far  as  the  testimony  discloses  there  have  been  but  few  plural  marriages  since, 
perhaps  not  more  than  the  bigamous  marriages  during  the  same  period  among  the  same  number  of  non- 
Mormons. 

The  evidence  shows  that  there  were  at  this  time  about  2,400  polygamous  families  in  the  Territory 
of  Utah.  This  number  was  reduced  to  five  hundred  and  some  odd  families  in  1905.  A  few  of  these 
families  may  have  removed  out  of  the  State  of  Utah,  but  so  far  as  the  testimony  discloses  the  great 
reduction  in  number  has  been  on  account  of  the  deaths  of  the  heads  of  these  families.  It  will  be  only  a 
few  years  at  most  until  all  will  have  passed  away.  This  feature  of  the  situation  has  had  a  controlling 
influence  upon  public  sentiment  in  the  State  of  Utah  with  respect  to  the  prosecutions  for  polygamous 
cohabitation  since  the  manifesto  of  1890. 

Whether  right  or  wrong,  when  plural  marriages  were  stopped  and  the  offense  of  polygamy  was 
confined  to  the  cohabitation  of  those  who  had  contracted  marriages  before  1890,  and  particularly  those 
who  had  contracted  marriages  before  the  statutes  of  1887  and  1882,  the  disinclination  to  prosecute  for 
these  offenses  became  so  strong,  even  among  the  non-Mormons,  that  such  prosecutions  were  finally 
practically  abandoned. 

It  was  not  alone  the  fact  that  if  no  further  plural  marriages  were  to  be  contracted,  polygamy  would 
necessarily  in  the  course  of  time  die  out  and  pass  away,  but  also  the  fact  that  Congress  having,  by  the 
statutes  of  1882  and  1887,  specifically  legitimized  the  children  of  these  polygamous  marriages,  it  was 
inconsistent,  if  not  unwise  and  impossible,  in  the  opinion  of  even  the  non-Mormons,  to  prohibit  the  father 
of  such  children  from  living  with,  supporting,  educating,  and  caring  for  them;  but  if  the  father  was  thus 
to  live  with,  support,  educate,  and  care  for  the  children,  it  seemed  harsh  and  unreasonable  to  exclude 
from  this  relationship  the  mothers  of  the  children. 

Such  are  some  of  the  reasons  assigned  for  the  lack  of  a  public  sentiment  to  uphold  successful  prose- 
cutions for  polygamous  cohabitation  after  1890.  It  is  unnecessary  to  recite  others,  for  it  is  enough  to  say 
that  whatever  the  real  reason  or  explanation  may  be,  the  fact  was  that  after  1890  it  became  practically 
impossiVjle  to  enforce  the  law  against  these  offenses,  except  in  flagrant  cases. 


582  PRECEDENTS   OF   THE    HOUSE   OF    REPRESENTATIVES.  §  482 

Such  waa  the  situation  when  the  Territory  applied  for  admission  to  the  Union  and  Congress  passed 
the  enabling  act  of  July  16,  1894,  by  which  the  people  of  Utah,  in  order  to  entitle  them  to  admission  into 
the  Union,  on  terms  prescribed  by  Congress,  were  required  to  incorporate  in  their  constitution  a  proviso 
that  "polygamous  or  plural  marriages  are  forever  prohibited;"  not  polygamous  cohabitation,  it  will  be 
observed,  but  only  polygamous  marriages.  The  testimony  shows  that  there  was  a  common  understand- 
ing both  in  Congress  and  Utah  that  there  were  not  only  to  be  no  more  plural  marriages,  but  that  prosecu- 
tions for  polygamous  cohabitation  had  become  so  difficult  that  there  was  a  practical  suspension  of  them, 
and  that  time  was  the  only  certain  solution  of  the  perplexing  problem. 

This  sentiment  has  not  only  ever  since  continued,  but  with  the  constant  diminution  of  the  num- 
ber of  polygamous  families  and  the  rapid  approach  of  the  time  when  all  will  have  passed  away  there 
has  come  a  natural  strengthening  of  the  sentiment.  The  testimony  in  this  respect  is  set  forth  at  length 
in  the  annexed  statement,  but  we  make  the  following  quotations  in  order  that  it  may  appear  in  this 
summary  that  there  is  this  common  disposition  among  non-Mormons  as  well  as  Mormons. 

Judge  William  McCarthy,  of  the  supreme  court  of  Utah,  a  non-Mormon  and  an  uncompromising 
opponent  of  polygamy,  who  has  held  many  important  offices  of  trust,  among  others  that  of  assistant 
United  States  attorney  for  Utah,  and  who,  as  such,  was  charged  with  the  duty  of  prosecuting  these 
offenses,  testified  as  follows: 

"I  prosecuted  them  (offenses  of  polygamous  cohabitation)  before  the  United  States  commissioners 
up  until  1893,  when  the  United  States  attorney  refused  to  allow  my  accounts  for  ser\  ices  for  that  kind 
of  work,  and  then  I  quit  and  confined  my  investigations  before  the  grand  jur>-  in  those  cases." 

In  explanation  of  his  action  he  testified — we  quote  from  the  annexed  statement: 

"That  he  found  the  press  was  against  the  prosecutions;  that  the  public  prosecutor,  whose  attention 
he  invited  to  the  matter,  refused  to  proceed.  From  this  and  other  facts  which  came  to  his  knowledge, 
Judge  McCarthy  reached  the  conclusion  that  the  public  sentiment  was  against  interfering  with  men  in 
their  polygamous  relations  who  had  married  before  the  manifesto." 

The  minority  quote  other  testimony,  including  that  of  Mr.  Dubois,  one  of 
those  concurring  in  the  majority  report,  as  justification  for  their  opposition  to  the 
conclusions  of  the  majority  on  this  point. 

(3)  The  majority  report  next  discusses  at  length  the  participation  in  and  domi- 
nation of  the  Mormon  Church  in  secular  affairs,  especially  in  political  matters: 

A  careful  examination  and  consideration  of  the  testimony  taken  before  the  committee  in  this 
investigation  leads  to  the  conclusion  that  the  allegations  in  the  protest  concerning  the  domination  of  the 
leaders  of  the  Mormon  Church  in  secular  affairs  are  true,  and  that  the  first  presidency  and  twelve  apostles 
of  the  Church  of  Jesus  Christ  of  Latter-Day  Saints  exercise  a  controlling  influence  over  the  action  of 
the  members  of  that  church  in  secular  affairs  as  well  as  in  spiritual  matters;  and  that,  contrary  to  the 
principles  of  the  common  law  under  which  we  live  and  the  constitution  of  the  State  of  Utah,  the  said 
first  presidency  and  twelve  apostles  of  the  Mormon  Church  dominate  the  affairs  of  the  State  and  con- 
stantly interfere  in  the  performance  of  its  functions.  The  domination  by  the  leaders  of  the  church 
under  their  claim  to  exercise  divine  authority  in  all  matters  is  manifested  in  a  general  way  in 
innumerable  instances. 

The  right  to  do  so  is  openly  claimed  by  those  who  profess  to  speak  in  behalf  of  the  church.  As 
late  as  February  25,  1904,  one  of  the  twelve  apostles,  in  a  public  address,  said  "that  from  the  view  point 
of  the  gospel  there  could  be  no  separation  of  temporal  and  spiritual  things,  and  those  who  object  to 
church  people  advising  and  taking  part  in  temporal  things  have  no  true  conception  of  the  gospel  of 
Christ  and  the  mission  of  the  church." 

The  method  by  which  the  first  presidency  and  twelve  apostles  of  the  Mormon  Church  direct  aJl 
the  temporal  affairs  of  the  members  of  that  church  under  the  claim  that  such  direction  is  by  divine 
authority  is  by  requiring  the  members  of  the  church  in  all  their  affairs,  both  spiritual  and  temporal, 
and  especially  the  latter,  to  "take  counsel."  This  means  that  they  are  to  be  advised  by  their  imme- 
diate superiors.  These  superiors  in  turn  take  their  instructions  from  those  above  them,  and  so  on  back 
to  the  point  whence  most,  if  not  all,  these  directions  emanate — that  is,  the  first  presidency  and  twelve 
apostles. 


§   482  POLYGAMY   AND   OTHER   CBIMES   AS   DISQUALIFICATIONS.  583 

The  report  cites  at  length  instances  of  this  participation  in  secular  affairs,  and 
then  says  of  political  domination : 

But  it  is  in  political  affairs  that  the  domination  of  the  first  presidency  and  twelve  apostles  of  the 
Mormon  Chvirch  is  most  efficacious  and  most  injurious  to  the  interests  of  the  State.  The  constitution 
of  the  State  of  Utah  provides  "There  shall  be  no  union  of  church  and  state,  nor  shall  any  church  domi- 
nate the  State  or  interfere  with  its  functions."  (Vol.  1,  p.  25.)  Notwithstanding  this  plain  provision 
of  the  constitution  of  Utah,  the  proof  offered  on  the  investigation  demonstrates  beyond  the  possibility 
of  doubt  that  the  hierarchy  at  the  head  of  the  Mormon  Church  has  for  years  past  formed  a  perfect  union 
between  the  Mormon  Chiu-ch  and  the  State  of  Utah,  and  that  the  church  through  its  head  dominates 
the  affairs  of  the  State  in  things  both  great  and  small.  Even  before  statehood  was  an  accomplished 
fact,  and  while  the  State  was  in  process  of  formation,  and  afterwards,  during  the  sessions  of  the  first  and 
succeeding  legislatures,  it  was  notorious  that  a  committee  appointed  by  the  leaders  of  the  Mormon 
Church  was  supervising  the  legislation  of  the  State. 

At  about  the  same  time,  or  shortly  prior  thereto,  it  became  known  throughout  Utah  that  the  leading 
officials  of  the  Mormon  Church  desired  that  the  voters  belonging  to  that  church  should  so  divide  on 
political  lines  that  about  one-half  should  belong  to  one  of  the  great  political  parties  of  the  nation  and  the 
other  half  to  the  other  party,  leaving  a  considerable  nvunber  unassigned  to  either  party,  so  that  their 
votes  could  be  cast  for  one  party  or  the  other,  as  might  be  necessary  to  further  the  interests  of  that 
church. 

It  is,  of  course,  intended  by  the  leaders  of  the  church  that  this  influence  shall  be  secretly  exerted, 
and  this  is  in  many  cases,  if  not  in  most  cases,  easUy  accomplished  by  means  of  the  perfect  machinery 
of  the  church,  which  has  been  adverted  to,  by  which  the  wUl  of  the  first  presidency  and  twelve  apostles 
is  transmitted  through  ecclesiastical  channels,  talked  over  in  prayer  circles  of  the  high  councils  of  the 
church,  and  then  promulgated  to  the  members  of  the  church  as  "the  will  of  the  Lord."  Notwith- 
standing this  attempt  at  secrecy,  it  has  for  many  years  been  a  matter  of  common  knowledge  among  the 
people  of  those  States  in  which  the  Mormon  Church  is  strongest  that  political  influence  is  being  con- 
tinually exerted  in  the  matter  of  State  and  lower  municipal  officials.  As  was  said  by  one  of  the  wit- 
nesses who  testified  on  the  investigation,  "WTieneverthey  indorse  a  man,  he  will  beelected.  Whenever 
they  put  upon  him  the  seal  of  their  disapprobation,  he  will  not  be." 

The  report  also  at  this  point  cites  instances  at  length,  and  then  continues: 

Not  only  is  Mr.  Smoot  one  of  those  by  and  through  whom  the  political  affairs  of  Utah  are  dominated, 
but  his  election  to  the  Senate  was,  it  is  believed,  the  result  of  such  domination. 

When  Mr.  Smoot  concluded  to  become  a  candidate  for  the  Senate  he  was  careful  to  obtain  the 
"consent"  of  the  first  presidency  and  twelve  apostles  to  his  candidacy.  But  this  so-called  "consent" 
of  the  rulers  of  the  church  was  naturally  regarded  by  the  people  of  Utah,  who  were  familiar  with  the 
ways  of  the  Mormon  high-priesthood,  as  being,  under  the  circumstances,  equivalent  to  an  indorsement 
and  made  it  impossible  for  anyone  else  to  become  an  aspirant  for  the  same  position  with  any  hope  of 
success. 

A   PRACTICAL    UNION    OF   CHURCH    AND   STATE. 

The  fact  that  the  adherents  of  the  Mormon  Church  hold  the  balance  of  power  in  politics  in  some 
of  the  States  enables  the  first  presidency  and  twelve  apostles  to  control  the  political  affairs  of  those 
States  to  any  extent  they  may  desire.  Thus  a  complete  union  of  church  and  state  is  formed.  This 
is  in  accordance  with  the  teachings  of  the  priesthood  of  the  Mormon  Church,  as  promulgated  in  the 
writings  of  men  of  high  authority  in  the  church,  to  the  effect  that  the  church  is  supreme  in  all  matters 
of  Government  as  well  as  in  all  things  pertaining  to  the  private  life  of  the  citizen.  In  one  of  a  series  of 
pamphlets,  "On  the  Doctrines  of  the  Gospel,"  by  Apostle  Orson  Pratt,  it  is  affirmed: 

"The  kingdom  of  God  is  an  order  of  government  established  by  divine  authority.  It  is  the  only 
legal  government  that  can  exist  in  any  part  of  the  universe.  All  other  governments  are  illegal  and 
unauthorized.  God  having  made  all  beings  and  worlds  has  the  supreme  right  to  govern  them  by  His 
own  laws  and  by  officers  of  His  own  appointment.  Any  people  attempting  to  govern  themselves  and 
by  laws  of  their  own  making  and  by  officers  of  their  own  apjwintment  are  in  direct  rebellion  against 
the  Kingdom  of  God."     (Vol.  1,  p.  666.) 


584  PEECEDENTS   OF   THE   HOUSE    OF   EEPBESENTATIVES.  §  482 

The  union  of  church  and  state  in  those  States  under  the  domination  of  the  Mormon  leaders  is  most 
abhorrent  to  our  free  institutions.  John  Adams  declared  that  the  attempt  of  the  Church  of  England  to 
extend  its  jurisdiction  over  the  colonies  "contributed  as  much  as  any  other  cause  to  arouse  the  attention, 
not  only  of  the  inquiring  mind,  but  of  the  common  people,  and  to  urge  them  to  close  thinljing  of  the 
constitutional  authority  of  Parliament  over  the  colonies"'  and  to  bring  on  the  war  of  independence. 
After  the  colonies  had  achieved  their  independence,  the  complete  enfranchisement  of  the  church 
from  the  control  of  the  state  and  of  the  state  from  the  control  of  the  church  was  brought  about  through 
the  efforts  of  men  like  Thomas  Jefferson  and  James  Madison  in  Virginia  and  those  of  almost  equal  prom- 
inence in  other  States.  And  thus  the  natural  desire  of  the  people  of  this  nation  for  the  entire  separation 
of  church  and  state  was  incorporated  in  the  Constitution  of  the  United  States  by  the  first  amendment 
to  that  instrument. 

The  right  to  worship  God  according  to  the  dictates  of  one's  own  conscience  is  one  of  the  most 
sacred  rights  of  every  American  citizen.  No  less  sacred  is  the  right  of  every  citizen  to  vote  according 
to  his  conscientious  convictions  without  interference  on  the  part  of  any  church,  religious  organization, 
or  body  of  ecclesiastics  which  seeks  to  control  his  political  opinions  or  direct  in  any  way  his  use  of  the 
elective  franchise. 

In  the  interest  of  religious  freedom  and  to  protect  the  State  from  the  influence  of  the  Mormon 
Church,  the  framers  of  the  constitution  of  Utah  incorporated  in  that  instrument  the  provision  which 
has  been  quoted  in  a  preceding  part  of  this  report.  That  provision  of  the  constitution  of  Utah  has 
been  persistently  and  contemptuously  disregarded  by  the  first  presidency  and  the  twelve  apostles  of 
the  Mormon  Church  ever  since  Utah  was  admitted  into  the  Union.  They  have  paid  as  little  regard  to 
this  mandate  of  the  constitution  of  Utah  as  they  have  to  the  law  which  prohibits  polygamy  and  the 
law  which  prohibits  polygamous  cohabitation. 

The  minority  say,  as  to  Mr.  Smoot's  connection  with  the  church: 

So  far  as  mere  belief  and  membership  in  the  Mormon  Church  are  concerned,  he  is  fully  within 
his  rights  and  privileges  under  the  guaranty  of  religious  freedom  given  by  the  Constitution  of  the  United 
States,  for  there  is  no  statutory  provision,  and  could  not  be,  prohibiting  either  such  belief  or  such 
membership. 

Moreover,  having  special  reference  to  the  Mormons  residing  in  Utah  and  their  peculiar  belief,  it 
was  provided  in  the  act  of  Congress  passed  July  16,  1894,  that  the  people  of  Utah  should  provide  in  their 
constitution  "by  ordinance  irrevocable  without  the  consent  of  the  United  States  and  the  people  of 
said  States — 

"1.  That  perfect  toleration  of  religious  sentiment  shall  be  secured,  and  that  no  inhabitants  of 
said  State  shall  ever  be  molested  in  person  or  property  on  account  of  his  or  her  mode  of  religious  wor- 
ship: Provided,  That  polygamous  or  plural  marriages  are  forever  prohibited." 

In  consequence  there  was  embodied  in  the  constitution  of  the  State  of  Utah  a  compliance  with 
this  requirement,  and  thereupon  the  Territory  was  duly  admitted  as  a  State  of  the  Union. 

Accordingly,  members  of  the  Mormon  Church,  open  and  avowed  believers  in  its  doctrines  and 
teachings,  have  been  admitted  without  question  to  both  Houses  of  Congress  as  Representatives  of  the 
State. 

(4)  The  committee  next  discuss  the  oath  alleged  to  be  inconsistent  mth  Mr. 
Smoot's  duties  as  a  Senator: 

In  the  protest  signed  and  verified  by  the  oath  of  Mr.  Leilich  it  is  claimed  that  Mr.  Smoot  has  taken 
an  oath  as  an  apostle  of  the  Mormon  Church  which  is  of  such  a  nature  as  to  render  him  incompetent  to 
hold  the  office  of  Senator.  From  the  testimony  taken  it  appears  that  Mr.  Smoot  has  taken  an  obligation 
which  is  prescribed  by  the  Mormon  Church  and  administered  to  those  who  go  through  a  ceremony 
known  as  "taking  the  endowments."  It  was  testified  by  a  number  of  witnesses  who  were  examined 
during  the  investigation  that  one  part  of  this  obligation  is  expressed  in  substantially  these  words: 

"You  and  each  of  you  do  covenant  and  promise  that  you  will  pray  and  never  cease  to  pray  Almighty 
God  to  avenge  the  blood  of  the  prophets  upon  this  nation,  and  that  you  will  teach  the  same  to  your 
children  and  to  your  children's  children  unto  the  third  and  fourth  generation." 

An  effort  was  made  to  destroy  the  effect  of  the  testimony  of  three  of  these  witnesses  by  impeachment 
of  their  reputation  for  veracity.     This  impeaching  testimony  was  not  strengthened  by  the  fact  that 


§   482  POLYGAMY   AND   OTHER    CRIMES   AS   DISQUALIFICATIONS.  585 

the  witQesses  by  whom  it  was  given  were  members  of  the  Mormon  Church  and  would  naturally  dis- 
parage the  truthfulness  of  one  who  would  give  testimony  unfavorable  to  that  church.  The  testimony 
of  the  witnesses  for  the  protestants,  before  referred  to,  was  corroborated  by  the  testimony  of  Mr.  Dougall, 
a  witness  sworn  in  behalf  of  Mr.  Smoot,  and  no  attempt  was  made  to  impeach  the  character  of  this 
witness.  It  is  true  that  a  number  of  witnesses  testified  that  no  such  obligation  is  contained  in  the 
endowment  ceremony;  but  it  is  a  verj'  suspicious  circumstance  that  every  one  of  the  witnesses  who 
made  this  denial  refused  to  state  the  obligation  imposed  on  those  who  take  part  in  the  ceremony. 

The  e\'idence  showing  that  such  an  obligation  is  taken  is  further  supported  by  proof  that  during 
the  endowment  ceremonies  a  prayer  is  offered  asking  God  to  avenge  the  blood  of  Joseph  Smith  upon 
this  nation,  and  certain  verees  from  the  Bible  are  read  which  are  claimed  to  justify  the  obligation  and 
the  prayer.  The  fact  that  such  a  prayer,  if  offered,  and  that  such  passages  from  the  Bible  are  read  was 
not  disputed  by  any  witness  who  was  sworn  on  the  investigation.  Nor  was  it  questioned  that  by  the  term 
"the  prophets"  as  used  in  the  endowment  ceremony  reference  is  made  to  Joseph  and  Hyrum  Smith. 

That  an  obligation  of  vengeance  is  part  of  the  endowment  ceremony  is  further  attested  by  the 
fact  that  shortly  after  testimony  had  been  given  on  that  subject  before  the  committee  Bishop  Daniel 
Connelly  of  the  Mormon  Church  denounced  the  witnesses  who  had  given  this  testimony  as  traitors  who 
had  broken  their  oaths  to  the  church. 

The  fact  that  an  oath  of  vengeance  is  part  of  the  endowment  ceremonies  and  the  nature  and  char- 
acter of  such  an  oath  was  judicially  determined  in  the  third  judicial  court  of  Utah  in  the  year  1889,  in 
the  matter  of  the  application  of  John  Moore  and  others  to  become  citizens  of  the  United  States.  In  an 
opinion  denying  the  application  the  court  say. 

•■  In  these  applications  the  usual  evidence  on  behalf  of  the  applicants  as  to  residence,  moral  char- 
acter, etc.,  was  introduced  at  a  former  hearing  and  was  deemed  sufficient.  Objection  was  made,  how- 
ever, to  the  admission  of  John  Moore  and  William  J.  Edgar  upon  the  ground  that  they  were  members 
of  the  Mormon  Church,  and  also  because  they  had  gone  through  the  endowment  house  of  that  church 
and  there  had  taken  an  oath  or  obligation  incompatible  with  the  oath  of  citizenship  they  would  be 
required  to  take  if  admitted.      *    »    * 

"Those  objecting  to  the  right  of  these  applicants  to  be  admitted  to  citizenship  introduced  eleven 
witnesses  who  had  been  members  of  the  Church  of  Jesus  Christ  of  Latter-Day  Saints,  commonly  called 
the  'Mormon  Church.'  Several  of  these  witnesses  had  held  the  position  of  bishop  in  the  church,  and 
all  had  gone  through  the  endowment  house  and  participated  in  its  ceremonies.  The  testimony  of  these 
witnesses  is  to  the  effect  that  every  member  of  the  church  is  expected  to  go  through  the  endowment 
house,  and  that  nearly  all  do  so;  that  marriages  are  usually  solemnized  there,  and  that  those  who  are 
married  elsewhere  go  through  the  endowment  ceremonies  at  as  early  date  thereafter  as  practicable,  in 
order  that  the  marital  relations  shall  continue  throughout  eternity. 

"On  behalf  of  the  applicants  fourteen  witnesses  testified  concerning  the  endowment  ceremonies, 
but  all  of  them  declined  to  state  what  oaths  are  taken,  or  what  obligations  or  covenants  are  there  entered 
into,  or  what  penalties  are  attached  to  their  violation;  and  these  witnesses,  when  asked  for  their  reason 
for  declining  to  answer,  stated  that  they  did  so  'on  a  point  of  honor,'  while  several  stated  they  had  for- 
gotten what  was  said  about  avenging  the  blood  of  the  prophets.     *    *    * 

"The  witnesses  for  the  applicants,  while  refusing  to  disclose  the  oaths,  promises,  and  covenants  of 
the  endowment  ceremonies  and  the  penalties  attached  thereto,  testified  generally  that  there  was  nothing 
in  the  ceremonies  inconsistent  with  loyalty  to  the  Government  of  the  United  States,  and  that  the  Gov- 
ernment was  not  mentioned.  One  of  the  objects  of  this  investigation  is  to  ascertain  whether  the  oaths 
and  obligations  of  the  endowment  house  are  incompatible  with  good  citizenship,  and  it  is  not  for  appli- 
cants' witnesses  to  determine  this  question.  The  refusal  of  applicants'  witnesses  to  state  specifically 
what  oath,  obligations,  or  covenants  are  taken  or  entered  into  in  the  ceremonies  renders  their  testi- 
mony of  but  little  value,  and  tends  to  confirm  rather  than  contradict  the  evidence  on  this  point  offered 
by  the  objectors.  The  evidence  established  beyond  any  reasonable  doubt  that  the  endowment  cere- 
monies are  inconsistent  with  the  oath  an  applicant  for  citizenship  is  required  to  take,  and  that  the 
oaths,  obligations,  or  covenants  there  made  or  entered  into  are  incompatible  with  the  obligations  and 
duties  of  citizens  of  the  United  States."     (Vol.  4,  pp.  340-343.) 

The  obligation  hereinbefore  set  forth  is  an  oath  of  disloyalty  to  the  Government  which  the  rules  of 
the  Mormon  Church  require,  or  at  least  encourage,  every  member  of  that  organization  to  take. 


586  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §  482 

It  is  in  harmony  with  the  views  and  conduct  of  the  leaders  of  the  Mormon  people  in  former  days, 
when  they  openly  defied  the  Government  of  the  United  States,  and  is  also  in  harmony  with  the  conduct 
of  those  who  give  the  law  to  the  Mormon  Church  to-day  in  their  defiant  disregard  of  the  laws  against 
polygamy  and  polygamous  cohabitation.  It  may  be  that  many  of  those  who  take  this  obligation  do  so 
without  realizing  its  treasonable  import;  but  the  fact  that  the  first  presidency  and  twelve  apostles  retain 
an  obligation  of  that  nature  in  the  ceremonies  of  the  church  shows  that  at  heart  they  are  hostile  to  this 
nation  and  disloyal  to  its  Government. 

And  the  same  spirit  of  disloyalty  is  manifested  also  in  a  number  of  the  hymns  contained  in  the 
collection  of  hymns  put  forth  by  the  rulers  of  the  Mormon  Church  to  be  sung  by  Mormon  congregations. 

There  can  be  no  question  in  regard  to  the  taking  of  the  oath  of  vengeance  by  Mr.  Smoot.  He  testi- 
fied that  he  went  through  the  ceremony  of  taking  the  endowments  in  the  year  1880,  and  the  head  of  the 
Mormon  Church  stated  in  his  testimony  that  the  ceremony  is  now  the  same  that  it  has  always  been. 

An  obligation  of  the  nature  of  the  one  before  mentioned  would  seem  to  be  wholly  incompatible 
with  the  duty  which  Mr.  Smoot  as  a  member  of  the  United  States  Senate  would  owe  to  the  nation.  It  is 
difficult  to  conceive  how  one  could  discharge  the  obligation  which  rests  upon  every  Senator  to  so  per- 
form his  official  duties  as  to  promote  the  welfare  of  the  people  of  the  United  States  and  at  the  same  time 
be  calling  down  the  vengeance  of  heaven  on  this  nation  because  of  the  killing  of  the  founders  of  the  Mor- 
mon Church  sixty  years  ago. 

The  minority  say  on  this  point: 

As  to  the  "endowment  oath,"  it  is  sufficient  in  this  summary  to  say  that  the  testimony  is  collated 
and  analyzed  in  the  annexed  statement,  and  thereby  shown  to  be  limited  in  amount,  vague  and  indefi- 
nite in  character,  and  utterly  unreliable,  because  of  the  disreputable  and  untrustworthy  character  of  the 
witnesses. 

There  were  but  seven  witnesses  who  made  any  pretenses  of  testifying  about  any  such  obligation. 
One  of  these  was  shown  by  the  testimony  of  two  uncontradicted  witnesses  to  be  mentally  unsound. 
Another,  to  have  committed  perjury  in  the  testimony  given  before  the  committee  on  another  point.  The 
third  was  shown  by  the  uncontradicted  testimony  of  a  number  of  witnesses  to  have  a  bad  reputation  for 
truth  and  veracity,  and  to  be  thoroughly  unreliable.  A  fourth  admitted  that  he  had  been  for  years 
intemperate,  and  was  shown  by  indisputable  testimony  to  have  lost  his  position  on  that  account,  and 
thereupon  and  for  that  reason  to  have  withdrawn  from  the  church  and  to  have  assumed  such  a  hostile 
and  revengeful  attitude  as  to  entirely  discredit  him  as  a  reliable  witness.  The  other  three  witnesses 
were  so  indefinite  as  to  their  statements  that  their  testimony  amounted  at  most  to  nothing  more  than  an 
attempt  to  state  an  imperfect  and  confessedly  uncertain  recollection. 

All  that  it  is  attempted  to  show  as  to  the  character  of  this  oath  is  positively  contradicted  by  Reed 
Smoot  and  a  great  number  of  witnesses,  whose  standing  and  character  and  whose  reputation  for  truth 
and  veracity  are  unquestioned,  except  only  in  so  far  as  their  credibility  may  be  affected  by  the  fact 
that  they  are  or  have  been  members  of  the  Mormon  Church. 

Upon  this  state  of  evidence  we  are  of  opinion  that  no  ground  has  been  established  on  which  to 
predicate  a  finding  or  belief  that  Mr.  Smoot  ever  took  any  obligation  involving  hostility  to  the  United 
States,  or  requiring  him  to  regard  his  allegiance  to  the  Mormon  Church  as  paramount  to  his  allegiance 
and  duty  to  the  United  States. 

(5)    As    to   the   charge    that   Mr.   Smoot    was    a    polygamist,    the    majority 

report  says: 

In  the  protest  signed  by  Mr.  Leilich  alone  it  was  charged  that  Reed  Smoot  is  a  polygamist,  and 
that,  as  an  apostle  of  the  Church  of  Jesus  Christ  of  Latter-Day  Saints,  commonly  called  the  "Mormon 
Church,"  he  had  taken  an  oath  "of  such  a  nature  and  character  as  that  he  is  thereby  disqualified  from 
taking  the  oath  of  office  required  of  a  United  States  Senator."  No  one  appeared,  however,  to  sustain 
either  of  these  charges.  No  evidence  has  been  offered  in  support  of  either  of  them,  but,  on  the  con- 
trary, both  charges  were  refuted  by  a  number  of  witnesses. 

The  minority  say: 

Aside  from  his  connection  with  the  Mormon  Church,  so  far  as  his  private  character  is  concerned, 
it  is,  according  to  all  the  witnesses,  irreproachable,  for  all  who  testify  on  the  subject  agree  or  concede 


§   483  POLYGAMY   AND    OTHER    CRIMES   AS    DISQUALIFICATIONS.  587 

that  he  has  led  and  is  leading  an  upright  life,  entirely  free  from  immoral  practices  of  every  kind.  He 
is  not  a  polygamist;  has  never  had  but  one  wife,  and  has  been  noted  from  early  manhood  for  his  oppo- 
sition to  plural  marriages,  and  probably  did  as  much  as  any  other  member  of  the  Mormon  Church  to 
bring  about  the  prohibition  of  further  plural  marriages. 

In  accordance  with  the  above  considerations,  the  majority  summarize  their 
conclusions  as  follows: 

The  more  deliberately  and  carefully  the  testimony  taken  on  the  investigation  is  considered,  the 
more  irresistably  it  leads  to  the  conclusion  that  the  facts  stated  in  the  protest  are  true;  that  Mr.  Smoot 
is  one  of  a  self-perpetuating  body  of  men,  known  as  the  first  presidency  and  twelve  apostles  of  the  Church 
of  Jesus  Christ  of  Latter-Day  Saints,  commonly  known  as  the  Mormon  Church;  that  these  men  claim 
divine  authority  to  control  the  members  of  said  church  in  all  things,  temporal  as  well  as  spiritual;  that 
this  authority  is,  and  has  been  for  several  years  past,  so  exercised  by  the  said  first  presidency  and  twelve 
apostles  as  to  encourage  the  practice  of  polygamy  and  polygamous  cohabitation  in  the  State  of  Utah 
and  elsewhere,  contrary  to  the  constitution  and  laws  of  the  State  of  Utah  and  the  law  of  the  land; 
that  the  said  first  presidency  and  twelve  apostles  do  now  control,  and  for  a  long  time  past  have  controlled, 
the  political  affairs  of  the  State  of  Utah,  and  have  thus  brought  about  in  said  State  a  union  of  church 
and  state,  contrary'  to  the  constitution  of  said  State  of  Utah  and  contrary  to  the  Constitution  of  the 
United  States,  and  that  said  Reed  Smoot  comes  here,  not  as  the  accredited  representative  of  the  State 
of  Utah  in  the  Senate  of  the  United  States,  but  as  the  choice  of  the  hierarchy  which  controls  the  church 
and  has  usurped  the  functions  of  the  State  in  said  State  of  Utah. 

It  follows,  as  a  necessary  conclusion  from  these  facts,  that  Mr.  Smoot  is  not  entitled  to  a  seat  in  the 
Senate  as  a  Senator  from  the  State  of  Utah,  and  your  committee  report  the  following  resolution: 

Resolved,  That  Reed  Smoot  is  not  entitled  to  a  seat  as  a  Senator  of  the  United  States  from  the  State 
of  Utah. 

The  minority  declared,  in  addition  to  the  positions  taken  above,  that  — 

Reed  Smoot  possesses  all  the  qualifications  prescribed  by  the  Constitution  to  make  him  eligible  to 
a  seat  in  the  Senate,  and  the  regularity  of  his  election  by  the  legislature  of  the  State  of  Utah  is  not 
questioned  in  any  manner. 

And  made  no  recommendation  for  action. 

483.   The  Senate  case  of  Reed  Smoot  continued. 

The  Senate  declined  to  exclude  Reed  Smoot  for  alleged  disqualifica- 
tions other  than  those  specified  in  the  Constitution. 

The  Senate  apparently  held  the  view  that  Reed  Smoot  might  be  de- 
prived of  his  seat  only  by  the  two-thirds  vote  specified  by  the  Constitu- 
tion for  expulsion. 

Final  arguments  in  the  Smoot  case  as  to  what  are  the  constitutional 
qualifications  of  a  Senator. 

The  consideration  of  the  resolution  declaring  Mr.  Smoot  not  entitled  to  his  seat 
proceeded  at  intervals  during  the  second  session  of  the  Fifty-ninth  Congress. 

On  February  14,  1907,'  Mr.  Philander  C.  Knox,  of  Pennsylvania,  in  debating 
the  resolution,  said: 

Mr.  President,  the  Constitution  provides  that  the  Senate  shall  be  the  judge  of  the  qualifications 
of  its  members;  a  majority  of  the  Senate  can  determine  whether  or  not  a  Senator  possesses  them.  The 
Constitution  also  provides  that  the  Senate  may,  with  the  concurrence  of  two-thirds,  expel  a  Member. 

I  have  intentionally  referred  to  the  proposed  action  against  Senator  Smoot  as  expulsion.  I  do  not 
think  the  Senate  will  seriously  consider  that  any  question  is  involved  except  one  of  expulsion,  requiring 

'  Second  session  Fifty-ninth  Congress,  Record,  p.  2934. 


588  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   483 

a  two-thirds  vote.  There  is  no  question  as  to  Senator  Smoot  possessing  the  qualifications  prescribed  by 
the  Constitution,  and  therefore  we  can  not  deprive  him  of  his  seat  by  a  majority  vote.  He  was  at  the 
time  of  his  election  over  30  years  of  age  and  had  been  nine  years  a  citizen  of  the  United  States,  and  when 
elected  was  an  inhabitant  of  Utah.  These  are  the  only  qualifications  named  in  the  Constitution,  and 
it  is  not  in  our  power  to  say  to  the  States,  "These  are  not  enough;  we  require  other  qualifications,"  or  to 
say  that  we  can  not  trust  the  judgment  of  States  in  the  selection  of  Senators,  and  we  therefore  insist 
upon  the  right  to  disapprove  them  for  any  reason. 

This  claim  of  right  to  disapprove  is  not  even  subject  to  any  rule  of  the  Senate  specifying  additional 
qualifications  of  which  the  States  have  notice  at  the  time  of  selecting  their  Senators,  but  it  is  said  to  be 
absolute  in  each  case  as  it  arises,  uncontrolled  by  any  canon  or  theory  whatever. 

Anyone  who  takes  the  trouble  to  examine  the  history  of  the  clause  of  the  Constitution  as  to  the 
qualification  of  Senators  must  admit  that  it  was  the  result  of  a  compromise.  The  contention  that  the 
States  should  be  the  sole  judges  of  the  qualifications  and  character  of  their  representatives  in  the  Senate 
was  acceded  to  with  this  limitation:  A  Senator  must  be  30  years  of  age,  nine  years  a  citizen  of  the  United 
States,  and  an  inhabitant  of  the  State  from  which  he  is  chosen.  Subject  to  these  limitations  imposed 
by  the  Constitution,  the  States  are  left  untrammeled  in  their  right  to  choose  their  Senators.  This 
constitutional  provision  secures  a  measure  of  maturity  in  counsel,  and  at  least  a  presumption  of  interest 
in  the  welfare  of  the  Nation  and  State. 

By  another  provision — namely,  that  relating  to  expulsion — the  Constitution  enables  the  Senate  to 
protect  itself  against  improper  characters  by  expelling  them  by  a  two-thirds  vote  if  they  are  guilty  of 
crime,  offensive  immorality,  disloyalty,  or  gross  impropriety  during  their  term  of  service. 

I  specify  these  reasons  because  I  can  not  imagine  the  Senate  expelling  a  member  for  a  cause  not 
falling  within  one  of  them. 

******* 

I  know  of  no  defect  in  the  plain  rule  of  the  Constitution  for  which  I  am  contending.  I  know  of  no 
case  it  does  not  reach.  I  can  not  see  that  any  danger  to  the  Senate  lies  in  the  fact  that  an  improper 
character  can  not  be  expelled  without  a  two-thirds  vote.  It  requires  the  unanimous  vote  of  a  jury  to 
convict  a  man  accused  of  crime;  it  should  reqiurc,  and  I  believe  that  it  does  require,  a  two-thirds  vote 
to  eject  a  Senator  from  his  position  of  honor  and  power,  to  which  he  has  been  elected  by  a  sovereign  State. 

The  simple  constitutional  requirements  of  qualification  do  not  in  any  way  involve  the  moral 
quality  of  the  man;  they  relate  to  facts  outside  the  realm  of  ethical  consideration  and  are  requirements 
of  fact  easily  established.  Properly  enough,  therefore,  as  no  sectional,  partisan,  or  religious  feeling 
could  attach  itself  to  an  issue  as  to  whether  or  not  a  man  is  30  years  of  age,  had  been  a  citizen  of  the  United 
States  and  an  inhabitant  of  a  State  for  the  periods  prescribed,  the  decision  as  to  their  existence  rests  with 
a  majority  of  the  Senate.  "When,  however,  a  different  issue  is  raised,  dehors  the  Constitution,  upon 
allegations  of  unfitness,  challenging  the  moral  character  of  a  Senator,  involving  a  review  of  questions 
considered  and  settled  in  the  Senator's  favor  by  the  action  of  his  State  in  electing  him,  then  the  situation 
is  wholly  changed,  and  a  different  function  is  to  be  performed  by  the  Senate,  calling  for  its  proper  exercise 
the  highest  delicacy  and  discretion  in  reviewing  the  action  of  another  sovereignty. 

If  I  were  asked  to  state  concisely  the  true  theory  of  the  Constitution  upon  this  important  point,  I 
would  unhesitatingly  say; 

First.  That  the  Constitution  undertakes  to  prescribe  no  moral  or  mental  qualification,  and  in 
respect  to  such  qualifications  as  it  does  prescribe  the  Senate  by  a  majority  vote  shall  judge  of  their  exist- 
ence in  each  case,  whether  the  question  is  raised  before  or  after  the  Senator  has  taken  his  seat. 

Second.  That  as  to  all  matters  affecting  a  man's  moral  or  mental  fitness  the  States  are  to  be  the 
judges  in  the  first  instance,  subject,  however,  to  the  power  of  the  Senate  to  reverse  their  judgment  by  a 
two-thirds  vote  of  expulsion  when  an  offense  or  an  offensive  status  extends  into  the  period  of  Senatorial 
service,  and  such  a  question  can  only  be  made  after  the  Senator  has  taken  his  seat. 

If  to  this  it  is  objected  that  it  contemplates  admitting  a  man  who  may  be  immediately  expelled,  I 
reply  that  it  is  hardly  proper  to  adopt  a  rule  of  constitutional  construction  and  Senatorial  action  based 
upon  the  theory  that  the  States  will  send  criminals  or  idiots  to  the  Senate.  Besides,  it  does  not  seem  to 
me  to  be  conceding  much  to  a  State,  after  it  has  deliberately  and  solemnly  elected  a  Senator  after  the 
fullest  consideration  of  his  merits,  to  concede  on  the  first  l)lush  of  the  lousiness  the  State's  intelligent  and 
honorable  conduct  by  allowing  its  chosen  representative  admission  to  the  body  to  which  he  is  accredited. 


§483 


POLYGAMY   AND   OTHER   CEIMES  AS   DISQUALIFICATIONS.  589 


On  February  20/  Mr.  Julius  C.  Burrows,  of  Jklichigan,  said : 

Under  the  first  head  it  is  insisted  that  the  Senate,  in  examining  into  the  qualifications  of  a  Senator, 
is  restricted  in  its  inquiry  to  the  question  of  age,  citizenship,  and  residence,  and  beyond  that  the  inquirj- 
can  not  go,  and  no  other  qualifications  can  be  imposed.  The  junior  Senator  from  Illinois,  in  his  verj' 
able  speech,  said  ujwn  this  point: 

•'The  po'srer  that  is  given  to  the  Senate  under  the  Constitution  is  not  to  create  Senators,  but  to 
judge  of  their  qualifications.  The  States  create  the  Senators.  The  qualifications  to  be  judged  are  those 
I  have  already  stated,  prescribed  in  the  Constitution  itself.  If  the  Senate  find  those  qualifications 
exist  for  the  applicant  for  a  seat  in  this  body  from  any  given  State,  then  under  all  precedents  such  Senator 
is  entitled  to  take  the  oath  of  office  and  take  his  place  among  the  members  of  this  great  legislative  body." 

If  such  contention  can  be  maintained,  that  ends  the  controversy,  for  no  one  questions  but  that  the 
senior  Senator  from  Utah  has,  in  the  language  of  the  Constitution,  '"attained  to  the  age  of  30  years,  been 
nine  years  a  citizen  of  the  United  States,  and  is  an  inhabitant  of  the  State  from  which  he  is  chosen." 

If  the  possession  of  these  attributes  constitutes  the  "lie  all  and  end  all"  of  the  qualifications  of  a 
Senator,  then  is  the  Senate  helpless  indeed.  If  this  contention  be  sound,  then  Joseph  F.  Smith,  the 
head  of  th's  organization  to  which  the  Senator  belongs,  possessing,  as  he  does,  the  constitutional  quali- 
fications of  age,  citizenship,  and  residence,  would  be  entitled  to  admission  to  this  body  if  elected  by  the 
legislature  of  Utah,  and  his  five  wives  and  forty-three  children  covdd  witness  from  the  galleries  of  the 
Senate  his  triumphal  entry,  unquestioned  and  unopposed,  into  the  membership  of  this  august  assembly. 

It  is  impossible  for  me  to  give  assent  to  such  doctrine,  and  I  have  been  unable  to  find  it  sustained 
either  in  reason  or  upon  authority,  and  the  contention  is  resisted  both  upon  principle  and  precedent  and 
can,  in  my  judgment,  find  no  warrant  in  either. 

I  submit  that  the  provision  of  section  3,  Article  I,  was  not  inserted  with  the  purpose  of  determining 
or  fixing  the  qualifications  of  Senators,  but  it  was  ingrafted  into  the  Federal  Constitution  expressly  as  a 
limitation  upon  the  power  of  the  States  in  making  selection  of  Senators,  restricting  the  choice  to  a  cer- 
tain class  of  its  citizens.  It  excluded  a  certain  class  as  being  ineligible  to  the  office  of  Senator.  The 
purpose  of  it  was  to  correct  an  evil  which  had  grown  up  during  the  years  of  the  Continental  Congi'ess  and 
the  Congress  of  the  Confederation.  It  was  for  the  purpose  of  insuring  a  national  Congress  for  the  new 
Government  to  be  composed  of  a  body  of  men  of  mature  judgment,  residents  of  the  State  or  district,  and 
thoroughly  American. 

Noah  Webster  said,  speaking  of  the  leading  principles  of  the  Federal  Constitution: 

"A  man  must  be  30  years  of  age  before  he  can  be  admitted  into  the  Senate,  which  was  likewise  a 
requisite  in  the  Roman  Government.  The  places  of  Senators  are  wisely  left  open  to  all  persons  of  suit- 
able age  and  merit,  and  who  have  been  citizens  of  the  United  States  for  nine  years,  a  term  in  which 
foreigners  may  acquire  the  feelings  and  acquaint  themselves  with  the  interests  of  the  native  Americans.' 

A  brief  reference  to  the  facts  of  history  will  suffice  to  show  the  exigency  which  called  this  consti- 
tutional pro\'ision  into  existence. 

Under  the  Continental  Congress  and  the  Congress  of  the  Confederation  there  were  no  restrictiijns 
as  to  age,  residence,  or  citizenship,  except  such  as  the  various  colonies  or  States  saw  fit  to  impose,  and 
which  were  as  varied  as  the  number  of  colonies  or  States,  and  of  the  348  different  individuals  from  the 
thirteen  colonies  who  held  scats  in  the  Continental  Congress  and  the  Congress  of  the  Confederation  from 
1774  to  1788,  the  ages  of  the  delegates  varied  from  16  to  76  years.  Charles  Pinckney,  of  North  Carolina, 
a  member  of  the  Continental  Congress,  was  but  19  years  of  age  when  elected  to  that  body,  and  James 
Sykes,  of  Delaware,  also  of  the  Continental  Congress,  was  only  16  years  old  when  elected  to  Congress, 
and  twenty-five  members  of  that  body  were  under  30  years  of  age. 

With  these  examples  before  them,  it  was  deemed  wise  to  place  some  restrictions  in  the  Federal 

Constitution  upon  the  power  of  the  States  in  their  choice  of  Senators  and  Representatives  to  the  Federal 

Congress. 

******* 

I  repeat,  therefore,  that  this  provision  of  the  Constitution  was  evidently  intended  to  be  nothing 
more  than  a  statement  of  a  few  of  the  many  disqualifications  which  would  or  might  render  one  untit  to 
hold  the  office  of  a  Senator  and  to  make  ineligible  all  persons  laboring  under  the  disabilities  named,  and 
leaving  the  question  of  qualifications  in  other  respects  to  be  determined  by  the  Senate  according  to  the 

'  Record,  pp.  3418,  3419,  3420. 


590  PRECEDENTS   OP   THE   HOUSE   OF   EEPRESENTATIVES.  §  483 

facts  in  each  particular  case,  under  the  right  conferred  by  the  Constitution  to  judge  of  the  qualificationa 
of  its  own  members.  To  contend  otherwise  would  be  to  assert  that  the  fathers  who  framed  our  Consti- 
tution deliberately  intended  that  an  idiot,  a  lunatic,  an  enemy  of  the  Government,  or  a  notorious  crimi- 
nal must  be  allowed  a  place  in  the  Senate  if  of  proper  age,  residence,  and  citizenship.  I  submit  that 
no  such  interpretation  of  that  clause  of  the  Constitution  is  justifiable  or  reasonable,  and  that  the  pro- 
vision in  question  must  be  interpreted  as  being  a  limitation,  to  a  certain  extent,  upon  the  powers  of  the 
State  in  choosing  members  to  the  Senate.  This  contention,  I  insist,  is  sustained  not  only  in  reason,  but 
upon  authority. 

Mr.  Burrows  then  referred  to  the  cases  of  Niles,  Thomas,  and  Roberts;  and 
continued: 

Mr.  President,  it  is  contended  in  behalf  of  Senator  Smoot  that  even  if  it  were  to  be  conceded  that 
the  Senate  would  have  a  right  to  inquire  into  the  qualifications  of  Senator  Smoot  as  regards  his  past 
history,  his  associations,  his  acts,  and  his  fitness  to  be  a  Senator  from  the  State  of  Utah,  still  Mr.  Smoot, 
having  taken  the  oath  of  office  as  a  Senator,  can  not  be  excluded  from  the  Senate  or  in  any  way  be 
removed  from  this  body  except  by  expulsion,  requiring  a  two-thirds  vote.  It  is  proposed,  as  I  under- 
stand, to  amend  this  resolution  so  as  to  require  a  two-thirds  vote  by  inserting,  after  the  word  "Resolved," 
the  words  "two-thirds  of  the  Senate  concurring,"  and  thereby  to  erect  an  additional  barrier  behind 
which  the  Senator  from  Utah  may  take  refuge. 

It  is  admitted  that  if  the  status  of  Senator  Smoot  at  the  time  he  presented  himself  for  admission 
in  this  body  would  have  justified  his  exclusion,  then  the  same  status  or  condition  continuing  until  this 
time  would  justify  his  removal.  However,  I  have  no  desire  to  discuss  at  length  that  question,  because 
to  my  mind  it  is  not  material. 

In  the  Senate,  whenever  one  has  presented  himself  claiming  the  right  to  a  seat  in  that  body  with 
credentials  which  upon  their  face  were  fair  and  regular  in  form  but  whose  right  to  a  seat  was  challenged 
for  any  reason,  the  almost  uniform  practice  has  been  to  admit  him  to  a  seat  and  inquire  into  his  qualifi- 
cations afterwards.  Such  was  the  course  pursued  in  the  case  of  Albert  Gallatin,  of  Pennsylvania,  in 
1793;  of  Asher  Robbins,  of  Rhode  Island,  in  1833;  of  James  Shields,  of  Illinois,  in  1849;  of  James  Harlan, 
of  Iowa,  in  1853,  and  in  a  great  number  of  other  cases  which  might  be  cited. 

On  the  same  day  '  the  question  recurred  on  the  resolution  recommended  by 
the  committee: 

Resolved,  That  Reed  Smoot  is  not  entitled  to  a  seat  as  a  Senator  of  the  United  States  from  the 
State  of  Utah. 

Jklr.  Albert  J.  Hopkins,  of  Illinois,  proposed  a  substitute  amendment,  to  strike 
out  all  after  the  word  "Resolved"  and  insert  a  new  text,  so  that  it  should  read  as 
follows: 

Resolved  {two-thirds  of  the  Senators  present  concurring  therein),  That  Reed  Smoot  is  not  entitled  to 
a  seat  as  a  Senator  of  the  United  States  from  the  State  of  Utah. 

The  amendment  of  Mr.  Hopkins  was  agreed  to — yeas  49,  nays  22. 
Thereupon  Mr.  Edward  W.  Carmack,  of  Tennessee,  proposed  a  substitute  as 
follows : 

Resolved,  That  Reed  Smoot,  a  Senator  from  Utah,  be  expelled  from  the  Senate  of  the  United  States. 

This  substitute  was  disagreed  to — yeas  27,  nays  43. 

Then  the  resolution  of  the  committee  as  amended  on  motion  of  Mr.  Hopkins 
was  disagreed  to — yeas  28,  nays  42 — two-thirds  not  voting  in  favor  thereof. 

>  Record,  pp.  3428-3430. 


§   484  POLYGAMY   AND   OTHEB   CRIMES   AS   DISQUALIFICATIONS.  591 

484.  Discussion  by  a  House  committee  as  to  the  power  of  the  House 
to  impose  qualifications  not  enumerated  in  the  Constitution. — On  February 
27,  1899/  Mr.  Adin  B.  Capron,  of  Rhode  Island,  submitted  a  report  from  the 
Conxmittee  on  Election  of  President,  Vice-President,  and  Representatives  in 
Congress,  which  contained  this  discussion: 

If  the  constituted  authorities  of  a  State  fail,  either  willfully  or  after  the  exercise  of  every  legal 
process,  to  enforce  and  maintain  its  laws  against  polygamous  or  plural  marriages  or  unlawful  cohabitation, 
and  such  failure  results  in  the  election  to  Congress  of  a  person  who  is  a  polygamist,  but  who  is  qualified 
under  the  Constitution  of  the  United  States,  the  question  of  eligibility  would  not  thereby  be  necessarily 
raised,  but  it  could  at  least  serve  to  show  the  lack  of  power  on  the  part  of  each  House  of  Congress  to  deal 
with  such  a  condition,  except  in  one  way,  namely,  by  admission  to  membership  followed  by  expulsion. 

The  Constitution,  Article  I,  section  5,  constitutes  each  House  the  judge  of  the  "elections,  returns, 
and  qualifications  of  its  own  members."  The  qualifications  of  Senators  and  Representatives  are 
prescribed  by  the  Constitution  as  follows: 

"No  person  shall  be  a  Representative  who  shall  not  have  attained  to  the  age  of  twenty-five  years 
and  been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  in  which  he  shall  be  chosen."     (Art.  I,  sec.  2,  par.  2.) 

"No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of  thirty  years  and  been  nine 
years  a  citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  for 
which  he  shall  be  chosen."     (Art.  I,  sec.  3,  par.  3.) 

One  notable  case  only  need  be  cited  to  show  the  operation  of  those  provisions — that  of  Albert 
Gallatin,  of  Pennsylvania,  whose  election  was  declared  void  by  the  Senate  on  the  ground  that  he  had  not 
been  a  citizen  of  the  United  States  the  term  of  years  required  as  a  qualification  to  be  a  Senator  of  the 
United  States.     (Senate  Journal,  first  session  Third  Congress,  p.  37.) 

It  will  be  seen  that,  the  qualifications  of  Senators  and  Representatives  being  fixed  by  the  Con- 
stitution, it  is  only  within  the  power  of  each  House  to  determine  whether  a  person  otherwise  entitled 
to  a  seat  possesses  those  qualifications  and  no  more.  Should  the  person  possess  those  qualifications 
and  the  question  be  raised  that  he  is  ineligible  in  another  or  other  respects — for  instance,  that  he  is  a 
polygamist  in  violation  of  the  laws  of  his  State — is  a  question  which  it  is  generally  conceded  (the  case 
being  hypothetical  and,  we  believe,  never  having  been  actually  raised)  neither  House  would  have  the 
right  to  entertain.  The  case  of  George  Q.  Cannon  v.  Allen  G.  Campbell,  in  the  Forty-seventh  Congress, 
presents  features  resembling  the  hypothetical  one  stated,  but  that  case  originated  in  the  Territory  of 
Utah,  over  which  the  laws  of  the  United  States  extended,  while  in  the  one  under  consideration  we 
are  dealing  with  the  States  and  the  limitations  placed  upon  Congress  by  the  Constitution  to  judge  of 
the  qualifications  of  its  members  duly  elected  by  the  States. 

In  the  case  of  Cannon  v.  Campbell  the  conclusion  was  reached  that  the  contestant  having  admitted 
that  he  has  plural  wives  and  that  he  teaches  and  advises  others  to  the  commission  of  that  offense,  he 
should  be  excluded  from  the  House,  and  contestant  having  only  received  a  minority  of  the  votes  cast 
was  not  elected,  and  the  seat  was  declared  vacant.  (See  House  Report  559  and  House  Journal,  first 
session  Forty-seventh  Congress,  p.  1074.) 

The  distinction  should  be  clearly  noted  between  this  case  and  one  growing  out  of  a  State. 

In  a  h\^othetical  case  of  the  kind  presented  above  what  could  either  House  of  Congress  legitimately 
do?  Your  committee  do  not  feel  it  is  their  right,  even  if  they  were  so  disposed,  to  volunteer  an  answer 
to  the  question.  The  author  of  the  so-called  "Edmunds  Act,"  an  acknowledged  constitutional  lawyer 
of  great  ability,  recently  expressed  the  opinion  in  the  press  that  in  such  a  case  the  House  would  have 
to  admit  the  Representative-elect  to  membership  and  then,  if  it  saw  fit,  expel  him,  as  permitted  by 
Article  I,  section  5,  paragraph  2  of  the  Constitution.  This  would  be  the  only  power  left  to  either  House, 
the  exercise  of  which  would  require  the  concurrence  of  two-thirds.  (For  action  by  both  Houses  expel- 
ling members  see  cases  of  Jesse  D.  Bright,  John  C.  Breckinridge,  Trusten  Polk,  and  Waldo  P.  Johnson, 
Senate  Journal,  second  session  Thirty-seventh  Congress,  pp.  23,  97,  98,  176;  and  John  B.  Clark  and 
John  W.  Reid,  House  Journal,  second  session  Thirty-seventh  Congress,  pp.  8,  75.) 

•  Third  session  Fifty-fifth  Congress,  Report  No.  2307. 


Chapter  XVIf 
INCOMPATIBLE  OFFICES. 


1.  Provision  of  the  Constitution.     Section  486.' 

2.  Cases  of  Van  Ness,  Hammond,  Baker,  and  Tell.     Sections  48&-489. 

3.  Cases  of  Vandever,  Lane,  Schenck,  and  Blair.     Sections  490-492. 

4.  General  examination  as  to  military  officers,  paid  and  unpaid  services,  etc.     Sections 

493-496.- 

6.  Cases  of  Mumford,  Earle,  Herrick,  and  Wheeler.     Sections  497-600. 

6.  Questions  as  to  vacancies,  contestants,  etc.     Sections  601-606.^ 


485.  No  person  holding  any  oflB.ce  under  the  United  States  shall  be  a 
Member  of  either  House  during  his  continuance  in  oflS.ce. 

No  Member  may,  during  the  term  for  which  he  was  elected,  be  ap- 
pointed to  any  oflSce  which  shall  have  been  created  or  the  emoluments  of 
which  shall  have  been  increased  during  such  term. 

Section  6  of  Article  I  of  the  Constitution  provides: 

No  Senator  or  Representative  Bhall,  during  the  time  for  which  he  was  elected,  be  appointed  to 
any  civil  office  under  the  authority  of  the  United  States,  which  shall  have  been  created  or  the  emolu- 
ments whereof  shall  have  been  increased  during  such  time;  and  no  person  holding  any  office  under 
the  United  States  shall  be  a  Member  of  either  House  during  his  continuance  in  office.* 

486.  The  New  York  case  of  John  P.  Van  Ness  in  the  Seventh  Con- 
gress. 

*  See  Volume  VI,  Chapter  CLVIII. 

1  Senate  discussion  of.     (Sec.  563  of  this  volume.) 

2  Office  of  assistant  district  attorney  of  the  United  States  not  incompatible  necessarily.  (Sec. 
993  of  Vol.  II.) 

^  Investigation  after  a  Member's  resignation  as  to  his  acceptance  of.     (Sec.  2590  of  Vol.  III.) 

Conclusions  when  contestants  have  accepted  incompatible  offices  under  the  United  States  (sees. 
46  and  746  of  this  volume),  and  office  under  State  government  (sec.  1003  of  Vol.  II). 

A  contestant  must  prove  election  before  admitted  to  seat  left  vacant  by  returned  Member's  accept- 
ance of  an  incompatible  office.     (Sec.  807  of  this  volume.) 

■*  On  January  4, 1825,  the  subject  of  the  appointment  of  Members  of  Congress  to  office  was  debated 
at  length,  and  resulted  in  the  passage  of  a  resolution  calling  on  the  President  for  a  list  of  all  the  Mem- 
bers appointed  to  office  since  the  foundation  of  the  Government.  (First  session  Nineteenth  Congress, 
Journal,  pp.  114,  117;  Debates,  pp.  868-872.)  On  April  25  the  President  presented  the  desired  infor- 
mation. Mournal,  p.  471.) 
592 


§  487  INCOMPATIBLE    OFFICES.  593 

A  Member  who  had  been,  appointed  a  militia  ofl&cer  in  the  District  of 
Columbia  by  the  President  was  deprived  of  his  seat  in  the  House. 

A  Member  charged  with  acceptance  of  an  incompatible  office  was  heard 
in  his  own.  behalf  during  the  debate. 

On  January  11,  1803/  Mr.  John  Bacon,  of  Massachusetts,  from  the  Committee 
on  Elections,  made  a  report  in  the  case  of  Mr.  Jolm  P.  Van  Ness,  a  Representative 
from  New  York,  who  had  in  the  recess  between  the  first  and  second  sessions  of 
this  Congress  accepted  an  office  under  the  United  States.  The  committee  found 
that  this  was  in  violation  of  the  provision  of  Article  I,  section  6,  of  the  Constitu- 
tion, which  provides  that  "No  person  holding  an  office  under  the  United  States 
shall  be  a  Member  of  either  House  during  his  continuance  in  office,"  and  recom- 
mended the  adoption  of  this  resolution: 

Resolved,  That  John  P.  Van  Ness,  one  of  the  Members  of  this  House,  having  accepted  and  exer- 
cised the  office  of  major  of  militia,  under  the  authority  of  the  United  States,  within  the  Territory  of 
Columbia,  has  thereby  forfeited  his  right  to  a  seat  as  a  Member  of  this  House. 

Mr.  Van  Ness,  who  was  heard  in  his  own  behalf,  urged  that  the  provision  of 
the  Constitution  was  intended  to  apply  only  to  civil  officers;  that  he  was  an  officer 
only  of  a  dependent,  or  colonial  district,  of  the  United  States;  that  his  exclusion 
would  mean  the  exclusion  of  militia  officers  of  the  States,  since  they  were  subject 
to  the  command  of  the  United  States;  and  that  there  were  no  emoluments  to  the 
office  which  he  had  accepted,  and  therefore  could  be  no  danger  of  corruption. 

Mr.  Bacon  responded  that  the  Constitution  used  the  expression  "any  office," 
and  the  committee  felt  themselves  bound  by  its  terms. 

Mr.  John  Randolph,  jr.,  of  Virginia,  called  for  the  yeas  and  nays,  and  asked  the 
House,  in  the  important  precedent  which  it  was  about  to  establish,  to  vote  unani- 
mously to  exclude  even  the  shadow  of  Executive  influence.  The  vote  being  taken 
on  the  resolution,  it  was  agreed  to — yeas  88,  nays,  0. 

487.  A  Member,  Samuel  Hammond,  having  accepted  an  Executive 
appointment,  the  House  declared  his  seat  vacant. — On  January  30,  1805,=  the 
House — 

Resolved,  That  the  President  of  the  United  States  be  requested  to  inform  this  House  whether 
Samuel  Hammond,  a  Member  of  this  House,  has  not  accepted  an  Executive  appointment,  and  when. 

Ordered,  That  Mr.  Bryan  and  Mr.  Eppes  be  appointed  a  committee  to  present  the  foregoing  resolu- 
tion to  the  President  of  the  United  States. 

On  February  1,  President  Jefferson,  by  message,  informed  the  House  that — 

by  a  letter  of  the  30th  of  May  last,  from  the  Secretary  of  War  to  Samuel  Hammond,  a  Member  of 
the  House,  it  was  proposed  to  him  to  accept  a  commission  of  colonel  commandant  for  the  district  of 
Louisiana,  when  the  new  government  there  should  commence.  By  a  letter  of  the  30th  of  June  he  signified 
a  willingness  to  accept;  but  still  more  definitely  by  one  of  October  26. 

The  President  stated  further  that  a  commission  had  been  made  out  for  him, 
bearing  date  the  1st  day  of  October  last,  and  forwarded  before  the  receipt  of  his 
letter  of  October  26. 

'  Second  session  Seventh  Congress,  Journal,  pp.  280,  290  (Gales  &  Seaton  ed.);  Annals,  pp.  395-399. 
^  Second  session  Eighth  Congress,    Journal,  pp.  112,  113,  116   (Gales   &   Seaton  ed.);   Annals, 
pp.  1033,  1139. 

5994— VOL  1—07 33 


594  PRECEDENTS    OF    THE   HOUSE    OF   REPRESENTATIVES.  §  488 

On  February  2,  on  motion, 

Resolved,  iinanimously,  That  Samuel  Hammond,  a  Member  of  this  House  from  Georgia,  having 
accepted  an  Executive  appointment,  has  vacated  his  seat  in  this  House. 

Resolved,  That  a  copy  of  the  foregoing  resolution  be  sent  to  the  governor  of  Georgia  by  the  Speaker 
of  this  House. 

488.  The  election  cases  of  Edward  D.  Baker,  of  Illinois,  and  Archibald 
Yell,  of  Arkansas,  in  the  Twenty-ninth  Congress. 

In  the  cases  of  Baker  and  Yell  the  Elections  Committee  held  that  the 
acceptance  of  a  commission  as  an  ofl&cer  of  volunteers  in  the  National 
Army  vacated  the  seat  of  a  Member. 

Form  of  resolution  declaring  vacant  the  seat  of  a  Member  who  had 
become  an  oflB.cer  in  the  Army. 

Instance  wherein  a  Member,  having  appointed  a  future  day  for  his 
resignation  to  take  effect,  remained  and  participated  in  the  proceedings 
of  the  House  before  the  arrival  of  that  date. 

On  December  24,  1846,*  Mr.  Edward  D.  Baker,  of  Illinois,  appeared  in  his 
seat,  and  on  the  same  day  the  Speaker  presented  to  the  House  Mr.  Baker's  letter 
announcing  that  he  had  forwarded  to  the  governor  of  Illinois  his  resignation,  to 
take  effect  from  January  15,  1847. 

On  December  30,^  some  criticism  having  been  made  in  relation  to  his  position 
both  as  an  officer  of  the  Army  and  as  a  Member,  ilr.  Baker  arose  and  resigned  his 
seat,  saying: 

Mr.  Speaker,  I  now  resign  my  seat  as  Representative  from  the  Seventh  district  in  the  State  of 
Illinois  in  the  Twenty-ninth  Congress. 

On  January  .5,  1847,'  on  motion  of  Mr.  Robert  C.  Schenck,  of  Ohio,  the  Com- 
mittee on  Elections  were  instructed  to  examine  the  status  of  Mr.  Baker. 

On  February  26,*  the  Committee  on  Elections  reported  that  Edward  D.  Baker 
had  not  been  entitled  to  a  seat  in  the  House  since  the  acceptance  by  him  of  a  com- 
mission as  colonel  of  volunteers  in  the  Army  of  the  United  States.  The  committee 
included  in  their  report  a  consideration  of  a  similar  case  relating  to  Mr.  Archibald 
Yell,  of  Arkansas,  and  discussed  them  together  in  reference  to  the  provision  of  the 
Constitution. 

The  question  then  arises,  are  the  offices  which  have  been  accepted  by  these  gentlemen  oflBces 
under  the  United  States,  within  the  meaning  of  the  Constitution?  We  think  they  are.  If  it  be  urged 
that  the  commission  is  derived  from  the  State  authorities,  the  answer  is,  that  a  commission  does  not 
confer  the  office;  it  is  only  the  evidence  of  the  right  to  exercise  its  functions.  The  commLssions  of 
Members  of  Congress,  or,  in  other  words,  their  certificates  of  election,  are  derived  from  the  State  author- 
ities. Like  the  colonels,  whose  cases  are  now  under  consideration,  their  services  are  rendered  to  the 
United  States,  and  they  are  paid  by  the  United  States,  but  their  commissions  are  derived  from  the 
State  authorities.  It  seems  to  the  committee  that  the  question  whether  the  office  is  held  under  the 
United  States  or  under  a  State  does  not  depend  upon  the  question  who  gave  the  commission,  made 
the  election,  or  conferred  the  appointment,  but  upon  the  question.  What  are  the  duties  to  be  performed, 
the  Government  for  whom  they  are  to  be  performed,  and  to  what  government  is  the  office  responsible 

'  Second  session  Twenty-ninth  Congress,  Journal,  p.  91;  Globe,  p.  82. 

=*  Journal,  p.  112;  Globe,  p.  99. 

3  Journal,  p.  136;  Globe,  p.  115. 

*  Journal,  p.  436;  1  Bartlett,  p.  92.     House  Report  Xo.  86. 


I  489  INCOMPATIBLE   OFFICES.  595 

for  a  failure  to  perform?  Testing  the  offices  in  question  by  this  standard,  and  there  can  remain  but 
verj-  little  doubt.  These  colonels  perform  like  services  with  those  of  the  Regular  Army.  They  are 
responsible  to  the  laws  of  the  United  States  for  the  manner  in  which  they  discharge  the  duties  of 
their  offices. 

The  committee  believe  that  to  hold  an  office  in  the  Army  of  the  United  States  is  incompatible 
with  the  office  of  a  Member  of  Congress,  and  that  therefore  the  two  offices  can  not  be  held  at  the  same 
time  by  the  same  individual;  that  it  is  against  the  whole  theory  and  spirit  of  our  form  of  government. 
The  Constitution  intended  that  the  President  should  have  no  power  to  control  the  action  of  Congress 
in  any  respect;  that  it  should  be  perfectly  independent.  Now,  suppose  that  every  Member  of  Congress 
were  a  colonel  in  the  Army  in  the  ser^'ice  of  the  United  States,  and  the  President,  who  is  by  the  Con- 
stitution the  Commander  in  Chief  of  that  Army,  should  come  into  the  Halls  of  Congress  and  order  each 
individual  Member  to  retire  immediately,  under  the  penalties  inflicted  for  disobedience  to  orders,  to 
his  post  in  the  Army,  what  would  become  of  Congress? 

The  committee  therefore  reported  the  following  resolution: 

Resolved,  That  Edward  D.  Baker  has  not  been  entitled  to  a  seat  as  a  Member  of  the  House  of  Rep- 
resentatives since  the  acceptance  and  exercise  by  him  of  the  military  appointment  of  colonel  of  vol- 
unteers from  the  State  of  Illinois,  in  the  service  of  the  United  States. 

The  report  and  resolution  were  submitted,  and  without  discussion  were  laid  on 
the  table.'  This  action  was  undoubtedly  taken  on  the  report  because  Mr.  Baker 
had  already  resigned,  and  Mr.  Yell's  case  had  been  settled  by  the  House  by  the 
admission  of  his  successor.' 

489.  The  election  case  of  Thomas  W.  Newton,  of  Arkansas,  in  the 
Twenty-ninth  Congress. 

In  1847  Thomas  W.  Newton  presented  credentials  showing'  his  elec- 
tion in  place  of  Archibald  Yell,  of  Arkansas,  who  was  an  oflacer  in  the 
Army;  and  was  admitted  on  his  prima  facie  right. 

The  Elections  Committee  found  that  Thomas  W.  Newton,  already 
seated  on  prima  facie  showing,  was  entitled  to  the  seat  made  vacant  by 
Archibald  Yell's  acceptance  of  an  office  in  the  Army. 

On  February  6,  1.847,^  Thomas  W.  Newton  appeared  at  the  bar  of  the  House, 
presented  his  credentials  as  a  Representative  in  the  Twenty-ninth  Congress  from 
the  State  of  Arkansas  in  place  of  Archibald  Yell,  and  asked  that  the  oath  to  support 
the  Constitution  of  the  United  States  might  be  administered  to  him,  and  that  he  be 
permitted  to  take  a  seat  in  the  House. 

Mr.  George  W.  Jones,  of  Tennessee,  proposed  the  following : 

Resolved,  That  Thomas  W.  Newton,  having  presented  credentials  of  his  election  as  a  Member  of 
this  House  from  the  State  of  Arkansas,  and  the  House  having  received  no  information  of  the  death, 
resignation,  or  disqualification  of  Archibald  Yell,  heretofore  elected  and  qualified  a  Member  of  the 
Twenty-ninth  Congress,  the  said  credentials  be  referred  to  the  Committee  of  Elections,  and  that  the 
said  committee  report  thereon  at  the  earliest  practicable  day. 

Mr.  Wilham  P.  Thomasson,  of  Kentucky,  proposed  an  amendment  in  the  nature 
of  a  substitute  providing — 

That  Thomas  W.  Newton,  who  now  presents  his  credentials  of  election  as  a  Member  of  Congress 
from  the  State  of  Arkansas,  be  sworn  as  a  Member  and  take  his  seat;  and  that  the  credentials  of  his  elec- 
tion be  referred  to  the  Committee  on  Elections. 

>  Journal,  p.  437;  Globe,  p.  527. 

*  See  section  489  of  this  work. 

'  Second  session  Twenty-ninth  Congress,  Journal,  pp.  305,  306;  Globe,  p.  339. 


596  PRECEDENTS    OF    THE    HOtTSE    OF    REPRESENTATIVES.  §   490 

Debate  arose  on  these  propositions,  it  being  asserted  that  Mr.  Yell  had  taken 
his  seat  at  the  last  session  of  Congress,  and  that  of  his  resignation  the  House  had 
received  no  notice.  Therefore  there  might  be  a  conflict  of  his  rights  wdth  those  of 
Mr.  Newton.  Moreover,  there  was  a  question  as  to  the  existence  of  the  vacancy 
which  it  was  now  proposed  to  fill. 

On  the  other  hand,  it  was  urged  that  Mr.  Newton  should  be  sworn  in  on  his 
prima  facie  right. 

A  document  received  from  the  executive  department  was  then  read,  showing 
that  Mr.  Yell  was  serving  \vith  the  Army  in  Mexico. 

Thereupon  the  amendment  and  the  resolution  as  amended  were  agreed  to,  and 
Mr.  Newton  took  the  oath. 

On  February  26  '  the  Committee  of  Elections  reported  the  following  facts : 

Archibald  Yell  was  regularly  elected  as  a  Member  uf  the  Twenty-ninth  Congress  from  the  State 
of  Arkansas;  that  some  time  in  the  month  of  July,  1846,  he  accepted  a  commission  as  colonel  of  volun- 
teers raised  in  the  State  of  Arkansas  under  an  act  of  Congress  approved  May  13,  1846;  that  the  commis- 
sion thus  accepted  was  made  out  by  the  State  authorities,  l)ut  that  Colonel  Yell  and  the  volunteers 
under  his  command  were,  in  said  month  of  July,  mustered  into  the  service  of  the  United  States; 
that  he  yet  continues  in  the  service  of  the  United  States  as  a  colonel,  and  receives  his  pay  from  the 
Government  of  the  United  States.  And  that  Thomas  \V.  Xewton  was,  on  the  14th  of  December,  1846, 
elected  a  Representative  in  the  Twenty-ninth  Congress  from  the  State  of  Arkansas.  To  iise  the 
language  of  his  certificate  of  election,  he  was  elected  "to  fill  the  unexpired  term  of  Archibald  Yell.'' 
The  committee  have  no  legal  evidence  before  them  that  Archibald  Yell,  at  any  time  before  the 
election  of  Mr.  Newton,  resigned  his  seat  as  a  Member  of  Congress.  The  committee  are  of  opinion 
that  the  facts  above  enumerated  present  precisely  the  same  question  for  their  consideration  imder  the 
second  resolution  as  is  presented  to  the  House  in  the  first  resolution.^ 

The  committee  are  of  opinion  that  under  the  fifth  section  of  the  first  article  of  the  Constitution  of 
the  United  States  the  House  has  the  right  to  ascertain  and  decide  upon  all  questions  of  law  and  of  fact 
necessary  to  be  ascertained  and  decided  in  order  to  enable  it  to  determine  upon  the  rights  of  each  indi- 
vidual who  may  claim  to  be  one  of  its  Members.  And  hence  the  committee  instituted  an  inquiiy 
*  *  *  for  the  purpose  of  ascertaining  whether  such  a  vacancy  existed  as  entitled  the  people  of 
Arkansas  to  "elect  a  successor  to  Mr.  YeU,"  and  concluded  "that  at  the  time  of  the  election  of  Thomas 
W.  Newton  there  existed  a  vacancy  from  the  State  of  Arkansas,  occasioned  by  the  acceptance  by  Arch- 
ibald Yell  of  a  commission  to  serve  as  a  colonel  of  volunteers  in  the  Army  of  the  United  States." 

The  committee,  after  giving  the  reasons,  identical  with  those  in  the  case  of 
Mr.  Baker,^  recommended  the  following: 

Resolved,  That  Thomas  W.  Newton  is  entitled  to  a  seat  as  a  Member  of  this  House  from  the  State 
of  Arkansas. 

The  report  and  resolution,  when  reported  to  the  House,  were  without  debate 
laid  on  the  table.* 

490.  The  Iowa  election  case  of  Byington  v.  Vandever,  in  the  Thirty- 
seventh  Congress. 

A  Member  who  had  been  mustered  into  the  military  service  of  the 
United  States  was  held  by  the  Elections  Committee  to  have  forfeited  his 
right  to  his  seat. 

A  Member  having  disqualified  himself  by  accepting  an  oflBce  in  the 
Army,  a  resolution  for  his  exclusion  may  be  agreed  to  by  majority  vote. 

'  1  Bartlett,  p.  92;  House  Report  No.  86.  'See  case  of  Mr.  Baker. 

-See  case  of  Edward  D.  Baker.     Section  488.  'Journal,  p.  437;  Globe,  p.  527. 


§   490  INCOMPATIBLE    OFFICES.  597 

An  instance  wherein  a  contestant  in  an  election  case  participated  in 
debate  on  incidental  questions  arising  out  of  the  said  case. 

Form  of  resolution  declaring  vacant  the  seat  of  a  Member  who  had 
become  an  officer  in  the  Army. 

On  April  11,  1862,'  the  Committee  on  Elections  reported  on  the  Iowa  case  of 
Byington  v.  Vandever.  There  were  two  features  in  this  case.  It  was  claimed  that 
sitting  ^lember  had  not  been  elected  on  the  day  prescribed  by  the  laws  of  Iowa. 
The  committee  briefly  state  that  in  their  opinion  Mr.  "\'andever  had  been  duly 
elected  and  rightfully  admitted  to  the  seat. 

The  question  which  the  report  really  presented  was  as  to  the  qualifications  of 
the  sitting  Member.  After  his  election  Mr.  Vandever  had  offered  to  furnish  a  regi- 
ment for  the  service  of  the  countrj-,  and  on  July  23,  1861,  the  President  had,  by 
authority  of  law,  accepted  this  offer.  On  August  30,  1861,  Mr.  Vandever  was 
appointed  colonel  of  the  Ninth  Iowa  Volunteer  Infantry,  and  on  September  24  was 
mustered  into  the  actual  service  of  the  United  States,  where  he  was  at  the  time  of 
the  making  of  the  report.  He  had  been  commissioned  by  the  governor  of  Iowa  as 
colonel  of  militia,  but  the  committee  found  that  in  respect  to  being  a  colonel  of 
militia  the  commission  was  inaccurate.     The  report,  which  was  unanimous,  says: 

Colonel  Vandever,  under  the  facts,  claims,  however,  that  he  is  simply  an  officer  of  the  State  of 
Iowa,  because  (as  his  letter  would  seem  to  imply),  in  his  opinion,  the  volunteer  force  he  enlisted  and 
commands  is  simply  a  part  of  the  militia  of  Iowa. 

But  whether  Colonel  Vandever  is  to  be  regarded  as  an  officer  in  the  Army  proper  of  the  United 
States,  or  as  an  officer  of  the  militia  of  Iowa,  is,  in  the  opinion  of  the  committee,  of  little  importance. 
If  he  was  actually  mustered  into  the  service  of  the  United  States,  he  was,  by  that  act,  placed  in  an 
office  totally  incompatible  with  that  of  Representative  in  Congress. 

He  has  no  right  as  Representative  to  absent  himself  from  the  House  without  leave,  and  if  he  does, 
is  liable  to  be  arrested  by  the  officer  of  the  House  and  returned  and  punished.  But  he  is  also  bound  as 
an  officer  of  the  Army  to  be  with  his  regiment  (perhaps  a  thousand  miles  distant),  ready  to  execute  the 
commands  of  his  superior  officer;  and  for  his  default  is  liable  to  punishment — it  may  be  with  death. 
Or  his  military  superior  may  take  him  by  force  from  his  seat  and  duties  in  the  House  to  his  post  in  the 
Army. 

That  such  a  physical  impossibility  as  is  thus  created,  to  execute  the  duties  of  both  offices,  renders 
them  incompatible,  would  seem  to  be  beyond  a  doubt. 

But  there  is  also  that  in  the  nature  of  the  powers  incident  to  the  two  positions  which  renders  them 
Incompatible.  As  Representative  he  may  by  his  vote  repeal  the  law  or  army  regulation  creating  a 
duty  or  imposing  a  penalty  which,  as  officer  of  the  Army,  he  has  neglected  or  incurred.  Or  in  the  exer- 
cise of  his  right  (and  perhaps  duty)  as  Representative,  to  speak  of  the  conduct  of  his  superior  military 
officers,  he  might  utter  words  for  which,  as  an  officer  of  the  Army,  the  superior  would  have  an  equal 
right  to  cause  him  to  be  tried  by  court-martial  and  punished. 

These  instances  of  conflicting  irreconcilable  duties  and  powers  are  sufficient  to  illustrate  the 
incompatibility  of  the  two  offices;  and  that  the  acceptance  by  the  same  person  of  an  office  incompatible 
with  another  held  by  him,  is  a  virtual  resignation  or  forfeiture  of  the  office  first  held,  is  too  plain  a  propo- 
sition to  need  illustration.  It  results  from  the  presumption  that  no  man  can  intend,  as  well  as  from 
the  policy  that  no  man  shall  be  permitted,  to  hold  a  trust  the  duties  of  which  he  has  disqualified  himself 
from  performing.     All  the  authorities  agree  in  this  principle. 

And  again  admitting,  for  the  sake  of  the  argument,  that  Colonel  Vandever  was  originally  simply  an 
officer  of  the  militia  of  Iowa,  still  your  committee  are  of  the  opinion  that  the  act  of  mustering  him  into 
the  military  service  of  the  United  States  made  him  an  officer  of  the  United  States.  The  authority  which 
an  officer  is  bound  to  obey  and  to  which  he  is  responsible,  and  whose  pay  he  receives,  determines  under 
what  Government  he  acts  and  whose  officer  he  really  is. 

'  Second  session  Thirty-seventh  Congress,  Report  No.  68;  1  Bartlett,  p.  395. 


598  PRECEDENTS   OF   THE   HOUSE   OF   KEPEESENTATIVES.  §   490 

But  your  committee  are  of  the  opinion  that  Colonel  Vandever  was  really  and  truly  appointed 
colonel,  not  of  Iowa  militia,  but  of  the  Ninth  Regiment  of  Iowa  Volunteer  Infantry,  and  that  the  latter 
force  is  in  no  sense  of  the  term  a  militia  force,  but  is  a  force  raised  solely  by  the  authority  of  the  Fed- 
eral Government,  and  hence  that  its  officers  (Colonel  Vandever  among  the  rest)  hold  their  offices  under 
the  United  States. 

The  commission,  it  is  true,  styles  him  colonel  of  the  Ninth  Infantry  of  the  militia  of  the  State  of 
Iowa.  But  a  commission  does  not  confer  the  office.  It  is,  at  most,  but  evidence  of  an  appointment. 
An  error  in  the  commission  can  not  confer  a  right  to  an  office  to  which  the  person  holding  the  commis- 
sion has  not  been  appointed,  neither  can  it  take  away  his  right  to  exercise  the  powers  and  receive  the 
emoluments  of  one  to  which  he  has  been  appointed.  There  are  numerous  officers  which  the  President 
commissions  that  are  appointed  by  others.  Suppose  there  should  be  an  error  in  the  commission  he  con- 
fers; certainly  it  would  not  take  away  the  office.  The  appointment  itself,  and  the  entrance  upon  and 
actual  discharge  of  the  duties  of  an  office  (by  the  appointee),  under  a  claim  of  right,  are  the  real  requisites 
constituting  a  person  an  officer,  and  decisive  of  the  office  to  which  he  is  appointed. 

Neither  does  the  fact  that  he  was  commissioned  by  the  governor  of  Iowa  militate  against  the  position 
that  Colonel  Vandever  is  an  officer  of  the  United  States.  The  act  of  Congress  under  which  the  force 
Colonel  Vandever  commands  was  raised  authorizes  the  governors  of  the  States  where  the  force  is  raised 
to  commission  certain  of  the  officers.  The  governor  acts  only  by  virtue  of  that  law.  He  is  the  mere 
agent  of  the  United  States  for  the  purposes  indicated  in  the  act.  The  appointment  and  commission 
would  have  been  just  as  valid  had  any  other  agent  been  selected  to  have  made  and  issued  them. 

But  the  force  Colonel  Vandever  really  was  appointed  to  command,  and  with  which  he  has  ever 
since  been  in  service  as  commander,  was  enlisted  by  direction  of  the  President  under  the  authority  of 
the  act  of  Congress  entitled  "An  act  to  authorize  the  employment  of  volunteers  to  aid  in  enforcing  the 
laws  and  protecting  public  property,"  which  act  could  have  been  passed  only  under  that  clause  of  the 
eighth  section  of  the  Constitution  which  provides  that  Congress  shall  have  power  to  raise  and  support 
armies. 

The  cases  of  Messrs.  Van  Ness  and  Yell  were  cited  as  conclusive  precedents. 

The  committee  therefore  concluded  that  Colonel  Vandever's  case  fell  clearly 
within  the  provisions  of  the  sixth  section  of  Article  I  of  the  Constitution,  and  recom- 
mended that  the  House  agree  to  this  resolution: 

Resolved,  That  William  Vandever  has  not  been  entitled  to  a  seat  aa  a  Member  of  this  House  since  he 
was  mustered  into  the  military  service  of  the  United  States  aa  colonel  of  the  Ninth  Regiment  of  Iowa  Vol- 
unteer Infantry,  to  wit,  since  the  24th  day  of  September,  A.  D.  1861. 

On  May  8 '  the  report  came  up  in  the  House  and  a  debate  occurred  on  a  motion 
to  postpone  until  the  next  session  of  Congress.  The  contestant,  who  had  been 
admitted  to  the  floor  and  to  debate  under  the  provisions  of  a  general  order,  partici- 
pated in  the  debate  on  this  preliminary  question.  The  motion  to  postpone  was 
agreed  to — yeas  79,  nays  49. 

On  January  20,  1863,^  the  report  was  debated  on  the  constitutional  question  of 
qualification,  and  after  a  motion  to  postpone  had  been  defeated — yeas  53,  nays  74 — 
the  resolution  was  agreed  to— ayes  65,  noes  37. 

Thereupon  Mr.  Horace  Maynard,  of  Tennessee,  raised  the  question  of  order  that 
the  resolution  was  in  fact  one  of  expulsion,  and  therefore  required  a  two-thirds  vote 
for  its  adoption. 

This  point  of  order  was  debated  on  January  20,^  and  the  Speaker  *  overruled 
the  point  of  order. 

'Journal,  pp.  655,  656;  Globe,  p.  2021. 

*  Third  session  Thirty-seventh  Congress,  Journal,  p.  212;  Globe,  p.  403. 

'Globe,  pp.  405,406. 

'Galusha  A.  Grow,  ot  Pennsylvania,  Speaker. 


§  491  INCOMPATIBLE   OFFICES.  599 

Thereupon  Mr.  Maynard  appealed,  and  on  January  2V  the  appeal  was  laid  on 
the  table — yeas  82,  nays  36. 

Thereupon  Mr.  Elihu  B.  Washbume,  of  Illinois,  moved  to  reconsider  the  vote 
whereby  the  resolution  was  agreed  to,  and  the  motion  to  reconsider  was  agreed  to — 
yeas  70,  nays  64. 

Mr.  Washbume  then  moved  to  postpone  the  subject  imtil  March  3,  the  last  day 
of  the  session.  The  question  was  debated  at  length,^  both  as  to  the  status  of  Colonel 
Vandever  in  the  light  of  the  constitutional  requirement  and  also  in  the  light  of  the 
decision  of  the  Speaker  that  a  majority  might  pass  the  resolution. 

After  the  debate,  the  House,  by  a  vote  of  yeas  78,  nays  68,  agreed  to  the  motion 
to  postpone.' 

No  action  was  taken  on  ]March  3. 

On  February  5,  1863,*  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Com- 
mittee on  Elections,  reported  a  resolution  discharging  the  Committee  on  Elections 
from  the  further  consideration  of  the  case  of  Bjnngton  v.  Vandever. 

He  explained  that  the  contestant  wished  to  be  heard  on  that  branch  of  the  case 
which  included  the  question  whether  Mr.  Vandever  was  actually  elected. 

Thereupon  it  was  moved  to  amend  the  resolution  of  the  committee  by  substitut- 
ing resolutions  declaring  that  Mr.  Vandever  was  not  elected,  and  that  Mr.  Byington 
was  elected. 

After  debate  the  proposed  substitute  was  disagreed  to.  A  motion  to  reconsider 
was  made,  and  a  motion  to  lay  the  motion  to  reconsider  on  the  table.  The  latter 
motion  was  agreed  to — yeas  84,  nays  28. 

Then  the  resolution  of  the  Committee  on  Elections  was  agreed  to. 

491.  The  Senate  election  case  of  Stanton  v.  Lane,  of  Kansas,  in  the 
Thirty-seventh  Congress. 

A  Senator-elect  who  had,  before  qualifying,  exercised  the  authority  of 
an  army  oflacer  de  facto,  was  held  not  to  have  vacated  his  seat. 

A  State  executive  having  issued  credentials  in  due  form  on  the  as- 
sumption that  a  Senator  had  vacated  his  seat  by  accepting  an  army  oflace, 
the  credentials  were  referred  and  the  bearer  was  not  seated. 

Instance  wherein  a  Senator  participated  in  debate  on  credentials  of  a 
claimant  for  his  seat. 

On  July  12,  1861,^  the  credentials  of  Frederick  P.  Stanton,  claiming  a  seat 
from  Kansas,  were  presented  in  the  Senate.  Mr.  James  H.  Lane,  who  occupied 
the  seat  claimed  by  Mr.  Stanton,  was  present  in  the  Senate  and  spoke  on  the  motion 
to  refer  the  papers  to  the  Committee  on  the  Judiciary,  which  reference  was  made. 

On  August  2,  1861,°  the  Senate  Committee  on  the  Judiciary  reported  in  the 
contested  case  of  Stanton  v.  Lane,  of  Kansas,  finding  the  following  facts : 

That  the  sitting  member,  the  Hon.  James  H.  Lane,  was,  by  the  Executive,  appointed  a  brigadier- 
general  in  the  volunteer  forces  of  the  United  States  on  the  20th  of  June,  1861 ;  that  he  accepted  said 
appointment,  and  was  legally  qualified  to  perform  its  duties. 

'Journal,  p.  215;  Globe,  p.  427.  *  Journal,  pp.  338,  401;  Globe,  pp.  742,  964-971. 

^  Globe,  pp.  428-434.  ^  pj^st  session  Thirty-seventh  Congress,  Globe,  p.  82. 

'Journal,  p.  219;  Globe,  p.  434.  H  Bartlett,  p.  637;  Globe,  p.  406. 


600  PRECEDENTS   OF   THE   HOUSE   OF   BEPBESENTATIVES.  §  491 

In  the  opinion  of  the  committee  the  office  of  brigadier-general  under  the  United  States  is  incom- 
patible with  that  of  member  of  either  House  of  Congress.  By  accepting  the  office  of  brigadier-general, 
the  sitting  member,  Mr.  Lane,  virtually  resigned  his  seat  in  the  Senate,  and  it  became  vacant  at  that 

time. 

On  the  8th  of  July,  1861,  the  governor  of  Kansas  gave  the  contestant,  Mr.  Stanton,  a  commission 
in  due  form  appointing  him  a  Senator  of  the  United  States  from  the  State  of  Kansas  to  fill  the  aforesaid 
vacancy,  and  by  virtue  of  that  commission  Mr.  Stanton  now  claims  his  seat. 

The  committee  therefore  recommended  resolutions  declaring  Mr.  Lane  not  enti- 
tled to  the  seat,  and  declaring  Mr.  Stanton  entitled  to  a  seat. 

On  August  6  '  the  report  was  considered  but  not  acted  on. 

At  the  next  session  of  Congress,  on  December  18,  1861,^  when  the  case  came 
up  it  was  urged  that  the  committee  had  not  been  fully  informed  when  it  made 
its  report;  that  the  brigadier-generalship  to  which  Mr.  Lane  had  been  appointed 
was  not  in  existence  at  the  time  of  his  appomtment;  and  that  since  the  office  had 
been  created  he  had  not  signified  his  acceptance.  The  Senate  by  a  vote  of  yeas  26, 
nays  9,  recommitted  the  report. 

On  January  6,  1862,^  the  Judiciary  Committee  reported  again,  stating  that 
the  committee  unanimously  foimd  that  the  status  of  the  case  was  not  changed 
by  the  additional  evidence. 

On  Januar}^  8,  13,  15,  and  16  ''  the  subject  was  debated  at  length  on  a  motion 
to  strike  the  word  "not"  from  the  first  resolution  of  the  committee: 
Resolved,  That  James  H.  Lane  is  not  entitled  to  a  seat  in  this  body. 

It  was  contended  on  the  one  side  that  Senator  Lane  had  been  appointed  to 
the  office  of  brigadier-general;  that  such  office  existed  de  facto  if  not  de  jure;  that 
he  accepted  the  office,  taking  an  oath,  issuing  a  declaration  to  the  people  of  Kansas, 
and  on  Jime  26,  1861,  had  as  brigadier-general  made  requisitions  for  supplies.  If 
the  President  had  no  authority  to  make  the  appointment  at  the  time,  yet  subse- 
quent legislation  had  legalized  such  emergency  acts. 

On  the  other  hand,  it  was  insisted  that  on  June  20,  1861,  there  was  no  such 
office  as  that  to  wliich  Mr.  Lane  was  said  to  have  been  appointed,  but  that  the 
appointment  was  in  anticipation  of  the  creation  of  the  office ;  that  Mr.  Lane  did  not 
qualify  as  a  Senator  until  July  4,  1861,  and  prior  to  that  had  told  the  President 
that  he  would  not  accept  the  army  office,  having  learned  that  it  was  incompatible 
with  his  office  as  Senator.  The  cases  of  Van  Ness,  Herrick,  Earl,  and  Mumford 
were  cited  to  show  that  his  appointment  while  a  Senator-elect  did  not  preclude  him 
from  electing  to  accept  the  office  of  Senator  by  resigning  the  military  office  before 
the  meeting  of  the  Senate  and  his  qualification.  It  was  further  urged  that  the  oath 
he  took  as  a  brigadier-general  was  not  technically  the  oath  required  for  the  office. 
Mr.  Charles  Sumner,  of  Massachusetts,  who  opposed  the  report  of  the  committee, 
summarized  the  argument: 

First,  that  at  the  time  in  question  General  Lane  was  not  a  Senator;  and  secondly,  that  at  the  time 
in  question  he  was  not  a  brigadier.  The  whole  case  is  unreal.  It  is  a  question  between  an  imaginary 
Senator  and  an  impossible  brigadier;  or  rather  it  is  a  question  whether  an  imagined  seat  in  this  body 
■was  lost  by  any  acts  under  an  impossible  military  commission. 

'  Globe,  pp.  450-454.  ^  globe,  p.  185. 

2  Second  session  Thirty-seventh  Congress,  Globe,  pp.  127-130.  *  Globe,  pp.  222,  290,  336,  359. 


§  492  INCOMPATIBLE   OFFICES.  601 

After  a  thorough  debate,  on  January  16,'  the  motion  to  strike  out  the  word  ' '  not " 
was  agreed  to — yeas  24,  nays  16. 

Then  the  amended  resolution,  declaring  ilr.  Lane  entitled  to  the  seat,  was 
agreed  to. 

The  second  resolution,  relating  to  ilr.  Stanton,  was  postponed  indefinitely. 

492.  The  case  relating  to  the  alleged  disqualification  of  Messrs.  Blair 
and  Schenck  in  the  Thirty-eighth  Congress. 

A  Member-elect  was  held  to  have  disqualified  himself  by  continuing  to 
hold  an  incompatible  office  after  the  meeting  of  the  Congress. 

A  Member-elect  may  defer  until  the  meeting  of  the  Congress  his  choice 
between  the  seat  and  an  incompatible  office. 

Form  of  resolution  declaring  vacant  the  seat  of  a  Member-elect  who 
has  accepted  an  incompatible  office. 

On  June  13,  1864,  ^Ir.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee 
on  Elections,  made  a  report  ^  on  the  cases  of  Gen.  Robert  C.  Schenck,  of  Ohio,  and 
Gen.  Frank  P.  Blair,  jr.,  of  Missouri,  who  had  held  commissions  in  the  Army  after 
their  election  as  ^lembers  of  Congress.  This  report  gives  the  following  summary  of 
precedents: 

The  House  has  ever  been  awake  to  this  constitutional  guaranty  of  its  independence  (Art.  I,  sec.  6) : 
"No  person  holding  any  office  ^  under  the  United  States  shall  be  a  member  of  either  House  during  his 
continuance  in  office"),  and  has  never  failed  when  occasion  required  to  resist  any  invasion  of  its  privi- 
leges in  this  particular.  In  the  Seventh  Congress  (1803)  John  P.  Van  Ness,  a  Representative  from  the 
State  of  New  York,  accepted  the  office  of  major  of  the  militia,  under  the  authority  of  the  United  States, 
within  the  Territory  of  Columbia  (District  of  Columbia),  and  after  due  examination  and  report  by  the 
Committee  of  Elections  the  House  unanimously  declared  that  he  had  "thereby  forfeited  his  seat  as  a 
Member  of  this  House."     (Contested  Elections,  Clark  and  Hall,  p.  122.) 

In  the  Twenty-ninth  Congress  (1847)  Archibald  Yell,  a  Representative  from  the  State  of  Arkansas, 
while  a  Member,  accepted  the  office  of  colonel  of  a  regiment  in  the  volunteer  service  of  the  United  States 
in  the  war  with  ilexico.  He  received  his  commission  from  the  governor  of  Arkansas,  but  was  mustered 
into  the  service  of  the  United  States.  The  people  of  Arkansas  treated  this  act  as  vacating  his  seat  as  a 
Representative  in  Congress  and  elected  Thomas  \V.  Newton  in  his  place.  When  he  appeared  at  the  bar 
of  the  House  to  be  sworn  in,  discussion  arose  upon  the  question  whether  the  House  had  any  evidence 
before  it  of  the  acts  of  Mr.  Yell  which  were  aDeged  to  have  vacated  his  seat,  and  the  Globe  contains  this 
statement  (vol.  17,  p.  341):  "It  now  appears  by  an  official  statement,  made  inreply  toacallof  theHouse, 
by  the  Adjutant-General,  of  the  names  of  Members  of  Congress  who  had  received  commissions  and  been 
mustered  into  the  service  of  the  United  States,  that  Archibald  Yell  was  among  the  number.  As  soon  as 
the  document  was  read  Members  withdrew  all  opposition.  Mr.  Newton  was  then  qualified  and  took 
his  seat."  The  Committee  of  Elections,  to  whom  his  credentials  were  referred,  at  a  subsequent  day  of 
the  session  made  a  report  (No.  86,  second  session  Twenty-ninth  Congress),  including  also  the  subject- 
matter  of  an  inquiry  "whether  the  Hon.  Edward  D.  Baker,  a  Representative  from  the  State  of  Illinois, 
having  accepted  a  commission  as  colonel  of  volunteers  in  the  Army  of  the  United  States,  and  being  in 
the  service  of  and  receiving  compensation  from  the  Government  of  the  United  States  as  such  army 
officer,  has  been  entitled  since  the  acceptance  and  exercise  of  said  military  appointment  to  a  seat  as  a 
Member  of  the  House  of  Representatives." 

This  report  concluded  with  a  resolution  that  "Edward  D.  Baker  has  not  been  entitled  to  a  seat  as 
a  Member  of  the  House  of  Representatives  since  the  acceptance  and  exercise  by  htm  of  the  military 

'Senate  Journal,  p.  117;  Globe,  p.  363. 
^  House  Report  No.  110,  first  session  Thirty-eighth  Congress. 

'  Discussion  of  the  distinction  in  the  Government  service  between  an  officer  and  an  employee. 
(Decisions  of  the  Comptroller,  vol.  4,  p.  696.) 


602  PEECEDENTS   OF   THE   HOUSE   OF   KEPRESENTATIVES.  §  492 

appointment  of  colonel  of  volunteers  from  the  State  of  Illinois,  in  the  service  of  the  United  States," 
and  also  with  another  resolution  that  "Thomas  W.  Newton  is  entitled  to  a  seat  as  a  Member  of  the  House 
from  the  State  of  Arkansas."  This  report  was  not  made  till  February  26,  1847,  only  seven  days  before 
the  end  of  the  session.  An  ineffectual  attempt  was  made  on  the  last  day  of  the  session  (Globe,  vol.  17, 
p.  573)  to  call  up  the  report  for  action.  No  opposition  to  the  report  itself  is  disclosed  upon  the  record, 
and  the  failure  to  act  upon  it  may  fairly  be  imputed  to  the  pressure  of  business  upon  the  last  day  of  the 
session.  The  same  question  arose  in  the  last  Congress.  William  Vandever,  a  Representative  from  the 
State  of  Iowa,  accepted,  while  such  Representative,  the  office  of  colonel  of  the  Ninth  Regiment  of  Iowa 
Volunteers.  He  received  his  commission  from  the  governor  of  Iowa,  but  was  mustered  into  the  service 
of  the  United  States  under  the  law  authorizing  the  raising  of  volunteers  to  suppress  the  rebellion.  The 
question  whether  he  had  not  forfeited  his  seat  by  accepting  and  discharging  the  duties  of  the  military 
office  thus  conferred  upon  him  was  directly  raised  before  the  Committee  of  Elections,  by  whom  an 
elaborate  report  was  made  to  the  House  (Report  No.  68,  second  session  Thirty-seventh  Congress),  con- 
cluding with  a  resolution  "That  William  Vandever  has  not  been  entitled  to  a  seat  as  a  Member  of  this 
House  since  he  was  mustered  into  the  military  service  of  the  United  States  as  a  colonel  of  the  Ninth 
Regiment  Iowa  Volunteer  Infantry,  to  wit,  since  the  24th  day  of  September,  A.  D.  1861."  This  resolu- 
tion was  adopted  without  a  division  (Globe,  vol.  47,  p.  405).  The  vote  upon  this  resolution  was  after- 
wards reconsidered  and  its  further  consideration  postponed  until  the  3d  of  March,  when,  in  the  pressure 
of  business  on  the  last  day  of  the  session,  it  was  not  called  up. 

The  report  also  gives  the  following  precedent  as  bearing  upon  the  branch  of  the 
question  raised  particularly  by  the  case  of  General  Schenck: 

In  October,  1816,  Samuel  Herrick,  who  was  then  holding  the  office  of  United  States  district  attorney 
for  the  district  of  Ohio,  was  elected  one  of  the  Representatives  of  that  State  in  the  Fifteenth  Congress, 
whose  regular  session  did  not  commence  till  one  year  from  the  December  following.  Mr.  Herrick  con- 
tinued to  hold  the  office  of  United  States  district  attorney  until  November  29,  1817,  when  he  resigned 
that  office  and  entered  upon  the  duties  of  tlie  office  of  Representative  in  Congress  at  the  commencement 
of  the  regular  session  on  the  first  Monday  of  the  following  month.  Upon  a  proper  reference  to  the  Com- 
mittee of  Elections  an  elaborate  report  was  made  in  conformity  with  the  views  here  taken,  and  concluding 
with  a  resolution  "That  Samuel  Herrick  is  entitled  to  a  seat  in  this  House."  (Contested  Elections  in 
Congress,  p.  287.)  This  report  was  very  fully  and  ably  discussed,  and  some  doubts  seem  to  have  been  at 
first  entertained  whether,  by  discharging  the  duties  of  the  office  of  United  States  district  attorney  while 
he  was  a  Representative-elect,  Mr.  Herrick  had  not  disqualified  himself  from  holding  the  office  of  Rep- 
resentative. The  resolution  confirming  him  in  his  seat  was  nevertheless  adopted.  Its  position  was 
subsequently  ratified  by  the  same  Congress  in  two  or  three  other  cases  involving  the  same  principle, 
with  little  or  no  opposition.  And  it  is  believed  that  the  practice  of  the  House  from  that  time  to  the 
present  has  been  uniformly  in  conformity  with  this  position. 

The  report  concluded  with  the  recommendation  of  the  passage  of  two  resolu- 
tions, which  summarize  the  two  cases: 

Resolved,  That  Robert  C.  Schenck,  having  resigned  the  office  of  major-general  of  volunteers, 
which  he  then  held,  on  the  13th  day  of  November,  1863,  which  resignation  was  accepted  November 
21,  1863,  to  take  effect  December  5, 1863,  was  not,  by  reason  of  having  held  such  office,  disqualified  from 
holding  a  seat  as  a  Representative  in  the  Thirty-eighth  Congress,  whose  first  session  conmienced  on 
the  7th  day  of  December,  1863. 

Resolved,  That  Francis  P.  Blair,  jr.,  by  continuing  to  hold  the  office  of  major-general  of  volun- 
teers, to  which  he  was  appointed  November  29,  1862,  and  to  discharge  the  duties  thereof  till  January 
1,  1864,  the  date  of  his  resignation,  did  thereby  decline  and  disqualify  himself  to  hold  the  office  of 
Representative  in  the  Thirty-eighth  Congress,  the  first  session  of  which  commenced  on  the  first  Mon- 
day in  December,  1863. 

The  facts  on  which  these  resolutions  and  the  report  were  based  were  transmit- 
ted to  the  House  in  a  message  from  the  President  on  April  28,  1864.'     This  message 

'  First  session  Thirty-eighth  Congress,  Globe,  p.  1939. 


§   492  INCOMPATIBLE   OFFICES.  603 

was  referred  to  the  Committee  on  Elections,  which  reported  as  outHned  above. 
Later,  on  May  2,'  the  President  transmitted  additional  facts  in  response  to  the 
request  of  the  House.  The  committee  reported  on  June  24,''  and  on  June  29  the 
resolutions  were  adopted  without  debate.' 

Meanwhile,  on  May  11,  1864,  in  the  Senate  Mr.  Davis  offered  a  resolution* 
referring  to  an  alleged  arrangement  whereby  Generals  Blair  and  Schenck  were  to 
be  allowed  to  give  up  temporarily  their  commissions  in  the  Army  while  they  were 
in  the  House,  with  the  understanding  that  they  might  withdraw  the  resignations 
and  return  to  the  field,  and  declaring  such  arrangement  in  derogation  of  the  Con- 
stitution. The  resolution  was  discussed  May  16,^  and  referred  to  the  Committee  on 
the  Judiciary.  On  June  30  the  Senate  agreed  to  the  following  resolution,  which 
the  Judiciary  Committee  had  reported  on  July  15:' 

Resolved,  That  an  officer  of  the  United  States  whose  resignation  has  been  duly  accepted  and  taken 
effect,  or  who,  having  been  elected  a  member  of  either  House  of  Congress,  qualifies  and  enters  on  the 
discharge  of  the  duties  of  a  Member,  is  thereby,  in  either  case,  out  of  the  office  previously  held,  and 
can  not  be  restored  to  it  without  a  new  appointment  in  the  manner  provided  by  the  Constitution. 

In  the  first  session  of  the  Thirty-seventh  Congress,  July  12,  1861,  the  question 
was  raised  by  a  resolution  introduced  by  Mr.  Vallandigham,  reciting  that  Oilman 
Marston,  of  New  Hampshire;  James  E.  Kerrigan,  of  New  York;  Edward  McPher- 
son  and  Charles  J.  Biddle,  of  Pennsylvania,  and  Samuel  R.  Curtis,  of  Iowa,  were 
rumored  to  have  been  sworn  into  the  military  service  of  the  United  States,  and  that 
James  H.  Campbell,  of  Pennsylvania,  had  admitted  on  the  floor  of  the  House  that 
he  had  been  so  sworn  in,  and  directing  the  Committee  of  Elections  to  inquire 
whether  Members  of  the  House  might  constitutionally  hold  positions  under  the 
Government  in  the  military  service.  Messrs.  Curtis  and  Campbell  contended  that 
they  held  commissions  from  the  governors  of  their  States,  and  were  merely  State 
officers  loaned  to  the  National  Government  for  the  time  being.  The  resolution 
was  laid  on  the  table  after  a  slight  discussion — 92  yeas  to  51  nays.  Mr.  Vallandig- 
ham had  previously  brought  this  subject  to  the  attention  of  the  House  on  July  4 
before  the  organization  of  the  House  was  effected.' 

The  subject  was  also  brought  up  informally  in  the  House  in  the  Fifty-fifth 
Congress,  during  the  war  with  Spain.' 

It  has  been  decided  that  an  officer  on  the  retired  list  of  the  Army  is  entitled  to 
receive  the  salarj'  appropriate  to  his  army  rank  while  he  is  also  in  receipt  of  the 
salary  of  a  Member  of  Congress.' 

'Globe,  p.  2031. 

2  Globe,  p.  3242. 

'Globe,  p.  3389. 

*  Globe,  p.  2218. 

^  Globe,  p.  2275. 

5  Globe,  p.  3412. 

'  First  session  Thirty-seventh  Congress,  Globe,  pp.  3,  93. 

'Second  session  Fifty-fifth  Congress,  Record,  pp.  5406,  5407,  remarks  of  Messrs.  Joseph  W.  Bailey, 
of  Texas,  and  Charles  H.  Grosvenor,  of  Ohio. 

'Decision  of  Second  Comptroller  C.  H.  Mansur  in  the  case  of  Maj.  Gen.  Daniel  E.  Sickles,  a  Mem- 
ber of  the  Fifty-third  Congress,  February  24,  1894. 


(J04  PEECEDENTS   OF   THE   HOUSE    OF    REPRESENTATIVES.  §   493 

493.   The  examination  of  1898  as  to  incompatible  oflices. 

Conclusion  of  the  Judiciary  Committee  that  the  member  of  a  commis- 
sion created  by  law  to  investigate  and  report,  but  having  no  legislative, 
judicial,  or  executive  powers,  was  not  an  officer  within  the  meaning  of 
the  constitutional  inhibition. 

Visitors  to  academies,  regents,  directors,  and  trustees  of  public  insti- 
tutions appointed  by  the  Speaker  under  the  law  are  not  regarded  as  offi- 
cers within  the  meaning  of  the  constitutional  inhibition. 

Discussion  of  the  meaning  of  the  word  "  offices  "  as  used  in  the  con- 
stitutional provision  prohibiting  the  Member  from  holding  such  as  are 
incompatible. 

On  December  21,  1898,'  this  resolution  was  agT-eed  to  by  the  House: 

Resolved,  That  the  Committee  on  the  Judiciary  be,  and  it  is  hereby,  instructed  to  ascertain  and 

report  to  this  House — 

First.  Whether  any  Memljer  of  the  House  ha.s  accepted  any  office  under  the  United  States;   and 
Second.  Wliether  the  acceptance  of  such  office  under  the  United  States  has  vacated  the  seat  of 

the  Member  accepting  the  same. 

On  February  21,  1899,  Mr.  David  B.  Henderson,  of  Iowa,  from  that  com- 
mittee, submitted  a  report  ^  in  accordance  with  the  resolutions  of  instruction. 

After  a  careful  examination  of  facts,  a  review  of  arguments,  and  a  discussion 
of  the  origin  and  framing  of  the  clause  of  the  Constitution  under  which  the  ques- 
tions arose,  the  report  proceeds  as  follows  in  regard  to  the  two  branches  of  the 
question : 

(1)  As  to  members  of  commissions :  ^ 

While  it  may  be  admitted  that  all  of  the  commissions,  examining  boards,  regents,  etc.,  considered 
by  the  committee  do  differ  in  many  particulars  as  to  their  duties,  still  the  legal  principles  involved 
in  the  consideration  of  this  class  of  public  servants  apply  to  all  of  them,  and  therefore  they  will  be 
considered  together  in  discussing  the  law  in  respect  to  them. 

It  can  not  be  contended  that  every  position  held  by  a  Member  of  Congress  is  an  office  within 
the  meaning  of  the  Constitution,  even  though  the  term  office  may  usually  be  applied  to  many  of  these 
positions.     We  are  therefore  led  to  an  analysis  and  discussion  of  the  word  "office." 

The  chairman  of  a  committee  of  Congress  is  in  one  sense  an  officer  holding  a  position  different 
from  other  members  of  the  committee.  Marks  of  honor  and  distinction  are  given  to  Members  of  Congress 
in  many  ways,  but  all  incident  to  or  growing  out  of  their  position  as  a  Member  of  Congress.  It  is  a 
mark  of  distinction  to  be  selected  as  members  of  escorts  to  those  of  our  number  who  die;  designations 
are  made  of  committees  to  notify  the  Senate  and  the  President  of  certain  matters.     The  mind  will 


'  Third  session  Fifty-fifth  Congress. 

2  House  Report  No.  2205. 

3  On  March  2,  1905  (Third  session  Fifty-eighth  Congress,  Record,  pp.  3849-3851),  in  the  Senate, 
Mr.  Louis  E.  McComas,  of  Maryland,  submitted  the  following  summary  of  instances  wherein  members 
of  Congress  had  been  appointed  to  commissions: 

"The  appointment  by  the  President  of  Senators,  Representatives,  and  Federal  judges  upon  com- 
missions to  inquire  into  and  settle  or  arbitrate  international  disputes  in  cases  of  special  importance  or 
emergency  has  been  so  strongly  opposed  by  several  eminent  Senators  in  debate  here  that  I  concluded  to 
make  and  place  in  the  Record  the  full  list  of  such  commissions  in  their  order.  The  category  of  the  names 
of  those  who  have  served  on  the  commissions  and  the  public  events  to  which  the  commissions  have 
related,  in  my  humble  opinion,  prove  the  proposition  with  which  I  will  conclude. 

"  It  has  been  said  that  the  practice  is  unconstitutional;  that  Senators  and  other  officials  thus  hold 
two  offices — two  incompatible  offices— at  the  same  time;  that  the  practice  is  hurtful  to  the  country, 


§   493  INCOMPATIBLE    OFFICES.  605 

readily  run  over  a  list  of  many  positions  of  trust  and  honor  that  are  conferred  upon  Members  of  Con- 
gress where  no  pretense  vrill  be  made  that  they  are  offices  -within  the  meaning  of  the  Constitution. 

In  United  States  v.  Hartwell  (6  Wall.,  393)  it  is  laid  down  that  "an  office  is  a  public  station  or 
employment  conferred  by  the  appointment  of  Government.  The  term  embraces  the  ideas  of  tenure, 
duration,  emolument,  and  duties." 

Elsewhere  it  is  held  that  an  office  is  "'an  emploj-ment  on  behalf  of  the  Government,  in  any  sta- 
tion or  public  trust,  not  merely  transient,  occasional,  or  incidental."  (20  John.,  Rep.  492,  7th  Ohio 
State,  556.) 

A  careful  consideration  of  all  of  the  positions  above  referred  to  will  show  that  they  are  merely 
transient,  occasional,  or  incidental  in  their  nature,  and  none  of  them  possess  the  elements  of  duration, 
tenure,  or  emolument.     All  of  these  appointees  were  but  instruments  to  procure  detailed  information 

injurious  to  the  courts  and  the  House;  that  it  lessens  the  constitutional  power  of  the  Senate  and  has 
not  benefited  the  countrj-. 

"In  Hartwell's  case  (6  Wall. .  385)  it  was  said  that — 

"  '  The  term  [office]  embraces  the  idea  of  tenure,  duration,  emolument,  and  duties.  The  duties 
must  be  continual  and  permanent,  not  occasional  or  temporarj-.' 

"When  President  McKinley  sent  in  the  names  of  two  Senators  and  one  Representative  for  con- 
firmation as  commissioners  to  \Tsit  Hawaii,  the  Senate  declined  to  take  action  thereon.  An  eminent 
Senator  expressed  the  view  of  the  Senate: 

" '  If  these  gentlemen  are  to  be  officers,  how  can  the  President  appoint  them  under  the  Constitution, 
the  office  being  created  during  their  term,  or  how  can  they  hold  office  and  still  keep  their  seats  in  Con- 
gress? If  they  are  not  officers,  under  what  constitutional  provision  does  the  President  ask  the  advice 
and  consent  of  the  Senate  to  their  appointment? ' 

"That  membership  upon  such  temporary  commissions  is  not  the  holding  of  an  office,  or  at  least  is 
not  the  holding  of  an  incompatible  office,  is  affirmed  by  the  practice  and  by  the  contemporary  construc- 
tion of  all  the  departments  of  the  Government  during  a  century.  The  recital  of  the  instances  I  give  is 
the  best  evidence  upon  this  point.  The  most  liberal  ^^ew  as  to  incompatible  offices  was  shown  by  the 
acts  of  the  great  Chief  Justice  and  our  earlier  Presidents. 

"Chief  Justice  John  Marshall  accepted  that  office  February  4,  1801,  and  continued  to  act  as  Secre- 
tary of  State  under  President  John  Adams,  who  had  appointed  him  to  the  highest  judicial  office,  until 
March  4.  1801.  President  Jefferson  on  that  day  formally  appointed  Chief  Justice  Marshall  Secretarj^  of 
State  '  until  a  successor  shall  be  appointed ' — not  an  appointment  for  a  definite  term,  but  for  a  temporarj' 
exigency. 

"  In  like  manner  Gen.  Samuel  Smith,  a  Member  of  Congress  from  Marj-land.was  actually  in  charge 
of  the  ^avy  Department  under  President  Jefferson  from  March  31,  1801,  until  June  13,  1801. 

"The  offices  thus  held  were  held  only  by  an  indefinite  tenure  temporarily,  but  I  am  not  now  con- 
cerned with  the  holding  of  incompatible  offices.  I  have  confined  my  research  to  the  special  commis- 
sions constituted  in  whole  or  part  of  Senators  and  Representatives  and  Federal  judges. 

"  It  is  a  suggestive  fact  that  the  Presidents  and  Congress  from  the  earliest  days  of  the  Republic  con- 
tinued to  practice  this  method  of  meeting  great  emergencies.  The  most  striking  instances  occur  at  the 
verj'  beginning  of  our  Government  and  were  sanctioned  by  the  men  who  made  the  Constitution.  Those 
who  had  the  most  to  do  with  that  instrument  made  the  least  objection  to  the  practice  of  sending  such  offi- 
cials upon  such  special  missions. 

"If  the  practice  be  unconstitutional.  President  Washington  and  John  Jay,  who  had  so  much  to 
do  with  the  making  and  adoption  of  the  Constitution,  were  the  first  violators  of  it. 

"President  Washington  on  April  19,  1794,  appointed  Chief  Justice  Jay  to  be  envoy  extraordinarj- 
to  Great  Britain,  and  empowered  him  to  negotiate  the  treaty.  The  result  was  the  treaty  of  amity, 
commerce,  and  navigation  of  November  19,  1794,  so  famous  in  our  historj-.  This  treaty,  which  accom- 
plished the  evacuation  of  the  British  posts  in  our  countrj',  really  avoided  a  war  with  Great  Britain. 
Mr.  Jay,  who  negotiated  it,  was  Chief  Jiistice  of  the  Supreme  Court  from  September  26,  1789,  until 
June  29,  1795.     He  was  Chief  Justice  during  the  whole  term  of  his  special  mission  to  Great  Britain. 

"Oliver  Ellsworth,  of  Connecticut,  early  took  the  view  of  the  proposition  I  am  now  maintaining, 
the  view  which  has  been  so  strongly  and  so  well  stated  here  by  the  very  able  Senator  from  Connecticut 
[Mr.  Piatt],  who  now  honors  me  with  his  attention.     EUsworth  was  appointed  by  President  John  Adams 


606  PRECEDENTS    OF    THE    HOUSE    OF    EEPRESENTATIVES.  §   493 

for  the  better  infonnation  and  guidance  of  Congress  and  are  wholly  lacking  in  the  essential  elements 
of  an  office  within  the  meaning  of  the  Constitution. 

"A  public  office  is  the  right,  authority,  and  duty,  created  and  conferred  by  law,  by  which  for 
a  given  period,  either  fixed  by  law  or  enduring  at  the  pleasure  of  the  creating  power,  an  individual  is 
invested  with  some  portion  of  the  sovereign  functions  of  the  Government  to  be  exercised  by  him  for 
the  benefit  of  the  public."  (Mechem's  Public  Offices  and  Officers,  sec.  1;  Matter  of  Hathaway,  71 
N.  Y.,  238-243;  3  Greenleaf  (Me.),  481;  Public  Officers,  Throop,  sec.  6;  Olmstead  v.  The  Mayor,  etc., 
42  N.  Y.  Sup.  Ct.,  481.) 

It  has  been  held  that  these  functions  must  be  either  legislative,  executive,  or  judicial,  and  that 
to  constitute  the  person  an  officer  he  must  have  conferred  upon  him  either  legislative,  executive,  or 
judicial  powers.     (Mechem's  Public  Offices,  etc.,  sec.  4,  and  cases  cited.) 

a  joint  envoy  extraordinary  to  France,  with  William  Vans  Murray,  of  Maryland,  and  William  R.  Davie, 
of  North  Carolina,  on  February  26,  1799.  The  convention  of  peace,  commerce,  and  navigation  of  Sep- 
tember 30,  1800,  was  the  result  of  this  commission's  work.  That  treaty  avoided  actual  hostilities  with 
France,  and  it  also  secured  a  recognition  by  France  of  the  rights  of  neutral  vessels  and  prospective 
indemnity  for  depredations  by  privateers  and  men-of-war.  The  echoes  of  this  treaty  still  linger  in  the 
spoliation  claims  in  our  annual  appropriation  bill  to-day. 

"Mr.  Ellsworth  did  not  resign  the  office  of  Chief  Justice  until  after  the  making  of  the  treaty. 

"In  1800  Senator  Uriah  Tracy  during  the  summer  visited  and  examined  the  state  of  the  garrisons 
in  the  Northwest  Territory,  and  it  appears  that  Tracy  was  paid  $1,232  for  compensation  and  $1,985.05 
for  expenses,  in  addition  to  his  pay  as  a  Senator,  without  objection.  Mr.  Wolcott,  Secretary  of  the  Treas- 
ury, maintained  that  Senator  Tracy's  employment  was  an  executive  agency  and  not  an  office  of  the 
United  States,  contending  that  such  powers  pertained  to  the  Executive  and  had  been  generally  exercised. 
Compared  with  our  view  to-day,  such  construction  was  very  liberal. 

"David  Meriwether,  of  Georgia,  was  a  Member  of  the  House  of  Representatives  from  1802  to  1807. 
Under  President  Jefferson  Mr.  Meriwether  was  appointed,  on  April  28,  1804,  a  commissioner  to  conclude 
a  treaty  with  the  Creek  Indians  until  the  end  of  the  next  session  of  the  Senate. 

"The  Indians  were  then  regarded  as  dependent  and  yet  semi-independent  nations. 

"Samuel  Nelson,  of  New  York,  was  associate  justice  of  the  Supreme  Court  from  1845  to  1872,  and 
he  was  appointed  by  President  Grant  on  February  10,  1871,  as  one  of  the  members  of  the  Joint  High 
Commission  to  negotiate  the  "Treaty  of  Washington."  This  treaty  was  concluded  May  8,  1871,  and 
signed  by  Justice  Nelson.  It  is  the  historic  treaty  for  the  settlement  by  arbitration  of  the  Alabama 
claims,  for  the  determination  of  fisheries  rights  and  claims,  canal  navigation,  transit  of  merchandise  in 
bond,  and  the  submission  of  the  boundary  question  of  Article  I  of  the  treaty  of  1846  to  arbitration  by 
the  Emperor  of  Germany. 

"Frank  Morey,  of  Louisiana,  while  a  member  of  the  House  of  Representatives,  was  appointed  by 
President  Grant  honorary  commissioner  to  the  Vienna  Exposition  of  1873,  under  the  act  of  February 
14,  1873. 

"It  is  not  a  very  marked  case,  and  yet  it  comes  within  the  rule  of  objection  stated  by  the  very 
strict  construction  I  have  heard  maintained  on  this  floor. 

"Under  the  act  of  August  5,  1892,  Senator  William  B.  Allison,  of  Iowa,  the  leader  of  the  Senate, 
its  guide,  philosopher,  mentor,  and  friend,  who  now  sits  before  me.  Senator  John  P.  Jones,  of  Nevada, 
and  Representative  James  B.  McCreary,  of  Kentucky,  were  appointed  by  President  Harrison  on  Novem- 
ber 3,  1892,  Commissioners  to  the  International  Monetary  Conference,  held  at  Brussels  November  22, 
1892. 

"President  Harrison,  on  June  6, 1892,  appointed  John  M.  Harlan,  then  and  ever  since  an  associate 
justice  of  the  Supreme  Court,  and  John  T.  Morgan,  then  and  ever  since  a  Senator  of  the  United  States 
from  Alabama,  as  arbitrators  on  behalf  of  the  United  States  under  the  treaty  of  February  29,  1892, 
between  the  United  States  and  Great  Britain,  to  determine  the  jurisdictional  rights  of  the  United  States 
in  waters  of  the  Bering  Sea  for  the  preservation  of  the  fur-seal  herds. 

"President  Cleveland,  on  January  4,  1896,  appointed  David  J.  Brewer,  then  and  ever  since  an 
associate  justice  of  the  Supreme  Court,  and  Richard  H.  Alvey,  then  and  continually  until  January  1, 
1905,  chief  justice  of  the  court  of  appeals  of  the  District  of  Columbia,  to  be  members  of  the  Venezuelan 
Boundary  Commission.    Justice  Brewer  was  president  of  the  Commission,  a  tribunal  appointed  by 


§  493  INCOMPATIBLE   OFFICES.  607 

Says  the  author: 

"Sec.  4.  Office  involves  delegation  of  sovereign  functions.  The  most  important  characteristic 
which  distinguishes  an  office  from  an  employment  or  contract  is  that  the  creation  and  conferring  of  an 
office  involves  a  delegation  to  the  indi\'idual  of  some  of  the  sovereign  functions  of  government,  to  be 
exercised  by  him  for  the  benefit  of  the  public;  that  some  portion  of  the  sovereignty  of  the  country, 
either  legislative,  executive,  or  judicial,  attaches,  for  the  time  being,  to  be  exercised  for  the  public 
benefit.     Unless  the  powers  conferred  are  of  this  nature,  the  individual  is  not  a  public  officer." 

This  involves  necessarily  the  power  to  (1)  legislate,  or  (2)  execute  law,  or  (3)  hear  and  determine 
judicially  questions  submitted. 

Therefore,  mere  power  to  investigate  some  particular  subject  and  report  thereon,  or  to  negotiate 

President  Cleveland  to  make  an  independent  examination  of  the  merits  of  the  case  respecting  a 
boundary  line  between  Venezuela  and  Great  Britain.  Neither  Govenunent  was  formally  represented 
before  the  Commission,  but  the  question  before  it  was  afterwards,  and  partly  because  of  the  investigation 
by  this  Commission,  submitted  to  arbitration  between  Great  Britain  and  Venezuela  practically  at  the 
instance  of  our  Government. 

"President  Cleveland  appointed  William  L.  Putnam,  then  and  ever  since  a  circuit  judge  of  the 
United  States,  on  July  11,  1896,  a  commissioner  under  the  convention  of  February  8,  1896,  between  the 
United  States  and  Great  Britain,  to  determine  through  the  joint  commission  the  British  claims  for 
damages  in  certain  cases  additional,  and  also  in  the  cases  mentioned  in  the  findings  of  fact  by  the 
fur-seal  tribunal  at  Paris  in  1893.  Judge  Putnam  was  our  commissioner,  and  Judge  George  Edward 
King,  of  the  supreme  court  of  Canada,  was  the  commissioner  on  the  part  of  Great  Britain,  and  on 
December  17,  1897,  this  commission  awarded  damages  in  favor  of  British  claimants  to  the  amount  of 
$473,151.26. 

"President  McKinley,  on  April  14,  1897,  appointed  Senator  Edward  0.  Wolcott,  of  Colorado,  the 
eloquent  and  brilliant  Senator  the  tidings  of  whose  death  we  have  received  to-day,  and  whose  death 
has  caused  profound  sadness  in  this  Senate  and  among  all  the  people  of  the  country,  special  envoy  to 
France,  Germany,  Great  Britain,  and  other  countries  to  seek  an  international  agreement  to  fix  the 
relative  value  between  gold  and  silver  under  the  act  of  March  30,  1897. 

"President  McKinley,  on  July  13,  1898,  appointed  Senator  Shelby  M.  CuUom,  of  Illinois,  the 
present  occupant  of  the  chair,  and  Senator  John  T.  Morgan,  of  Alabama,  and  Representative  Robert 
R.  Hitt,  of  Illinois,  to  serve  until  the  end  of  the  next  session  of  the  Senate,  as  commissioners  to  recom- 
mend legislation  concerning  the  Hawaiian  Islands  under  the  joint  resolution  of  July  7,  1898.  It  is 
true  the  Senate  declined  to  confirm  them  when  asked  and  did  not  appear  to  regard  this  as  other  than 
a  legislative  committee,  not  requiring  executive  nomination  and  confirmation  by  the  Senate. 

"President  McKinley,  on  July  16,  1898,  appointed  Senator  Charles  W.  Fairbanks,  of  Indiana; 
Representatives  Nelson  Dingley,  of  Maine,  and  Senator  George  Gray,  of  Delaware,  as  a  joint  high  com- 
mission to  settle  differences  between  Great  Britain  and  the  United  States  in  respect  of  Canada,  and  this 
commission  was  appointed  under  the  deficiency  act  of  July  7,  1898.  Senator  Gray  resigned  later  to 
accept  a  place  upon  another  commission.  Mr.  Dingley  served  until  his  death.  Senator  Charles  J. 
Faulkner,  of  West  Virginia,  and  Representative  Sereno  E.  Payne,  of  New  York,  were  appointed  to  fill 
these  vacancies.  Senator  Fairbanks  and  former  Senator  Faulkner  and  Mr.  Payne  still  remain  members 
of  that  Commission. 

"President  McKinley,  on  September  13,  1898,  appointed  Senator  Cushman  K.  Davis,  of  Minnesota, 
Senator  William  B.  Frye,  of  Maine,  and  Senator  George  Gray,  of  Delaware,  as  members  of  a  commission 
to  negotiate  a  treaty  with  Spain.  This  Commission  met  at  Paris  on  October  1, 1898,  and  concluded  the 
treaty  of  Paris  on  December  10,  1898,  the  famous  treaty  which  restored  peace  between  the  two  countries, 
assured  the  independence  of  the  people  of  Cuba,  the  acquisition  of  Porto  Rico,  Guam,  and  the  Philip- 
pines by  the  United  States,  and,  all  must  concede,  greatly  advanced  the  prestige  of  the  United  States. 

"President  Roosevelt,  on  March  4,  1903,  appointed  Senator  Henry  Cabot  Lodge,  of  Massachusetts, 
a  member  of  the  tribunal  to  consider  and  decide  the  boundary  line  between  Alaska  and  Canada  under 
the  provisions  of  the  convention  between  the  United  States  and  Great  Britain  signed  at  Washington, 
January  24,  1903.  The  decision  of  the  Alaskan  Boundary  Tribunal,  rendered  October  20,  1903,  was 
very  favorable  to  the  contention  of  the  United  States,  and  of  marked  importance  in  settling  the  last  of 
the  series  of  questions  of  difference  between  the  two  nations." 


608  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   493 

a  treaty  of  peace,  or  on  some  commercial  subject,  and  report  without  power  to  make  binding  on  the 
Government,  does  not  constitute  a  person  an  officer. 

"It  (public  office)  implies  a  delegation  of  a  portion  of  the  sovereign  power  to,  and  the  possession  of 
it  by,  the  person  filling  the  office,  and  the  exercise  of  such  power  within  legal  limits  constitutes  the 
correct  discharge  of  the  duties  of  such  office."  (3  Greenleaf  (Me.),  481;  Mechem's  Public  Office,  etc., 
sec.  2;  Olmstead  v.  The  Mayor,  42  N.  Y.  Sup.  Ct.,  481;  Public  Officers,  Throop,  see.  6.) 

Again,  the  employment  must  not  be  merely  transient,  occasional,  or  incidental. 

In  United  States  v.  Hartwell  (G  Wall.,  385)  the  court  held  that  the  term  pul>lir  office  embraces 
the  ideas  of  tenure,  duration,  emolument,  and  duties,  and  that  the  duties  were  continuing  and  perma- 
nent, not  occasional  or  temporary. 

In  United  States  v.  Germaine  (99  U.  S.  Sup.  Ct.,  508)  the  question  of  who  is  or  who  is  not  a  public 
officer  was  again  up,  and  the  court  said: 

"If  we  look  to  the  nature  of  defendant's  employment  we  think  it  equally  clear  that  he  is  not  an 
officer.  In  that  case  (referring  to  United  States  %'.  Hartwell)  the  court  said  the  term  embraces  the  ideas  of 
tenure,  duration,  emolument,  and  duties,  and  that  the  latter  were  continuing  and  permanent,  not  occa- 
sional or  temporary.  In  the  case  before  us  the  duties  are  not  continuing  and  permanent,  and  they  are 
occasional  and  intermittent.  *  *  *  He  is  required  to  keep  no  place  of  business  for  the  public  use. 
He  gives  no  bond  and  takes  no  oath,  unless  by  some  order  of  the  Commissioner  of  Pensions  of  which  we 
are  not  advised.  *  *  *  He  is  but  an  agent  of  the  Commissioner,  appointed  by  him,  and  removable 
by  him  at  his  pleasure,  to  procure  information  needed  to  aid  in  the  performance  of  his  own  official 
duties.  *  *  *  There  is  no  penalty  for  his  absence  from  duty  or  refusal  to  perform,  except  his  loss  of 
the  fee  in  the  given  case." 

The  duties  of  the  commissioners  appointed  under  the  statutes  (to  which  attention  will  be  called, 
are  not  continuing  or  permanent;  they  have  no  place  of  business  for  the  public  use,  or  even  for  their 
own  use;  they  give  no  bond  and  take  no  oath.  In  fact,  they  are  mere  agents  appointed  by  direction 
of  Congress  for  the  purpose  of  gathering  information  and  making  recommendations  for  its  use  if  the 
Congress  sees  fit  to  avail  itself  of  the  labors  of  the  commission.  The  commissioners  appointed  under 
these  statutes  or  resolutions  can  not  be  compelled  to  attend  or  act,  and  in  the  broadest  sense  they  are 
mere  agents  of  the  Congress.  These  commissioners  are  not  to  execute  any  standing  laws  which  are  the 
rules  of  action  and  the  guardians  of  rights,  nor  have  they  the  right  or  power  to  make  any  such  law,  nor 
can  they  interpret  or  enforce  any  existing  law. 

Under  a  statute  of  Maine  the  governor  was  authorized  "to  appoint  one  or  more  agents  for  the  preser- 
vation of  timber  on  the  public  lands  and  for  other  purposes,"  and  the  judges  held  that  these  agents  were 
not  a  civil  office  of  profit  under  the  State,  although  they  were  entitled  to  compensation.  (See  3  Green- 
leaf  Reports  (Me.),  p.  481.) 

In  United  States  v.  Hendee  (124  U.  S.,  309)  it  was  held  that  a  paymaster's  clerk  in  the  Navy  is  an 
officer  of  the  Navy,  and  in  United  States  v.  Mouat  (124  U.  S.,  303)  it  was  held  that  such  paymaster's  clerk, 
appointed  by  a  paymaster  in  the  Navy,  with  the  approval  of  the  Secretary  of  the  Navy,  is  not  an  officer 
of  the  Navy  in  the  sense  that  he  is  an  officer  of  the  United  States. 

The  constitution  of  the  State  of  New  York,  1846,  article  6,  section  8,  prohibits  the  judges  of  the 
court  of  appeals  and  justices  of  the  supreme  court  from  exercising  any  power  of  appointment  to  public 
office. 

Section  16,  chapter 280,  laws  of  1847,  conferred  upon  the  chancelU)r  power  to  issue  a  commission  to 
some  person  empowering  him  to  act  as  a  surrogate  in  a  particular  case  when  by  reason  of  statutory 
disqualifications  the  officers  designated  to  act  could  not  do  so.  It  was  contended  that  such  person  when 
designated  to  act  as  surrogate  became  a  public  officer,  inasmuch  as  for  the  time  being  and  in  the  matter 
before  whom  he  was  to  act  as  a  judicial  officer  with  full  power  to  hear,  try,  and  determine  the  particular 
case,  but  the  court  of  appeals  In  matter  of  Hathaway  (71  N.  Y.,  238)  held: 

"The  term  'public  office,'  as  used  in  the  constitution,  has  respect  to  a  permanent  public  trust  or 
employment,  to  be  exercised  generally  and  in  all  proper  cases.  It  does  not  include  the  appointment, 
to  meet  special  exigencies,  of  an  individual  to  perform  transient,  occasional,  or  incidental  duties,  such 
as  are  ordinarily  performed  by  public  officers;  as  to  such  appointments  the  legislature  is  left  untram- 
meled,  and  at  liberty  to  invest  the  courts  with  power  to  make  them."  (Church,  Ch.  J.,  Andrews  and 
Miller,  JJ.,  dissenting.) 

In  Hall  V.  State  (39  Wis.,  79,  chap.  40,  laws  of  1857)  [the  law]  appointed  certain-named  persons  "  com- 


§   493  INCOMPATIBLE    OFFICES.  609 

missioners  to  make  a  geological,  mineralogical,  and  agricultural  survey  of  the  State,"  and  provided  that 
such  commissioners  should  arrange  and  distribute  the  functions  of  such  survey  by  mutual  agreement. 
The  law  provided  a  salary  and  provided  fur  filling  vacancies,  and  gave  the  governor  power  to  remove 
any  member  for  incompetency  or  neglect  of  duty.  The  court  held  that  these  commissioners  were 
officers.     The  court  said: 

"The  geological  survey  commissioners  were  appointed  directly  by  the  legislature;  no  specific  term 
of  office  was  fixed  (except  by  the  governor,  whose  power  to  do  so  may  well  be  doubted);  provision  was 
made  by  law  for  removing  them  for  cause  and  for  filling  vacancies;  their  salaries  were  paid  out  of  the 
State  treasury,  and  their  functions  were  not  of  merely  private,  local,  or  temporary  concern,  but  related 
to  the  material  and  permanent  interests  of  the  whole  State.  The  duty  imposed  upon  them  was  an 
important  public  trust,  to  be  exercised  for  the  benefit  of  all  the  people  of  the  State,  and  coidd  only  be 
discharged  properly  by  gentlemen  of  high  attainments  in  physical  science.  *  *  *  It  may  safely  be 
asserted  that  any  person  charged  by  law  with  the  performance  of  public  functions  affecting  the  general 
interests  of  society,  especially  if  he  be  elected  thereto  by  the  people  or  appointed  directly  by  the  legis- 
lature, and  who  receives  his  compensation  out  of  the  public  treasury,  is  a  public  officer,  and  as  such  can 
have  no  vested  right  in  his  office,  unless  secured  by  the  constitution.  *  *  *  It  may  be  difficult  to 
draw  the  exact  line  between  an  office  and  a  mere  sei-vice  or  employment;  but,  as  already  observed,  when 
public  functions  are  conferred  by  law  upon  certain  persons  elected  by  the  people  or  appointed  by  the 
legislature,  if  those  functions  concern  the  general  interests  of  the  State,  and  are  not  of  a  nature  merely 
local  or  temporary,  such  persons  are  public  officers,  especially  if  they  are  paid  a  salary  for  their  services 
out  of  the  public  treasury." 

In  re  Corliss  (11  R.  I.,  638)  the  question  was  up  whether  the  office  of  a  commissioner  of  the  United 
States  Centennial  Commission  is  an  office  of  trust  under  Article  II,  section  1,  of  the  Constitution  of  the 
United  States,  and  it  was  held  that  he  was  such  an  officer.  The  law  creating  that  commission  provided 
"for  the  holding  of  an  exhibition  of  American  and  foreign  arts,  products,  and  manufactures,  under  the 
auspices  of  the  Government  of  the  United  States,"  and  the  functions  of  such  commissioners  were  to 
continue  until  the  close  of  the  exhibition,  and  their  duties  were  "to  prepare  and  superintend  the  execu- 
tion of  a  plan  for  holding  the  exhibition."  By  the  act  of  Congress  approved  June  1,  1872,  the  duties  and 
functions  of  the  commission  were  further  increased  and  defined,  and  a  corporation  was  created  called 
"The  Centennial  Board  of  Finance,"  to  cooperate  with  the  commission  and  to  raise  and  disburse  the 
funds.  It  was  to  be  organized  under  the  direction  of  the  commission.  The  commission  was  also  to  adopt 
plans  for  the  erection  of  buddings,  and  the  corporation  created  was  to  erect  them  in  accordance  with 
these  plans. 

The  act  also  provided  that  the  commission  should  "have  power  to  control,  change,  or  revoke  all 
such  grants,  and  shall  appoint  all  judges  and  examiners  and  award  all  premiums."  The  commission  was 
also  "to  supervise  the  closing  up  of  the  affairs  of  said  corporation,  to  audit  its  accounts,  and  submit  in  a 
report  to  the  President  of  the  United  States  the  financial  results  of  the  centennial  exhibition."  The  act 
also  provided  "  no  compensation  for  services  shall  be  paid  to  the  commissioners  or  other  officers  provided 
by  this  act  from  the  Treasury  of  the  United  States."  The  only  other  officers  provided  for  by  the  act 
were  alternates  to  serve  as  commissioners  when  the  commissioners  were  unable  to  attend. 

The  court  properly  held  that  these  commissioners  were  officers  of  the  United  States.  They  were 
certainly  vested  with  sovereign  functions  of  the  Government  which  were  to  be  exercised  by  them  for 
the  benefit  of  each  and  every  State  in  the  Union,  and  for  the  benefit  of  all  the  people  of  the  United  States. 

In  Bunn  v.  The  People  (45  111.,  397)  the  court  held: 

"A  person  employed  for  a  special  and  single  object,  in  whose  employment  there  is  no  enduring 
element,  nor  designed  to  be,  and  whose  duties  when  completed,  although  years  may  be  required  for 
their  performance,  ipso  facto  terminate  the  employment,  is  not  an  officer  in  the  sense  in  which  that  term 
is  used  in  the  constitution  of  Illinois." 

In  re  Attorneys,  etc.  (20  Johnson,  N.  Y.),  the  court  defines  the  legal  meaning  of  the  term  "office"  to 
be  "an  employment  on  behalf  of  the  Government  in  any  station  or  public  trust  not  merely  transient, 
occasional,  or  incidental." 

In  roatter  of  Hathaway  (71  N.  Y.,  238-243)  the  court  said: 

" '  Public  office '  as  used  in  the  Constitution  has  respect  to  a  permanent  trust  to  be  exercised  in  behalf 
of  the  Government,  or  of  all  citizens  who  may  need  the  intervention  of  a  public  functionary  or  officer, 

59&4^voL  1—07 39 


610  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §  493 

and  in  all  matters  within  the  range  of  the  duties  pertaining  to  the  character  of  the  trust.  It  means  a  right 
to  exercise  generally  and  in  all  proper  cases  the  functions  of  a  public  trust  or  employment." 

In  McArthur  v.  Nelson  (81  Ky.,  67)  the  question  was  up  as  to  whether  certain  commissioners  were 
district  officers,  and  the  case  says: 

"The  first  section  of  the  act  authorizes  the  judge  of  the  circuit  court  to  appoint  three  commissioners, 
residents  of  the  district,  who  shall  hold  their  office  at  the  will  and  pleasure  of  the  judge.  It  is  made  the 
duty  of  the  commissioners  to  have  the  court-house  constructed  at  a  cost  not  exceeding  $50,000,  and,  to 
enable  them  to  raise  this  money,  they  are  authorized  to  issue  bonds,  with  coupons  attached,  bearing 
interest  at  5  per  cent,  payable  semiannually;  and,  to  redeem  the  bonds  and  pay  the  interest,  they  are 
further  empowered  to  levy  an  annual  tax  on  the  real  and  personal  property  in  the  district  not  exceeding 
12  cents  on  the  $100,  etc.  *  *  *  They  are  not  district  officers  within  the  meaning  of  section  10  of 
article  6  of  the  constitution,  but  are  the  mere  agents  for  the  district,  required  by  the  act  to  discharge 
certain  duties  with  reference  to  the  building  of  the  court-house,  and  when  those  duties  end,  their  employ- 
ment terminates." 

In  United  States  v.  Germaine  (99  U.  S.,  508)  the  question  as  to  who  are  and  who  are  not  officers  of  the 
United  States  was  quite  fully  considered.  Under  section  4777  of  the  Revised  Statutes,  United  States,  it 
is  provided: 

"That  the  Commissioner  of  Pensions  be,  and  he  is  hereby,  empowered  to  appoint,  at  his  discretion, 
civil  surgeons  to  make  the  periodical  examinations  of  pensioners  which  are  or  may  be  required  by  law, 
and  to  examine  applicants  for  pensions  where  he  shall  deem  an  examination  by  a  surgeon  appointed  by 
him  necessary;  and  the  fee  for  such  examinations,  and  the  requisite  certificates  thereof  in  duplicate, 
including  postage  on  such  as  are  transmitted  to  pension  agents,  shall  be  two  dollars,  which  shall  be  paid 
by  the  agent  for  paying  pensions  in  the  district  within  which  the  pensioner  or  claimant  resides,  out  of 
any  money  appropriated  for  the  payment  of  pensions,  under  such  regulations  as  the  Commissioner  of 
Pensions  may  prescribe." 

It  was  held  in  the  case  cited  that  the  appointees  under  this  statute  are  not  officers  of  the  United 
States  but  mere  agents  of  the  Commissioner  of  Pensions. 

The  report  next  applies  the  principles  discussed  to  the  commissions  as  to 
which  question  had  been  raised. 

It  is  perfectly  clear,  therefore,  that  the  commissioners  appointed  under  the  act  approved  July 
7,  1898,  "An  act  making  appropriations  to  supply  deficiencies  in  the  appropriations  for  the  fiscal  year 
ending  June  30,  1898,  and  for  prior  years,  and  for  other  purposes,"  the  resolution  approved  July  7, 
1898  (Public  Resolution — No.  51)  entitled  "Joint  resolution  to  provide  for  annexing  the  Hawaiian 
Islands  to  the  United  States,"  and  the  act  approved  June  18,  1898,  entitled  "An  act  authorizing  the 
appointment  of  a  nonpartisan  commission  to  collate  information  and  to  consider  and  recommend  legis- 
lation to  meet  the  problems  presented  by  labor,  agriculture,  and  capital,"  are  not  persons  "holding  any 
office  under  the  United  States." 

They  are  persons  designated  by  authority  of  Congress  to  make  certain  investigations,  inquiries, 
etc.,  or  to  conduct  certain  negotiations  preliminary  to  and  as  a  basis  for  possible  action  by  the  Congress 
of  the  United  States  or  by  one  branch  of  it.  They  neither  make  law,  execute  law  affecting  the  rights 
of  the  people,  nor  perform  judicial  functions.  These  commissioners  are  and  are  intended  to  be  mere 
advisory  agents  of  the  Congress  of  the  United  States.  Their  investigations  are  confined  to  some  par- 
ticular matter  or  subject,  and  they  are  not  required  to  take  an  oath  of  office.  They  have  no  power  to 
decide  any  question  or  bind  the  Government  or  do  any  act  affecting  the  rights  of  a  single  individual 
citizen. 

If  the  House  or  Senate  authorizes  or  directs  the  Speaker  or  President  of  the  Senate,  as  the  case 
may  be,  to  appoint  a  special  committee  to  investigate  some  particular  matter  or  subject  and  report 
and  recommend  legislation,  can  it  be  claimed  that  an  office  is  created  or  that  the  members  of  the  House 
or  Senate  appointed  hold  "an  office?"  Suppose  the  President  of  the  United  States  is  authorized  to 
make  the  appointments.     Does  this  create  offices,  and  are  the  appointees  "officers?" 

The  acts  performed  are  for  the  information  of  the  Congress,  and  it  alone.  Their  suggestions  and 
recommendations  have  no  force;  they  may  or  may  not  be  adopted.  To  make  their  suggestions  or 
recommendations  operative,  bills  or  resolutions  must  be  introduced  embodying  the  provisions  recom- 


§  493  INCOMPATIBLE   OFFICES.  611 

mended,  or  their  substance,  and  these  must  be  enacted  into  law.  If  a  treaty  is  recommended  by  peace 
commissioners  it  must  be  submitted  to  the  Senate  and  by  it  ratified.  The  acts  of  such  a  commission 
do  not  bind  the  President,  the  Senate,  or  the  Government.  Then  such  commissioners  neither  make, 
execute,  nor  interpret  law.  They  do  not  possess  or  exercise  any  of  the  sovereign  power  of  the  Govern- 
ment of  the  United  States. 

That  the  Senate  may  feel  that  it  ought  to  ratify  or  approve  the  recommendations  of  such  a  commis- 
sion can  make  no  difference,  the  fact  remains  that  their  acts  are  not  binding  upon  anyone  or  upon 
any  departments  of  the  Government. 

If  the  Congress  of  the  United  States  should  see  fit  by  joint  resolution  to  authorize  the  President 
to  appoint  ten  persons  as  commissioners,  whose  duties  it  should  be  to  investigate  the  condition  of  the 
people  residing  in  Porto  Rico  and  recommend  laws  suitable  to  their  government,  and  should  appropriate 
money  to  pay  the  expenses  of  the  commission,  would  anyone  contend  that  such  commissioners  when 
appointed  would  become  other  than  mere  agents  of  the  Congress  for  the  purposes  specified?  Would 
they  possess  or  exercise  legislative,  executive,  or  judicial  functions  or  powers?  Such  commissioners 
would  possess  the  mere  naked  power  to  investigate  and  report,  and  their  action  would  conclude  no  one, 
nor  would  they  execute  or  interpret  any  law.  Their  action  would  not  affect  in  the  slightest  degree 
the  personal  or  property  rights  of  a  single  citizen  of  the  Republic.  They  would  be  answerable  to  no 
power  for  misconduct,  they  would  be  bound  by  no  oath. 

"The  officer  is  distinguished  from  the  employee,"  says  Judge  Cooley,  "in  the  greater  importance, 
dignity,  and  independence  of  his  position;  in  being  required  to  take  an  official  oath,  and  perhaps  to  give 
an  official  bond;  in  the  liability  to  be  called  to  account  as  a  public  offender  for  misfeasance  or  nonfea- 
sance in  office,  and  usually,  though  not  necessarily,  in  the  tenure  of  his  position." 

Attorneys  and  counselors  admitted  to  practice  in  the  courts  of  the  United  States  are  not  officers 
of  the  United  States.     (Ex  parte  Garland,  4  WaU.  (U.  S.),  333;  see  also,  In  re  Robinson,  131  Mass.,  376.) 

In  People  v.  Nichols  (52  N.  Y.,  478),  one  of  the  judges  of  the  court  of  appeals  was  designated  by 
statute  as  one  of  three  persons  to  examine  and  report  upon  the  genuineness  and  value  of  certain  relics 
which  the  State  proposed  to  purchase,  and  upon  the  certificate  of  these  commissioners  the  purchase 
price  was  to  be  paid.  The  court  held  that  this  was  not  an  office  or  a  public  trust  within  the  meaning 
of  the  constitution  of  that  State,  which  prohibits  such  judge  from  holding  an  office  or  public  trust.  Said 
the  coiu-t:  "  It  is  very  plain  that  the  iloing  of  such  an  act,  a  single  act  like  this,  is  not  within  the  meaning 
of  the  constitutional  prohibition  against  holding  any  other  office  or  public  trust"  (p.  485). 

Applying  these  principles  to  what  is  known  as  the  Postal  Commission  the  committee  finds  that 
those  Members  of  the  House  of  Representatives  appointed  or  designated  as  commissioners  under  public 
act  131,  "An  act  making  appropriations  for  the  fiscal  year  ending  June  30,  1899,"  are  not,  nor  are  any 
of  them,  officers  under  the  United  States  within  the  meaning  of  the  Constitution. 

In  respect  to  the  Industrial  Commission,  the  committee  finds  that  those  Members  of  the  House  of 
Representatives  appointed  or  designated  as  commissioners  under  public  act  No.  146,  "An  act  authorizing 
the  appointment  of  a  nonpartisan  commission  to  collate  information  and  consider  and  recommend  leg- 
islation to  meet  the  problems  presented  by  labor,  agriculture,  and  capital,"  approved  July  7,  1898,  are 
not,  nor  are  any  of  them,  officers  under  the  United  States  within  the  meaning  of  the  Constitution. 

In  respect  to  the  Canadian  Commission  the  committee  finds  that  those  Members  of  the  House  of 
Representatives  appointed  or  designated  as  commissioners  under  public  act  No.  182,  "An  act  making 
appropriations  to  supply  deficiencies  in  the  appropriations  for  the  fiscal  year  ending  June  30,  1898,  and 
prior  years,  and  for  other  purposes,"  are  not,  nor  are  any  of  them,  officers  under  the  United  States  within 
the  meaning  of  the  Constitution. 

In  respect  to  the  Hawaiian  Commission  the  committee  finds  that  those  Members  of  the  House 
of  Representatives  appointed  or  designated  as  commissioners  under  public  resolution  No.  51,  "Joint 
reso  lution  providing  for  annexing  the  Hawaiian  Islands  to  the  United  States,"  are  not,  nor  are  any  of 
them,  officers  under  the  United  States  within  the  meaning  of  the  Constitution. 

In  respect  to  visitors  to  the  Militaiy  Academy,  etc.,  the  committee  finds  that  those  Members  of 
the  House  of  Representatives  appointed  and  designated  as  visitors  to  the  Military  Academy  at  West 
Point,  to  the  Naval  Academy  at  Annapolis,  and  the  regents  and  directors  and  consulting  trustees  to  the 
various  public  institutions  in  the  District  of  Columbia  and  appointed  by  the  Speaker  of  the  House, 
are  not,  nor  are  any  of  them,  officers  under  the  United  States  within  the  meaning  of  the  Constitution. 


612  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   494 

494.   The  examination  of  1898  as  to  incompatible  oflB.ces,  continued. 

In  1898  the  Judiciary  Committee  found  that  four  Members,  by  ac- 
cepting commissions  in  the  Army  and  being  mustered  into  the  service 
after  taking  the  oath  as  Representatives,  thereby  vacated  their  seats. 

An  opinion  of  the  Judiciary  Committee  that  persons  on  the  retired 
list  of  the  Army  do  not  hold  oflB.ce  under  the  United  States  in  the  constitu- 
tional sense. 

(2)  As  to  Members  of  Congress  who  had  accepted  commissions  in  the  United 
States  Army  the  report '  held : 

Before  entering  into  a  discussion  of  the  law  governing  Members  of  Congress  holding  commissions 
in  the  United  States  Army,  it  is  but  due  to  the  committee  to  say  that  it  has  approached  the  considera- 
tion of  the  questions  involved  with  a  delicacy  growing  out  of  their  appreciation  of  the  patriotic  services 
tendered  to  their  Government  and  rendered  by  these  officers.  Every  opportunity  has  been  given  to 
them  to  be  heard.  The  conmiittee  has  proceeded  with  deliberation  and  care,  and  there  is  not  a 
member  of  the  Committee  on  the  Judiciary  but  entertains  the  highest  respect  for  the  gentlemen  inter- 
ested. But  the  resolution  was  sent  to  this  committee  by  a  vote  of  the  House,  and  it  becomes  our  duty 
to  consider  and  report  to  the  House  our  findings  of  the  law  and  fact  governing  these  cases. 

The  most  exhaustive  treatment  that  has  been  given  to  these  questions  will  be  found  in  Report 
No.  110,  Thirty-eighth  Congress,  first  session,  in  the  matter  of  the  military  appointment  of  Hon.  F.  P. 
Blair,  jr.,  which  is  known  as  the  "Dawes  Report."  The  feeling  of  this  committee  can  not  be  better 
expressed  than  by  quoting  a  paragraph  from  that  report: 

"These  questions  are  all  of  the  gravest  importance,  and  have  ever  been  so  considered  whenever 
they  have  arisen.  They  affect  seriously  the  privileges  and  the  independence  of  the  House,  and  can  not 
be  disregarded  without  trifling  with  both;  and  when  the  House  of  Representatives  shall  cease  to  guard 
its  own  privileges,  and  even  its  own  independence,  it  will  cease  also  to  be  worthy  of  a  free  people,  and 
be  fit  only  to  be  cast  out." 

The  facts  already  found  in  this  report  clearly  show  that  four  Members  of  the  present  House  of  Rep- 
resentatives, after  being  duly  elected,  qualified,  and  acting  as  such,  accepted  commissions  in  the 
United  States  Army  in  the  Spanish-American  war,  and  acted  in  the  Army  as  United  States  officers 
under  such  commissions. 

The  first  question  that  presents  itself  is  this: 

Does  a  Representative  in  Congress,  duly  elected,  vacate  such  office  by  accepting,  during  the  term 
for  which  elected  and  after  he  has  qualified  as  such,  a  commission,  issued  by  the  President,  as  an  oflScer 
in  the  Army  of  the  United  States?  is  the  practical  question  suggested  by  the  inquirj^  directed  by  the 
House  to  be  made  by  the  Committee  on  the  Judiciary. 

The  question  is  not  now  presented  for  the  first  time,  and  we  have,  therefore,  precedent,  as  well 
as  the  plain  and  unequivocal  language  of  the  Constitution,  to  guide  us  in  answering  the  question 
propounded. 

Section  6  of  Article  I  of  the  Constitution  of  the  United  States  provides  as  follows: 

"No  Senator  or  Representative  shall,  diu-ing  the  time  for  which  he  was  elected,  be  appointed  to 
any  civil  office  under  the  authority  of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased  during  such  time;  and  no  person  holding  any  office  under  the 
United  States  shall  be  a  Member  of  either  House  during  his  continuance  in  office." 

A  person  holding  a  commission  in  the  Army  or  Navy  of  the  United  States  and  not  on  the  retired 
list  is  an  officer  of  the  United  States  and  he  holds  that  office  under  the  United  States.  The  office  is 
created  by  law  and  filled  by  appointment  of  the  President,  when  such  appointment  is  confirmed  by 
the  Senate.     Such  a  person  is  not,  however,  a  civil  officer — he  does  not  hold  a  "civil  oflice." 

It  follows  that  a  person  while  holding  the  position  of  Senator  or  Representative  in  the  Congress 
of  the  United  States  may  be  appointed  to  an  office  in  the  Army  or  Navy  either  created  or  the  emolu- 

'  Mr.  John  J.  Jenkins,  of  Wisconsin,  dissented  from  this  report. 


§   494  INCOMPATIBLE    OFFICES.  613 

ments  of  which  have  been  increased  during  the  time  for  which  he  was  elected,  or  to  any  office  in  that 
service. 

(Storj-  on  the  Constitution,  sections  791-792.) 

The  first  prohibition  relates  solely  to  a  ''civil  office."  May  such  person  accept  such  new  office 
or  any  office  under  the  United  States  and  still  hold  his  position  as  Representative  in  Congress'? 

It  is  evident  that  it  was  the  policy  of  the  framers  of  our  Constitution  to  prohibit  Senators  and 
Representatives  in  Congress  from  creating  civil  offices  or  increasing  the  salaries  pertaining  to  civil  offices 
and  then  enjoying  the  fruits  of  their  own  work  during  the  term  for  which  they  were  elected.  This  pro- 
vision removes,  to  some  extent,  the  temptation  to  bad  or  unnecessary  legislation  by  Members  of  Congress. 
It  is  true  that  they  may  vote  to  create  a  civil  office  or  to  increase  the  emoluments  thereof  and  be  appointed 
thereto  after  their  term  has  expired,  but  the  idea  seems  to  have  prevailed  that  a  newly  created  office 
might,  and  probably  would,  be  filled  by  the  appointing  power  at  once,  or  at  least  before  the  legislators 
creating  it  would  be  out  of  office  and  so  situated  as  to  accept  its  benefits  or  emoluments. 

But  the  Constitution  goes  further  and  in  the  same  connection  declares  that  "no  person  holding 
any  office  under  the  United  States  shall  be  a  Member  of  either  House  (of  Congress)  during  his  continu- 
ance in  office."     (The  office  held  by  him  under  the  United  States.) 

The  second  prohibition  relates  to  'any  office"  held  under  the  United  States  whether  it  be  civil 
or  military  or  naval.  It  is  evident  that  the  framers  of  the  Constitution  used  the  word  "civil"  under- 
standingly  and  intentionally  in  the  first  prohibition  and  for  the  purpose  of  distinguishing  civil  offices 
from  military  and  naval  offices.  It  is  also  evident  that  the  framers  of  the  Constitution  used  the  word 
"any"  in  the  second  prohibition  intentionally  and  for  the  purpose  of  declaring  that  no  Senator  or  Rep- 
resentative in  Congress  shall  hold  an  office  under  the  United  States  and  at  the  same  time  "be  a 
Member  of  either  House"  of  Congress. 

It  has  been  suggested  that  it  was  the  purpose  of  the  framers  of  the  Constitution  to  declare  that  a 
person  shall  not  act  as  a  Senator  or  Representative  in  Congress  during  the  time  he  holds  an  office  under 
the  United  States,  and  that  the  effect  of  the  constitutional  provision  is  to  permit  a  Senator  or  Repre- 
sentative in  Congress  to  hold  his  position  as  such  Representative  and  at  the  same  time  hold,  accept, 
and  perform  the  duties  of  another  office  under  the  United  States,  his  right  to  act  in  the  first  capacity 
being  suspended  while  holding  and  performing  the  duties  of  the  second. 

Such  a  construction  of  this  section  of  the  Constitution  imputes  to  its  framers  the  inability  to  express 
their  ideas  with  any  clearness  whatever.  It  is  plainly  declared  that  "no  person  shall  be  a  Member  of 
either  House  dm-ing  his  continuance  in  office"  if  he  holds  any  office  under  the  United  States.  This 
language  goes  to  the  very  existence  of  the  individual  as  a  Member  of  the  Senate  or  House  of  Representa- 
tives while  holding  another  office  under  the  United  States.  Had  suspension  of  the  power  to  act  been 
aimed  at,  apt  words  expressing  the  purpose  would  have  been  used.  The  words  "act  as"  would  have 
been  substituted  for  "be."  "Be"  means  "to  exist,  have  existence  or  being."  Therefore  the  Consti- 
tution declares  that  no  person  holding  any  office  under  the  United  States  shall  exist  or  have  existence 
or  being,  while  in  such  office,  as  a  Member  of  either  House  of  Congress. 

At  the  present  time,  when  the  patriotic  impulses  of  our  people  have  been  so  deeply  stirred,  it  may 
seem  unpatriotic  to  say  this — to  assert  that  a  Member  of  this  House  may  not  accept  a  commission  in  the 
Army,  go  upon  the  field  of  battle  and  fight  for  his  country,  and  still  retain  his  seat  in  the  House  of  Rep- 
resentatives; but  the  manifest  dangers  that  would  follow  any  other  construction  of  the  Constitution 
(even  were  any  other  construction  possible),  must  make  the  meaning  of  the  framers  of  that  instrument 
plain,  and  no  mere  patriotic  sentiment  should  be  permitted  to  override  the  plain  language  of  the  funda- 
mental written  law. 

Both  Story  and  Rawle,  in  their  able  and  admirable  works  on  the  Constitution,  have  accepted  the 
language  of  the  Constitution  of  the  United  States  above  quoted  as  prohibitory,  and  without  discussion 
have  proceeded  to  point  out  the  wisdom  of  the  provision. 

Rawle  says,  chapter  19: 

"But  although  no  rea-sons  merely  of  a  legal  nature  might  be  opposed  to  it,  the  impolicy  of  admitting 
such  officers  to  compose  a  part  of  the  legislature  is  exceedingly  plain." 

Again,  he  .says: 

■'The  public  officer  being  therefore  considered  with  us  as  having  actual  living  duties  which  he  is 
bound  to  perform,  and  as  having  no  more  time  than  is  necessary  to  perform  them,  the  Constitution 
expressly  excludes  him  from  a  seat." 


614  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §   494 

Story  says,  Vol.  I,  section  869: 

"The  other  part  of  the  clause  which  disqualifies  persons  holding  any  office  under  the  United  States 
from  being  members  of  either  House  during  the  continuance  in  office  has  been  still  more  universally 
applauded,  and  has  been  vindicated  upon  the  highest  grounds  of  public  policy." 

In  section  871  he  says: 

"It  is  true  that  an  acceptance  of  any  office  under  tlie  Crown  is  a  vacation  of  a  seat  in  Parliament. 
This  is  wise,  and  secures  the  people  from  being  betrayed  by  those  who  hold  office  and  whom  they  do  not 
choose  to  trust." 

The  Hon.  James  Wilson,  LL.  D.,  one  of  the  associate  justices  of  the  Supreme  Court  of  the  United 
States,  and  professor  of  law  in  the  college  of  Philadelphia  (and  also  a  signer  of  the  Declaration  of  Inde- 
pendence and  a  member  of  the  convention  that  framed  the  Constitution  of  the  United  States),  in  his 
lectures  delivered  in  1790-91  (I  Wilson's  Works,  pp.  446^49)  takes  the  same  view  of  the  Constitution, 
and  after  condemning  in  severe  language  the  English  practice  of  appointing  members  of  Parliament  to 
other  offices  under  the  Crown  and  then  permitting  them  to  be  reelected  to  Parliament  while  holding 
such  offices,  says: 

"The  result  is  that  a  provision  by  which  the  members  of  the  legislature  will  be  precluded,  while 
they  remain  such,  from  offices,  finds,  with  great  propriety,  a  place  in  the  Constitution  of  the  United  States. 
In  this  important  particular  it  has  a  decided  superiority  over  the  constitution  of  Great  Britain." 

This  language,  contemporaneous  with  the  adoption  of  the  Constitution  itself,  and  coming  from  one 
of  the  framers  of  that  instrument,  is  significant. 

And  see  also  Angell  and  Ames  on  Corporations,  section  434,  Wilcox  on  Municipal  Corporations, 
section  617,  in  which  the  doctrine  is  distinctly  laid  down  that  "a  resignation  by  implication  may  not 
only  take  place  by  an  abandonment  of  the  official  duties,  as  before  mentioned,  but  also  by  being  appointed 
to  and  accepting  a  new  office  incompatible  with  the  former  one." 

Again  it  is  stated: 

"It  is  a  rule  of  general  law  that  an  officer  who  accepts  another  appointment  inconsistent  with  the 
first  is  held  to  have  thereby  resigned  the  first."     (Rawle  on  the  Constitution,  chap.  19,  p.  184.) 

And  again  we  find  the  doctrine  clearly  laid  down  as  follows: 

"By  force  of  the  constitutional  inhibition  against  the  holding  of  two  lucrative  offices  by  the  same 
person  at  the  same  time,  the  acceptance  of  and  qualification  for  a  second  office  incompatible  with  the 
precedent  one,  ipso  facto,  vacates  the  precedent  office;  and  neither  a  quo  warranto,  nor  other  aniotion, 
from  the  office  thus  vacated  is  necessary  before  the  \ac8ncy  can  be  supplied."  (Biencourt  v.  Parker, 
27th  Texas,  558;  Rawle  on  the  Constitution,  chap.  19,  p.  184.) 

Clearly  one  accepting  an  office  under  the  United  States,  he  having  pieviously  qualified  as  a  Member 
of  Congress,  vacates  his  seat  by  such  acceptance,  and  there  is  no  way  that  he  can  again  hold  a  seat  in 
Congress  but  through  a  reelection  liy  the  people  and  then  again  becoming  qualified  as  a  Member  of 
Congress  without  the  disqualification  of  holding  another  office  under  the  United  States. 

The  report  then  goes  on  to  cite  the  cases  of  Yell,  Vandever,  Blair,  Herrick, 
Earle,  Schenck,  Lane,  and  continues: 

It  may  be  claimed  that  an  exception  is  found  in  the  action  of  the  Thirty-seventh  Congress  when  on 
July  12,  18G1,  Mr.  Vallandigham  offered  the  following  resolution: 

"WTiereas  it  is  nmiored  that  Oilman  Marston,  of  New  Hampshire;  James  E.  Kerrigan,  of  New 
York;  Edward  McPherson  and  Charles  J.  Biddle,  of  Pennsylvania,  and  Samuel  R.  Curtis,  of  Iowa, 
holding  seats  in  this  Congress  as  Members  thereof,  have  been  sworn  into  the  military  service  of  the 
United  States  and  hold  military  offices  under  the  authority  of  the  same;   and 

"Whereas  James  H.  Campbell,  of  Pennsylvania,  also  holding  a  seat  in  this  House  as  a  Member 
thereof,  has  admitted  upon  the  floor  of  this  House  that  he  has  been  so  sworn  and  does  so  hold  office  as 
aforesaid:  Therefore, 

'^Resolved,  That  the  Committee  of  Elections  be  instructed  to  inquire,  and  without  unnecessary 
delay  to  report,  whether  the  gentlemen  above  named,  or  any  others  claiming  or  holding  seats  as  Members 
of  this  House  and  at  the  same  time  holding  any  militarj'  office  under  the  authority  of  the  United  States, 
are  constitutionally  disqualified  to  be  Members  of  this  House  by  holding  such  military  office." 


§  494  INCOMPATIBLE    OFFICES.  615 

This  resolution  upon  its  introduction  was  discussed  and  the  facts  denied,  and  on  motion  was  laid 
on  the  table  without  being  sent  to  the  Committee  on  Elections  or  to  any  other  committee.  It  was 
laid  upon  the  table  by  a  vote  of  92  yeas  to  51  nays,  such  gentlemen  as  Roscoe  Conkling,  Crittenden, 
Holman,  Voorhees,  and  others  voting  in  the  negative.  Nothing  was  settled,  excepting  that  in  the  then 
temper  of  the  House  and  country  the  House  was  determined  not  to  allow  Mr.  Vallandigham's  motion 
to  be  investigated  either  as  to  the  law  or  the  facts.  If  it  settles  anything  it  demonstrates  what  many 
will  remember,  that  this  was  at  a  heated  and  exciting  time  in  the  historj'  of  our  country,  and  the  majority 
of  the  House  was  in  no  temper  to  receive  suggestions  from  Mr.  Vallandigham,  who  at  that  time  was  far 
from  being  in  harmony,  as  many  believed,  with  the  burning  patriotic  sentiment  of  the  country  in  the 
North.  It  should  be  borne  in  mind  also  that  notwithstanding  this  action  the  same  Congress,  as  shown 
in  this  report,  laid  down  the  doctrine  that  military  officers  of  the  United  States  could  not  at  the  same 
time  be  Members  of  the  House. 

It  is  evident  that  it  was  the  policy  of  the  framers  of  our  Constitution  to  prohibit  Senators  and  Rep- 
resentatives in  Congress  while  remaining  such  from  holding  any  other  office  under  the  United  States, 
and  no  plainer  language  to  declare  the  purpose  could  have  been  used  than  the  words  of  the  Constitu- 
tion, viz:  "No  person  holding  anj'  office  under  the  United  States  shall  be  a  member  of  either  House 
during  his  continuance  in  office."  The  framers  of  the  Constitution  intended  to  keep  the  legislative, 
judicial,  and  executive  branches  of  our  Government  separate  and  distinct;  to  prevent  Cabinet  officers 
from  being  Members  of  Congress,  and  thereby  giving  undue  power  to  the  President  and  his  immediate 
advisers;  to  prevent  the  centralization  of  power  and  office-holding  power  in  a  few  hands;  to  prevent 
judges  from  acting  at  the  same  time  as  legislators  and  thus  concentrating  power  in  the  courts;  to  avoid 
the  manifold  dangers  to  the  existence  and  perpetuity  of  our  free  institutions  and  a  representative  gov- 
ernment that  would  follow  a  concentration  of  the  legislative  and  judicial  or  the  legislative  and  executive 
(the  military  and  naval  power  being  a  branch  of  the  executive)  in  a  few  and  the  same  hands. 

Without  this  constitutional  restraint  it  would  be  possible  for  a  President  and  the  Congress  to  act  in 
collusion;  for  the  Congress  to  create  high  military  and  naval  positions  without  limit  and  for  the  Presi- 
dent to  fill  these  offices  from  the  ranks  of  unscrupulous,  unpatriotic,  and  ambitious  Senators  and  Repre- 
sentatives in  Congress  (the  Senate  confirming  as  a  matter  of  course),  and  as  the  President  is  Commander 
in  Chief  of  the  Army  and  Navy,  to  thus  concentrate  all  power  in  the  hands  of  the  executive  branch 
of  the  Government.  These  military  legislators  might  increase  the  Army,  control  the  elections  by 
the  bayonet,  and  government  by  the  people  and  for  the  people  would  end.  Two  printed  lines  in  the 
Constitution  of  the  United  States  has  made  all  this  impossible. 

The  thirteen  infant  colonies,  subsequently  the  thirteen  original  States  of  this  Union,  were 
dependencies  of  Great  Britain,  and  in  England  a  person  holding  a  seat  in  the  House  of  Commons  at 
once  vacates  it  by  accepting  any  public  office  under  the  Crown.     (1  Storj'  on  the  Constitution,  sec.  871.) 

This  had  been  the  law  of  England  for  more  than  a  hundred  years  prior  to  the  Revolution.  It  is 
true,  however,  that  persons  holding  such  an  office  might  be  reelected  to  the  House  of  Commons  without 
vacating  the  office  and  then  hold  both  at  the  same  time.  The  evils  and  the  alleged  advantages  of  this 
system  are  many  and  have  been  ably  pointed  out  by  many  writers.  It  is  fair  to  presume  that  the 
framers  of  our  Constitution  carefully  considered  this  question,  and  inserted  the  language  quoted  for 
the  express  purpose  of  avoiding  the  aljuses  that  had  sprung  up  under  the  English  system  and  of  making 
our  liberties  the  more  secure. 

So  long  as  we  keep  the  legislative,  the  judicial,  and  the  executive  departments  of  this  Government 
separate  and  keep  the  legislative  independent  of  the  military  and  naval  power,  seeing  to  it  that  com- 
petent and  patriotic  men  administer  the  affairs  of  each  of  these  branches  of  Government,  we  may  hope 
for  national  prosperity  and  to  preserve  our  liberties  and  maintain  good  government.  But  when  those 
who  make  the  laws  shall  at  the  same  time  also  interpret  and  execute  them,  or  when  those  who  make 
the  laws  hold  high  places  in  our  Army  and  Navy,  powerful  branches  of  the  executive,  the  lust  of  power 
may  and  probably  will  lead  to  encroachments  upon  the  rights  and  liberty  of  the  citizens,  and  our 
form  of  government  will  l)e  at  an  end. 

There  would  be  no  danger  to  the  Republic  in  allowing  the  gentlemen  whose  seats  are  in  question 
here  to  hold  their  places  as  Representatives  in  Congress  and  their  commissions  in  the  Army  at  the  same 
time,  but  the  question  is  one  of  law,  and  involves  a  principle  of  vast  importance  which  must  be  met 
and  decided  \Tithout  reference  to  individual  cases. 


616  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   494 

If  it  be  proper  and  constitutional  for  one  general  in  the  Army  to  hold  the  position  of  Senator  or 
Representative  in  Congress  at  the  same  time,  it  is  also  lawful  for  the  President  to  appoint  every  Senator 
and  Representative  in  Congress  to  a  high  place  in  the  Army  and  Navy,  and  the  result  would  be  to 
transform  the  National  Legislature  into  a  band  of  military  ofhcials,  and,  while  there  is  no  present  danger 
that  this  will  be  done,  it  is  easy  to  see,  in  the  light  of  history,  that  this  very  danger  was  guarded  against 
by  the  framers  of  the  Constitution,  who  believed  that  the  safety  of  the  Republic  depended  upon  the 
making  of  encroachments  by  the  military  upon  the  legislative  powers  impossible. 

The  result  is  and  must  be  that  the  acceptance  of  an  office  in  the  Army  under  the  United  States 
by  a  Representative  in  Congress  at  once  and  by  force  of  this  constitutional  provision  vacates  his 
position  as  such  Representative  and  he  ceases  to  be  such.  Such  acceptance  of  office  is  per  se  equivalent 
to  an  absolute  resignation  of  the  seat  in  Congress.     (See  the  numerous  cases  hereafter  cited.) 

As  already  stated,  there  is  no  prohibition  upon  the  President  in  appointing  Senators  or  Representa- 
tives in  Congress  to  offices  in  the  Army  or  Navy.  It  is  evident  that  in  times  of  war  it  may  be  necessary 
to  create  a  large  niunber  of  military  and  naval  offices,  and  the  public  good  and  safety  may  demand 
that  such  offices  be  at  once  filled  by  men  holding  seats  in  the  National  Legislature.  Soon  after  the 
close  of  our  civil  war  many  of  our  most  able,  experienced,  and  distinguished  generals,  after  being 
mustered  out,  were  elected  to  Congress.  Had  a  war  broken  out  with  some  foreign  nation,  and  a  large 
increase  of  the  Army  or  Navy,  or  both,  been  made  necessary,  and  had  a  score  of  important  army  and 
naval  positions  been  made  necessary  and  created  by  the  Congress,  the  public  good  and  safety  would 
have  demanded  the  appointment  of  such  men  as  Logan  and  Garfield  to  high  military  commands. 

During  the  late  war  with  Spain  tlie  appointments  of  General  Wheeler  from  the  House  of  Repre- 
sentatives and  of  General  Sewell  from  the  Senate  to  high  offices  in  the  Army  were  commended  as  wise 
and  proper.  It  was,  however,  incumbent  upon  these  gentlemen  to  elect  whether  they  could  best  serve 
their  country  in  its  legislative  halls  or  upon  the  field  of  battle,  and  he  who  accepted  the  position  in  the 
Army  necessarily  and,  ipso  facto,  vacated  his  position  as  a  Member  of  the  Congress  of  the  United  States. 
(See  cases  cited  hereafter.) 

It  may  be  said  that  there  are  many  offices  under  the  United  States  of  little  importance  and  carrying 
little  or  no  pay,  and  that  it  can  not  be  possible  that  the  framers  of  the  Constitution  contemplated  for- 
bidding a  Member  of  the  National  Legislature  to  hold  one  of  these  small  offices.  This  is  not  the  question. 
No  line  could  be  drawn  between  the  large  and  the  small  offices.  The  principle  declared  was  that  a 
Member  of  the  Congress  of  the  United  States  shall  not  hold  any  office  under  the  United  States  and 
retain  his  seat  as  a  national  legislator. 

It  will  not  do  to  say  that  the  appointment  of  a  Representative  in  Congress  to  an  office  under  the 
United  States  and  its  acceptance  by  him  merely  operates  to  suspend  the  power  of  the  legislator  to  act, 
for,  if  so,  the  President  of  the  United  States  by  collusion  with  the  Congress  might  appoint  a  majority 
of  the  legislators  chosen  by  the  people  to  high  offices,  and  thus  destroy  a  quorum  in  the  law-making 
body,  and  as  the  people  would  be  powerless  to  elect  others  in  their  places,  there  being  no  vacancies, 
the  power  to  enact  laws  for  the  protection  of  the  people  and  the  preservation  of  the  Republic  woidd  be 
destroyed.  Thus  by  indirection  and  collusion  between  the  executive  and  the  legislative  bodies  might 
the  destruction  of  the  Republic  be  accomplished.     In  any  event  great  inconvenience  would  result. 

It  may  be  politic  and  wise  at  times  for  some  legislator  skilled  in  military  science  to  abandon  the 
halls  of  Congress  for  the  field,  but  when  he  does  this  his  place  should  be  filled  by  the  people  of  his  district 
or  State,  who  have  the  right  to  be  represented  at  all  times  by  a  living,  acting  Member.  It  was  not 
intended  by  the  framers  of  the  Constitution  that  a  Congressional  district  or  a  State  should  go  unrepre- 
sented while  the  elected  Member  or  Senator,  with  the  approval  of  the  President  and  Senate,  sees  fit  to 
absent  himself  and  serve  as  a  military  or  naval  officer,  or  as  a  judge,  or  in  some  other  office  under  the 
United  States.  The  Senator  or  Representative  in  Congress  is  a  representative  of  the  people,  and  is 
elected  by  them  to  perform  certain  specified  constitutional  duties  in  their  interest,  and  he  has  no  right 
to  enter  some  other  public  office  under  the  United  States  and,  even  temporarily,  abandon  the  performance 
of  the  duties  of  the  position  to  which  he  was  elected. 

It  is  evident  that  our  Constitution  contemplates,  and  that  public  policy  demands,  that  no  Repre- 
sentative in  Congress  shall  suspend  by  his  own  act,  and  without  the  consent  of  his  constituents,  his  power 
and  duty  to  act  as  their  Representative  during  such  time  as  he  sees  fit  to  serve  in  some  other  obtainable 
Government  office.  From  a  legal  standpoint  it  is  immaterial  whether  such  action  is  taken  from 
patriotic  or  selfish  motives. 


I 


§   494  IJJCOMPATIBLE    OFFICES.  617 

It  may  be  ai^ed  that  our  executive  and  legislative  bodies  arc  composed  of  men  too  pure  minded 
and  patriotic  to  endanger  the  nation.  This  is  undoubtedly  true  as  matters  now  are,  but  once  open  the 
door,  extend  the  temptations,  and  who  can  foresee  the  results? 

It  may  be  suggested  that  there  is  not  an  entire  and  complete  severance  of  legi.slative  and  judicial 
or  of  legislative  and  executive  powers,  duties,  and  functions  under  the  Constitution.  This  is  true  in  a 
limited  and  restricted  sense.  The  President  of  the  United  States  must  approve  acts  of  the  Congress  before 
they  become  laws,  unless  passed  over  his  veto,  and,  as  he  is  to  execute  the  laws,  we  have  here  the  Execu- 
tive taking  part  in  the  enactment  of  laws.  So  the  President,  heads  of  Departments,  and  judges  may 
openly  suggest  and  recommend  legislation.  As  the  President  is  also  the  Commander  in  Chief  of  the  Army 
and  Na\'>',  we  find  here  a  mild  and  modified  blending  of  the  legislative  and  militarj'  powers.  But  the 
President  is  not  a  member,  even  ex  officio,  of  the  legislative  branch  of  the  Government.  So  the  Senate 
forms  an  integral  part  of  the  court  for  the  trial  of  impeachments.  Again,  both  the  Senate  and  House  act 
judicially  in  determining  the  rights  of  persons  to  seats  in  those  bodies,  respectively. 

After  quoting  Black's  constitutional  law  on  this  point,  the  report  continues: 

It  must  be  remembered  that  our  Constitution  was  framed  soon  after  the  close  of  the  Revolutionary 
war,  during  the  exciting  times  of  the  French  Revolution,  and  that  it  was  the  declared  piupose  of  the 
founders  of  oiu-  Republic  in  establishing  its  system  of  government  to  establish  and  perpetuate  by  consti- 
tutional guaranties  the  rights  and  liberties  of  the  citizen. 

See  debates  where  this  very  provision  of  the  Constitution  was  discu.ssed  and  adopted.  (CompUa- 
tion  of  Senate  election  cases,  Senate  Mis.  Doc,  second  session  Fifty-second  Congress  (vol.  6),  pp.  13-19.) 

We  may  well  ask,  and  the  inquiry  is  a  pertinent  one,  who  in  this  Republic  desires  to  see  a  single 
Member  of  the  National  Legislature  under  the  absolute  command  of  the  President  of  the  United  States? 
And  who  desires  to  see  generals  of  the  Army  with  the  Army  under  their  command  and  bound  to  implicit 
obedience,  exercising  power  as  legislators  or  clothed  with  the  power  to  pass  from  the  Army  into  Congress 
and  from  the  Congress  into  the  Army,  exercising  the  powers  of  either  position  without  reference  to  the 
will  of  the  people  and  only  as  the  President  might  command? 

It  can  not  be  that  the  framers  of  the  Constitution  wrote  therein  a  provision  so  repugnant  to  the  spirit 
prevailing  in  that  body  and  among  the  people — a  provision  that  might  completely  subordinate  the  leg- 
islative to  the  militarj-  power.  In  this  country  we  do  not  fear  an  encroachment  by  the  military 
upon  the  legislative  power,  because  of  this  very  provision,  which  makes  it  impossible  for  an  officer  in  the 
military'  department  to  hold  a  place  in  the  legislative,  and  for  the  further  reason  that  the  legislative 
body,  by  refusing  to  raise  taxes  or  vote  supplies  or  appropriate  money,  may  absolutely  cripple  the 
military  and  naval  organizations.  But  fill  oiu' legislative  halls  with  army  officers,  or  with  those  who 
may  swing  back  and  forth  at  their  election,  or,  in  some  cases,  place  therein  a  small  number,  and  a  mUi- 
tarj'  despotism  will  in  the  end  usurp  the  government  in  fact,  even  if  the  name  and  form  remain  the  same. 

It  may  be  suggested  that  militar>'  officers  after  being  retired  and  placed  on  the  retired  list  have  been 
members  of  Congress. 

This  is  true;  but  it  is  settled  law  that  persons  on  the  retired  list  of  the  j\jmy  do  not  hold  office  under 
the  United  States  in  the  constitutional  sense.  (People  v.  Duane,  121  N.  Y.,  367;  In  re  Hathaway,  71 
K.  Y.,  238;  U.  S.  v.  Hartwell,  6  Wall.,  385;  U.  S.  v.  Germaine,  99  U.  S.,  508;  U.  S.  v.  Tyler,  105  U.  S., 
244.) 

It  may  be  contended  that  persons  on  the  retired  list  of  the  Army  do  hold  ofiice  under  the  United 
States,  citing  Badeau  v.  United  States  (130  U.  S.,  439),  but  this  authority  does  not  so  hold.  That  case 
simply  relates  to  salarj'  under  particular  statutes. 

These  persons  are  still  in  the  service,  but  hold  no  office  unless  assigned  to  duty. 

To  hold  an  office  under  the  United  States  the  person  must  occupy  a  public  station  or  employment 
conferred  by  the  appointment  of  government;  and  it  embraces  tenure,  duration,  emoluments,  and 
duties. 

Says  the  court  in  212  New  York,  page  373: 

"It  is  difficult  to  conceive  of  the  existence  in  this  country  of  a  mOitary  office  without  the  power  of 
command,  the  right  of  promotion,  or  the  obligation  to  perform  some  duty." 

And  for  the  reason  that  retired  army  officers  are  not  entitled  to  promotion,  do  not  perform  duty,  and 
exercise  no  command,  it  is  held  that  when  retired  they  cease  to  be  officers. 

It  remains  to  consider  what  action,  if  any,  is  necessarj'  on  the  part  of  the  House  of  Representatives. 


618  PRECEDENTS    OF   THE   HOUSE    OF   EEPKESENTATIVES.  §  494 

It  is  the  settled  and  unquestioned  law  in  England  and  the  United  States  that — 

"The  appointment  of  a  person  to  an  office  incompatible  with  one  already  held  by  liim  is  valid,  and 
he  has  a  right  to  elect.  (Angell  and  Ames  on  Coriaorations,  255.)  If  he  accepts,  takes  the  oath,  and 
enters  on  the  duties  of  the  second  office,  the  first  office  is  absolutely  determined.  (People  v.  Carrique, 
2  Hill,  93;  Rex  v.  Trelawney,  3  Burr,  1G16  (opinion  by  Lord  Mansfield);  Milward  v.  Tliatcher,  2  Term 
Rep.  (Dumforth  &  East),  87;  Gabriel  v.  Clark,  Cro.  Cas.,  138;  Rex  v.  Godwin,  Doug.,  383,  note  22;  Rex 
V.  Patteson,  4  Bran.  &  Adol.,  9;  Willcock  on  Municipal  Corp.,  240,  p.  617;  Dillon  on  Municipal  Corp.. 
3d  ed.,sec.  225;  People  ex  rel.  Kelly,  77  N.  Y.,  510;  People  v.  Nostrand,  46  N.  Y.,  381;  People  v.  Board 
of  Police,  35  Barb.,  540:  Horton  v.  Parsons,  37  Hun.,  46;  Commonwealth  v.  Hawkes,  123  Mass.,  525  (per 
Gray,  C.  J.);  State  v.  Butz,  9  S.  C,  156;  Stubbs  v.  Lee,  64  Me.,  195;  State  v.  Draper,  45  Mo.,  355;  Cotton 
X.  Phillips,  56  N.  H.,  220;  Kerr  v.  Jones,  19  Ind.,  351;  Regents  of  the  University  v.  Williams,  9  Gill.  & 
Johns.  (Md.),  365;  State  v.  Kirk,  44  Md.,  401;  Foltz  u.  KerlLn,  105  Md.,  221;  People  v.  Hamifarr  96 
lU.,  420;  State  v.  Hutt,  2  Ark.,  282;  State  v.  West,  33  La.  Ann.,  1261.)'' 

In  People  v.  Nostrand,  supra,  the  court  says: 

"It  is  a  settled  rule  that  the  acceptance  of  an  incompatible  office  operates  as  a  resignation  of  the 
incumbent  of  the  office  then  held  by  him. " 

In  People  v.  Kelly,  supra,  the  court  said: 

"The  moment  he  accepted  the  new  office  the  old  became  vacant.  His  acceptance  of  the  one 
was  an  absolute  determination  of  his  right  to  the  other  and  left  him  no  shadow  of  title,  so  that  neither 
quo  warranto  nor  a  motion  was  necessary  (citing  cases).  These  cases  also  show  that  this  would  be  so 
at  common  law  and  independent  of  the  statute.  *  *  *  The  office  was  and  is  as  vacant  as  if  Mr. 
O'ReUley  had  never  been  bom;  his  removal  is  as  complete  as  if  caused  by  death.  WTien  he  accepted 
the  new  office,  the  other  ceased  to  have  an  incumbent. " 

Says  Angell  and  Ames  on  corporations,  first  edition,  255: 

"This  is  an  absolute  determination  of  the  original  office  and  leaves  no  shadow  of  title  to  the  pos- 
oessor,  so  that  neither  quo  warranto  nor  a  motion  is  necessary  before  another  may  be  elected. " 

Said  Parke,  J.,  in  Rex  v.  Patteson,  supra: 

"Where  two  offices  are  incompatible  they  can  not  be  held  together,  is  founded  on  the  plainest  prin- 
ciples of  public  policy,  and  has  obtained  from  very  early  times." 

This  rule  is  not  limited  to  corporate  offices,  but  extends  both  in  principle  and  application  to  all 
public  offices.     (Dillon  on  Mun.  Corp.,  3d  ed.,  sec.  227;  Glover  on  Corp.,  139.) 

The  whole  question  is  somewhat  fully  discussed  in  McCrary  on  Elections  (3d  ed.),  sections  302- 
904,  inclusive. 

Is  the  position  or  office  of  Representative  in  Congress  incompatible  with  any  other  office  under 
the  United  States? 

The  Constitution  itself  answers  the  question  when  it  declares  "and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house  during  his  continuance  in  office. " 

This  is  a  constitutional  declaration  that  the  two  positions  are  incompatible.  In  the  case  of  Stan- 
ton II.  Lane  (Compilation  of  Senate  Election  Cases,  p.  181,  where  the  report  of  the  Senate  committee 
on  the  Judiciary  is  found  in  full)  the  report  says: 

"In  the  opinion  of  the  committee  the  office  of  brigadier-general  under  the  United  States  is  incom- 
patible with  that  of  member  of  either  House  of  Congress.  By  accepting  the  office  of  brigadier-general  the 
sitting  Member,  Mr.  Lane,  virtually  resigned  his  seat  in  the  Senate,  and  it  became  vacant  at  that  time.' ' 

In  Kerr  v.  Jones  (19  Ind.,  351),  the  court  held: 

"The  offices  of  reporter  of  the  Supreme  Court  and  colonel  of  militia  are  incompatible,  and  the 
acceptance  of  the  latter  vacates  the  former. " 

In  addition  to  these  authorities,  the  report  in  the  cases  of  Blair  and  Schenck 
is  quoted  at  length,  after  which  the  argument  proceeds: 

Again,  Article  I,  section  1,  of  the  Constitution  says: 

"All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of  the  United  States  which 
shall  consist  of  a  Senate  and  House  of  Representatives.  " 

The  powers  of  Congress  are  then  specified. 

Article  II,  section  1,  says:  "The  executive  power  shaU  be  vested  in  a  President  of  the  United 
States  of  America."  Section  2:  "The  President  shall  be  Commander  in  Chief  of  the  Army  and  Navy 
of  the  United  States  and  of  the  militia, "  etc.  Article  III,  section  1:  "  The  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court  and  in  such  inferior  courts, "  etc. 


§  494  INCOMPATIBLE    OFFICES.  619 

It  is  therefore  apparent  that  it  was  not  intended  that  the  duties  of  those  three  departments  should 
be  performed  by  the  same  man  or  bodies  of  men. 

■'WTiether  offices  are  incompatible  depends  upon  the  charter  or  statute  and  the  nature  of  the 
duties  to  be  performed.  (1  Dillon  on  Mun.  Corp.,  3d  ed.,  sec.  227;  Milward  v.  Thatcher,  2  Term  Rep. 
(D.  &  E.),  87;  People  v.  Carrique,  2  HiU,  93.) 

"Incompatibility  in  offices  exists  where  the  nature  and  duties  of  the  two  offices  are  such  as  to 
render  it  improper  from  considerations  of  public  policy  for  one  incumbent  to  retain  both.  (1  DOlon 
Mu.  Corp.,  3d  ed.,  sec.  227  and  note;  Kerr  v.  Jones,  19  Ind.,  351.)" 

The  light  of  the  common  law,  of  the  Constitution,  of  the  fact  that  a  person  should  not  at  the  same 
time  both  make  and  execute  the  law.  and  that  the  legislative  should  not  be  subservient  to  the  Execu- 
tive, it  is  clear  that  the  position  of  Representative  in  Congress  and  of  an  officer  in  the  Army  of  the  United 
States  are  incompatible  offices. 

The  duties  of  a  Member  of  the  National  Legislature  demand  his  presence  in  the  legislative  cham- 
bers at  Washington,  making  laws,  as  a  Representative  of  the  people,  while  the  duties  of  a  military  officer 
demand  his  presence  in  other  places  at  all  times  and  that  he  engage  himself  in  executing  the  laws  of 
Congress  under  the  command  of  the  President. 

It  is  true  that  the  mere  impossibility  of  the  incumbent  of  two  offices  being  present  at  all  times  to 
perform  the  duties  of  each  does  not  make  them  incompatible,  but — 

'  'Offices  are  said  to  be  incompatible  and  inconsistent,  so  as  not  to  be  executed  by  the  same  person 
when  from  the  multiplicity  of  business  in  them  they  can  not  be  executed  with  care  and  ability,  and 
when  their  being  subordinate  and  interfering  with  each  other  it  induces  a  presumption  that  they  can 
not  be  executed  with  impartiality  and  honesty."  (5  Bacon's  Abridgement,  Title  Offices,  K;  Public 
Offices;  Throop,  sec.  33;  People  v.  Green,  58  N.  Y.,  304-305,  per  Folger,  C.  J.) 

Is  it  proper  and  public  policy  for  the  officers  of  the  Army  and  Navy  acting  as  legislators  to  appro- 
priate the  money  for  the  support  of  these  departments,  expend  it  as  they  see  fit  under  laws  of  their  own 
making,  while  governed  and  restrained  only  by  such  limitations  and  restrictions  as  they  see  fit  to  place 
upon  themselves? 

If  their  power  as  legislators  is  suspended  only  while  holding  offices  in  the  Army  or  Na\'y,  they 
may  first  (and  in  anticipation  of  commissions)  make  obnoxious  laws  and  then  go  into  the  military  and 
naval  serv-ice  to  execute  them,  leaving  the  people  powerless,  for  while  there  is  no  possible  quorum  to 
do  business  there  are  no  vacancies  in  either  House,  and  hence  a  repeal  of  obnoxious  laws  or  the  enact- 
ment of  new  ones  is  made  impossible.  Even  repentant  and  patriotic  Representatives  would  be  unable 
to  return  to  the  halls  of  legislation,  unless  by  the  consent  of  the  President,  without  committing  the  crime 
of  desertion  and  incurring  the  death  penalty.  Even  the  court  of  impeachment  might  be  in  the  Army 
and  Na\'y,  unable  to  convene,  and  the  whole  Government  would  be  in  the  hands  of  what  might  prove 
to  be  an  ambitious  and  unscrupulous  Executive. 

It  is  no  answer  to  say,  what  we  all  concede,  that  our  present  patriotic  Executive  is  above  sus- 
picion. What  is  constitutional  to-day  will  be  so  until  the  fundamental  law  is  changed.  We  are  building 
for  the  centuries  and  to  avoid  all  probable,  if  not  all  possible,  dangers.  Our  fathers  had  all  these  dangers 
in  mind  when  the  Constitution  was  framed. 

In  Indiana,  State  r.  Allen  (21  Ind.,  516),  the  coiu-t  went  so  far  as  to  hold  that  an  enlistment  in  the 
Army  of  the  United  States  for  three  years,  or  during  the  war,  was  an  abandoimient  and  vacation  of  a  civil 
office  held  under  the  State.     (See  also  Willcock  on  Corp.,  238.     But  see  Bryan  v.  Cattell,  15  Iowa,  537.) 

The  question  may  be  asked.  What  will  be  the  situation  if  a  person  holding  a  commission  in  the 
Army  of  the  United  States  is  elected  to  Congress  and,  without  resigning  his  office  in  the  Army,  presents 
himself  as  a  Member  of  the  House?  In  such  case  does  he  vacate  the  Army  position?  Assume  that 
he  refuses  to  resign  either  and  claims  to  act  in  both  positions.  It  will  be  time  enough  to  cross  that  bridge 
when  reached.  It  is  clear,  however,  that  in  such  case  he  is  not  entitled  to  his  seat  in  Congress  and 
should  not  be  sworn  in  or  allowed  to  act. 

It  follows  that  the  seats  of  those  Members  of  the  House  of  Representatives  in  the  Fifty-fifth  Con- 
gress who  entered  the  Army  as  officers,  commissioned  by  the  President,  during  the  late  war  with  Spain, 
and  took  the  oath  and  acted  as  such,  are  vacant,  and  have  been  since  they  accepted  their  commissions 
in  the  Army.  The  only  action  necessary  is  to  so  declare  by  resolution,  as  matter  of  convenience  and 
to  aid  the  Speaker  and  others  in  discharging  their  public  duties.  No  act  or  resolution  of  Congress  can 
change  the  legal  effect  of  their  acts. 


620  PKECEDENTS    OP    THE    HOUSE    OF    EEPEESENTATIVES.  '  §   494 

Our  attention  has  been  called  to  the  case  of  Bryan  v.  Cattell  (15  Iowa,  538),  as  sustaining  the  dor- 
trine  that  a  Member  of  Congress  might  hold  a  military  appointment  in  the  Army.  But  this  case  will 
not  sustain  the  doctrine.  Bryan  was  appointed  a  captain  in  the  Army,  being  at  the  time  district  attorney 
for  the  fifth  judicial  district  of  Iowa,  for  four  years  commencing  with  the  1st  day  of  January,  1869.  At 
that  time  there  was  no  provision  of  law  against  holding  two  offices,  but  by  chapter  54,  laws  of  1862, 
it  was  provided  as  follows: 

"The  acceptance  of  a  commission  to  any  military  office,  either  in  the  militia  of  this  State,  or  in 
the  volunteer  service  of  the  United  States,  which  requires  the  incumbent  in  the  civil  office  to  exercise 
his  military  duties  out  of  the  State  for  a  period  not  less  than  sixty  days." 

This  was  enacted  as  a  ground  for  the  vacation  of  any  civil  office  where  the  officer  had  entered  the 
United  States  Army. 

Captain  Bryan  sued  for  his  salary  for  the  entire  period  covered  by  his  election.  The  court  denied 
that  for  such  part  of  the  time  as  came  after  the  enactment  just  quoted.  This  clearly  sustains  the  posi- 
tion that  with  the  provisions  of  Article  I,  section  6,  clause  2,  United  States  Constitution,  the  office 
would  have  been  declared  vacant  by  the  Iowa  court.  For  the  period  prior  to  the  enactment  just  quoted 
the  court  allowed  the  Captain  his  salary  as  district  attorney  upon  the  ground  that  he  might  discharge 
the  duties  of  district  attorney  and  also  the  duties  of  captain.     The  language  of  the  court  is: 

"It  by  no  means  necessarily  follows  that  the  person  in  the  military  service  might  not  discharge 
all  the  substantial  duties  of  the  attorneyship.  It  is  scarcely  probable  that  he  could  or  would,  and  yet 
he  might." 

Upon  this  line  of  thought,  not  at  all  sustained  l)y  the  current  authorities,  they  allowed  Captain 
Bryan  to  recover  for  that  portion  of  his  salary  for  the  time  heretofore  stated.  But  the  court  laid  down 
this  doctrine  in  the  same  decision: 

"If  a  party  accepts  another  office  which,  within  the  meaning  of  the  law  and  the  case  is  incompat- 
ible with  that  which  he  holds,  we  have  no  doubt  but  the  first  one  would  become  vacant." 

We  can  well  understand  how  the  very  patriotic  chief  justice.  Judge  Wright,  in  the  great  patriotic 
State  of  Iowa,  then  throbbing  with  very  generous  impulses  for  the  Government,  would  use  the  reason- 
ing quoted  in  respect  to  the  possibility  of  his  discharging  the  duties  of  the  two  offices.  But  this  case, 
taken  as  a  whole,  thoroughly  sustains  the  position  taken  by  the  committee,  and  when  we  are  confronted 
with  the  constitutional  provisions  it  is  absolutely  certain  that  had  such  a  case  arisen  as  a  Member  of 
Congress  holding  a  commission  in  the  Army,  Judge  Wright  and  the  supreme  court  of  Iowa  would  have 
held,  as  Congress  as  ever  held,  that  the  offices  were  absolutely  incompatible. 

We  have  then,  in  considering  this  matter,  two  kinds  of  incompatibility  in  respect  to  offices:  First, 
where  in  the  very  nature  of  the  two  offices  they  are  incompatible  and  can  not  be  held  by  the  same 
person  at  the  same  time.  Clearly,  for  reasons  above  given  and  sustained  by  the  authorities  without 
reference  to  the  Constitution,  the  office  of  Member  of  Congress  and  an  officer  in  the  Army  of  the  United 
States  are  incompatible  and  can  not  be  held  at  the  same  time.  But  while  we  have  considered  this  view 
of  the  case  fully  it  was  not  really  necessary,  for  the  constitutional  provision  in  itself  makes  it  absolutely 
impossible  to  hold  these  two  offices  at  the  same  time. 

The  committee  therefore  recommend  to  the  House  the  adoption  of  the  following  resolution : 

"  Resolved,  That  Joseph  Wheeler,  a  Representative  in  the  Fifty-fifth  Congress  of  the  United  States 
from  the  Eighth  district  of  the  State  of  Alabama;  Edward  E.  Robbins,  a  Representative  in  the  Fifty- 
fifth  Congress  of  the  United  States  from  the  Twenty-first  district  of  the  State  of  Pennsylvania;  David 
G.  Colson,  a  Representative  in  the  Fifty-fifth  Congress  of  the  United  States  from  the  Eleventh  district 
of  Kentucky,  and  James  R.  Campbell,  a  Representative  in  the  Fifth-fifth  Congress  of  the  United  States 
from  the  Twentieth  district  of  the  State  of  Illinois,  by  accepting  commissions  in  the  Army  of  the  United 
States,  and  being  mustered  into  such  service  after  being  sworn  in  as  such  Representatives,  thereby 
vacated  their  seats  as  such  Representatives  and  ceased  to  be  members  of  this  House  as  of  the  dates  they 
accepted  such  military  offices,  respectively,  and  are  not  now  members  of  the  Fifth-fifth  Congress  of  the 
United  States." 

On  March  2  '  this  report  was  called  up  for  action  on  the  resolution  relating  to 
the  army  officers.     Mr.  John  F.  Lacey,  of  Iowa,  having  raised  the  question  of  con- 

'  Record,  p.  2751. 


§  495  INCOMPATIBLE   OFFICES.  621 

sideration,  the  House,  by  a  vote  of  77  3-eas  and  163  nays,  declined  to  consider  the 
resolution. 

495.  The  House  has  distinguished  between  the  performance  of  paid 
services  for  the  Executive  by  a  Member,  and  the  acceptance  of  an  appoint- 
ment to  an  incompatible  oflBce. 

The  House  has  investigated  the  constitutional  right  of  a  Senator  to 
perform  services  for  the  Executive. 

On  January  3,  1822,*  Mr.  Daniel  P.  Cook,  of  Illinois,  offered  a  resolution  of 
inquiry  directing  the  Secretary  of  the  Treasury  to  report,  among  other  things,  the 
names  of  the  persons  appointed  to  examine  the  various  land  offices  of  the  United 
States.  This  resulted  in  developing  the  fact  that  a  Senator  of  the  United  States 
had  been  appointed  a.s  one  of  the  examiners,  and  an  examination  of  the  subject 
by  a  select  committee  appointed  as  follows:  Messrs.  Cook,  Jonathan  Russell,  of 
Massachusetts;  Cadwallader  D.  Coldcn,  of  New  York;  Lewis  IklcLane,  of  Delaware; 
David  Trimble,  of  Kentucky;  Andrew  Stevenson,  of  Virginia,  and  William  Lowndes, 
of  South  Carolina. 

On  March  29,  1822,'  Mr.  McLane^  submitted  a  report  from  this  committee: 

That,  in  the  year  1820,  Jesse  B.  Thomas,  esq.,  a  Senator  of  the  United  States,  from  Illinois,  was 
permitted  by  the  Secretary  of  the  Treasury  to  examine  the  ofEcps  in  Ohio,  Indiana,  Illinois,  and  Mis- 
souri, for  which  as  appears  by  the  documents  before  the  committee,  he  received  a  sum  amounting  to 
the  allowance  which  has  been  estal)lished  since  the  year  1817.     *    *    * 

The  committee  are  clearly  of  opinion  that  the  examination  of  the  land  offices  by  Jesse  B. 
Thomas,  esq.,  was  not  a  violation  of  the  Constitution  of  the  United  States. 

That  instrument  forbids  the  appointment  of  Members  of  Congress,  during  the  time  for  which  they 
were  elected,  to  any  civil  office,  created,  or  the  emoluments  whereof  shall  have  been  increased,  during 
that  time;  and,  also,  prevents  any  person  holding  an  office  under  the  Government  from  being  a  Member 
of  Congress  during  his  continuance  in  office.     *    *    * 

But  your  committee  are  of  opinion  that  the  duty  of  examining  the  land  offices  is  not  such  an  office 
as  was  contemplated  by  the  Constitution  of  the  United  States,  which  opinion  seems  to  have  received 
the  sanction  and  regidated  the  practice  of  the  Government  since  the  adoption  of  the  Constitution,  by 
those  who  bore  a  principal  share  in  composing  it,  and  must,  therefore,  be  supposed  to  have  understood 
its  real  import. 

The  committee  refer  to  the  appointment  of  Mr.  Tracy,  a  Senator  of  the  United 
States,  by  President  Adams,  in  the  year  1800,  to  inspect  the  posts  on  the  northern 
and  northwestern  frontier.  For  this  service,  Mr.  Tracy  received  a  liberal  compen- 
sation, and  extra  mileage,  which  is  stated  on  the  records  of  the  Senate  of  that  day. 
Under  the  Administration  of  Mr.  Jefferson,  Mr.  Dawson,  a  Member  of  the  House  of 
Representatives  from  Virginia,  was  appointed  as  the  bearer  of  a  treaty  to  France, 
and  was  paid  for  performing  the  duty;  and  during  the  Administration  of  the  same 
President,  Mr.  Smith,  a  Senator  from  Tennessee,  was  appointed  a  commissioner  to 
treat  with  the  Indians,  and  actually  executed  two  treaties  imder  this  appointment. 
They  also  refer  to  the  instance,  at  a  still  more  recent  period,  during  the  Adminis- 
tration of  President  Madison,  of  the  appointment  of  Mr.  Worthington,  a  Senator, 
and  Mr.  Morrow,  a  Representative  from  Ohio,  to  negotiate  with  the  Indians.     In 

'First  session  Seventeenth  Congress,  Journal,  pp.  Ill,  284;  Annals,  pp.  635,  829,  912,  1113. 

^Annals,  pp.  1407-1414;  Journal,  pp.  410,  470. 

^The  Journal  says  Mr.  Cook  submitted  the  report  (Journal,  p.  410). 


622  PRECEDENTS   OF    THE    HOUSE    OF   REPRESENTATIVES.  §  496 

each  of  these  cases,  the  individuals  referred  to  executed  the  trusts  confided  to  them, 
still  retained  their  seats  in  Congress,  and,  La  the  Senate,  passed  upon  their  owti  acts. 

The  committee  next  proceeded  to  consider  the  law  of  April  21, 1808,  "An  act  con- 
cerning contracts."  They  found  that  the  words  of  the  act  were  broad,  but  did  not 
consider  that  they  were  intended  to  include  a  case  like  that  tmder  examination. 
By  various  examples  of  Members  and  Senators  who  had  performed  services  for  the 
Executive  Department,  the  committee  concluded  that  the  examination  of  land 
offices  was  not  among  the  inhibited  functions. 

Therefore  the  committee  recommended  no  action.  But  Mr.  Cook  moved  the 
adoption  of  the  following: 

Resolved,  That  the  employment  of  Members  of  Congress  by  the  Executive,  or  any  executive  officer 
of  the  United  States,  in  the  performance  of  any  public  service,  during  the  continuance  of  their  member- 
ship, for  which  they  receive  compensation  out  of  the  Public  Treasiuy,  is  inconsistent  with  the  inde- 
pendence of  Congress,  and  in  derogation  of  the  rights  of  the  people,  and,  if  it  be  not  already,  ought 
to  be  prohibited. 

On  April  18  Mr.  Cook  called  this  resolution  up  for  consideration,  but  the  House 
declined  to  consider  it. 

496.  The  House  has  declined  to  hold  that  a  contractor  under  the  Gov- 
ernment is  constitutionally  disqualified  to  serve  as  a  Member  of  the  House. 

Discussion  of  the  meaning  of  the  word  "  officer  "  in  the  constitutional 
provision  relating  to  the  qualification  of  Members. 

On  February  24,  1806,'  Mr.  John  Randolph,  of  Virginia,  after  some  general 
remarks  on  the  independence  of  the  membership  of  the  House,  offered  the  following : 

Whereas  it  is  provided  by  the  sixth  section  of  the  first  article  of  the  Constitution  of  the  United 
States  that  no  person  holding  any  office  under  the  United  States  shall  be  a  Member  of  either  House  of 
Congress  during  his  continuance  in  office:  Therefore, 

Resolved,  That  a  contractor  under  the  Government  of  the  United  States  is  an  officer  within  the 
purview  and  meaning  of  the  Constitution,  and,  as  such,  is  incapable  of  holding  a  seat  in  this  House. 

Resolved,  That  the  union  of  a  plurality  of  offices  in  the  person  of  a  single  individual,  but  more 
especially  of  the  military  with  the  civil  authority,  is  repugnant  to  the  spirit  of  the  Constitution  of  the 
United  States  and  tends  to  the  introducing  of  an  arbitrary  government. 

Resolved,  That  provision  ought  to  be  made  by  law  to  render  any  officer  in  the  Army  or  Navy  of  the 
United  States  incapable  of  holding  any  civil  office  under  the  United  States. 

After  debate,  in  which  the  meaning  of  the  word  officer  as  used  by  the  Constitu- 
tion was  discussed  at  length,  the  first  resolution  was  decided  in  the  negative — yeas  25, 
nays  26. 

On  the  second  resolution  there  was  debate,  it  being  urged  that  it  was  not  the 
duty  of  the  House  to  construe  the  Constitution ;  that  in  several  instances  like  that  of 
General  Wilkinson,  governor  of  the  Northwest  Territory,  offices  had  been  combined 
in  the  same  person  to  advantage,  etc.  The  resolution  was  disagreed  to — yeas  31, 
nays  81. 

On  April  2  the  third  resolution  was  agreed  to  by  the  House — yeas  94,  nays  21 — 
and  a  committee  was  appointed  to  prepare  a  bill.  This  bill  (H.  R.  136)  passed  the 
House,  but  did  not  become  a  law,  the  Senate  postponing  it. 

'  First  session  Ninth  Congress,  Journal,  pp.  295,  349,  359  (Gtales  &  Seaton  ed.);  Annals,  pp.  507, 
880-892,  923-930,  935,  1011. 


§   497  INCOMPATIBLE    OFFICES.  623 

497.  Tlie  election  case  of  George  Mumford,  of  North  Carolina,  in  the 
Fifteenth  Congress. 

A  collector  of  the  Federal  direct  tax,  whose  office  expired  after  his  elec- 
tion but  before  he  took  his  seat  as  a  Member  of  the  House,  was  held 
entitled  to  the  seat. 

On  February  6,  1818/  the  Committee  on  Elections  reported  in  the  case  of  George 
Mumford,  of  North  Carolina,  who  had  been  appointed  a  principal  assessor  in  1813  for 
the  collection  of  direct  taxes  and  internal  duties,  and  who  had  not  resigned  the  ofSce 
on  December  1,  1817,  when  he  qualified  as  a  Member  of  the  House  of  Representatives. 

The  comjnittee  make  the  following  explanation  in  regard  to  the  office: 

The  act  of  July  22,  1813,  under  which  Mr.  Mumford  held  his  appointment,  was  prospective  and 
without  limitation.  No  law  then  existed  laj-ing  a  direct  tax.  But,  as  Congress  intended  resorting  to 
that  sj'stem  of  revenue,  it  was  enacted  "that,  for  the  piu^ose  of  assessing  and  collecting  direct  taxes," 
the  United  States  should  be  divided  into  collection  districts,  and  a  principal  assessor  appointed  for  each 
district.  If  this  act  has  neither  expired  nor  been  repealed  Mr.  Mumford  is  still  in  office,  and  can  not 
rightfully  be  a  Member  of  this  House.  But  by  the  second  section  of  the  act  to  provide  additional 
revenues,  etc.,  approved  January  9,  1815,  the  said  act  was  repealed,  except  so  far  as  the  same  respected 
collection  districts,  internal  duties,  and  the  appointment  and  qualification  of  collectors  and  assessors; 
in  all  which  respects  it  was  enacted  that  the  said  act  should  be  and  continue  in  force  for  the  purposes  of 
the  last-mentioned  act.  The  act  of  July  22,  1813,  so  far  as  the  same  was  not  repealed,  was  thereby  limited 
to  the  duration  of  that  act,  and  was  continued  in  force  only  for  its  purposes.  By  that  act  a  direct  tax  of 
$6,000,000  was  annually  laid  upon  the  United  States,  and  apportioned  agreeably  to  the  provisions  of  the 
Constitution.  At  the  first  session  of  the  Fourteenth  Congress  that  act  was  modified  by  repealing  so 
much  thereof  as  laid  an  annusl  tax  of  six  millions,  by  reducing  the  same  to  three  millions,  and  by  limiting 
its  continuance  to  one  year;  and  it  was  expressly  enacted  that  all  the  provisions  of  the  act  of  January  9, 
1815,  except  so  far  as  the  same  had  been  varied  by  subsequent  acts,  and  except  the  first  section  thereof 
(which  related  to  the  apportionment  of  the  tax),  should  be  held  to  apply  to  the  tax  of  three  millions 
thereby  laid.  Thus  the  act  of  July,  1813,  was  again  limited,  and  it  was  continued  in  force  for  the  purposes 
of  the  three  million  tax  laid  March  5,  1816.  Whenever  those  purposes  were  fulfilled  that  act  expired, 
and,  of  course,  all  offices  created  by  it  ceased  to  exist. 

The  committee  found  from  official  sources  that  the  entire  tax  assessed  in  the 
district  for  which  ^Ir.  Mumford  was  collector  was  accoimted  for  previous  to  the  1st 
of  December,  1817,  and  that  no  official  duty  remained  to  be  performed  by  Mr.  Mum- 
ford.    His  office  therefore  expired  previous  to  bis  taking  his  seat  in  the  House. 

As  a  part  of  their  report  the  conunittee  included  a  letter  from  Mr.  Mumford,  in 
which,  after  stating  the  case,  he  argued  at  length  its  constitutional  aspects. 

On  March  21,  1818,  after  the  report  had  been  considered  in  Committee  of  the 
Whole,  the  House  agreed  to  the  following  resolution,  which  had  been  recommended 
by  the  Committee  on  Elections: 

Resolved,  That  George  Mumford  is  entitled  to  a  seat  in  this  House. 

498.  The  South  Carolina  election  case  of  Elias  Earle  in  the  Fifteenth 
Congress. 

A  Member-elect  who  continued  in  the  office  of  postmaster  after  his 
election,  but  resigned  before  taking  his  seat,  was  held  to  be  entitled  to 
the  seat. 

'  First  session  Fifteenth  Congress,  Contested  Election  Cases  in  Congress  from  1789  to  1834,  p.  316 


624  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §    499 

On  January  5,  1818/  the  Committee  on  Elections  reported  in  the  case  arising 
as  to  the  quaUfications  of  Mr.  Elias  Earle,  of  South  CaroHna.  The  committee 
reported  the  following  facts:  In  April,  1815,  ]\ir.  Earle  was  appointed  postmaster 
at  Centerville,  S.  C.  On  September  10,  1816,  Mr.  Earle  mailed  his  resignation  as 
postmaster  to  the  Postmaster-General.  His  successor  was  appointed  but  never 
commissioned,  so  Mr.  Earle  continued  to  superintend  the  post-office  until  June  12, 
1817,  when  his  connection  with  it  ceased. 

Mr.  Earle  was  elected  at  the  last  Congressional  election  one  of  the  Represent- 
atives in  Congress,  and  on  February  10,  1817,  the  governor  executed  a  certificate 
of  his  election,  which  Mr.  Earle  received  in  April  or  May  following. 

The  question  arose  as  to  the  discharge  of  the  duties  of  postmaster  after  he  was 
a  Member-elect  of  the  House,  but  before  he  had  taken  his  seat. 

The  committee  reported  this  resolution,  which,  on  March  21,  was  agreed  to  by 
the  House : 

Resolved,  That  Elias  Earle  is  entitled  to  a  seat  in  this  House. 

499.  The  Ohio  election  case  of  Hammond  v.  Herrick  in  the  Fifteenth 
Congress. 

After  a  careful  consideration  of  the  status  of  a  Member-elect  the 
House  decided  that  such  an  one  was  not  affected  by  the  constitutional 
requirement  that  an  oflB.cer  of  the  United  States  shall  not  be  a  Member. 

On  January  5,  1818,"  the  Committee  on  Elections  made  a  report  in  the  case  of 
C.  Hammond's  contest  for  the  seat  of  Mr.  Samuel  Herrick,  of  Ohio.  On  the  19th 
of  December,  1810,  Mr.  Herrick  had  been  appointed  attorney  of  the  United  States 
for  the  district  of  Ohio,  which  office  he  accepted  and  held  until  his  resignation 
thereof  on  the  29th  of  November,  1817.  In  October,  1816,  he  was  elected  one  of 
the  Representatives  of  the  State  of  Ohio  for  the  Fifteenth  Congress.  The  result 
of  the  election  was  pubUcly  announced  on  the  7th  of  January,  1817,  in  the  presence 
of  the  senate  of  that  State.  On  the  15th  of  September,  1817,  the  governor  executed 
a  certificate  of  Mr.  Herrick's  election,  according  to  the  law  of  Ohio,  which  was 
received  by  him  on  or  about  the  30tli  day  of  the  same  month.  Mr.  Herrick,  there- 
fore, continued  in  office  almost  nine  months  after  the  4th  of  March  and  two  months 
after  receiving  the  certificate  of  his  election.  Congress  met  December  1,  1817,  and 
Mr.  Herrick  took  his  seat  on  that  day  in  the  House  of  Representatives. 

The  Committee  on  Elections  which  examined  the  case  consisted  of  Messrs. 
John  W.  Taylor,  of  New  York,  John  Tyler,  of  Virginia,  Ezekiel  Whitman,  of  Massa- 
chusetts, Orsamus  G.  Merrill,  of  Vermont,  Solomon  Strong,  of  Massachusetts, 
John  L.  Boss,  jr.,  of  Rhode  Island,  and  Henry  Shaw,  of  Massachusetts.  Their 
report,  which  seems  to  have  been  unanimous,  examined  very  carefully  whether  or 
not  the  sixth  section  of  Article  I  of  the  Constitution  ^  had  been  Aaolated.  After 
referring  to  the  cases  of  John  P.  Van  Ness  ^  and  Philip  Barton  Key  ^  and  certain 

'  First  session  Fifteenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  314. 
^First  session  Fifteenth  Congress,  Journal,  pp.  32,  103,  355,  359,  363;  Annals,  pp.  1435-1447;  House 
Report  No.  30. 

'See  section  7  of  this  work. 

*  See  section  486  of  this  volume. 

*See  section  442  of  this  volume. 


§  499  INCOMPATIBLE    OFFICES.  625 

English  precedents  the  report  proceeds  to  a  very  full  consideration  of  the  status 
of  a  Member-elect  of  the  House: 

Persons  elected  to  the  House  of  Commons  become  at  one  time  members  for  certain  purposes  and 
at  another  time  for  other  purposes.  Thus  immediately  upon  executing  the  indenture  of  return  by  the 
sheriff  or  other  returning  officer,  the  person  elected  becomes  entitled  to  the  privilege  of  franking,  although 
the  day  at  which  the  Parliament  is  made  returnable  may  not  have  arrived.  Yet  he  is  not  a  member 
for  he  may  thereafter  be  a  candidate  for  election  in  another  district  at  any  time  before  the  Parliament 
is  made  returnable  and  the  return  actually  filed  in  the  Crown  office.  From  the  time  last  mentioned 
he  becomes  a  member  so  far  that  he  can  not  be  a  candidate  for  another  district,  but  yet  he  may  there- 
after hold  an  office  incompatible  with  membership,  and  upon  resigning  his  office  he  may  immediately 
qualifj-  and  take  his  seat  in  the  House.  It  has  often  been  decided  by  their  committee  of  elections  that 
a  person  holding  an  office  incompatible  with  membership  is,  nevertheless,  capable  of  prosecuting  his 
claim  to  a  fact.  After  examination  of  all  the  parliamentary  registers,  histories,  and  journals  within 
our  reach  we  have  found  no  case  where  a  person  elected  to  the  House  of  Commons  was  brought  in  on  a 
call  of  the  House  before  he  had  voluntarily  appeared,  qualified,  and  taken  his  seat,  nor  do  we  find  any 
instance  of  a  person  having  been  expelled  untU  after  such  time. 

A  very  particular  case  occurred  on  the  10th  of  Februarj-,  1620.  Sir  John  Leech  having  been 
elected  a  member  of  the  House  of  Commons,  and  appearing  to  take  the  oaths  of  supremacy  and  alle- 
giance, was  asked  whether  he  had  not  already  sat  in  the  House  that  Parliament  in  violation  of  the  statute. 
He  confessed  that  on  the  Wednesday  morning  previous  he  did  sit  in  the  House  a  quarter  of  an  hour, 
being  unsworn.  For  this  offense  Sir  John  was  not  expelled,  but  it  was  resolved  That  he  was  disabled  to 
serve  in  the  House,  and  a  new  writ  of  election  was  issued  to  supply  the  vacancy,  in  the  same  manner 
as  if  no  election  and  return  had  taken  place.  The  same  course  of  proceeding  has  been  pursued  when 
a  person  duly  elected  and  returned  comes  into  the  House  and  refuses  to  be  sworn.  Such  was  the  case 
of  Mr.  Archdale,  in  the  year  1698,  who,  being  elected  and  returned,  came  into  the  House  of  Commons 
and  said  he  was  ready  to  serve  if  his  affirmation  of  allegiance  could  be  accepted  instead  of  his  oath. 
The  House  resolved  that  it  could  not.  Mr.  Archdale.  stiU  declining  to  take  the  oath,  was  refused  admit- 
tance to  a  seat  and  a  new  writ  was  issued  to  supply  his  place.  This  case  is  more  peculiar  because  a 
person  elected  to  the  House  of  Commons  can  not  relinquish  his  right  to  a  seat  either  before  or  after  quali- 
fication otherwise  than  by  accepting  an  incompatible  office.  But  by  refusing  to  be  sworn  he  may  do 
that  indirectly  which  he  is  not  permitted  to  do  directly.  We  have  seen  several  similar  cases  which 
occurred  in  the  colonial  assembly  of  New  York,  but  not  now  having  access  to  the  journals  we  are  unable 
to  report  the  particulars. 

Persons  elected  and  returned  to  the  House  of  Commons  may  be  chosen  members  of  committees 
before  they  appear  and  qualify.  But  it  is  allowed  for  a  reason  sunOar  to  that  which,  in  courts  of  law, 
permits  a  declaration  to  be  filed  de  bene  esse  before  the  defendant  appears  in  court.  In  both  cases  the 
act  is  conditional;  and  it  is  ineffectual  unless  the  condition  of  appearance  be  performed. 

The  practice  of  this  House,  which  does  not  allow  the  appointment  of  persons  to  be  members  of 
committees '  until  they  shall  have  been  sworn  and  shall  have  taken  their  seats,  is  obviously  more  reason- 
able and  convenient  than  the  other.  It  was  decided  as  early  as  the  first  session  of  the  Second  Congress, 
in  the  case  of  John  F.  Mercer,  who  was  chosen  to  supply  a  vacancy  in  the  representation  of  the  State  of 
Mar>-land,  occasioned  by  the  resignation  of  WUliam  Pinckney,  that  a  Representative-elect  might  decline 
his  election  before  taking  his  seat  and  before  the  first  session  of  the  Congress  to  which  he  was  elected. 
We  do  not  find  that  the  question  has  since  been  agitated,  although  similar  cases  have  often  occurred. 
Our  rule  in  this  particular  is  different  from  that  of  the  House  of  Commons;  it  is  also  better,  for  it  makes 
our  theory  conform  to  what  is  fact  in  both  countries,  that  the  act  of  becoming  in  reality  a  Member  of  the 
House  depends  wholly  upon  the  will  of  the  person  elected  and  returned.  Election  of  itself  does  not 
constitute  membership,  although  the  period  may  have  arrived  at  which  the  Congressional  term  com- 
mences. This  is  evident  from  the  consideration  that  aU  the  votes  given  at  an  election  may  not  be 
returned  by  a  returning  officer  in  season  to  be  counted,  whereby  a  person  not  elected  may  be  returned 

'  See,  however,  sections  4477-4483  of  Volume  IV  of  this  work.  Jefferson's  Manual  has  by  rule  Ijeen 
made  authority  in  the  House  since  1837.  In  the  Fifty-sixth  Congress  Mr.  Joseph  Wheeler,  of  Alabama, 
a  Member-elect,  was  not  appointed  to  any  committee. 

5904— VOL  1—07 iO 


626  PRECEDENTS    OF    THE    HOUSE    OP    REPRESENTATIVES.  §   499 

and  take  the  seat  of  one  who  was  duly  elected.  Neither  does  a  return  necessarily  confer  membership, 
for  if  he  in  whose  favor  it  be  made  should  be  prevented  taking  a  seat  at  the  organization  of  a  House  of 
Representatives,  he  might  find  upon  presenting  himself  to  qualify  that  his  return  had  been  superseded 
by  the  admission  of  another  person  into  the  seat  for  which  he  was  returned. 

At  an  election  held  in  the  State  of  Georgia  in  October,  1804,  Thomas  Spalding  was  duly  chosen  a 
Representative  to  the  Ninth  Congress,  but  because  the  votes  of  three  counties  were  not  returned  to  the 
governor  within  twenty  days  after  the  election,  Cowles  Mead  received  a  certificate  and  took  his  seat. 
Mr.  Spalding  afterwards  presented  his  petition.  The  House  vacated  Mr.  Mead's  seat  and  admitted  Mr. 
Spalding.' 

In  AprU,  1814,  Doctor  WiUoughby  was  elected  a  Representative  of  the  State  of  New  York  to  the 
Fourteenth  Congress;  but  by  reason  of  a  clerical  error  of  certain  inspectors  in  returning  certificates  of 
votes  to  the  office  of  the  county  clerk.  General  Smith  was  declared  duly  elected,  and  a  certificate  of 
election  was  accordingly  delivered  to  him;  but  he,  having  omitted  to  take  a  seat  at  the  commencement 
of  the  session,  was,  on  the  ninth  day  thereafter,  declared  not  entitled,  and  thereupon  Doctor  WiUoughby 
was  admitted  in  his  seat.- 

Several  other  cases  might  be  cited  where  persons  were  returned  who  never  in  fact  became  Members, 
and  where  others  became  Members  who  were  not  returned.  Neither  do  election  and  return  create 
membership.  These  acts  are  nothing  more  than  the  designation  of  the  individual,  who,  when  called 
upon,  in  the  manner  prescribed  by  law,  shall  be  authorized  to  claim  title  to  a  seat.  This  designation, 
however,  does  not  confer  a  perfect  right,  for  a  person  may  be  selected  by  the  people  destitute  of  certain 
qualifications,  without  which  he  can  not  be  admitted  to  a  seat.  He  is,  nevertheless,  so  far  the  Repre- 
sentative of  those  who  elected  him  that  no  vacancy  can  exist  until  his  disqualification  be  adjudged  by 
the  House.  Yet  it  would  be  easy  to  state  cases  where  he  would  not  be  permitted  for  a  moment  to  occupy 
a  seat,  notwithstanding  the  regularity  of  his  election  and  return.  To  no  practical  purpose  could  he  ever 
have  been  a  Member.  So,  also,  Lf  a  person  duly  qualified  be  elected  and  returned  and  die  before  the 
organization  of  the  House  of  Representatives,  we  do  not  think  lie  could  be  said  to  have  been  a  Member 
of  that  body,  which  had  no  existence  until  after  his  death.  We  say  which  had  no  existence,  for  we 
consider  that  concept  altogether  fanciful  which  represents  one  Congress  succeeding  to  another  as 
members  of  the  same  corporation.  It  has  no  foundation  either  in  fact  or  in  the  theory  of  our  Government. 
Each  House  of  Representatives  is  a  distinct  legislative  body,  having  no  connection  with  any  preceding 
one.  It  commences  its  existence  unrestrained  by  any  rules  or  regulations  for  the  conducting  of  business, 
which  were  established  by  former  Houses,  and  which  were  binding  upon  them.'  It  prescribes  its  own 
course  of  proceeding,  elects  its  officers,  and  designates  their  duties.  Even  joint  rules  for  the  government 
of  both  Houses  of  Congress  are  not  binding  upon  a  new  House  of  Representatives,  unless  expressly 
established  by  it.  Although  the  Fourteenth  Congress  had  never  assembled  the  Fifteenth  would  liave 
met,  under  the  Constitution,  clothed  with  every  legislative  power,  as  amply  as  it  was  enjoyed  by  the 
Thirteenth.  The  Constitution  does  not  define  the  time  for  which  Representatives  shall  be  chosen. 
It  is  satisfied  provided  the  choice  take  place  at  any  time  in  every  second  year.  The  rest  is  left  to  the 
discretion  of  each  State.  Accordingly,  in  some  States  Representatives  are  usually  chosen  for  one  year 
and  seven  months,  and  in  other  States  for  a  longer  time. 

The  privilege  of  exemption  from  arrest,  granted  by  the  Constitution  to  Representatives  before  a 
meeting  of  the  House,  and  after  its  adjournment,  furnishes  no  argument  in  favor  of  their  membership  at 
such  times.  Exemptions  from  arrest  is  a  privilege  as  old  as  the  Parliament  of  England.  There  it  is 
extended,  not  only  to  members,  but  to  their  servants,  horses,  and  carriages.  Our  Constitution  adopts 
the  very  words  of  the  common  law,  but  restricts  the  privilege  to  Membera.  In  both  countries  the  object 
is  the  same,  not  the  benefit  of  the  Member,  but  of  the  public  service.  It  is  an  essential  incident  to  the 
right  of  being  represented,  and  a  consequence  of  that  right.  But  that  membership  is  not  coextensive 
with  the  enjoyment  of  that  privilege  is  manifest  from  the  consideration  that  such  a  construction  might 
make  the  Members  of  one  Congress  continue  in  office,  not  only  after  the  Congress  had  expired,  but  also 

'  First  session  Ninth  Congress,  Journal,  pp.  192,  205,  210-215  (Gales  &  Seaton  ed.). 
^  First  session  Fourteenth  Congress,  Journal,  pp.  28,  31,  45. 
^  See  also  sections  6743-6755  of  Volume  V  of  this  work. 


§  499  INCOMPATIBLE    OFFICES.  627 

after  the  next  Congress  was  actually  in  session.'  This  construction,  therefore,  is  not  only  abmird,  but  it 
serves  to  illustrate  the  fallacy  of  that  suggestion  which  fancies  the  Representatives  of  one  Congress 
succeeding  to  the  seats  of  their  predecessors  as  members  of  the  same  corporate  body. 

The  pri^dlege  of  franking  letters,  and  of  exemption  from  militia  duty,  are  not  granted  by  the 
Constitution.  They  are  established  by  law  and  liable  to  be  changed  at  the  will  of  the  Government. 
They  have  been  extended  and  may  be  restricted,  as  public  convenience  shall  require.  Previous  to  the 
last  Congress  the  pri^'ilege  of  franking  was  not  enjoyed  until  after  the  commencement  of  each  session. 
But  as  that  does  not  prove  negatively  that  persons  elected  to  the  House  of  Representatives  were  not 
Members  before  that  time,  so  the  existing  law  does  not  prove  affirmatively  that  they  are.  It  is  true  that 
the  words  "Members  of  the  House  of  Representatives"  are  used  as  descriptive  of  the  persons  to  whom 
the  privilege  is  granted,  but  they  certainly  were  used  without  intending  thereby  to  express  an  opinion, 
much  less  to  decide  when  membership  commences,  and  probably  without  in  any  wise  adverting  to  that 
inquiry. 

The  conclusion  of  the  committee  was  embodied  in  this  resolution: 

Resoherl,  That  Samuel  Herrick  is  entitled  to  a  seat  in  this  House. 

On  March  19  this  report,  which  had  been  conunitted  to  the  Committee  of  the 
Whole,'  was  considered.  Mr.  Richard  C.  Anderson,  jr.,  of  Kentucky,  spoke  at 
length  in  opposition  to  the  idea  that  a  Member-elect  was  not  a  Member.  He  said 
the  provision  of  the  Constitution  that,  "a  majority  of  each  House  shall  constitute  a 
quormn  to  do  business,  but  a  smaller  nmnber  may  adjourn  from  day  to  day,  and 
may  be  authorized  to  compel  the  attendance  of  absent  Members,"  must  refer  to  the 
first  as  well  as  to  any  subsequent  session  of  Congress,  and  therefore  was  the  plainest 
evidence  that  a  person  elected  might  be  a  Member  of  the  House  before  he  had 
appeared  and  taken  his  seat.  Other  sections  of  the  Constitution,  that  giving  Repre- 
sentatives privilege  from  arrest  while  going  to  and  returning  from  the  sessions,  that 
prohibiting  a  Representative  from  being  appointed  an  elector,  and  that  fixing  the 
age  of  the  Representative  at  at  least  25  years  were  also  evidence  of  the  same  thing. 
If  a  Member-elect  was  not  a  Representative  he  might  be  an  elector,  and  thus,  in 
certain  contingencies,  vote  for  President  once  as  an  elector  and  again  a  little  later  as 
a  Representative  on  the  floor  of  the  House,  a  situation  evidently  not  contemplated 
by  the  Constitution.  Also  if  a  Member-elect  was  not  a  Representative,  a  man  under 
25  years  might  be  chosen  provided  he  would  become  25  by  the  time  Congress  should 
meet.  But  a  provision  making  the  eligibility  of  a  Representative  depend  upon  the 
time  of  year  at  which  Congress  might  meet  was  an  evident  absurdity. 

On  March  20,  on  motion  of  ilr.  Benjamin  Adams,  of  Massachusetts,  and  by  a 
vote  of  67  ayes  to  66  noes,  the  Committee  of  the  Whole  inserted  the  word  "not"  in 
the  resolution,  so  it  should  read  that  Mr.  Herrick  was  not  entitled  to  the  seat. 

When  this  amendment  was  reported  to  the  House,  the  House  disagreed  to  it — 
yeas  74,  nays  77.  The  resolution  declarmg  Mr.  Herrick  entitled  to  the  seat  was  then 
adopted — yeas,  77,  nays  70. 

'  This  probably  refers  to  such  a  case  as  actually  happened  in  1869,  when  the  Fortieth  Congress 
expired  March  3,  and  the  Forty-first  convened  the  next  day,  March  4.  A  Member  of  the  Fortieth,  who 
was  not  reelected  to  the  Forty-first,  might  not  reach  his  home  until  long  after  his  successor  had  taken  his 
seat. 

'  The  Committee  of  the  'Wliole  was  not  in  those  days  limited  so  exclusively  to  the  consideration  of 
subjects  involving  the  expenditure  of  money. 


628  PRECEDENTS    OF    THE    HOUSE    OF    REPEESENTATIVES.  §   500 

500.  A  Member-elect,  who  held  a  commission  in  the  Army  and  had 
not  taken  the  oath  or  his  seat  in  the  House,  having  resigned,  a  question 
arose  as  to  when  the  compensation  of  his  successor  should  begin. 

Opinion  of  the  Judiciary  Committee  that  when  a  Member-elect  re- 
tains an  incompatible  oflice  and  does  not  qualify,  a  vacancy  exists  in  his 
seat. 

An  opinion  that  a  Member-elect  becomes  a  Member  from  the  very 
beginning  of  the  term  to  which  he  has  been  elected. 

As  to  what  acts  may  constitute  a  declination  of  the  office  of  Member 
of  the  House. 

Conclusions  of  law  as  to  the  time  of  beginning  of  compensation  of  a 
Member  elected  to  fill  a  vacancy. 

On  February  4,  1901,'  Mr.  George  W.  Ray,  of  New  York,  from  the  Judiciary 
Committee,  submitted  a  report  on  the  following  letter,  which  had  been  referred  to 
that  committee,  with  instructions  to  examine  into  the  facts  and  law  relating  thereto 
and  report  conclusions : 

Office  Sergeant-at-Arms,  House  of  Representatives, 

Washington,  D.  C,  January  5,  1901. 
Sir;  A  question  has  arisen  in  regard  to  the  payment  of  Hon.  William  Richardson,  Member  from  the 
Eighth  district  of  Alabama,  who  was  elected  on  August  6,  1900,  to  succeed  Hon.  Joseph  Wheeler.  As  I 
am  informed,  Mr.  Wheeler  has  notified  you,  under  date  of  August  ]7,  1900,  that  he  resigned,  the  resigna- 
tion to  take  eSect  August  6,  1900,  while  the  governor  of  Alabama  has  certified  to  you  that  the  resignation 
of  Mr.  Wheeler,  bearing  date  April  20,  1900,  was  received  on  April  23  at  the  executive  department  of 
Alabama  and  unconditionally  accepted  on  that  date.  Mr.  Wheeler  has  not  demanded  or  received  pay 
since  March  4,  1899,  the  date  of  the  beginning  of  the  Fifty-sixth  Congress. 

The  question  which  arises  is  as  to  the  date  at  which  the  compensation  of  Mr.  Richardson  should 
begin. 

In  view  of  the  somewhat  complicated  legal  question  involved,  I  should  like  to  have  further  advice 
before  making  the  payment. 

Respectfully,  Henry  Casson, 

Sergeant-at-Arms,  House  of  Representatives. 
Hon.  David  B.  Henderson, 

Speaker  of  the  House  of  Representatives. 

The  committee  ascertained  and  reported  the  following  facts : 

At  the  regular  general  election  held  in  the  State  of  Alabama  in  the  year  1898  Hon.  Joseph  Wheeler 
was  duly  elected  Representative  in  the  Fifty-sixth  Congress  from  the  Eighth  district  of  Alaliama.  His 
credentials  (or  certificate  of  election)  were  duly  filed  with  the  Clerk  of  the  House  of  Representatives 
Februaiy  23,  1899. 

At  the  time  of  his  election  Joseph  Wheeler  held  the  office  of  major-general,  United  States  Volun- 
teers, to  which  office  he  was  commissioned  May  5,  1898,  to  rank  from  May  4,  1898.  He  took  the  required 
oath  of  office  as  such  major-general  May  6,  1898,  and  was  honorably  discharged  as  such  April  12,  1899. 
He  drew  his  pay  as  such  major-general  during  all  of  said  time.  April  12,  1899,  the  same  day  he  was  dis- 
charged as  major-general.  United  States  Volunteers,  he  was  commissioned  brigadier-general,  United 
States  Volunteers,  to  rank  from  .\.pril  12, 1899,  and  took  the  oath  of  office  as  such  April  15,  1899.  He  held 
this  office  and  drew  his  pay  from  April  15,  1899,  up  to  and  including  June  16,  1900,  when  he  was  com- 
missioned brigadier-general.  United  States  Army,  to  rank  from  June  IG,  1900,  and  he  took  the  oath  of 
office  as  such  June  18,  1900,  and  continued  in  active  service  and  drew  his  pay  from  June  18,  1900,  up  to 

'  Second  session  Fifty-sixth  Congress.  House  Report  No.  265G.     The  letter  was  referred  January  8, 
1901;  Journal,  pp.  95,  96;  Record,  p.  707. 


S   500  INCOMPATIBLE   OFFICES.  629 

September  10,  1900,  when  he  was  placed  upon  the  retired  list  of  the  Army,  under  the  provisions  of  exist- 
ing law,  since  which  date  be  has  drawn  his  pay  as  brigadier-general.  United  States  Army,  retired. 

A  communication  to  the  Speaker  of  the  House  of  Representatives  from  Joseph  J.  Johnston,  governor 
of  the  State  of  Alabama,  under  date  November  16,  1900,  says: 

"I  hereby  certify  that  the  resignation  of  Hon.  Joseph  Wheeler  as  a  Member  of  the  Fifty-sixth 
Congress,  bearing  date  April  20,  1900,  was  received  by  me  on  April  23,  1900,  and  unconditionally 
accepted  on  that  date.' 

"Respectfully,  Joseph  F.  Johnston,  Governor." 

A  letter  from  Joseph  Wheeler  to  the  Speaker  of  the  House  of  Representatives,  bearing  date  August 

17,  1900,  says: 

"I  resigned  my  seat  in  Congress,  and  the  resignation  was  accepted  by  the  governor,  to  take  effect  on 
August  6,  1900.     My  successor  was  elected  on  that  date. 

"Respectfully,  Joseph  Wheeleh." 

General  Wheeler  drew  no  salary  as  Representative  in  the  Fifty-sixth  Congress  and  exercised  none 
of  the  functions  of  such  office. 

By  virtue  of  existing  law  the  Fifty-sixth  Congress  came  into  existence  at  12  o'clock  noon  on  the  4th 
day  of  March,  1899.     In  other  words,  the  Fifty-sixth  Congress  commenced  at  that  time. 

That  Congress  was  not  called  in  extra  session,  but  the  first  session  under  the  provisions  of  existing 
law  commenced  at  12  o'clock  noon  on  the  4th  day  of  December,  1899. 

Joseph  Wheeler  did  not  appear  at  that  time  or  present  himself  at  the  bar  of  the  House  and  take 
the  oath  of  office  or  offer  so  to  do.  He  never  has  presented  himself  to  take  the  oath  of  office.  He  never 
exercised  any  of  the  functions  of  Representative  or  Representative-elect  in  the  Fifty-sixth  Congress. 

On  the  4th  day  of  May,  1900,  the  governor  of  the  State  of  Alabama,  recognizing  that  a  vacancy 
existed  or,  as  he  states  it ,  would  exist  in  the  office  of  Representative  in  Congress  from  the  Eighth  Alabama 
district,  called  a  special  election  to  fill  such  vacancy  (see  call),  and  such  election  was  held  on  the  first 
Monday  in  August  (August  6,  1900)  to  fill  such  vacancy,  and  at  such  election  William  Richardson  was 
duly  elected.  He  appeared  and  took  the  oath  December  4,  1900,  and  is  the  sitting  Member  from  that 
district. 

The  report  then  reviews  at  length  the  various  statutes  relating  to  the  pay  of 
Members,  quoting  them  all  and  noting  the  changes  made  from  time  to  time.  Among 
those  quoted  is  section  51  of  the  Revised  Statutes: 

Whenever  a  vacancy  occurs  in  either  House  of  Congress,  by  death  or  otherwise,  of  any  Member  or 
Delegate  elected  or  appointed  thereto  after  the  commencement  of  the  Congress  to  which  he  has  been 
elected  or  appointed,  the  person  elected  or  appointed  to  fill  it  shall  be  compensated  and  paid  from  the 
time  that  the  compensation  of  his  predecessor  ceased. 

After  quoting  section  6,  Article  I,  of  the  Constitution'  the  report  says  in  relation 
thereto : 

First,  Representatives  during  the  time  for  which  elected  can  not  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States  which  shall  have  been  created  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time.  They  may  be  appointed  to  other  civil  offices.  Then  follows  an 
absolute  constitutional  prohibition  upon  Senators  and  Representatives  in  Congress.  They  are  prohibited 
from  being  a  Member  of  either  House  if  they  hold  any  office,  civil  or  military,  under  the  United  States. 
The  first  provision  prohibits  them  from  being  appointed  to  certain  civil  offices,  whUe  the  second  pro- 
vision prohibits  their  being  a  Member  of  either  House  if  they  hold  any  other  office  under  the  United 
States.     By  statute  an  officer  of  the  Army  on  the  active  list  is  prohibited  from  holding  any  civil  office.' 

It  follows  that  Joseph  Wheeler  could  not  be  a  Member  of  either  House  of  Congress  or  hold  any  civil 
office  under  the  United  States  while  he  held  a  commission  and  was  on  the  active  list  in  the  Army  of  the 

'A  letter  from  Governor  Johnston  to  General  Wheeler,  dated  April  23,  1900,  says:  "I  accept  the 
resignation,  to  take  effect  on  the  day  your  successor  is  elected."     Report,  p.  3. 
^  See  section  485  of  this  work. 
'  Section  1222  of  the  Revised  Statutes,  quoted  in  full  below. 


630  PEECEDENTS    OF   THE   HOUSE    OF   EEPKESENTATIVES.  §   500 

United  States.  He  held  a  commission  in  the  Army  of  the  United  States  continuously  from  the  time  of  his 
election  in  the  fall  of  1898  up  to  and  including  March  4,  1899,  the  day  that  the  Fifty-sixth  Congress  came 
into  existence,  and  continuously  on  down  to  the  time  he  was  placed  upon  the  retired  list  on  the  10th  day 
of  September,  1900,  and  was  in  active  service.  True,  for  three  days  at  one  time  and  for  two  days  at 
another,  while  waiting  to  take  the  oath  of  office,  he  drew  no  pay,  but  he  held  his  commission  and  accepted 
the  army  offices  and  took  the  oath.  Section  1756,  Revised  Statutes,  prohibited  his  drawing  pay  until 
the  oath  was  taken. 

The  two  offices  were  incompatible  at  common  law  and  he  could  not  hold  both.  So  under  the 
Constitution  as  always  held.' 

By  holding  the  office  in  the  Army  the  civil  office  is  declined.^ 

The  report  goes  on  to  quote  section  6,  Article  I,  of  the  Constitution,  which 
provides  that  Representatives  "shall  receive  a  compensation  for  their  services," 
and  the  various  statutes  prohibiting  the  same  person  receiving  the  emoluments  of 
two  offices,'  including  section  1222  of  the  Revised  Statutes: 

"  No  officer  of  the  Army  on  the  active  list  shall  hold  any  civil  office,  whether  by  election  or  appoint- 
ment, and  every  such  officer  who  accepts  or  exercises  the  functions  of  a  civil  office  shall  thereby  cease  to 
be  an  officer  of  the  Army,  and  his  commission  shall  be  thereby  vacated." 

The  effect  of  these  statutes,  taken  together  [says  the  report],  on  the  question  of  compensation  has 
been  passed  upon  by  the  Supreme  Court  of  the  United  States  in  Badeau  v.  United  States.'' 

It  is  there  held  that  a  person  on  the  retired  list  of  the  Army,  and  by  expressed  statute  entitled  to 
pay  as  such,  can  not  receive  that  pay  while  he  holds  a  civil  office  and  draws  the  pay  or  compensation  of 
that  office  if  the  duties  required  or  that  may  be  required  are  incompatible. 

Accordingly  held  that  Badeau,  who  was  on  the  retired  list  and  accepted  a  position  in  the  diplo- 
matic and  consular  service  and  drew  his  pay,  was  not  entitled  to  pay  as  a  retired  officer  whQe  he  held 
such  position. 

Officers  of  the  Army  retired  from  active  service  are  still  in  the  military  service  of  the  United  States.' 

Their  pay  is  expressly  provided  for  by  statute.* 

It  follows  that  Gen.  Joseph  Wheeler,  from  12  o'clock  noon  March  4,  1899,  the  time  when  the  Fifty- 
sixth  Congress  commenced,  was  not  entitled  to  pay  and  could  not  draw  pay  as  Representative  or  Rep- 
resentative-elect (so  called),  conceding  for  the  sake  of  the  argiunent  that  he  had  not  declined  the  election, 
for  the  reason  that  he  held  a  commission  in  the  Army  on  the  active  list  and  was  discharging  the  duties 
and  drawing  the  pay  of  an  army  officer  and  most  of  the  time  was  on  the  ocean  or  in  active  service  in 
the  Philippines,  over  8,000  miles  from  the  capital  of  the  United  States.  His  pay  as  major-general  was 
$7,500  per  year  and  as  brigadier-general  $5,500  per  year. 

Therefore  Hon.  William  Richardson  has  had  no  predecessor,  as  to  compensation,  in  the  Fifty- 
sixth  Congress. 

We  have  not  overlooked  the  cases  holding  that  the  abo.ve-quoted  sections  relating  to  compensation 
do  not  apply  to  persons  holding  two  civil  offices  the  duties  of  which  are  distinct  but  not  incompatible, 
the  duties  and  compensation  of  each  office  being  expressly  fixed  by  law  and  appropriated  for.'  In 
the  Badeau  case  the  court  points  out  the  distinction  very  clearly. 

The  report  then  propounds  the  question  whether  or  not  Hon.  William  Rich- 
ardson had  a  predecessor  in  office  de  jure  or  de  facto  in  the  Fifty-sixth  Congress. 

'  Here  are  cited  the  cases  of  Van  Ness,  Yell,  Vandever,  Blair,  and  Wheeler.  The  reports  also  cites 
law  cases  in  point. 

2  The  Blair  resolution  is  here  quoted.     (See  section  492  of  this  work.) 

3  Sections  1763-1765  of  the  Revised  Statutes. 
*See  130  U.  S.,  pp.  439,  448,  450-452. 

'  See  United  States  v.  Tyler,  105  U.  S.,  244. 

«  Sections  1275,  1276,  Revised  Statutes. 

'  See  120  U.  S.,  126;  21  How.,  463;  110  U.  S.,  688. 


§  500  INCOMPATIBLE    OFFICES.  631 

In  response  to  this  the  committee  finds  that  all  Representatives  elected  '  become 
"Members"  from  the  very  hour  and  minute  of  the  commencement  of  the  term  for 
which  elected;  that  is,  on  the  4th  of  March  next  preceding  the  meeting  of  the  Con- 
gress. Therefore  the  Member-elect  is  the  holder  of  an  "office"  as  well  as  the  Mem- 
ber who  has  been  sworn. 
The  report  continues: 

No  person  elected  or  appointed  to  an  office  becomes  an  officer  from  the  mere  fact  of  his  election 
or  appointment.  Acceptance  is  necessary.  Seeking  the  office  or  consenting  to  be  appointed  or  elected 
does  not  constitute  an  acceptance.^ 

General  \Mieeler  might  have  accepted  the  election  to  the  Fifty-sixth  Congress.  He  could  have 
accepted  in  more  ways  than  one.  He  might  have  signed  certificates  for  drawing  his  pay  and  have 
drawn  his  pay.  He  might  have  exercised  the  fi-anking  privilege.  WTien  Congress  assembled,  he  might 
have  appeared,  participated  in  the  organization  of  the  House  by  voting  for  Speaker,  and  then  have 
taken  the  oath  of  office,  which  act  would  have  entitled  him  to  take  a  seat  in  the  House.  He  did  none 
of  these  things. 

At  the  time  of  his  election  he  held  a  commission  as  major-general  in  the  Army  of  the  United  States 
on  the  active  list  and  was  in  the  active  service.  When  the  4th  day  of  March,  1899,  arrived,  he  continued 
in  the  Army;  continued  to  perform  the  duties  of  his  army  office;  continued  to  draw  his  pay  as  an  army 
officer;  in  fact,  he  continued  to  exercise  all  the  prerogatives  and  powers  and  to  enjoy  all  the  privileges 
of  an  officer  of  the  Army  of  the  United  States  on  the  active  list. 

After  referring  to  the  fact  that  General  Wheeler  had  been  a  Member  of  Congress 
before,  and  presumably  knew  of  the  law  forbidding  an  army  officer  holding  a  civil 
office,  the  report  continues : 

The  law  as  well  as  common  sense  placed  and  places  an  interpretation  upon  these  acts.  That 
interpretation  is  that  he  declined  to  accept  the  election  to  the  Fifty-sixth  Congress.  *  *  *  If  Wheeler 
declined  the  civil  office  to  which  elected  at  the  general  election  in  1898,  he  never  filled  the  office,  was 
never  in  it,  and  it  is  immaterial  whether  he  declined  on  or  before  March  4,  1899,  or  at  the  assembling 
of  Congress  December  4,  1899.  A  declination  of  the  office  or  of  the  election  at  any  time  before  acceptance 
left  it  vacant  from  the  very  beginning  of  the  term.  It  is  not  conceivable  that  a  person  who  declines 
either  an  election  or  an  appointment  to  a  civil  office  the  term  whereof  is  6xed  and  definite  has  ever  filled 
it  for  a  single  moment. 

It  follows  that  Joseph  Wheeler  never  held  the  office  of  Representative  in  the  Fifty-sixth  Congress 
or  of  Member  of  the  House  of  Representatives  in  the  Fifty-sixth  Congress  and  that  the  office  was  always 
vacant  until  the  election  of  Hon.  William  Richardson,  August  6,  1900. 

Therefore  the  Hon.  William  Richardson  never  had  a  predecessor  de  jure  or  de  facto  in  the  Fifty- 
sixth  Congress. 

The  resignation  of  Hon.  Joseph  Wheeler  as  Representative  amounted  to  nothing,  as  he  did  not 
hold  the  office,  and  therefore  could  not  resign  it.     He  had  declined  it. 

The  report  next  goes  on  to  show  that  section  51,  of  the  Revised  Statutes,  which 
provides  for  payment  of  the  successor  when  a  vacancy  occurs  after  the  commence- 
ment of  the  Congress,  does  not  apply  to  the  case  of  Mr.  Richardson,  because  no  person 
occupied  the  seat  of  Representative  from  the  Eighth  Alabama  district  in  the  Fifty- 
sixth  Congress,  either  de  jure  or  de  facto,  or  was  entitled  to  the  pay  prior  to  Mr. 
Richardson's  election.  Section  51  of  the  Revised  Statutes  had  been  passed  upon 
by  the  court,  in  the  case  where — 

One  Pirce  held  the  certificate  of  election  as  Representative  from  the  Second  district  of  Rhode 
Island  in  the  Forty-ninth  Congress.  He  was  sworn  in,  performed  his  duties  as  Representative,  and 
drew  his  pay.     The  seat  was  contested,  and  the  contestants  claimed  that  Pirce  was  not  elected  to 

'  The  status  of  the  Member-elect  is  discussed  at  length. 
'  Mechem's  Public  Offices,  sees.  247,  219. 


■632  PRECEDENTS   OF    THE   HOUSE   OF   EEPEESENTATIVES.  §  501 

the  Forty-ninth  Congress.  The  House  finally  decided  that  Pirce  was  not  elected,  and  that  the  seat  was 
vacant.  The  vacancy  existed  from  the  very  beginning  of  the  Forty-ninth  Congress,  March  4,  1885,  for 
the  reason  that  no  person  was  elected  from  the  Second  district  of  Rhode  Island  to  fill  that  seat.  Feb- 
ruary 21,  1887,  Page  was  elected  to  fill  such  vacancy,  and  he  claimed  that  under  section  51,  Revised 
Statutes,  he  was  entitled  to  pay  from  March  4,  1885,  when  the  Forty-ninth  Congress  commenced.  The 
court  held  that  section  51  did  not  apply,  because  Page  in  law  had  no  predecessor  in  the  Forty-ninth 
Congress.  As  to  pay  he  did  have  a  predecessor,  and  that  predecessor  drew  his  pay  so  long  as  he 
occupied  the  seat.  The  court  held  therefore  that  under  a  proper  construction  of  section  51  Page  had 
a  predecessor  as  to  compensation  within  the  meaning  of  section  51  and  that  therefore  Page  was  entitled 
to  his  pay  only  from  the  time  that  the  compensation  of  Pirce  ceased.  The  plain  holding  is  that  if  Pirce 
had  never  occupied  the  seat  and  drawn  his  pay  section  51  would  not  have  applied  at  all. 

The  following  is  the  unanimous  holding  of  the  court  in  that  case: 

"The  proper  construction  of  section  51  is  that  the  predecessor  of  the  person  elected  to  fill  a  vacancy 
must  be  a  person  who  was  the  predecessor  in  the  same  Congress.  If  no  such  person  is  to  be  found,  because 
no  such  person  was  duly  elected,  Page  had  no  predecessor  in  the  sense  of  section  51,  and  that  section 
does  not  apply  to  his  case.  But  we  think  that,  under  the  proper  construction  of  section  51,  Pirce  was 
the  predecessor  of  Page  as  to  compensation  or  salary.  His  credentials  showed  that  he  was  regularly 
elected;  he  must  have  been  placed  on  the  roll  of  Representatives-elect,  under  section  31  of  the  Revised 
Statutes;  he  was  sworn  in,  t(5ok  his  seat,  voted,  served  on  committees,  and  drew  the  salary  and  the 
mileage.  Under  sections  38  and  39  he  was  entitled  to  his  salary,  because  his  credentials,  in  due  form 
of  law,  had  been  duly  filed  with  the  clerk,  under  section  31,  and  because  he  took  the  required  oath. 
Section  51  refers  only  to  a  vacancy  occurring  after  the  commencement  of  a  particular  Congress  and  in 
the  membership  of  that  Congress,  and  the  reference  to  a  '  predecessoi- '  is  plainly  intended  to  apply  only 
to  a  predecessor  in  that  Congress.  If  there  was  any  such  predecessor  of  Page,  it  was  Pirce.  If  there  was 
no  predecessor  of  Page  in  that  Congress,  section  51  does  not  apply  to  that  case." 

In  the  case  of  Hon.  William  Richardson,  now  under  consideration,  as  we  have  already  seen,  no 
person  occupied  the  seat  of  Representative  from  the  Eighth  Alabama  district  in  the  Fifty-sixth  Con- 
gress, either  de  jure  or  de  facto,  or  was  entitled  to  the  pay  of  such  Representative  prior  to  the  election 
of  Hon.  William  Richardson,  and  therefore  within  the  decision  just  quoted  section  51  of  the  Revised 
Statutes  does  not  apply. 

As  section  51  has  no  application,  we  are  relegated  to  the  rules  of  the  common  law,  and  here  there  is 
no  dispute.  A  person  elected  to  fill  a  vacancy,  in  the  absence  of  any  statute  establishing  a  different 
rule,  is  entitled  to  compensation  only  from  the  time  of  his  election  or  appointment.  It  follows  that 
the  Hon.  William  Richardson  is  entitled  to  pay  from  August  6,  1900,  only,  that  being  the  date  of  his 
election. 

Your  committee  also,  by  a  vote  of  10  to  5,  1  member  being  absent  and  1  not  voting,'  adopted  the 
following  resolution,  which  is  respectfully  reported  to  the  House,  viz: 

"Resolved,  That  Hon.  William  Richardson,  Representative  from  the  Eighth  Congressional  district 
of  the  State  of  Alabama,  is  entitled  to  pay  only  from  August  6,  1900,  the  date  of  his  election  to  the  Fifty- 
sixth  Congress." 

This  resolution  was  not  acted  on  by  the  House,  but  the  Speaker  certified  the 
salary  checks  of  Mr.  Richardson  in  accordance  with  the  findings  of  the  committee. 

501.  A  Member  having  informed  the  House  of  his  acceptance  of  an 
incompatible  ofi&ce,  the  House  has  assumed  or  declared  the  seat  vacant. — 
On  December  6,  1792,~  the  Speaker  laid  before  the  House  a  letter  from  Joshua  Seney, 

'Messrs.  William  H.  Fleming,  of  Georgia,  Richard  W.  Parker,  of  New  Jersey,  and  D.  H.  Smith,  of 
Kentucky,  while  supporting  the  conclusions  filed  individual  views.  Mr.  John  J.  Jenkins,  of  Wisconsin, 
filed  views  in  support  of  the  opinion  that  Mr.  Richardson's  salary  began  at  the  date  of  Mr.  Wheeler's 
resignation,  April  20,  1900.  Messrs.  Charles  E.  Littlefield,  of  Maine,  and  Julius  Kahn,  of  California, 
taking  issue  with  the  conclusions  of  the  report  as  to  the  status  of  the  Member-elect,  held  that  Mr.  Rich- 
ardson's pay  should  begin  December  4,  1900,  the  date  when  they  held  that  Mr.  Wheeler's  right  to  com- 
pensation ceased. 

^Second  session  Second  Congress,  Journal,  p.  635  (Gales  &  Seaton  ed.);   Annals,  p.  738. 


§  502  INCOMPATIBLE    OFFICES.  633 

one  of  the  Members  for  the  State  of  Maryland,  stating  his  acceptance  of  an  appoint- 
ment in  the  judiciary-  department  of  the  said  State,  which  disquahfied  him  for  a 
seat  in  the  House.     The  letter  was  read  and  ordered  to  lie  on  the  table. 

Januarj"  23,  1793,'  the  Speaker  laid  before  the  House  a  letter  from  the  governor 
of  Maryland  with  the  return  of  WilHam  Hindman,  "in  room  of  Joshua  Seney,  who 
has  resigned,"  as  the  Journal  expresses  it. 

502.  On  February  27,  1804,^  the  Speaker  laid  before  the  House  a  letter  ad- 
dressed to  him  from  John  Smith,  of  New  York,  stating  that  "having  been  elected 
by  the  legislature  of  the  State  of  New  York  a  Senator  of  the  United  States,  he  had 
accepted  the  appointment  and  taken  his  seat  in  the  Senate." 

On  motion — 

Resolved,  That  John  Smith,  one  of  the  Representatives  from  the  State  of  New  York,  having  accepted 
the  appointment  of  Senator  from  that  State,  in  the  Senate  of  the  United  States,  has  thereby  vacated  his 
Beat  in  this  House;  and  that  the  Speaker  be  requested  to  notify  the  executive  of  the  said  State  of  New 
York  accordingly. 

503.  Instance  wherein  a  Senator-elect  continued  to  act  as  governor  of 
a  State  after  the  assembling'  of  the  Congress  to  which  he  had  been 
elected. — On  Januaiy  4,  190(;,^  during  the  first  regular  session  of  the  Fifty-eighth 
Congress  in  the  Senate  Mr.  John  C.  Spooner,  of  Wisconsin,  said: 

Mr.  President,  I  present  the  credentials  of  Hon.  Robert  M.  La  FoUette,  Senator-elect  from  the 
State  of  Wisconsin,  which  I  ask  may  be  read  and  placed  on  file. 

The  Vice-President  said : 

The  Secretary  will  read  the  credentials. 

The  credentials  of  Robert  Marion  La  Follette,  chosen  by  the  legislature  of  the 
State  of  Wisconsin  a  Senator  from  that  State  for  the  term  beginning  March  4,  1905, 
were  read  and  ordered  to  be  filed. 

Mr.  Spooner  then  said: 

Mr.  La  Follette,  the  Senator-elect,  is  in  attendance,  and  I  ask  that  the  oath  of  office  be  now  admin- 
istered to  him. 

The  Vice-President  said : 

The  Senator-elect  will  present  himself  at  the  Vice-President's  desk  and  take  the  oath  of  office 
prescribed  by  law. 

Mr.  La  Follette  was  escorted  to  the  Vice-President's  desk  by  Mr.  Spooner,  and 
the  oath  prescribed  by  law  having  been  administered  to  him,  he  took  his  seat  in  the 
Senate.* 

'  Journal,  p.  677. 

-  First  session  Eighth  Congress,  Journal,  pp.  602,  603  (Gales  &  Seaton  ed). 

'First  session  Fifty-ninth  Congress,  Record,  p.  674. 

*The  Senate  had  met  in  special  session  on  March  4,  1905,  but  Mr.  La  Follette,  who  was  governor 
of  Wisconsin,  did  not  appear  either  then  or  at  the  assembling  of  Congress  at  the  first  regular  session,  oa 
December  4. 1905.     On  January  1  he  resigned  as  governor  of  Wisconsin. 


634  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    504 

504.  A  resolution  declaring  vacant  the  seat  of  a  Member  who  has 
accepted  an  incompatible  office  may  be  agreed  to  by  a  majority  vote. — On 

January  20,  1863/  the  House  agreed  to  the  following  resolution: 

Resolved,  That  William  Vandever  has  not  been  entitled  to  a  seat  as  a  Member  of  this  House  since 
he  was  mustered  into  the  military  service  of  the  United  States  as  colonel  of  the  Ninth  Regiment  Iowa 
Volunteer  Infantry,  to  wit,  since  the  24th  day  of  September,  A.  D.  1861. 

Mr.  Horace  Maynard,  of  Tennessee,  made  the  point  of  order  that,  as  a  majority 
only  had  voted  in  favor  of  the  resolution,  it  was  not  adopted,  since  the  resolution  in 
effect  brought  about  the  expulsion  of  a  Member,  which  under  the  Constitution 
required  the  concurrence  of  two-thirds  of  the  Members. 

The  Speaker'  overruled  the  point  of  order. 

Mr.  Maynard  having  appealed,  the  appeal  was  debated  on  this  and  the  succeed- 
ing day,  the  ground  being  taken  in  support  of  the  ruling  that  Mr.  Vandever,  by 
accepting  an  incompatible  office,  had  in  effect  vacated  liis  seat. 

On  January  21  the  decision  of  the  Chair  was  sustained — ^yeas  82,  nays  36 — the 
appeal  being  laid  on  the  table. 

505.  The  South  Carolina  election  case  of  Bowen  v.  De  Large  in  the 
Forty-second  Congress. 

The  House  has  manifestly  leaned  to  the  idea  that  a  contestant  holding 
an  incompatible  office  need  not  make  his  election  until  the  House  has 
declared  him  entitled  to  the  seat. 

It  being  impossible  to  determine  who  is  elected,  the  House  declares  the 
seat  vacant. 

In  a  case  where  sitting  Member's  counsel  had  surreptitiously  sup- 
pressed his  evidence,  the  taking  of  further  testimony  was  permitted. 

On  January  18,  1873,^  Mr.  George  F.  Hoar,  of  Massachusetts,  from  the  Com- 
mittee on  Elections,  submitted  a  report  in  the  South  Carolina  case  of  Bowen  v. 
De  Large: 

The  committee  find,  upon  the  whole  evidence,  that  said  De  Large  did  not  receive  a  majority  of 
the  votes  legally  cast  at  the  election  in  said  district,  and  is  not  entitled  to  a  seat. 

This  case  came  on  to  be  heard  before  the  committee  at  the  December  session  of  1871-72.  Mr. 
De  Large  then  applied  for  a  postponement,  and  for  leave  to  take  further  testimony,  on  the  ground  that 
the  counsel  employed  by  him  to  prepare  his  cause  and  take  testimony  in  his  behalf  had  possession  of  the 
evidence,  and  refused  to  surrender  the  same  to  be  used  before  the  committee,  and,  further,  that  said 
counsel  had  been  tampered  with  and  bribed  by  said  Bowen  to  act  for  him.  The  committee  found 
both  these  allegations  to  be  proved.  Some  of  the  committee  are  of  opinion  that  this  proceeding, 
which  would  furnish  ground  for  the  expulsion  of  the  contestant,  if  he  were  a  Member,  would  justify  a 
refusal  to  permit  liim  to  proceed  with  the  contest,  or  to  award  him  the  seat. 

The  report  goes  on  to  say  that  the  sitting  Member  was  allowed  to  take  further 
testimony,  from  which  a  state  of  fraud  and  irregularity  was  shown  that  made  it 
impossible  to  determine  who  was  elected. 

It  further  appeared  that  on  a  day  after  the  day  when  contestant  claimed  to 
have  been  elected    to  the  House  he  was  chosen  a  member  of  the  South  Carolina 

I  Third  session  Thirty-seventh  Congress,  Journal,  pp.  212,  213,  215;  Globe,  pp.  405-107,  427. 

-Galusha  A.  Grow,  of  Pennsylvania,  Speaker. 

'Third  session  Forty-second  Congress,  House  Report  No.  37;  Smith,  p.  99. 


§   506  INCOMPATIBLE   OFFICES.  635 

house  of  representatives  for  two  j^ears,  and  on  November  1,  1872,  took  his  seat  and 
the  oath  therein. 

The  committee  also  say: 

It  further  appeared  that  in  the  fall  of  1872  said  Bowen  was  elected  sheriff  of  Charleston,  S.  C,  for 
the  term  of  four  years,  and  on  the  19th  of  November,  1872,  took  the  oath  of  office  and  entered  upon  the 
duties  of  the  same,  which  office  he  now  holds.  These  offices  are,  in  their  nature,  incompatible  with  the 
office  of  Member  of  this  House,  and  are  expressly  declared  to  be  so  by  the  constitution  of  South  Carolina. 

Some  of  the  committee  are  of  opinion  that  the  acceptance  of  these  offices  by  Mr.  Bowen  disqualifies 
him  from  the  further  prosecution  of  a  claim  to  a  seat  in  this  House,  and  from  taking  a  seat  therein,  if 
he  shall  be  found  to  have  been  duly  elected. 

The  committee  are  unanimous  in  finding  all  the  facts  herein  reported. 

They  are  not  unanimous  in  holding  that  each  one  of  the  reasons  aforesaid  is  sufficient  of  itself  to 
disqualify  the  contestant. 

But  they  are  unanimously  of  opinion,  on  the  whole  case,  that  Mr.  Bowen  is  not  entitled  to  the  seat. 

Therefore  the  committee  recommended  resolutions  declaring  that  neither  the 
contestant  nor  the  sitting  Member  was  entitled  to  the  seat. 

The  report  was  considered  in  the  House  on  January  24,  1873.'  The  contestant, 
Mr.  Bowen,  urged  in  argument  that  the  acceptance  of  incompatible  offices  should 
not  bar  him  out  since  the  doors  of  the  House  were  not  open  to  him.  When  it 
should  be  decided  that  he  was  entitled  to  admission  to  the  House  he  might  then 
resign  his  State  offices  and  elect  the  seat  in  the  House.  He  cited  the  cases  of  Her- 
rick,  Mumford,  Blair  and  Schenck.  This  argument  impressed  the  House  with  its 
strength,  and  Mr.  Hoar  expressly  stated  that  the  committee  relied  entirely  on  the 
fact  that  an  investigation  of  the  election  on  its  merits  rendered  it  impossible  to 
determine  who  was  elected.  It  is  evident  that  the  House  also  preferred  to  decide 
the  case  on  that  basis,  rather  than  on  the  basis  of  qualffications. 

The  resolutions  were  adopted  without  division,  and  so  the  seat  was  declared 
vacant. 

506.  In  1815  the  House  questioned  the  constitutional  right  of  a 
Member  to  accept  an  appointment  as  commissioner,  the  office  being 
created  under  the  terms  of  a  treaty  during  the  period  of  his  membership. — 
On  December  11,  1815,-  Mr.  Peter  B.  Porter,  of  New  York,  appeared  and  took  his 
seat  in  the  House.     He  had  not  been  a  Member  of  the  preceding  Congress. 

On  January  2.3,  1816,^  the  Speaker  laid  before  the  House  a  letter  from  Mr. 
Porter,  stating  that  he  had  transmitted  his  resignation  as  a  Member  to  the  executive 
of  New  York. 

On  February  9,  1816,*  Mr.  John  Randolph,  of  Virginia,  afford  this  resolution: 

Resolved,  That  a  committee  be  appointed  to  inquire  whether  the  appointment  to  and  acceeptance 
by  the  Hon.  Peter  B.  Porter,  late  a  Member  of  this  House  from  the  State  of  New  York,  of  the  office  of 
commissioner  under  the  late  treaty  of  Ghent  is  in  contravention  of  the  Constitution  of  the  United  States. 

Considerable  debate  arose  over  the  resolution.  Mr.  John  Forsyth,  of  Georgia, 
urged  that  Mr.  Porter  had  been  elected  for  the  term  beginning  March  4,  1815,  and 
terminating  March  4,  1817.  The  office  which  he  accepted  had  existed,  if  it  existed 
at  all,  from  the  day  of  the  exchange  of  the  ratifications  of  the  treaty  of  peace — 

'Journal,  p.  238;  Globe,  pp.  842-847.  'Journal,  p.  212. 

^ First  session  Fourteenth  Congress,  Journal,  p.  32.  ■'Journal,  p.  303;  Annals,  pp.  940-94S. 


636  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    506 

February  18,  1815.  It  was  not  pretended  that  commissioners  for  any  purpose  of 
foreign  intercourse  as  regulated  by  treaty  might  not  be  created  by  the  President  and 
Senate.  The  sanction  of  the  House  was  required  only  to  make  an  appropriation  to 
pay  them  for  their  services.  If  their  services  were  to  be  compensated  by  any  act 
that  Mr.  Porter  had  assisted  in  passing,  there  would  be  some  evidence  of  a  violation 
of  the  Constitution,  but  no  such  fact  existed.  Mr.  Robert  Wright,  of  Maryland,  said 
that  the  provision  of  the  Constitution*  was  intended  to  guard  against  the  creation 
of  office  and  the  increase  of  emoluments  by  Members  of  Congress  for  the  benefit  of 
themselves.  The  office  in  question  was  not  the  kind  contemplated  by  the  Constitu- 
tion. It  was  a  ministerial,  not  a  civil,  office,  made  necessary  by  the  treaty,  but  of 
which  the  obligation  of  the  President  to  appoint  was  imposed  by  the  Constitution. 

On  the  other  hand,  Mr.  Randolph  urged  that  the  House  should  be  very  jealous 
of  any  invasion  of  these  guaranties  of  the  Constitution,  and  appealed  to  the  older 
Members,  especially  Mr.  Richard  Stanford,  of  North  Carolina,  the  "father  of  the 
House,"  who  responded  by  urging  the  Members  "to  avoid  the  crumbs  of  office 
from  the  Executive,  and  to  look  to  the  people  only,  to  whom  they  owed  their 
appointments,  as  the  source  of  honor." 

Mr.  Randolph's  resolution  was  then  agreed  to,  yeas  70,  nays  55,  and  Messrs. 
Randolph,  Thomas  P.  Grosvenor,  of  New  York,  Forsyth,  John  G.  Jackson,  of 
Vriginia,  and  John  B.  Yates,  of  New  York,  were  appointed  the  committee.  They 
made  no  report.^ 

'  Section  6  of  Article  I,  which  provides:  "No  Senator  or  Representative  shall,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall  have  been  increased  during  such  time;  and 
no  person  holding  any  office  under  the  United  States,  shall  be  a  Member  of  either  House  dming  his 
continuance  in  office." 

^  See  also  opinion  of  the  Comptroller  of  the  Treasury  as  to  the  payment  of  salary  to  Matt.  W. 
Ransom,  as  minister  to  Mexico,  the  emoluments  of  the  office  having  been  increased  while  he  was  a 
Senator  of  the  United  States  from  North  Carolina,  and  the  appointment  and  confirmation  by  the  Senate 
and  the  signing  and  sealing  of  his  commission  having  taken  place  before  the  expiration  of  his  term  as 
Senator.     (Vol.  II,  Decisions  of  Comptroller,  p.  129.) 


Chapter  XVII* 
TIMES,  PLACES,  AND  MANNER  OF  ELECTION. 


1.  Provisions  of  Constitution  and  statutes.     Sections  507-616.' 

2.  Power  of  State  executive  to  call  elections  to  fill  vacancies.     Sections  617,  618.' 

3.  Time  fixed  by  schedules  of  new  State  constitutions.     Sections  519,  630.' 

4.  Disputes  as  to  legal  day  of  election.     Sections  621-625. 

5.  Failure  of  Territorial  legislature  to  prescribe  manner,  etc.     Sections  526,  627. 


507.  The  times,  places,  and  manner  of  elections  of  Representatives 
are  prescribed  by  the  State  legislatures,  but  Congress  may  make  or  alter 
such  regulations. 

Reference  to  discussions  of  the  constitutional  provision  as  to  fixing 
the  time,  etc.,  of  elections. 

Section  4  of  Article  I  of  the  Constitution  provides : 

Section  4.  Thc'  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives 
shall  be  prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress  may  at  any  time  by  law 
make  or  alter  such  regulations,  except  as  to  the  places  of  chusing  Senators.' 

*  See  Volume  VI,  Chapter  CLIX. 

'  Election  must  be  by  the  people  and  not  by  lot.     Section  775  of  this  volume. 

^  Discussion  of  the  functions  of  the  State  executive.     Section  312  of  this  volume. 

'  Relative  powers  of  State  constitutional  conventions  and  legislatures  in  fixing  times,  places,  ajid 
manner.     Sections  363,  367,  388  of  this  volume;  sections  846,  856,  1133  of  Volume  II. 

Is  the  establishing  of  districts  a  prescribing  of  "manner?"     Sections  310,  311  of  this  volume. 

Respective  powers  of  Congress  and  the  States  discussed.     Section  313  of  this  volume. 

Argument  that  State  laws  are,  as  to  Congressional  elections,  really  Federal  laws.  Section  1105  of 
Volume  II. 

Federal  statutes  in  relation  to  State  laws.     Section  961  of  Volume  II. 

The  Federal  Constitution  the  source  of  the  States'  power.     Sections  947,  959  of  Volume  II. 

May  the  State  legislature  delegate  the  power  of  prescribing  the  "manner?"  Section  975  of 
Volume  II. 

'  The  history  and  intent  of  this  clause  of  the  Constitution  have  been  discussed  elaborately  in  House 
and  Senate  in  connection  with  legislation.  Thus  in  the  Fifty-first  Congress,  in  connection  with  a  bill 
(H.  R.  11046)  relating  to  Federal  regulations  for  elections,  Mr.  Henry  Cabot  Lodge,  of  Massachusetts,  from 
the  Committee  on  the  Election  of  President,  Vice-President,  and  Representatives  in  Congress,  submitted 
a  report  (House  Report  No.  2493,  first  session  Fifty-first  Congress)  discussing  the  meaning  of  the  clause. 
Mr.  C.  R.  Buckalew,  of  Pennsylvania,  submitted  minority  views  in  connection  with  this  report.  In 
reference  especially  to  a  limited  construction  of  the  clause  the  minority  views  submitted  by  Mr.  Henry 
St.  George  Tucker,  of  Virginia,  from  the  same  committee,  in  connection  with  the  bill  [H.  R.  7712]  discussed 
the  subject  very  elaborately.  (House  Report  No.  1882,  first  session  Fifty-first  Congress.)  In  1893,  in 
the  Fifty-third  Congress,  the  clause  was  again  examined  fully  in  connection  with  the  biU  (H.  R.  2331)  to 
repeal  certain  portions  of  the  Federal  election  laws.  Mr.  Tucker  in  this  case  submitted  the  report,  and 
Mr.  Martin  N.  Johnson,  of  North  Dakota,  submitted  the  minority  views.     (Report  No.  18,  first  session 

637 


638 


PRECEDENTS    OF   THE   HOUSE   OF   EEPKESENTATIVES. 


§  508 


508.  A  Federal  law  fixes  the  Tuesday  next  after  the  first  Monday  of 
November  of  every  second  (even  numbered)  year  for  election  of  Mem- 
bers and  Delegates. 

Certain  States,  by  special  exception,  elect  their  Members  on  a  day 
other  than  the  day  fixed  generally  by  Federal  statute. 

Section  25  of  the  Revised  Statutes,  embodying  the  laws  of  February  8,  1872, 

and  March  3,  1875,  provides: 

The  Tuesday  next  after  the  first  Monday  in  November,  in  the  year  1876,  is  established  as  the  day, 
in  each  of  the  States  and  Territories  of  the  United  States,  for  the  election  of  Representatives  and  Dele- 
gates to  the  Forty-fifth  Congress;  and  the  Tuesday  next  after  the  first  Monday  of  Kovember,  in  every 
second  year  thereafter,  is  established  as  the  day  for  the  election,  in  each  of  said  States  and  Territories, 
of  Representatives  and  Delegates  to  the  Congress  commencing  on  the  fourth  day  of  March  next  thereafter. 

By  the  act  of  March  3,  1875,*  the  above  provision  was  modified — 

so  as  not  to  apply  to  any  State  that  has  not  yet  changed  its  day  of  election  and  whose  constitution  must 
be  amended  in  order  to  effect  a  change  in  the  day  of  the  election  of  State  officers  in  said  State. - 

509.  Territorial  laws  fix  the  times,  places,  and  manner  of  election  of 
Delegates. — Section  1863  of  the  Revised  Statutes  provides: 

The  first  election  of  a  Delegate  in  any  Territory  for  which  a  temporary  government  is  hereafter 
provided  by  Congress  shall  be  held  at  the  time  and  places  and  in  the  manner  the  governor  of  such 
Territory  may  direct,  after  at  least  sixty  days'  notice,  to  be  given  by  proclamation;  but  at  all  sub- 
sequent elections  therein,  as  well  as  at  all  elections  for  a  Delegate  in  organized  Territories,  such  time, 
places,  and  manner  of  holding  the  election  shall  be  prescribed  by  the  law  of  each  Territory. 

510.  A  Federal  law  provides  that  votes  for  Representatives  to  be  valid 
must  be  by  written  or  printed  ballot  or  by  voting  machine  indorsed  by 
State  law. — Section  27  of  the  Revised  Statutes,  dating  from  February  28,  1871, 
and  May  30,  1872,  provides: 

All  votes  for  Representatives  in  Congress  must  be  by  written  or  printed  ballot,  and  all  votes  received 
or  recorded  contrary  to  this  section  shall  be  of  no  effect.  But  this  section  shall  not  apply  to  any  State 
voting  otherwise  whose  election  for  Representatives  occurs  previous  to  the  regular  meeting  of  its  legis- 
lature next  after  the  twenty-eighth  day  of  February,  1871. 

Fifty-third  Congress.)     The  Senate  report  at  the  next  session  merely  quoted  the  House  report.     (Senate 
Report  No.  113,  second  session  Fifty-third  Congress.) 

In  the  Forty-fifth  Congress  an  ambiguity  in  Colorado  law  as  to  the  date  of  the  election  led  to  the 
contest  of  Patterson  and  Belford.  In  order  to  remove  all  further  doubt  Congress  passed  a  law,  approved 
June  11,  1878,  "designating  the  times  for  the  election  of  Representatives  to  the  Forty-sixth  and  succeed- 
ing Congresses  from  the  State  of  Colorado."  (20  Stat.  L.,  p.  112,  second  session  Forty-fifth  Congress, 
Record,  pp.  4082,  4083.) 

Also  in  the  same  Congress  an  act  (approved  June  19,  1878)  (2  Stat.  L.,  p.  174)  was  passed  to  regulate 
the  election  in  North  Carolina  in  the  coming  Congressional  elections,  specifying  that  an  election  con- 
ducted by  the  sheriffs  or  other  duly  appointed  persons  in  accordance  with  certain  specified  North  Carolina 
laws  should  be  legal.  See  history  of  bill,  H.  R.  4931,  second  session  Forty-fifth  Congress,  for  further 
explanation. 

In  1879,  in  connection  with  proposed  legislation  to  repeal  the  Federal  election  laws,  the  subject 
was  discussed.  See  Record,  first  session  Forty-sixth  Congress,  p.  513  (Senator  Teller's  speech);  also 
President  Hayes's  veto  message  (first  session  Forty-sixth  Congress,  Record,  p.  1710). 

The  Supreme  Court  has  also  considered  this  clause.     See,  for  instances,  ex  parte  Siebold,  100  U.  S., 
371;  ex  parte  Clarke,  100  V.  S.,  399;  ex  parte  Yarbrough,  110  U.  S.,  651;  in  re  Coy,  127  U.  S.,  731. 
'18  Stat.  L.,  p.  400. 
2  The  States  of  Maine,  Vermont,  and  Oregon  elect  under  the  law  providing  the  exceptions. 


§511 


TIMES,   PLACES,    AND    MANNER    OF    ELECTION. 


639 


On  FebruaxY  14,  1899,'  the  above  section  was  amended  to  read  as  follows: 

All  votes  for  Representatives  in  Congress  must  be  by  written  or  printed  baUot  or  voting  machine, 
the  use  of  which  has  been  duly  authorized  by  the  State  law;  and  all  votes  received  or  recorded  con- 
trary to  this  section  shall  be  of  no  effect.^ 

511.  A  Federal  statute  provides  that  all  citizens  of  the  United  States 
qualified  to  vote  shall  be  allowed  to  do  so  without  distinction  of  race,  etc. — 
Section  2004  of  the  Revised  Statutes,  which  dates  from  May  31,  1870,  provides: 

All  citizens  of  the  United  States  who  are  otherwise  qualified  by  law  to  vote  at  any  election  by 
the  people  in  any  State,  Territorj',  district,  county,  city,  parish,  township,  school  district,  munici- 
pality, or  other  territorial  subdi\-ision,  shall  be  entitled  and  allowed  to  vote  at  all  such  elections,  with- 
out distinction  of  race,  color,  or  previous  condition  of  servitude;  any  constitution,  law,  custom,  usage, 
or  r^ulation  of  any  State  or  Territory,  or  by  or  under  its  authority,  to  the  contrary  notwithstanding.' 

512.  No  officer  of  the  Army  or  Navy  shall  prescribe  qualifications  of 
voters  or  interfere  with  the  suffrage. — Section  2003  of  the  Revised  Statutes 
provides : 

No  oflBcer  of  the  Army  or  Navy  of  the  United  States  shall  prescribe  or  fix,  or  attempt  to  prescribe 
or  fix,  by  proclamation,  order,  or  otherwise,  the  qualifications  of  voters  in  any  State,  or  in  any  manner 
interfere  with  the  freedom  of  any  election  in  any  State  or  with  the  exercise  of  the  free  right  of  sufirage 
in  any  Stated 

Section  5530  of  the  Revised  Statutes,  dating  from  February  25,  1865,  provides: 

Every  officer  of  the  Army  or  Navy  who  prescribes  or  fijxes,  or  attempts  to  prescribe  or  fix,  whether 
by  proclamation,  order,  or  otherwise,  the  qualifications  of  voters  at  any  election  in  any  State  shall  be 
punished  as  provided  in  the  preceding  section  [section  5529].* 

513.  A  Federal  law  provides  a  penalty  against  armed  interference  of 
Federal  troops  at  an  election. — Section  55ii8  of  the  Revised  Statutes,  dating 
from  February  25,  1865,  provides: 

Every  officer  of  the  Army  or  Navy,  or  other  person  in  the  civil,  militarj-,  or  naval  service  of  the 
United  States,  who  orders,  brings,  keeps,  or  has  under  his  authority  or  control,  any  troops  or  armed  men 
at  any  place  where  a  general  or  special  election  is  held  in  any  State,  unless  such  force  be  necessarj-  to 
repel  armed  enemies  of  the  United  States  or  to  keep  the  peace  at  the  polls,  shall  be  fined  not  more  than 
five  thousand  dollars  and  suffer  imprisonment  at  hard  labor  not  less  than  three  months  nor  more  than 
five  years. 

'30  Stat,  L.,  p.  836. 

^  The  Reposed  Statutes,  sections  14  to  17,  inclusive,  pro\-ide  for  the  times  and  manner  of  election 
of  Senators. 

'The  following  decisions  relate  to  the  above:  2  Abb.  U.  S.,  120;  McKay  r.  Campbell,  1  Saw., 
374;  U.  S.  V.  Reese  et  al.,  92  U.  S.,  214;  U.  S.  v.  Cruikshank  et  al.,  92  U.  S.,  542. 

The  above  section  was  originally  the  first  section  of  the  act  of  May  30,  1870,  "to  enforce  the  rights 
of  citizens  of  the  United  States  to  vote  in  the  several  States  of  this  Union,  and  for  other  purposes." 
(16  Stat.  L.,  p.  140.)  This  section  simply  declared  a  right,  without  providing  for  its  enforcement. 
Other  sections  of  the  act  pro\'ided  penalties  for  the  denial  of  the  right.  The  decisions  of  the  court 
impaired  somewhat  the  efficiency  of  the  act,  and  in  the  Fifty-third  Congress  the  sections  of  the  statutes 
containing  the  efficient  pro\'isions  of  the  act  were  repealed.  (28  Stat.  L.,  pp.  36,  37.)  The  declaratory 
section  was  permitted  to  remain,  however. 

*  This  law  dates  from  February  25,  1865. 

'  See  section  514  of  this  chapter. 


640  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   514 

514.  A  penalty  is  provided  against  interference  by  military  or  naval 
force  in  the  exercise  of  the  right  of  suffrage  and  conduct  of  elections. — 

Section  5529  of  the  Revised  Statutes,  dating  from  February  25,  1865,  provides: 

Every  officer  or  other  person  in  the  military  or  naval  service  who,  by  force,  threat,  intimidation, 
order,  advice,  or  otherwise,  prevents,  or  attempts  to  prevent,  any  qualified  voter  of  any  State  from  freely 
exercising  the  right  of  suffrage  at  any  general  or  special  election  in  such  State  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  at  hard  labor  not  more  than  five  years.' 

Section  5531  of  the  Revised  Statutes,  dating  from  February  25,  1865,  provides: 

Every  officer  or  other  person  in  the  military  or  naval  service  who,  by  force,  threat,  intimidation, 
order,  or  otherwise,  compels,  or  attempts  to  compel,  any  officer  holding  an  election  in  any  State  to  receive 
a  vote  from  a  person  not  legally  qualified  to  vote,  or  who  imposes,  or  attempts  to  impose,  any  regulations 
for  conducting  any  general  or  special  election  in  a  State  different  from  those  prescribed  by  law,  or  who 
interferes  in  any  manner  with  any  officer  of  an  election  in  the  discharge  of  his  duty  shall  be  punished 
as  provided  in  section  5529  [of  the  Revised  Statutes]. 

515.  The  executive  of  a  State  issues  writs  of  election  to  fill  vacancies 
in  its  representation  in  the  House. — Section  2  of  article  1  of  the  Constitution, 
provides: 

When  vacancies  happen  in  the  representation  from  any  State,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies. 

516.  A  Federal  law  empowers  the  States  and  Territories  to  provide  by 
law  the  times  of  elections  to  fill  vacancies  in  the  House. — Section  26  of  the 
Revised  Statutes,  dating  from  February  2,  1872,  provides: 

The  time  for  holding  elections  in  any  State,  District,  or  Territory  for  a  Representative  or  Delegate 
to  Ml  a  vacancy,  whether  such  vacancy  is  caused  by  a  failure  to  elect  at  the  time  prescribed  by  law,  or 
by  the  death,  resignation,  or  incapacity  of  a  person  elected,  may  be  prescribed  by  the  laws  of  the  several 
States  and  Territories  respectively. 

517.  The  Pennsylvania  election  case  of  John  Hoge,  in  the  Eighth 
Congress. 

An  election  to  fill  a  vacancy,  called  by  the  governor  in  pursuance  of 
constitutional  authority,  was  held  valid  although  no  State  law  prescribed 
time,  place,  or  manner  of  such  election. 

In  1804,^  the  House  considered  a  petition  alleging  the  undue  election  and  return 
of  Mr.  John  Hoge,  of  Pennsylvania,  who  claimed  a  seat  as  successor  of  William 
Hoge,  resigned.  On  December  19,  1804,  the  Committee  on  Elections,  in  their 
report  in  favor  of  John  Hoge,  found  the  following  state  of  facts: 

That  William  Hoge,  Member  of  the  House  of  Representatives  for  the  Eighth  Congress,  having,  by 
letter  to  the  governor  of  the  State  of  Pennsylvania,  dated  the  15th  of  October,  resigned  his  seat  in  Con- 
gress, the  governor,  in  pursuance  of  the  provisions  made  in  the  second  section  of  the  first  article  of  the 
Constitution  of  the  United  States,  issued  a  writ  of  election  to  supply  the  vacancy  which  had  thus  taken 
place.     That  the  said  writ  was  issued  on  the  22d  day  of  October,  and  the  election  directed  to  be  held  on 

'  Sections  5507  to  5510  of  the  Revised  Statutes,  inclusive,  provide  penalties  for  punishment  of  persons 
who,  individually  or  in  conspiracy,  influence  or  prevent  by  bribery  or  intimidation  the  exercise  of  the 
right  of  suffrage  by  those  to  whom  it  is  guaranteed  by  the  fifteenth  amendment. 

Sections  5516  to  5519  (the  Hains  case  (106  U.  S.,  629)  involves  the  constitutionality  of  section  5519), 
inclusive,  provide  penalties  for  obstructing  the  enforcement  of  the  Civil  Rights  Law,  and  for  denying  to 
persons  offices  or  privileges  thereunder. 

^  Second  session  Eighth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  135. 


k 


§    518  TIMES,   PLACES,    AND    MANNER    OF    ELECTION.  641 

the  2d  day  of  November,  eleven  days  after  the  date  of  the  said  writ;  that  the  writ  was  brought  by  the 
mail  to  the  prothonotary's  office  in  Washington  County  on  the  30th  of  October,  but  not  proclaimed  by  the 
sheriff  till  the  31st. 

It  appears  to  the  committee  that,  though,  by  the  second  section  of  the  first  article  of  the  Constitu- 
tion of  the  United  States,  it  is  made  the  duty  of  the  executive  authority  of  the  respective  States  to  issue 
writs  of  election  to  fiU  vacancies,  yet,  by  the  fourth  section  of  the  said  article,  it  is  made  the  duty  of  the 
legislature  of  each  State  to  prescribe  the  times,  places,  and  manner  of  holding  such  elections.  It  appears, 
however,  that  several  elections  to  supply  vacancies  in  Congress  have  been  held  heretofore  in  Pennsyl- 
vania; yet,  on  examining  the  laws  of  that  State,  it  appears  that  no  law  exists  prescribing  the  times, 
places,  and  manner  of  holding  elections  to  supply  such  vacancies  as  may  happen  in  the  representation 
in  Congress;  and,  consequently,  if  the  election  of  John  Hoge  is,  on  this  account,  set  aside,  no  election 
can  be  held  to  supply  the  vacancy  until  the  legislature  of  the  State  enact  a  law  for  that  purpose. 

The  committee  go  on  to  show  that  the  Pennsylvania  law  for  general  election 
of  Representatives  to  Congress  required  a  notice  of  thirty  days.  In  this  special 
election  the  governor  directed  the  election  to  be  held  on  the  same  day  on  wliich  the 
electors  of  President  and  Vice-President  were  to  be  chosen.  And  although  it  so 
happened  that  the  notice  was  in  effect  but  two  days,  the  committee  found  no  evi- 
dence of  abuse  in  the  maimer  of  conducting  the  election.  Therefore  they  reported 
the  opinion  that  John  Hoge  was  entitled  to  a  seat  in  the  House. 

On  December  19,  after  full  debate,  the  recommendation  of  the  committee  was 
concurred  in,  by  a  vote  of  69  yeas  to  38  nays,  and  John  Hoge  was  admitted  to  his 
seat. 

518.  The  Mississippi  election  cases  of  Gholson,  Claiborne,  Prentiss, 
and  Word  in  the  Twenty-fifth  Congress. 

Discussion  of  power  of  a  State  executive  to  call  an  election  to  fill  a 
vacancy,  although  the  State  law  did  not  provide  for  the  contingency. 

Examination  of  the  term  "  vacancy  "  as  used  in  the  Federal  Con- 
stitution to  empower  a  State  executive  to  issue  writs  for  an  election. 

An  instance  wherein  a  State  law  prescribed  a  day  of  election  which 
arrived  after  the  beginning  of  the  term  of  the  Congress  affected. 

The  House  declined  to  give  prima  facie  effect  to  credentials  regular  in 
form  but  relating  to  seats  already  occupied. 

The  House  gave  prima  facie  effect  to  credentials,  although  there  ap- 
peared a  question  as  to  the  regularity  of  the  writs  of  the  election. 

In  a  case  wherein  a  contestant  appeared  after  a  determination  of  final 
right  to  a  seat  by  the  House  the  sitting  Member  was  unseated  and  a 
vacancy  declared. 

There  being  rival  claimants  to  a  seat,  elected  on  days  different  but 
each  constitutionally  fi:xed,  the  House  declared  the  seat  vacant. 

On  September  25,  1837,^  the  Committee  on  Elections  reported  in  the  case  of 
Messrs.  Gholson  and  Claiborne,  of  Mississippi. 

The  law  of  Mississippi  provided  that  Representatives  in  Congress  should  be 
elected  once  in  every  two  years,  to  be  computed  from  the  first  Monday  in  November, 
1833.  And,  acting  in  pursuance  of  this  law,  the  people  of  Mississippi  would,  on  the 
first  Monday  of  November,  1837,  elect  Representatives  for  the  Congress  actually 

'  First  session  Twenty-fifth  Congress,  1st  Bartlett,  p.  9;  Globe,  pp.  95,  97;  Journal,  p.  142. 
5994— VOL  1—07 41 


642  PRECEDENTS    OF    THE    HOUSE    OF    EEPRESENTATIVES.  §   518 

begiiming  March  4, 1837,  but  not  to  assemble,  in  the  ordinary  course,  until  December, 
1837. 

But  the  President,  by  proclamation  of  May  15,  1837,  called  an  extra  session  of  the 
Twenty-fifth  Congress,  to  meet  September  4,  1837.  Thus  it  happened  that  Missis- 
sippi had  no  Representatives,  the  terms  of  the  Representatives  in  the  Twenty-fourth 
Congress  having  expired  March  4,  1837. 

The  governor  of  Mississippi — there  being  no  State  law  providing  for  such  a  con- 
tingency— issued  his  proclamation  under  the  clause  of  the  Constitution  of  the  United 
States: 

When  vacancies  happen  in  the  representation  from  any  State,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies. 

The  governor  accordingly  issued  his  writ  calling  an  election  for  the  third  Monday 
in  July  "for  two  Representatives  to  Congress,  to  fill  said  vacancy,  imtil  superseded 
by  the  Members  to  be  elected  at  the  next  regular  election  on  the  first  Monday  and  day 
following  in  November  next." 

When  the  House  organized,  Messrs.  Samuel  J.  Gholson  and  John  F.  H.  Claiborne 
appeared  with  credentials  showing  their  election  at  the  election  called  in  pursuance 
of  the  governor's  writ. 

Objection  to  their  taking  their  seats  was  overruled,  and  the  question  was  referred 
to  the  Committee  on  Elections. 

Two  objections  were  urged  before  the  committee.  In  the  first  place,  the  point 
was  raised  in  relation  to  the  power  of  the  governor  to  restrict  the  terms  of  those 
elected  to  the  time  of  the  next  regular  election.  The  committee,  with  one  Member 
only  dissenting,  held  that  the  writ  of  election  might  not  make  such  restriction,  and 
that  the  two  Members  were  elected  for  the  whole  term  of  the  Congress.  They  did 
not  conceive,  moreover,  that  the  election  was  invalidated  by  the  illegal  clause  in 
the  writ. 

The  second  objection  occasioned  considerable  controversy,  involAring  the  mean- 
ing of  the  word  "vacancy  "  as  used  by  the  Constitution  in  this  connection.  The  com- 
mittee were  divided,  a  majority  holding  that  in  this  case  a  vacancy  existed  as  much 
as  if  it  had  been  occasioned  by  death  or  resignation.  The  committee  were  of  the 
opinion  that  the  Constitution  authorized  the  executive  power  of  the  States,  respec- 
tively, to  order  the  filling  of  all  vacancies  which  have  actually  happened,  whether  by 
death,  resignation,  or  expiration  of  the  terms  of  Members  previous  to  the  election  of 
their  successors.  The  word  "happen  "  made  use  of  in  the  Constitution,  was  not  neces- 
sarily confined  to  fortuitous  or  unforeseen  events,  but  was  equally  applicable  to  all 
events  which  by  any  means  occur  or  come  to  pass,  whether  foreseen  or  not;  and  as  in 
this  case  confessedly  the  vacancy  existed,  it  might  properly  be  said  to  have  happened, 
although  the  means  or  circumstances  by  which  it  was  brought  about  may  have  been 
foreseen. 

Therefore  the  committee  reported  the  following  resolution,  which,  on  October  3, 
was  agreed  to  by  the  House — yeas  118,  nays  101 : 

Resolved,  That  Samuel  J.  Gholson  and  John  F.  H.  Claiborne  are  duly  elected  Members  of  the 
Twenty-fifth  Congress,  and,  as  such,  are  entitled  to  their  seats. 


&   518  TIMES,   PLACES,   AND    MANNER    OF    ELECTION.  643 

On  the  first  Monday  of  November — the  time  for  the  regular  election — Messrs. 
Gholson  and  Claiborne  announced  that  they  were  not  candidates,  considering  that 
their  reelection  was  not  necessary,  in  view  of  the  decision  of  the  House.  Neverthe- 
less, there  was  an  election  for  Congress,  Messrs.  S.  S.  Prentiss  and  Thomas  J.  Word 
contesting.  Votes  were  cast  for  Messrs.  Gholson  and  Claiborne,  however,  although 
they  were  not  candidates.  Messrs.  Prentiss  and  Word  received  large  majorities  over 
Messrs.  Gholson  and  Claiborne ;  but  the  general  state  of  the  poll  indicated  the  proba- 
bihty  that  the  two  latter  gentlemen  would  have  been  elected  had  they  entered  the 
contest. 

The  governor  of  the  State  issued  credentials  to  Messrs.  Prentiss  and  Word, 
which  were  presented  soon  after  the  opening  of  the  regular  session,  on  December 
27,  1837.' 

The  subject  was,  after  debate,  referred  to  the  Committee  on  Elections,  Messrs. 
Prentiss  and  Word  not  being  sworn  in. 

On  January  12,  1838,^  the  committee  reported  the  facts  of  the  case,  and  on 
January  16^  consideration  by  the  House  began,  when  Mr.  Isaac  H.  Bronson,  of  New 
York,  offered  the  following: 

Resolved,  That  Sergeant  S.  Prentiss  and  Thomas  J.  Word  are  not  Members  of  the  Twenty-fifth  Con- 
gress and  are  not  entitled  to  seats  in  this  House  as  such. 

On  January  31  *  this  resolution  was  amended  by  striking  out  all  after  the  word 
"Resolved"  and  inserting: 

That  the  resolution  of  this  House  on  the  3d  of  October  last,  declaring  that  Samuel  J.  Gholson  and 
John  F.  H.  Claiborne  were  duly  elected  Members  of  the  Twenty-fifth  Congress  be  rescinded;  and  that 
John  F.  H.  Claiborne  and  Samuel  J.  Gholson  are  not  duly  elected  Members  of  the  Twenty-fifth  Congress. 

This  amendment  was  agreed  to— yeas  119,  nays  112. 

On  February  1  a  motion  was  made  to  further  amend  the  resolution  as  amended 
by  adding  the  following: 

Resolved,  That  Sergeant  S.  Prentiss  and  Thomafl  J.  Word  are  not  Members  of  the  Twenty-fifth 
Congress. 

On  February  5^  that  resolution  was  carried — ^yeas  118,  nays  117,  the  Speaker 
voting  in  the  affirmative  to  break  the  tie. 

A  motion  was  agreed  to  to  further  amend  by  adding  the  following: 

Resolved,  That  the  Speaker  of  the  House  do  communicate  a  copy  of  the  above  resolutions  to  the 
governor  of  the  State  of  Mississippi. 

The  question  then  recurred  on  agreeing  to  the  original  amended  resolution  as 
amended  by  the  addition  of  the  second  and  third  resolutions.  A  division  of  the 
question  being  demanded,  the  first  resolution,  rescinding  the  decision  of  October  3 
and  unseating  Messrs.  Gholson  and  Claiborne,  was  agreed  to — yeas  121,  nays  113. 

'  Second  session  Twenty-fourth  Congress,  Journal,  p.  150;  Globe,  p.  56. 
2  Journal.  D.  257. 


^Journal,  p.  257. 

^Journal,  p.  289;  Globe,  p.  104. 

<  Journal,  p.  338;  Globe,  p.  150. 

'Journal,  p.  354;  Globe,  p.  158. 


644  PRECEDENTS   OF   THE   HOUSE    OF   KEPKESENTATIVES.  §  519 

Then  the  second  resolution,  declaring  Messrs.  Prentiss  and  Word  not  entitled 
to  seats,  was  agreed  to — ^yeas  118,  nays  116. 

The  third  resolution  was  agreed  to — yeas  122,  nays  88.' 

519.  The  Minnesota  election  case  of  Phelps,  Cavanaugh,  and  Becker, 
in  the  Thirty-fifth  Congress. 

Objection  being  made  to  the  administration  of  the  oath  to  a  Member- 
elect,  the  Speaker  held  that  the  question  should  be  decided  by  the  House 
and  not  by  the  Chair. 

The  House  declined  to  give  immediate  prima  facie  effect  to  creden- 
tials when  historic  facts  impeached  the  authority  of  the  governor  and  the 
legality  of  the  election. 

The  House  gave  prima  facie  effect  to  the  perfect  credentials  of  a  State 
delegation,  declining  at  that  time  to  inquire  whether  or  not  the  election 
was  invalidated  by  choice  of  three  persons  for  two  seats. 

The  House  sometimes  seats  Members-elect  on  their  prima  facie 
showing,  stipulating  that  this  shall  not  preclude  examination  as  to  the 
final  right. 

Representatives  elected  at  the  time  the  constitution  of  a  new  State 
was  adopted  were  seated  after  the  State  was  admitted  to  the  Union. 

Indorsement  of  the  principle  that  a  State  may  elect  Representatives 
on  a  general  ticket,  even  though  the  law  of  Congress  requires  their  elec- 
tion by  districts. 

On  May  13,  1858,^  Mr.  Henry  M.  Phillips,  of  Pennsylvania,  announced  the 
presence  of  Representatives  from  the  recently  admitted  State  of  Minnesota  and 
moved  that  they  be  sworn  in,  at  the  same  time  presenting  the  following  credentials: 

I,  Samuel  Medary,  governor  of  Minnesota,  hereby  certify  that  at  a  general  election  held  on  the 
13th  day  of  October,  1857,  under  the  constitution  adopted  by  the  people  of  Minnesota  preparatory  to 
their  admission  into  the  Union  as  a  State,  W.  W.  Phelps  received  a  majority  of  the  votes  cast  at  said 
election  as  one  of  the  Members  of  the  United  States  House  of  Representatives  of  the  Thirty-fifth  Con- 
gress from  the  State  of  Minnesota;  and  by  an  official  canvass  of  said  votes  was,  on  the  17th  day  of  Decem- 
ber, 1857,  declared  duly  elected  one  of  said  Members. 

{Great  Seal  i  In  testimony  whereof  I  have  hereunto  set  my  hand,  and  caused  to   be  affixed 

of  i    the  great  seal  of  Minnesota,  at  the  city  of  St.  Paul,  this  18th  day  of  December,  1857. 

Minnesota.)  S.  Medakt. 

A  similar  certificate  was  presented  for  James  M.  Cavanaugh. 

Mr.  John  Sherman,  of  Ohio,  objected  to  the  motion  to  swear  in  the  two  gentle- 
men. The  constitution  of  Minnesota  had  provided  for  the  election  of  three  Eepre- 
sentatives,  while  only  two  had  appeared.  Furthermore,  Samuel  Medary,  who 
signed  the  certificates,  was  no  longer  governor  of  Minnesota.  He  had  been  Ter- 
ritorial governor,  but  the  only  mode  by  which  the  House  could  judge  was  by  the 
certificate  of  the  executive  officer  of  the  State,  tmder  the  seal  of  the  State. 

'  Besides  the  debates  printed  in  the  Globe  on  the  days  the  subject  was  considered,  several  able 
speeches  are  found  in  the  Appendix  (pages  68,  93,  124,  127),  wherein  the  constitutional  features  are 
discussed. 

2  First  session  Thirty-fifth  Congress,  Journal,  p.  792;  Globe,  p.  2108. 


§  519  TIMES,     PLACES,    AND    MANNER   OF    ELECTION.  645 

Question  being  raised  as  to  the  procedure,  the  Speaker  '  said : ' 

The  Chair  will  follow  the  precedent,  which  he  thinks  is  a  correct  one,  which  was  set  in  the  case  of 
the  Callfomia  Members.  The  Chair  did  not  undertake  there  to  decide  that  the  Members  should  be  sworn 
in  when  they  presented  themselves,  inasmuch  as  the  Constitution  of  the  United  States  provides  that 
each  House  shall  be  the  judge  of  the  election,  returns,  and  qualifications  of  its  own  Members.  The  Chair 
then  referred  the  question  to  the  House  to  let  it  decide  whether  the  Members  purporting  to  be  elected 
should  be  sworn  in  or  not.  Therefore  the  Chair  now  entertains  the  motion  of  the  gentleman  from  Penn- 
sylvania as  a  proper  one,  which  refers  the  question  to  the  House  to  decide  whether  they  should  or  should 
not  be  sworn  in. 

As  a  substitute  for  the  pending  motion,  Mr.  Sherman  offered  a  proposition 
referring  the  credentials  to  the  Committee  on  Elections, 

with  instructions  to  inquire  into  and  report  upon  the  right  of  those  gentlemen  to  be  admitted  and  sworn 
as  Members  of  this  House. 

This  amendment  was  agreed  to,  yeas  91,  nays  84. 

The  original  motion  as  amended  was  then  agreed  to,  yeas  108,  nays  84. 

On  May  20  the  Committee  on  Elections  reported  .^     The  following  facts  appeared : 

By  the  act  of  February  26,  1857,  Minnesota  Territory  was  authorized  to  form  a 
constitution  and  State  government  preparatory  to  admission  into  the  Union;  and 
it  was  declared  that  they  should  have  one  Representative,  and  as  many  more  as 
their  population  might  entitle  them  to  under  the  existing  ratio. 

On  October  13,  1857,  the  people  of  Minnesota  voted  on  and  adopted  a  consti- 
tution, and  on  the  same  day  elected  three  Representatives  in  Congress,  in  accordance 
with  a  section  of  the  constitution  providing  that  the  State  should  consist  of  one 
district  and  elect  three  Representatives.  The  votes  for  the  three  Representatives 
were  canvassed  and  the  results  declared.  It  was  alleged  by  the  minority  that  certifi- 
cates were  issued  to  the  three;  but  only  two  were  presented  to  the  House. 

On  May  11,  1858,  an  act  of  Congress  admitted  Minnesota  to  the  Union  and 
provided  that  the  State  should  "be  entitled  to  two  Representatives  in  Congress." 

The  majority  of  the  committee  contended  that  their  only  jurisdiction  was  to 
inquire  into  the  prima  facie  right  of  Messrs.  Phelps  and  Cavanaugh  to  be  admitted 
and  sworn.  The  question  of  election  was  not  involved,  and  hence  the  question  as 
to  the  election  of  three  Members  did  not  arise.  The  committee  had  seen  no  other 
credentials,  and  had  no  evidence  before  them  that  more  than  two  were  elected.  The 
House  would  not  voluntarily  search  for  evidence  to  reject  those  appearing  with  cre- 
dentials, regular  on  their  face.  The  committee  quoted  the  constitution  of  the  State 
of  Minnesota  to  show  that  the  certificates  were  "  in  due  form,  certified  according  to 
law."  The  majority  therefore  recommended  a  resolution  admitting  Messrs.  Phelps 
and  Cavanaugh  to  be  sworn,  but  reserving  the  privilege  of  contesting  their  final 
right. 

The  minority  admitted  the  inexpediency  of  discussing  the  right  to  the  seat  on 
the  presentation  of  credentials,  but  doubted  the  strict  propriety  of  such  a  course 
whenever  the  papers  in  possession  of  the  House  and  the  laws  which  the  House  was 
presumed  to  know  showed  that  there  could  have  been  no  legal  election.  The  House 
must  know  that  an  election  was  held  under  the  constitution  of  Minnesota  for  tliree 


'  James  L.  Orr,  of  South  Carolina,  Speaker. 

=  Globe,  p.  2109. 

3  House  Report  No.  408;  1  Bartlett,  p.  248;  RoweU's  Digest,  p.  154. 


646  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  519 

Representatives,  and  that  under  the  law  admitting  the  State  only  two  were  allowed. 
If  the  law  of  Minnesota  was  valid,  three  were  elected.  If  not  valid,  none  were 
elected.  The  case  of  Reed  v.  Causden  had  shown  that  the  people  only  should  elect, 
and  that  no  power  could  prefer  two  out  of  three  elected  by  the  people. 

The  minority  further  objected  that  on  October  13,  the  election  day,  Minnesota 
was  still  a  Territory,  and  the  people  were  engaged  in  voting  under  a  law  of  Congress 
on  a  constitution.  The  Territorial  laws  and  authorities,  as  decided  by  the  Supreme 
Court,  continued  exclusively  in  force  until  the  passage  of  the  act  of  admission.  There- 
fore the  election  of  the  Representatives  was  an  act  of  usurpation  and  void.  "There 
is  no  case"  say  the  minority,  "where  the  people  of  a  Territory  have  presumed  to 
elect,  by  the  same  ballots  which  determined  whether  they  should  adopt  the  consti- 
tution preparatory  to  admission,  Representatives  to  Congress;  still  less  when  on 
that  day  they  elected  more  Representatives  than  the  act,  under  which  they  were 
proceeding,  said  they  should  have  when  admitted  as  a  State."  The  census  so  far 
as  completed  indicated  that  the  State  would  be  entitled  to  but  one  Representative 
under  the  act  of  Congress  authorizing  the  adoption  of  the  constitution. 

In  reply  to  tliis  contention,  the  majority  say: 

An  objection  is  urged  to  the  right  of  the  claimants  to  their  seats  on  the  ground  that  their  election 
was  prior  to  the  admission  of  the  State  into  the  Union.  In  the  opinion  of  the  committee,  if  it  be  admitted 
that  there  is  no  force  in  nmnerous  precedents  scattered  through  the  journals  of  Congress,  and  extending 
back  to  the  earliest  times  of  the  Republic,  sanctioning  this  course,  it  should  be  considered  that  Con- 
gress, by  the  enabling  act  authorizing  the  formation  of  a  constitution  and  State  government,  thereby 
fully  empowered  the  people  of  Minnesota  to  prepare  themselves  to  assume,  upon  their  admission,  all 
the  rights,  powers,  and  attributes  of  a  sovereign  State  in  the  Union.  One  of  these  rights  is  that  of  being 
represented  in  Congress;  and  were  elections  held  prior  to  admission  for  Members  of  the  House  of  Rep- 
resentatives held  void.  States  must  remain  unrepresented  after  their  admission,  and  until  elections 
can  be  subsequently  held,  presenting  the  anomalous  spectacle  of  States  in  the  Union  without  represen- 
tation or  voice  in  the  national  councils.  The  act  of  admission  into  the  Union  upon  being  consum- 
mated, relates  back  to  and  legalizes  every  act  of  the  Territorial  authorities  exercised  in  pursuance  of 
the  original  authority  conferred.  As  the  election  of  Members  to  this  House  looks  directly  to  the  end 
in  view  contemplated  by  the  enabling  act  of  Congress,  the  committee  think  it  entirely  within  the  scope 
of  action  conferred  upon  the  people  of  the  Territory,  and  should  be  respected  by  Congress. 

As  to  the  objection  that  the  Representatives  were  elected  on  a  general  ticket, 
which  was  forbidden  by  the  act  of  1842,  the  majority  say  that  even  if  the  act  of 
1842  were  still  in  force,  yet  the  decision  of  the  House  in  the  cases  from  New  Hamp- 
shire, Georgia,  etc.,  would  dispose  of  this  objection. 

On  May  20  to  22  '  the  report  was  considered  by  the  House.  The  debate 
occurred  on  the  latter  date,  when  attention  was  called  to  a  certificate  on  the  files 
of  the  House  dated  December  18,  1857,  and  certifying  the  election  of  three  Rep- 
resentatives, George  L.  Becker  being  the  third.  A  signed  statement  of  the  can- 
vassers was  also  presented  to  show  that  the  highest  votes  were  thrown  for  Messrs. 
Phelps  and  Cavanaugh. 

Mr.  Thomas  L.  Harris,  of  Ilhnois,  who  had  made  the  majority  report,  said 
these  papers  had  not  been  brought  to  the  attention  of  the  committee,  and  did  not 
form  part  of  the  case.  The  majority  of  the  committee  still  adhered  to  the  opinion 
that  the  question  involved  was  not  one  of  election,  but  of  prima  facie  right. 

>  Journal,  pp.  859,  870,  883;  Globe,  pp.  2275,  2292,  2310,  2315. 


§  520  TIMES,  PLACES,  AND   MANNER   OF   ELECTION.  647 

The  minority  proposition,  that  Messrs.  Phelps  and  Cavanaugh  be  not  sworn, 
was  disagreed  to — -yeas  74,  nays  125. 

Then  the  resolution  of  the  majority,  providing  that  they  be  sworn,  but  that  a 
contest  should  not  thereby  be  precluded,  was  agreed  to,  yeas  135,  nays  63. 

Then  the  two  Representatives  from  Minnesota  were  sworn  in. 

520.  The  California  election  case  relating  to  Gilbert  and  Wright  in 
the  Thirty-first  Congress. 

The  House  has  sworn  in  on  prima  facie  showing  Members-elect 
chosen  at  an  election  the  day,  etc.,  of  which  was  fixed  by  the  schedule 
of  a  constitution  adopted  on  that  election  day. 

Objection  being  made  to  the  administration  of  the  oath  to  a  Member- 
elect,  the  Speaker  held  that  the  question  should  be  decided  by  the  House 
and  not  the  Chair. 

References  to  elections  of  Representatives  in  new  States  wherein  no 
legislation  had  fixed  the  time,  place,  and  manner. 

On  September  10,  1850,'  the  credentials  of  Edouard  GUbert  and  George  W. 
Wright,  as  Representatives  from  California,  were  presented  to  the  House.  These 
credentials  showed  that  the  two  gentlemen  had  been  elected  on  November  13,  1849, 
"in  pursuance  of  the  sixth  section  of  the  schedule  appended  to  the  constitution  of 
the  State  of  California."  This  section  of  the  schedule  provided,  among  other  things, 
that  "this  constitution  shall  be  submitted  to  the  people  for  their  ratification  or 
rejection  at  the  general  election  to  be  held  on  Tuesday,  the  thirteenth  day  of  Novem- 
ber" [1849],  and  furthermore  provided  machinery  for  holding  the  election.  Section 
8  of  the  schedule  provided  that  on  the  above  date  "two  Members  of  Congress"  should 
be  elected. 

Mr.  Abraham  W.  Venable,  of  North  Carolina,  objected  to  the  swearing  in  of  the 
two  gentlemen,  and  moved  that  the  credentials  be  referred  to  the  Committee  on 
Elections. 

Mr.  James  Thompson,  of  Pennsylvania,  made  the  point  of  order  that  it  was  the 
duty  of  the  Speaker,  unmediately  upon  the  presentation  of  the  credentials  under 
the  seal  of  the  State,  to  administer  the  oath  of  office. 

The  Speaker '  overruled  the  point  of  order,  saying  that  if  objection  was  made 
it  was  the  duty  of  the  House,  not  of  the  Speaker,  to  determine  the  question.  This 
decision  the  Speaker  justified  vmder  the  clause  of  the  Constitution  providing  that — 

each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  Members. 

Mr.  Venable  then  presented  his  objections  to  the  swearing  in  of  the  two  gentle- 
men. He  said  that  the  credentials  and  the  annexed  schedule  of  the  constitution 
of  the  State  of  California  showed  that  at  the  time  of  the  election  there  was  no  con- 
stitution, no  legislature,  and  no  law  in  California  other  than  the  Constitution  and 
laws  of  the  United  States.  The  constitution  perfected  by  the  California  convention 
was  of  no  force  vmtil  ratified  by  the  people.  By  the  provisions  of  the  Constitution 
itself  it  was  not  legally  ratified  until  after  a  comparison  of  the  votes  and  a  procla- 
mation of  the  governor,  thirty  days  after  the  election.     Elections  to  be  valid  must 

'  First  session  Thirty-first  Congress,  Journal,  p.  1442;  Globe,  pp.  1789,  1795;  Appendix,  p.  1253. 
'  Howell  Cobb,  of  Georgia,  Speaker. 


648  PRECEDENTS   OF   THE   HOUSE   OF   EEPBESENTATIVES.  §   521 

take  place  under  the  constitution  and  not  anterior  to  its  ratification.  The  Consti- 
tution further  provided  that  the  times,  places,  and  manner  of  elections  of  Represen- 
tatives in  Congress  "shall  be  prescribed  in  each  State  by  the  legislature  thereof." 
This  condition  had  not  been  complied  with,  for  California  was  not  legally  a  State 
when  the  election  took  place.  There  was  no  legislature  in  existence  to  regulate  the 
times,  places,  and  manner.  There  was  no  standard  of  qualification  of  voters  as  pro- 
vided by  the  Constitution.  Furthermore,  the  convention  of  California,  without  a 
census,  had  assumed  that  they  were  entitled  to  two  Representatives.  If  California 
had  assumed  for  herself  10  Members,  they  would  have  been  admissible  on  the  same 
reasoning  that  would  admit  the  2.  It  could  not  be  argued  that  the  constitutional 
convention  was  a  primary  assembly  of  the  people,  and  its  action  equivalent  to  a 
corresponding  act  of  a  legislature,  because  the  instrument  carried  on  its  own  face 
the  evidence  of  its  nullity  until  ratified  by  the  people. 

In  reply  to  this  argument  it  was  stated  that  all  the  new  States,  except  Missouri 
and  Texas,  had  sent  Representatives  before  any  law  had  been  passed  by  the  legisla- 
tures designating  the  times,  places,  and  manner  of  holding  elections.  It  was  cus- 
tomary for  a  schedule  to  be  appended  to  the  constitutions  such  as  had  been  appended 
in  this  case.  It  was  true  that  in  most  cases  the  constitutions  had  been  adopted 
before  the  Members  of  Congress  were  elected;  but  in  the  case  of  Michigan  the  con- 
stitution had  been  voted  on  the  very  day  when  the  Members  of  Congress  were  elected. 

On  September  11,  by  a  vote  of  yeas  109,  nays  59,  the  motion  of  Mr.  Venable 
was  amended  by  adding — 

that  the  Speaker  proceed  to  administer  the  oath,  as  prescribed  by  law,  to  Edouard  Gilbert  and  George 
W.  Wright,  as  Members  of  the  House  from  the  State  of  California. 

The  original  motion,  as  amended,  was  then  agreed  to.  So  it  was  ordered  that 
the  credentials  be  referred,  and  that  the  gentlemen  be  sworn  in. 

521.  The  election  case  of  Tennessee  Members  in  the  Forty-second 
Congress. 

Members-elect  from  Tennessee  were  seated  in  1871  on  prima  facie 
showing,  although  there  was  a  question  as  to  whether  or  not  the  day 
of  their  election  was  the  legal  day. 

An  opinion  that  the  House,  in  construction  of  a  State  law,  should 
follow  the  construction  given  by  the  proper  State  officers. 

On  March  22,  1871,'  Mr.  George  W.  McCrary,  of  Iowa,  submitted  the  report  of 
the  Committee  of  Elections  in  the  case  of  the  Tennessee  Members,  who  had  been 
sworn  in  at  the  organization  of  the  House,  but  of  whose  election  there  was  doubt 
because  they  had  been  chosen  on  November  8,  1870,  while  there  was  a  question  as 
to  whether  or  not  the  law  of  Tennessee  did  not  provide  for  election  in  August 
instead  of  November. 

The  committee,  after  a  discussion  of  the  Tennessee  statutes,  concluded  that 
November  8  was  the  legal  day  of  election.     They  further  said : 

If,  however,  the  question  as  to  whether  by  the  act  of  1870  the  time  for  holding  the  election  in  ques- 
tion was  changed  from  August  to  November  was  one  of  doubt,  we  should  feel  bound  to  follow  the  con- 
struction given  to  it  by  all  the  authorities  of  the  State  of  Tennessee  whose  duty  it  has  been  to  construe 
it  and  to  execute  it.     It  is  admitted  that  the  governor  and  all  other  authorities  in  Tennessee  having 

'  House  Report  No.  1,  first  session  Forty-second  Congress,  Smith,  p.  3;  Rowell's  Digest,  p.  261. 


§   522  TIMES,   PLACES,   AND    MANNER    OF    ELECTION.  649 

anything  to  do  with  the  construction  and  enforcement  of  this  act  of  1870  have  construed  it  as  in  nowise 
affecting  the  act  of  1S68,  and  by  common  and  universal  assent  the  election  was  held  at  the  time  fixed 
in  the  latter  act.  It  is  a  well-established  and  most  salutar}-  rule  that  where  the  proper  authorities  of  the 
State  government  have  given  a  construction  to  their  own  constitution  or  statutes  that  construction  will 
be  followed  by  the  Federal  authorities.  This  rule  is  absolutely  necessary  to  the  harmoniotis  working  of 
our  complex  governments,  State  and  National,  and  your  committee  are  not  disposed  to  be  the  first  to 
depart  from  it.     The  committee  recommend  the  adoption  of  the  following  resolution: 

Resolved,  That  the  election  for  Members  of  Congress  from  the  State  of  Tennessee,  held  on  the  8th 
day  of  November,  1870,  was  held  on  the  day  fixed  by  law,  and  was  not  void  by  reason  of  having  been 
held  on  the  said  day. 

On  April  1 1  ^  the  resolution  was  agreed  to  by  the  House  without  debate  or 
division. 

522.  The  election  case  of  the  West  Virginia  Members  in  the  Forty- 
third  Congress. 

The  House  seated  a  claimant  elected  on  what  it  decided  to  be  the 
legal  day. 

Discussion  as  to  the  power  of  a  State  convention  to  fix  the  time  for 
election  of  Representatives  in  Congress,  when  the  legislature  had  already 
acted. 

Discussion  as  to  the  retroactive  effect  of  the  schedule  of  a  new  State 
constitution,  whereby  a  date  for  election  of  Congressmen  was  fixed. 

A  question  as  to  whether  or  not  a  State  ruight  make  the  time  of  elec- 
tion of  Congressmen  contingent  on  the  time  of  the  State  election. 

Credentials  issued  by  a  governor  raising  a  doubt  as  to  election, 
the  Clerk  and  the  House  declined  to  allow  to  them  prima  facie  effect, 
although  positive  credentials  authorized  by  the  State  legislature  accom- 
panied. 

Discussion  as  to  whether  or  not  credentials  which  required  reference 
to  State  law  to  make  certain  their  import  should  be  given  prima  facie 
effect. 

Instance  of  an  amendment  changing  the  character  of  a  resolution  by 
striking  out  the  word  "  not." 

At  the  session  of  1873-74^  the  House  was  confronted  with  a  question  relating 
to  the  validity  of  the  election  of  the  three  Representatives  from  West  Virginia, 
at  the  election  due  to  be  held  in  that  State  in  1872  for  Members  of  the  Forty-third 
Congress. 

A  law  enacted  by  the  West  Virginia  legislature  in  1869  provided : 

1.  The  general  election  of  State,  district,  county,  and  township  ofiicers,  and  members  of  the  legis- 
lature, shall  be  held  on  the  fourth  Thiu^day  of  October. 

2.  At  the  said  elections  in  every  year  there  shall  be  elected  delegates  to  the  legislature  and  one 
senator  for  every  senatorial  district.  And  in  the  year  1870,  and  every  second  year  thereafter,  a  governor, 
secretary  of  state,  treasurer,  auditor,  and  attorney-general  for  the  State,  a  prosecuting  attorney,  surveyor 
of  lands,  recorder,  and  the  number  of  assessors  prescribed  by  law,  and  a  Representative  in  the  Congress 
of  the  United  States  for  the  term  beginning  on  the  4th  day  of  March  next  after  the  election,  for  every 
Congressional  district;  and  in  the  year  1870,  and  every  fourth  year  thereafter,  a  judge  of  the  supreme 
court  of  appeals  for  the  State,  and  a  clerk  of  the  circuit  court,  and  a  sheriff  for  everj-  county;  and  in  the 
year  1874,  and  every  sixth  year  thereafter,  a  judge  for  every  circuit. 


'  Journal,  p.  146;  Globe,  p.  582.  '  First  session  Forty-third  Congress. 


650  PRECEDENTS    OF    THE    HOUSE    OP    REPRESENTATIVES.  §   522 

In  the  early  winter  months  of  1872  a  constitutional  convention  was  in  session 
in  West  Virginia,  and  prepared  a  new  constitution,  one  of  the  provisions  of  which 
was: 

The  general  elections  of  State  and  county  officers  and  members  of  the  legislature  shall  be  held  on  the 
second  Tuesday  of  October  until  otherwise  provided  by  law. 

The  constitutional  convention  also  agreed  to  a  schedule  as  follows: 

Sec.  3.  The  officers  authorized  by  existing  laws  to  conduct  general  elections  shall  cause  elections 
to  be  held  at  the  several  places  for  voting  established  by  law  in  each  county  on  the  fourth  Thursday  of 
August,  1872,  at  which  elections  the  votes  of  all  persons  qualified  to  vote  under  the  existing  constitu- 
tion, and  offering  to  vote,  shall  be  taken  upon  the  question  of  ratifying  or  rejecting  this  constitution 
and  schedule. 

Sec  7.  On  the  same  day,  and  under  the  superintendence  of  the  officers  who  shall  conduct  the 
election  for  determining  the  ratification  or  rejection  of  the  constitution  and  schedule,  elections  shall  be 
held  at  the  several  places  of  voting  in  each  county  for  senators  and  members  of  the  house  of  delegates, 
and  all  officers,  executive,  judicial,  county,  or  district,  required  by  this  constitution  to  be  elected  by 
the  people. 

The  new  constitution  did  not  specify  any  requirement  as  to  the  election  of 
Members  of  Congress  by  the  people.     It  did  provide  as  follows: 

Such,  parts  of  the  common  law  and  of  the  laws  of  this  State  as  are  in  force  when  this  constitution 
goes  into  operation,  and  are  not  repugnant  thereto,  shall  be  and  continue  the  laws  of  this  State  until 
altered  or  repealed  by  the  legislature. 

The  schedule  further  provided,  in  event  of  ratification,  that  "this  constitution 
and  schedule  shall  be  operative  and  in  full  force  from  and  including  the  fourth 
Thm^day  of  August,  1872."     They  were  ratified  by  the  people  on  the  said  day. 

Several  things  are  evident  from  the  above  state  of  facts: 

(a)  That  the  constitutional  convention,  by  its  schedule,  established  a  new 
date  and  a  new  machinery  for  the  election  of  State  officers,  thereby  superseding 
the  requirements  of  the  law  passed  by  the  legislature  in  1869. 

(6)  That  the  constitutional  convention  did  not  specifically  name  the  Congres- 
sional elections  as  taking  place  on  the  day  set  apart  for  election  of  State  officers. 

(c)  That  the  Constitution  of  the  United  States  provides  that  the  times  for 
holding  Congressional  elections  shall  be  prescribed  by  the  "legislature"  of  the 
State,  and  that  the  West  Virginia  law  of  1869  fulfilled  that  requirement,  although 
it  might  be  claimed  that  the  schedule  of  the  constitutional  convention  had  swept 
away  the  machinery  of  that  act. 

(d)  That  the  schedule  was  of  doubtful  validity  in  prescribing  the  time  of  a 
Congressional  election,  especially  since  it  was  ratified  only  on  the  very  day  when 
that  election  would  be  held. 

There  was  much  doubt  in  West  Virginia  as  to  what  should  be  done,  and  elections 
for  Congressmen  were  held  both  on  the  fom-th  Thm-sday  of  August  and  the  fourth 
Thm^day  of  October.  At  the  August  election  81,875  votes  were  cast  on  the  con- 
stitutional question  and  44,917  for  Congressmen. 

In  the  Third  district  Frank  Hereford  was  a  candidate  and  was  elected  at  each 
election.  Therefore  the  Clerk  of  the  House  put  his  name  on  the  roll  at  the  organ- 
ization of  the  House.* 

'  First  session  Forty-third  Congress,  Record,  p.  5. 


§   522  TIMES,   PLACES,   AND   MANNER    OF    ELECTION.  651 

In  the  other  districts  the  following  took  place,'  as  stated  in  the  report  of  the 
Committee  of  Elections  in  its  description  of  the  August  election: 

At  this  election,  in  the  first  district — 

Votes. 

Mr.  Davis  received 13, 361 

Mr.  Wilson 12,  948 

H.  W.  Rook 4 

Aggregate 26,  313 

In  the  second  district  the  Congressional  conventions  of  both  parties  met  before  the  August 
election  and  adjourned  without  making  nominations.  At  the  August  election,  however,  Mr.  Haganj 
received  3,441  votes  returned,  and,  it  is  claimed,  other  votes  which  were  not  returned.  There  were 
600  votes  for  other  candidates. 

Upon  the  fourth  Thursday  of  October  another  election  for  Representatives  was  held,  at  which 

the  aggregate  vote  cast  was  22,146.     In  the  first  district — 

Votes. 

Mr.  Wilson  received 3, 708 

Thirty-nine  other  candidates 381 

Total  vote 4, 089 

In  the  second  district,  at  the  October  election,  Mr.  Martin  received  nearly  6,000  votes,  which 
was  a  majority  over  all  other  candidates. 

The  governor  of  West  Virginia  gave  Messrs.  Davis  and  Hagans  credentials  certifying  that  they 
were  elected,  provided  the  fourth  Thursday  of  August  was  the  legal  day  for  electing  Representatives 
in  Congress;  and  to  Messrs.  Wilson  and  Martin  like  credentials  certifying  that  they  were  elected, 
provided  the  fourth  Thursday  of  October  was  the  legal  day  for  electing  Representatives. 

The  legislature  of  West  Virginia  subsequently  passed  an  act  directing  certain  State  officers  to 
give  certificates  to  the  Representatives  elected  to  Congress,  who  gave  formal  certificates  to  Messrs. 
Wilson  and  Martin, 

who  had  been  elected  in  October. 

The  form  of  the  certificates '  given  was : 

State  of  West  Virginia,  to  wit: 

I,  John  J.  Jacob,  governor  of  the  said  State,  pursuant  to  the  act  of  the  legislature  thereof  in  such 
case  made  and  provided,  do  hereby  certify  that  Benjamin  WUson  was  duly  chosen  on  the  24th  day  of 
October,  1872  (provided  that  was  the  time  prescribed  by  law  for  holding  an  election  for  Representatives 
in  the  Congress  of  the  United  States),  a  Representative  in  the  Congress  of  the  United  States  for  the 
First  Congressional  district  of  this  State,  composed  of  the  counties,  etc.,  *  *  *,  for  the  term 
commencing  on  the  4th  day  of  March  next. 

Given  under  my  hand  and  the  great  seal  of  the  State  of  West  Virginia,  this  29th  day  of  Januarj-, 
1873. 

[seal.]  John  J.  Jacob. 

By  the  governor: 

John  M.  PHrLirps, 

Secretary  of  State. 

The  certificate  given  in  pursuance  of  the  act  of  the  legislature  was  in  this  form: 

State  of  West  Virginia,  to  mt: 

We  [names  of  officials  enumerated],  of  said  State,  pursuant  to  the  act  of  the  legislature  thereof  in 
such  case  made  and  provided,  do  hereby  certify  that  Benjamin  Wilson,  of  the  county  of  Harrison,  was 
duly  chosen  and  regularly  elected,  in  accordance  with  the  laws  of  this  State,  on  the  24th  day  of 
October,  1872,  a  Representative   in   the   Congress  of  the  United  States,  for  the  First  Congressional 

'  See  House  Report  No.  7.  *  Record,  p.  40. 


652  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   5'22 

district  of  this  State,  composed  of  the  counties,  etc.,     *     *     *^  for  the  term  commencing  on  the  4th  day 
of  March,  1873. 

Given  under  our  hands  and  the  great  seal  of  the  State  of  West  Virginia,  which  ie  hereto  afiixed 
by  the  secretary  of  state,  this  22d  day  of  November,  1873. 

Charles  Hedrich,  Secretary  of  State,  etc. 
(Other  signatures  lacing  appended.) 

The  Clerk,  in  view  of  the  alternative  nature  of  the  certificates  issued  by  the 
governor,  announced  to  the  House,  at  its  organization  on  December  2, 1873,'  that 
he  considered  them  inadmissible  for  enrolling  either  of  the  candidates  from  the  First 
and  Second  districts. 

On  December  3'  Mr.  John  Cessna,  of  Pennsylvania,  proposed  the  following 
resolution: 

Resolved,  That  the  name  of  John  J.  Davie  he  placed  on  the  roll  of  this  House  as  a  Representative 
from  the  First  Congressional  district  of  West  Virginia,  without  prejudice  to  the  right  of  Benjamin  Wilson 
to  contest  the  seat  hereafter;  and  that  the  name  of  J.  Marshall  Hagans  be  placed  on  the  roll  of  tliis  House 
as  a  Representative  from  the  Second  Congressional  district  of  West  Virginia,  without  prejudice  to  the 
right  of  Benjamin  F.  Martin  to  contest  his  seat  hereafter,  and  that  they  be  forthwith  sworn  in  as  Members 
of  this  House. 

This  resolution  precipitated  a  long  debate  on  the  sufficiency  of  the  prima  facie 
evidence  in  the  case.  The  argument  for  the  resolution  was  based  on  the  supposition 
that  a  reference  to  the  law  of  West  Virginia  would  show  the  August  election  legal. 
On  the  other  hand  it  was  argued,  especially  by  Mr.  L.  Q.  C.  Lamar,  of  Mississippi, 
that  such  an  argument  was  fatal,  since  no  prima  facie  right  could  be  based  on  a 
certificate  which  had  to  be  supported  by  reference  to  other  matters,  whether  cir- 
cumstances of  law  or  fact.  Furthermore,  the  alternating  feature  of  the  governor's 
certificate  emasculated  the  certificates.  Also  the  Clerk  had,  acting  under  the  law, 
rejected  the  certificates,  and  the  House  ought  not  to  reverse  his  decision  until  after 
examination  by  a  committee. 

The  demand  for  the  previous  question  on  the  resolution  was  negatived — ayes 
54,  noes  109.  Then  the  resolution  was,  without  division,  referred  to  the  Committee 
on  Elections,  and  the  oath  was  not  administered  to  either  of  the  claimants. 

On  January  14,  1874,^  the  report  of  the  committee  was  submitted  by  the  chair- 
man, Mr.  H.  Boardman  Smith,  of  New  York.  It  was  also  signed  by  Mr.  C.  K. 
Thomas,  of  North  Carolina;  Edward  Crossland,  of  Kentucky;  R.  M.  Speer,  of 
Pennsylvania,  and  L.  Q.  C.  Lamar,  of  ^lississippi.  Messrs.  Lemuel  Todd,  of  Penn- 
sylvania; Horace  H.  Hanison,  of  Tennessee,  and  Ira  B.  Hyde,  of  Missouri,  gave  a 
qualified  approval.  Mr.  Speer  submitted  views  supplemental  to  the  report,  giving 
the  argument  in  a  different  way.  Messrs.  J.  W.  Hazelton,  of  Wisconsin,  and  J.  W. 
Robinson,  of  Ohio,  filed  minority  views  sustaining  the  August  election,  while  the 
majority  of  the  committee  sustained  the  October  election. 

The  questions  discussed  may  be  divided  into  several  branches,  and  for  con- 
venience the  minority  propositions  may  be  stated  first,  since  the  House  ultimately 
decided  in  favor  of  the  minority  views : 

(1)  May  a  constitutional  convention  prescribe  the  time  for  electing  Representa- 
tives in  Congress  1 

'  Record,  p.  5. 

"Record,  pp.  35-46;  Journal,  pp.  39^1. 

3 House  Report  No.  7;  Smith,  p.  108;  Rowell's  Digest,  p.  284. 


i 

i 


§   522  TIMES,   PLACES,   AND    MANKEB    OF    ELECTION.  653 

The  minority  say: 

The  constitutional  convention  had  authority  to  prescribe  a  time,  after  its  ratification,  for  the 
election  of  Representatives.  The  case  of  Michigan  is  in  point.  The  State  constitution  was  adopted 
on  the  24th  day  of  June,  1835.     Section  6  of  the  schedule  contained  these  words: 

"The  first  election  of  governor,  lieutenant-governor,  members  of  the  State  legislature,  and  a 
Representative  in  the  Congress  of  the  United  States  shall  be  held  on  the  first  Monday  of  October  next 
and  on  the  succeeding  day." 

The  Representative  was  so  elected  on  the  first  Monday  and  succeeding  day  in  October,  1835,  and 
was  subsequently  admitted  to  his  seat  in  the  House. 

See  also  the  case  of  Iowa.  The  constitution  of  Iowa  was  adopted  May  18,  and  ratified  August  3, 
1846.     The  sixth  section  of  the  schedule  provides  as  follows: 

"The  first  general  election  under  this  constitution  shall  be  held  at  such  time  as  the  governor  of  the 
Territory,  by  proclamation,  may  appoint,  within  three  months  after  its  adoption,  for  the  election  of  a 
governor,  two  Representatives  in  the  Congress  of  the  United  States  (unless  Congress  shall  provide  for 
the  election  of  one  Representative),  members  of  the  general  assembly,  and  one  auditor,  treasurer,  and 
secretary  of  state." 

Representatives  were  chosen  under  the  governor's  proclamation  on  the  26th  of  October,  1846,  and 
subsequently  admitted  to  seats  in  the  House. 

We  are  ven,'  firmly  impressed  with  the  conviction  that  the  precedents  cited  are  conclusive  upon 
this  question.  The  word  "prescribe,"  as  used  in  the  Constitution  of  the  United  States  in  connection 
■with  the  election  of  Representatives,  may  well  be  said  to  have  a  settled  meaning  and  construction. 

We  may  add,  in  conclusion,  that  we  are  all  the  more  willing  to  follow  this  construction  in  the  present 
case,  because  it  saves  us  from  the  alternative  of  disfranchising  a  State,  while  it  seems  to  do  no  injustice 
to  anyone. 

As  a  precedent,  it  is  entirely  without  consequence  one  way  or  the  other,  because  Congress  has 
already  fixed  a  uniform  time  for  electing  Representatives  in  Congress,  and  thus  taken  the  whole  subject 
out  of  State  control,  after  the  year  1876. 

The  supplemental  majority  report,  presented  by  Mr.  Speer  and  signed  by 
Messrs.  Lamar  and  Crossland,  took  the  contrary  view: 

But  if  it  is  possible  to  claim  that  the  convention  did  change  the  day  for  holding  Congressional  elec- 
tions in  West  Virginia  from  the  fourth  Thursda}'  of  October  to  the  fourth  Thursday  of  August,  in  1872, 
then  it  is  respectfully  submitted  that  its  act  was  unauthorized  and  void.  'Where  the  legislature  has 
prescribed  no  time,  a  different  question  may  arise.  But  in  this  case  the  legislature  had  prescribed  a 
time,  had  obeyed  the  requirement  of  the  Federal  Constitution,  had  discharged  its  sworn  duty,  and  had 
exercised  its  tindoubted  power.  \\'hat  shadow  of  authority,  therefore,  was  there  in  the  convention  to 
interfere?  The  State  constitution  had  not  given  to  the  legislature  the  power  to  say  when  Congressmen 
shall  be  elected  (for  it  did  not  have  it  to  give),  and  neither  State  constitution  nor  State  convention  could 
take  it  away.  The  legislature  derived  it  from  the  supreme  law  of  the  land,  the  Constitution  of  the  United 
States,  and  in  its  exercise  it  knew  but  one  master. 

In  the  ilassachusetts  convention  of  1820  a  resolution  was  submitted  declaring  that  the  State 
constitution  ought  to  be  so  amended  as  to  provide  for  the  election  of  Members  of  Congress  in  such 
districts  "as  the  legislature  shall  direct,"  thus  limiting  its  discretion  to  prescribe  "the  times,  places,  and 
manner"  of  their  election.  In  the  discussion  that  followed  Justice  Story  opposed  the  resolution,  declar- 
ing that  it  "assumes  a  control  over  the  legislature  which  the  Constitution  of  the  United  States  does  not 
justify.  It  is  bound  to  exercise  its  authority  according  to  its  own  views  of  public  policy  and  principle; 
and  yet  this  proposition  compels  it  to  surrender  all  discretion.  In  my  humble  judgment,  and  I  speak 
with  great  deference  for  the  convention,  it  is  a  direct  and  palpable  infringement  of  the  constitutional 
provisions  to  which  I  have  referred." 

Mr.  Webster  followed,  limiting  himself,  however,  to  the  expediency  of  the  proposition.  He 
declared  that  "whatsoever  was  enjoined  on  the  legislature  by  the  Constitution  of  the  United  States,  the 
legislature  was  bound  to  perform;  and  he  thought  it  would  not  be  well  by  a  provision  of  this  constitution 
to  regulate  the  mode  in  which  the  legislature  should  exercise  a  power  conferred  on  it  by  another  consti- 
tution."    And  the  proposition  failed. 


654  PRECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATrV'ES.  §   522 

In  the  case  of  Baldwin  v.  Trowbridge,  in  the  Thirty-ninth  Congress,  this  House  held  that  "where 
there  is  a  conflict  of  authority  between  the  constitution  and  the  legislature  of  a  State  in  regard  to  fixing 
the  place  of  elections,  the  power  of  the  legislatiu-e  is  paramount." 

This  case  goes  further  than  is  required  in  the  cases  now  pending. 

An  apparently  contrary  doctrine  was  sustained  in  the  case  of  Shiel  v.  Thayer,  from  Oregon,  in  the 
Thirty-seventh  Congress.  The  committee  there  say  they  "have  no  doubt  that  the  constitution  of  the 
State  has  fixed,  beyond  the  control  of  the  legislature,  the  time  for  holding  an  election  for  Representative 
in  Congress." 

But  this  part  of  the  report  was  a  mere  dictum,  for  there  was  nothing  in  the  case  to  require  the  com- 
mittee to  determine  any  such  question.  Shiel  had  been  elected  on  the  day  fixed  by  the  constitution, 
while  Thayer  claimed  to  have  been  elected  on  the  day  of  the  Presidential  election — a  day  not  prescribed 
by  any  authority  for  the  election  of  a  Member  of  Congress.  No  question  as  to  the  power  of  the  legislature 
to  fix  the  time  arose  in  the  case;  and  what  was  said  upon  this  point  was  wholly  unnecessary,  in  view  of 
the  undisputed  facts. 

In  the  debate/  quoting  the  Federal  Constitution,  Mr.  Wilson,  of  Maryland,  con- 
tended that  the  word  "prescribe"  meant  the  laying  down  beforehand  of  an  absolute 
rule,  not  a  conditional  one,  and  therefore  that  the  schedule  in  question  did  not 
' '  prescribe ' '  sufficiently. 

Mr.  Lamar  contended  ^  that  the  distinction  between  the  words  "legislature" 
and  "  convention  "  were  well  understood  by  the  framers  of  the  Constitution.  A  con- 
vention could  not  by  its  essential  nature  and  functions  overrule  the  legislature.  A 
convention,  like  the  legislature,  was  not  sovereign,  but  onty  one  of  the  agencies  of 
absolute  sovereignty  which  resided  in  the  people. 

Mr.  Robinson,  of  Ohio,  argued  ^  that  the  issue  was  not  drawn  between  the  con- 
vention and  the  legislatiu'e,  since  the  convention  merely  changed  the  occasion  which 
the  legislature  had  prescribed  as  the  time  for  holding  Congressional  elections. 

(2)  Might  the  schedule  of  the  constitution,  the  ratification  of  which  could  be 
certain  only  at  the  conclusion  of  the  election,  actually  attempt  to  prescribe  the  time 
for  the  election  of  Representatives  in  Congress? 

The  minority  say: 

We  maintain  the  affirmative  of  this  proposition.     Even  if  we  concede  that  the  word  "prescribe" 
shall  have  here  its  narrowest  and  most  technical  signification,  there  seems  to  us  to  have  been  a  sufficient 
prescription  of  the  time. 

The  schedule  submitted  with  the  new  constitution  provides  that,  in  case  of  adoption,  the  same 
shall  be  deemed  and  taken  to  have  been  in  force  from  and  during  the  whole  said  fourth  Thursday  of 
August.  The  law  knows  no  fraction  of  a  day.  Being  ratified,  it  became  and  was,  in  fact  aa  well  as 
legal  intendment,  the  law  of  the  State  prior  to  the  opening  of  the  polls  on  that  day.  The  time  was 
therefore  prescribed  when  the  ballot  boxes  were  opened  on  that  day;  that  is  to  say,  the  law  making 
that  day  the  day  of  the  general  election  for  State  and  local  officers  was  in  force  before  a  vote  was 
poUed.  But  it  is  said  that  this  was  not  a  prescription  of  the  time,  because,  if  the  constitution  had  not 
been  ratified,  the  election  would  have  amounted  to  nothing.  Saying  nothing  just  here  about  the 
impolicy  and  injustice  of  applying  so  technical  a  rule  for  the  purpose  of  disfranchising  a  State,  we 
submit  that  it  is  too  late  to  raise  that  question. 

The  majority  report  thus  combats  this  theory: 

5.  In  answer  to  these  difficulties,  it  is  suggested  that  by  night  of  election  day  the  old  constitution 
was  superseded,  and  that  the  new  constitution  was  thereupon  "operative  and  in  full  force  from  and 
including  the  foiu-th  Thursday  of  August,  1872,"  and  that  "fractions  of  days  are  not  noticed  by  the 
makers  either  of  statutory  or  organic  laws." 

But  the  answer  suggested  admits  that  down  to  the  morning  of  the  fourth  Thursday  of  August  any 

•  Record,  p.  934.  '  Record,  p.  846.  '  Record,  p.  848. 


§   522  TIMES,   PLACES,   AND    MANNER    OF    ELECTION.  655 

law  or  ordinance  prescribing  the  holding  of  a  Congressional  or  State  election  on  that  day  was  unconsti- 
tutional and  void.  Nor  (if  this  be  material)  is  it  unqualifiedly  true  that  "fractions  of  a  day  are  not 
noticed." 

"Common  sense  and  common  justice  equally  sustain  the  propriety  of  allowing  fractions  of  a  day 
whenever  it  will  promote  the  purposes  of  substantial  justice."  (Potter's  Dwarris,  101;  see  2  Storj', 
C.  C.  R.,  571.) 

It  is  also  suggested  that  the  admission  of  Senators  and  Representatives  simultaneously  with  the 
admission  of  new  States,  who  have  been  elected  at  the  same  time  with  the  ratifications  of  the  first  State 
constitutions,  is  sufficient  authority  for  sustaining  the  validity  of  the  August  election.  But  these  cases 
have  always  been  put  upon  the  ground  of  "necessity,"  and  upon  the  theory,  whether  it  be  a  "legal 
fiction  "  or  whatever  else,  that  a  State  is  not  fully  in  the  Union  until  it  is  in  its  normal  and  constitutional 
relations  with  the  Union  and  represented  in  Congress.  Of  course  between  such  cases,  whether  right  or 
wrong,  and  the  case  of  West  Virginia  no  analogy  can  be  drawn.  The  constitutional  provision  had  been 
in  full  sway  in  West  Virginia  for  some  ten  years.     What  suspended  it? 

At  page  409  of  Jameson's  work  on  constitutional  conventions  the  author  says  of  these  precedents: 

"There  being  as  yet  no  State,  and  of  course  no  State  legislature,  unless  the  convention  could  make 
a  temporary  arrangement  for  the  election  of  Members  of  Congress,  the  new  State  must,  after  its  admission 
into  the  Union,  be  unrepresented  in  that  body  untU  a  State  legislature  could  be  elected  and  could  pass 
the  necessary  laws — a  condition  involving  often  a  considerable  delay.  In  such  cases,  accordingly,  the 
custom  has  been  for  the  convention  toanticipate  the  action  of  the  legislature,  a  course  which,  on  account 
of  its  obvious  convenience,  has  been  commonly  acquiesced  in.  These  cases,  however,  form  exceptions 
to  a  rule  which  is  general — that  it  is  the  State  legislatures  which  apportion  their  several  States  for  Con- 
gressional elections.  I  have  failed  to  find  a  single  exception  to  that  rule,  save  in  the  cases  of  Territories 
seeking  to  become  States  or  of  States  standing  substantially  upon  the  same  footing  as  Territories. 

"Besides,  in  one  view  of  the  subject  such  action  of  the  Territories,  taken  in  connection  with  that 
of  Congress  following  it,  involves  no  impropriety,  if  it  is  not  strictly  regular.  Immediately  following  that 
clause  of  the  Federal  Constitution  giving  the  power  of  determining  the  '  times,  places,  and  manner  of 
electing  Senators  and  Representatives'  to  the  State  legislature,  is  the  important  reservation,  'but  the 
Congress  may  at  any  time,  by  law,  make  or  alter  such  regulations,  except  as  to  the  place  of  choosing 
Senators.'  Hence,  having  the  power  to  make  or  alter.  Congress  doubtless  might  ratify  such  regulations, 
however  made;  or  if  a  State,  actual  or  inchoate,  were  in  such  a  condition  that  it  had  no  lawful  legislature, 
Congress  might  itself,  for  the  sake  of  convenience,  establish  them  by  its  direct  action.  This  it  does,  in 
substance,  by  anticipation  in  those  cases  in  which  it  accepts  and  admits  into  the  Union  Territories 
presenting  themselves  with  constitutions  containing  the  apportionments  referred  to." 

In  the  course  of  the  debate  '  the  chairman  of  the  committee,  Mr.  Smith,  called 
attention  to  the  fact  that  the  old  constitution  of  West  Virginia  provided  that  the 
ordinances  of  the  constitutional  convention  should  have  no  effect  until  they  were 
ratified,  and  that  they  should  not  have  any  retroactive  effect.  Senators  and  Mem- 
bers admitted  simultaneously  %vith  the  admission  of  new  States  had  always  been 
elected  outside  the  constitution.  Such  was  the  case  in  elections  tmder  the  recon- 
struction acts,  such  as  that  of  March  11,  1868.  These  precedents  could  not  be 
applied  to  the  case  of  a  State  already  within  the  Union.  It  was  further  urged  by 
Mr.  Lamar  ^  that  the  schedule  was  a  mere  addendum,  temporary  in  its  nature,  to 
test  the  will  of  the  people  and  secure  the  transition  from  the  old  to  the  new  system. 
As  to  the  point  that  the  schedule  was  retroactive,  and  no  one  could  tell  in  advance 
whether  the  election  was  to  be  valid  or  not,  Mr.  Benjamin  F.  Butler,  of  Massachu- 
setts, pointed  out '  that  it  proved  too  much,  since  if  the  objection  was  good  it  went 
to  the  whole  State  government  of  West  Virginia  and  invalidated  it. 

(3)  ilight  the  State  make  the  election  of  Representatives  in  Congress  contingent 
upon  the  date  of  election  of  State  officers,  and  moveable  therewith? 

'  Record,  pp.  818,  819.  ^  Record,  p.  843.  «  Record,  p.  959. 


656  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   522 

The  minority  views  say: 

The  legislature  of  1869,  when  it  framed  the  election  law  and  provided  all  the  machinery  for  conduct- 
ing an  election,  and  enacted  that  Representatives  in  Congress  should  be  elected  at  said  elections,  intended 
to  point  out  and  designate  the  occasion  for  electing  such  Representatives;  intended  that  the  one  election 
should  be  held  in  conjunction  with  the  other;  in  other  words,  that  when  it  provided  the  means  or  agen- 
cies for  holding  the  State  election,  and  authorized  Representatives  to  be  elected  at  the  time  of  said  elec- 
tion, and  under  and  by  virtue  of  the  machinery  for  said  election,  it  did  not  intend  that  Representatives 
in  Congress  should  not  be  elected  at  said  election  and  without  any  legal  "manner"  whatever  provided 
therefor. 

Connecting  the  election  of  Representatives  with  an  occasion  was,  moreover,  entirely  in  harmony 
with  the  practice  of  the  old  State  of  Virginia,  which  for  some  forty  years,  it  seems,  was  authorized  to  elect 
Representatives  in  Congress  under  a  statute  which  fixed  the  election  at  the  holding  or  opening  of  certain 
terms  of  court,  which  latter  were  constantly  changing  with  successive  acts  of  the  legislature. 

It  being,  we  think,  clearly  the  purpose  of  the  legislature  that  Representatives  in  Congress  should 
be  elected  at  the  general  election,  it  follows  that  when  the  occasion  was  changed,  transplanted,  the 
election  of  Representatives  in  Congress  went  with  it. 

The  majority  say,  in  the  views  filed  by  Mr.  Speer — 

West  Virginia  waa  a  State  in  full  life,  with  all  the  departments  of  her  local  government  in  active 
and  harmonious  operation.  It  was  the  duty — the  sworn  duty — of  her  legislature  to  prescribe  the  time 
of  electing  her  Representatives  in  Congress.  Recognizing  this  duty,  the  legislature,  as  we  believe, 
did  definitely  prescribe  the  time,  and  if  it  did,  there  was  no  power  in  the  State  or  out  of  it  competent 
to  change  the  time  except  Congress  and  the  legislature  itself.  It  is  claimed  by  those  who  hold  the 
August  election  to  be  valid  that  the  legislature  prescribed  only  the  "occasion"  and  not  the  time.  But 
this  assumes  that  the  legislature  did  not  only  not  do  its  duty,  but  that  it  did  not  intend  to  do  it.  For 
whence  does  it  derive  the  power  to  prescribe  the  occasion  for  holding  Congressional  elections — to  pre- 
scribe an  event,  the  happening  of  which  may  be  placed  utterly  beyond  its  control  or  authority?  It 
not  only  has  the  power,  but  it  is  under  the  most  positive  obligation,  to  prescribe  the  time.  But  nam- 
ing an  event  on  the  occurrence  of  which  the  election  shall  be  held,  and  leaving  the  time  of  the  event  to 
be  fixed  or  changed  by  another  body,  which  has  no  power  to  fix  the  time  of  the  election  itself,  it  seems 
to  us  can  in  no  just  sense  be  regarded  as  a  compliance  with  the  mandate  of  the  Federal  Constitution. 
And  hence  no  intention  on  the  part  of  the  legislature  so  to  evade  its  duty  is  to  be  inferred,  and  no  such 
construction  should  be  placed  upon  its  act,  unless  the  language  absolutely  demands  it.  If  the  legis- 
lature can  discharge  its  duty  by  naming  an  occasion,  which  occasion  may  be  fixed  by  some  other  power 
in  the  State,  then  that  other  power  may,  under  the  same  reasoning,  entirely  abolish  the  occasion.  If 
it  is  competent  to  postpone  it  for  a  day,  it  is  equally  competent  to  postpone  it  for  a  year  or  for  all  time. 
Under  this  view  the  legislature  would  legally  prescribe  the  occasion,  which  occasion  could  legally  never 
happen. 

Premises  which  lead  to  such  a  conclusion  can  not  be  sound,  and  any  construction  of  the  statute 
of  a  State  legislature  which  logically  leads  to  such  a  result  should  be  adopted  with  extreme  hesitation, 
and  only  from  absolute  necessity. 

The  report  of  the  majority  says: 

A  general  State  election  can  only  be  "prescribed"  by  law.  Does  it  stand  to  reason  that  section 
2,  chapter  3,  of  the  code  meant  to  fix  any  other  kind  of  a  State  election  as  the  "occasion"  of  the  Con- 
gressional election?  But  this  convention  could  not  enact  a  "law,"  and  if  it  could,  and  had  full  legis- 
lative power,  a  law  (though  it  may  be  made  to  take  effect  on  the  happening  of  a  future  contingency) 
must  be  a  valid  law,  in  presenti,  when  it  leaves  the  hands  of  the  legislature,  and  can  not  become  a 
"law"  by  the  approval  of  a  popular  vote.  (4  Seld.,  N.  Y.,  483,  etc.;  Rice  v.  Foster,  Brightly's  Elec- 
tion Cases,  3.) 

The  right  of  the  legislature  to  hinge  the  Congressional  election  on  the  State 
election  was  strongly  combated  in  debate.     Mr.  Lamar  said '  that  the  Congressional 

'  Record,  p.  843. 


§  522  TIMES,  PLACES,  AND   MANNER  OF   ELECTION,  657 

elections  must  be  final  and  unconditioned  by  any  contingencies  which  looked  to 
their  nullification.  If  the  makers  of  the  West  Virginia  law  of  1869  had  intended 
such  a  construction  they  would  have  made  it  plain.  Mr.  Lamar  challenged  the 
alleged  Virginia  precedents;  but  Mr.  Robinson,  of  Ohio,  replied'  by  quoting  the 
Virginia  law  of  1813,  which  was  in  force  forty  years,  and  fixed  the  Congressional 
elections  "on  the  first  day  of  their  April  court"  in  each  coiuity.  He  also  quoted  a 
Kentucky  statute  of  1802,  a  Louisiana  law  of  1841,  and  a  New  Jersey  law  of  1820 
to  the  same  efl'ect. 

(4)  Did  the  law  of  1869  actually  prescribe  the  fourth  Thursday  of  October  as 
the  date  for  the  election  of  Representatives  in  Congress  independent  of  the  State 
election  ? 

Speaking  of  the  West  Virginia  law  of  1869,  already  quoted,  the  minority 
views  say : 

The  second  section  says — 

At  the  said  election,  *  *  *  in  the  year  1870,  and  every  second  year  thereafter,  a  governor, 
secretary  of  state,  etc.,  "and  a  Representative  in  the  Congress  of  the  United  States"  shall  be  elected. 

At  the  said  election;  at  what  said  election?  Clearly  that  election  mentioned  in  the  first  section, 
to  wit,  the  general  election  for  State,  district,  county,  and  township  officers. 

The  word  which  is  employed  to  introduce  the  said  second  section,  as  well  as  the  general  mean- 
ing and  obvious  intent  of  the  section,  render  this  very  manifest. 

"At  the  said  election  for  State  and  local  officers  Representatives  shall  be  elected."  "At,"  in  its 
ordinary  and  usual  application  as  applied  to  time,  means  contemporary  with,  in  conjunction  with. 

Now,  how  can  it  be  claimed  that  Representatives  in  Congress  can  be  elected  at  the  general  elec- 
tion for  State  and  local  officers  on  the  fourth  Thursday  of  October  when  there  is  no  general  election 
for  State  and  local  officers  on  that  day? 

Again,  we  fail  to  tinderstand  what  authority  there  was  for  holding  an  election  for  Representatives 
in  Congress  only,  on  the  fourth  Thursday  of  October.  The  law  of  the  State,  the  code  of  1869,  regula- 
ting the  manner  of  holding  the  elections,  prescribing  the  officers  who  should  conduct  the  same,  directing 
as  to  the  making  returns,  etc.,  had  reference  to  the  State  election — the  election  of  the  officers  of  the 
State  government  as  distinguished  from  the  Federal  Government.  The  election  of  Representatives 
in  Congress  was  hinged  on  to  the  State  election.  It  was  a  mere  incident  of  the  State  election.  They 
were  to  be  elected  at  the  general  election  for  State  and  local  officers. 

Where  is  the  authority  for  setting  in  motion  the  machinery  provided  for  the  State  government 
to  elect  Representatives  in  Congress  alone?  Who  is  to  give  the  requisite  notice;  who  to  act  as  inspect- 
ors; who  to  furnish  places  for  conducting  the  election;  who  to  make  the  returns  and  declare  the  result? 
The  code  of  West  Virginia  does  not  require  one  of  the  officers  named  in  the  election  act  to  take  a  step 
or  lift  a  finger  at  any  election  of  Representatives  in  Congress  apart  and  distinct  from  the  State  election. 
Their  duty  relates  exclusively  to  the  State  election  and  the  election  of  Representatives  in  connection 
with  such  election. 

The  majority  report  joins  issue  on  this  point: 

Section  2  is  simply  an  enumeration  of  the  officers,  the  day  of  whose  election  was  prescribed  under 
generic  terms  in  section  1. 

The  legislature  therefore  had  implicitly  obeyed  the  requirement  of  Article  I,  section  4,  of  the 
Constitution  of  the  United  States,  and  had  "prescribed"  for  the  election  of  Representatives  in  Congress 
a  day  certain  in  section  1  and  not  an  occasion  in  section  2. 

The  fact  that  Representatives  are  specially  mentioned  in  section  2  does  not  affect  the  question, 
except  to  demonstrate  that  they  are  included  in  the  term  "district  officers"  in  section  1.  So  is  the 
governor  mentioned  in  section  2,  though  plainly  included  in  the  class  of  "State  officers"  mentioned  in 
section  1. 

'  Record,  p.  847. 
5994— VOL  1—07 42 


658  PEECEDENTS   OF   THE   HOUSE    OF   KEPRESENTATIVES.  §   522 

4.  Is  there  any  opportunity  for  "construction"  here?  If  there  be,  then  the  old  election  law  of 
West  Virginia,  passed  November  13,  1863,  quoted  above,  and  which  was  codified  and  somewhat  abbre- 
viated in  chapter  3  of  the  code,  seems  to  be  important  on  this  question.  By  the  second  paragraph  of 
that  act  it  is  provided,  "And  on  the  fourth  Thursday  of  October,  in  1864,  and  on  the  same  day  in  every 
second  year  thereafter,  a  governor,  *  *  *  a  Representative  in  the  Congress  of  the  United  States," 
etc.,  shall  be  elected. 

This  act  prescribed  a  day  certain.  Can  it  be  fairly  claimed  that,  as  abbreviated  in  the  codificar 
tion,  there  was  an  "intention"  to  change  the  "prescribed  time"  from  a  day  certain  to  an  ambulatory 
"occasion?" 

The  attempt  at  abbreviation  consisted  in  the  mention  but  once  of  the  prescribed  day,  whereas  in 
the  act  codified  it  was  often  repeated,  and  in  grouping  each  class  of  ofiicers  to  be  elected  under  a  generic 
term  in  the  first  section,  which  alone  prescribes  the  time. 

In  the  debate '  Mr.  Robinson,  of  Ohio,  urged  that  the  code  of  1869  in  failing 
to  specify  Representatives  particularly  in  the  first  section,  had  intended  to  change 
the  more  specific  designation  of  the  former  law.  It  was  also  urged  "  by  Mr.  Wilson, 
of  Maryland,  that  manifestly  the  lawmakers  of  West  Virginia  never  contemplated 
that  the  fourth  Thursday  of  October  should  continue  an  election  day  for  Congress- 
men after  it  had  ceased  to  be  a  State  election  day.  It  was  further  argued  that  in 
1872  there  manifestly  could  be  no  State  election  in  October,  because  the  new  con- 
stitution had  abrogated  it. 

(5)  Did  the  schedule  of  the  new  constitution  actually  provide  for  a  general 
election  and  repeal  the  law  of  1869  prescribing  the  October  election? 

The  minority  views  say: 

It  is  true  it  was  not  held  at  the  same  time  as  had  previously  been  designated  for  the  general 
election,  but  uniformity  of  time  is  not  of  the  essence  of  a  general  election.  It  may  be  one  year  in  October 
and  the  next  in  November  and  yet  be  the  general  election.  In  the  State  of  Iowa,  for  instance,  the  general 
election  every  fourth  year  is  held  in  a  different  month  from  that  in  which  it  occurs  in  the  intermediate 
years. 

The  legislature  in  a  State  where  there  is  no  constitutional  inhibition  may  change  the  time  of  the 
election  every  year  or  every  other  year,  but  it  is  no  less  the  general  election. 

It  is  true  it  was  not  "to  count"  in  case  the  constitution  should  fail  to  be  ratified.  It  is  equally 
true  that  an  acknowledged  general  election  does  not  count  in  case  of  a  tie.  If  a  mere  uncertainty  as 
to  results  varies  the  case  in  one  instance,  it  does  in  another. 

It  is  not  true  that  it  was  an  election  simply  to  ratify  or  reject  the  constitution.  It  was  equally  an 
election — made  so  by  the  same  section  of  the  schedule — to  officer  the  State.  Every  officer  required  to 
be  elected  by  the  people,  from  governor  down  to  constable,  was  to  be  elected  on  that  day.  The  people 
were  required  to  do  exactly  that  thing  in  August,  1872,  which  in  October,  two  years  before,  was  known 
to  everybody  to  be  the  general  election  and  which  all  concede  will  be  the  general  election  when  it 
occurs  in  October,  1874;  and  yet  for  some  reason  it  is  insisted  that  it  was,  nevertheless,  not  a  general 
election  then.  It  is  unnecessary  to  enlarge  upon  what  is  a  general  election.  Definitions  are  easy. 
The  case  under  consideration  seems  to  us  to  comprehend  all  the  elements  of  what  we  every  day  speak 
of  and  recognize  as  a  general  election.  It  was  the  only  general  election  held  in  1872.  It  was  intended 
to  and  did  provide  the  entire  official  staff  of  the  State  government. 

The  minority  hold  that  the  convention  had  fxill  and  ample  authority  to  change 
the  election  from  October  to  August. 

The  majority,  in  the  views  submitted  by  Mr.  Speer,  quoted  the  language  of 
the  schedule  and  say: 

Here  is  a  plain,  clear  designation  by  name  or  class,  of  all  the  officers  to  be  voted  for  at  the  August 
election.     Members  of  Congress  are  not  named,  and  as  they  are  not  State  officers  and  are  not  "required 


'  Record,  p.  847.  "  Record,  p.  935. 


§   522  TIMES,   PLACES,   AND   MANNER   OF   ELECTION.  659 

by  this  constitution  to  be  elected,"  tliey  are  excluded  from  the  provisions  of  the  section  upon  the  famUiar 
maxim,  "expressio  uniiis,  exclusio  alterius."  The  convention,  apparently  conscious  of  its  want  of 
power,  was  careful  in  the  use  of  its  language. 

Under  what  authority,  then,  could  an  election  for  Representatives  in  Congress  be  held  on  the 
fourth  Thursday  of  August,  1872?  The  code  prescribed  the  fourth  Thursday  of  October,  and  the  con- 
stitution and  schedule  were  intentionally  silent  upon  the  subject.  No  change  in  the  time  of  holding 
the  Congressional  election  in  West  Virginia  has  been  directly  made  or  attempted  by  any  power,  compe- 
tent or  incompetent,  authorized  or  unauthorized.  If  made  at  all,  it  has  been  made  indirectly  by  a 
body  that  had  no  power  to  make  it  directly,  or,  if  it  had,  clearly  did  not  attempt  to  exercise  it.  If  the 
code,  as  claimed  by  those  who  hold  the  August  election  valid,  prescribed  only  the  occasion,  and  that 
the  general  election,  yet  the  new  constitution  did  not  provide  that  the  general  elections  should  be  held 
in  August,  but  "on  the  second  Tuesday  of  October  until  otherwise  provided  by  law."  The  election 
held  in  August,  1872,  was  for  the  special  purpose  of  voting  for  or  against  the  constitution;  specially  for 
this  purpose,  because  a  candidate  for  any  of  the  offices  voted  for  might  have  received  every  vote  cast, 
and  yet  he  would  not  have  been  elected,  or,  what  is  practically  the  same,  would  not  have  been  entitled 
to  hold  the  office  if  the  constitution  had  been  defeated,  for  there  would  have  been  no  office  to  hold.  It 
is  not  easy  to  understand  how  the  "general  elections"  provided  for  by  the  code  can  be  construed  to 
mean  a  single  election,  held  for  an  extraordinary  purpose,  on  a  day  not  prescribed  by  the  legislature, 
and  never  to  be  held  again  on  that  day  or  for  that  purpose,  and  which,  in  a  certain  contingency,  is  not 
to  elect  anybody!  The  code  pro\'ides  that  "at  the  said  elections"  certain  officers  shall  be  elected;  and 
yet  it  is  urged  that  the  schedule  supplants  these  "said  elections"  with  an  election  at  which  nobody 
can,  in  one  event,  be  elected!  It  seems  to  us  too  clear  for  argument  that  no  legal  election  for  Congress- 
men could  be  held  in  August,  either  under  the  code  or  the  constitution.  There  was  no  provision  in 
the  schedule  for  such  an  election,  and  there  was  clearly  none  in  the  constitution,  for  upon  its  ratification 
it  became  operative  for  every  hour  of  the  day  on  which  the  August  election  is  held,  and,  by  the  express 
language  of  section  7,  article  4,  transferred  the  "general  elections"  to  the  second  Tuesday  of  October. 
Hence,  from  the  earliest  hour  of  that  day  it  was  the  organic  law  of  the  State  that  the  "general  elections" 
must  be  held  in  October,  until  otherwise  provided;  and  yet  it  is  claimed  that  the  general  elections 
prescribed  in  the  code  were  held  in  August  by  vutue  and  force  of  this  same  constitution. 

Neither  Congress  nor  the  legislature  having  changed  the  time  of  holding  the  Congressional  election, 
and  the  convention  not  having  done  so  directly,  if  changed  at  all,  how  was  it  done? 

The  schedule  could  not  by  implication  carry  with  it  the  repeal  of  the  law 
prescribing  a  time  for  the  election  of  Congressmen,  as  there  was  nothing  repugnant 
to  the  new  constitution  ia  that  law. 

In  debate  '  an  equal  diversity  of  views  arose  as  to  whether  or  not  the  election 
provided  by  the  schedule  was  a  special  or  general  election. 

(6)  As  to  the  merits  of  the  case,  considering  the  elections  as  expressions  of 
the  will  of  the  people. 

The  minority  views  argue : 

In  view  of  the  foregoing  considerations,  and  of  the  further  facts  that  nearly  double  the  number 
of  votes  were  polled  in  August  as  in  October;  that  the  Representative  from  the  Third  district  has  already 
taken  his  seat  and  entered  on  his  duties;  that  in  the  First  district,  at  the  August  election,  a  joint  discus- 
sion was  held,  a  large  vote  was  polled — larger  than  that  for  several  of  the  candidates  on  the  State  ticket — 
and  that  no  public  interest  is  likely  to  be  subserved  by  imposing  upon  the  State  the  expense,  agitation, 
and  delay  of  another  election,  we  are  in  favor  of  sustaining  the  August  election. 

The  majority  call  attention  to  the  fact  that  in  the  Second  district  the  con- 
ventions of  both  parties  assumed  that  the  election  would  be  in  October  and  that  the 
vote  received  by  Mr.  Hagans  in  August  was  much  smaller  than  that  received  by 
Mr.  Martin  in  October. 

'  Record,  pp.  843,  934,  958. 


660  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   523 

In  the  debate  this  pomt  was  dwelt  on  at  greater  length,  Mr.  Todd  denying  that 
a  sufBcient  number  of  votes  was  cast  in  October  in  the  First  district  to  constitute 
an  election,  and  quoting  various  cases  in  support  thereof. 

After  having  been  debated  on  January  21,  22,  23,  26,  and  27,'  the  questions 
came  to  an  issue  on  the  latter  date." 

The  first  question  was  on  two  resolutions  of  the  majority  of  the  committee 
declaring  the  two  persons  claiming  seats  by  virtue  of  the  August  election  not  entitled 
thereto : 

First.  Resolved,  That  Mr.  Davis,  claiming  to  have  been  elected  a  Kepresentative  in  the  Forty- 
third  Congress  from  the  First  Congressional  ditricts  of  West  Virginia,  was  not  duly  elected,  and  is  not 
entitled  to  a  seat  in  this  House. 

Second.  Resolved,  That  Mr.  Hagans,  claiming  to  have  been  elected  a  Representative  in  the  Forty- 
third  Congress  from  the  Second  Congressional  district  of  West  Virginia,  was  not  duly  elected,  and  ia  not 
entitled  to  a  seat  in  this  Hoiwe. 

On  behalf  of  the  minority  Mr.  Hazelton  moved  to  strike  out  the  word  "not" 
in  the  first  of  the  two  resolutions;  and  this  motion  was  agreed  to — yeas  147,  nays 
82.     Then  the  resolution  as  amended  was  agreed  to — yeas  137,  nays  81. 

Thereupon  Mr.  Davis  appeared  and  took  the  oath. 

In  a  similar  manner  the  word  "not"  was  stricken  from  the  second  resolution 
by  a  vote  of  yeas  119,  nays  88,  and  then  the  resolution  as  amended  was  agreed  to — 
yeas  115,  nays  75. 

Thereupon  Mr.  Hagans  appeared  and  took  the  oath. 

523.  The  Colorado  election  case  of  Patterson  and  Belford  in  the  Forty- 
fifth  Congress. 

The  Clerk  declined  to  enroll  the  bearer  of  credentials  regular  in  form 
but  sho'wring  an  election  at  a  time  apparently  not  that  fixed  by  law. 

The  House  declined  to  give  prima  facie  effect  to  credentials  perfect  in 
form,  but  referring  to  an  election  on  a  day  of  doubtful  legality. 

Instance  wherein  credentials  were  referred  to  a  committee  with  in- 
structions to  inquire  either  as  to  prima  facie  or  final  right. 

Form  of  resolution  instructing  a  committee  to  inquiry  either  as  to 
prima  facie  or  final  title  to  a  seat. 

On  October  15,  1877,^  at  the  organization  of  the  House,  after  the  roll  of  Members 
had  been  called,  the  Clerk  *  announced  that  there  had  been  received  from  the 
State  of  Colorado  a  certificate  signed  by  the  governor  and  under  the  seal  of  the 
State,  declaring  the  election  of  James  B.  Belford  on  the  3d  day  of  October,  1876. 
The  Clerk  stated  that  under  the  law  he  could  enroll  only  those  whose  credentials 
showed  them  to  be  elected  in  accordance  with  the  laws  of  their  States  respectively, 
or  the  laws  of  the  United  States.  In  the  opinion  of  the  Clerk  there  was  no  law  of 
Colorado  or  the  United  States  authorizing  the  election  of  a  Representative  to  the 
Forty-fifth  Congress  on  the  3d  day  of  October,  1876.  Therefore  he  had  not  enrolled 
the  name  of  Mr.  Belford.  The  Clerk  also  annomiced  that  he  had  received  a  protest 
signed  by  Thomas  M.  Patterson,  claiming  to  be  a  Representative-elect  from  the  State 

'  Record,  pp.  816,  842,  875,  933,  958-964.  '  First  session  Forty-fifth  Congress,  Record,  p.  52. 

2  Journal,  pp.  325-331.  *  George  M.  Adams,  Clerk. 


§  524  TIMES,   PLACES,   AND   MANNER   OF   ELECTION.  661 

of  Colorado,  and  accompanying  that  protest  a  certified  copy  of  an  abstract  of  the 
votes  cast  in  each  county  on  the  Tuesday  after  the  first  Monday  of  November  for 
Representative  to  the  Forty-fifth  Congress.  The  abstract  showed,  however,  that 
the  votes  were  never  canvassed  by  any  board  of  canvassers  and  that  no  certificate 
was  ever  issued  by  anyone  declaring  the  result  of  the  election.  While  of  the  opinion 
that  the  November  election  was  the  one  provided  for  by  law,  the  Clerk  did  not 
consider  that  Mr.  Patterson's  credentials  entitled  him  to  be  enrolled. 

On  October  17,'  after  the  House  had  been  organized,  Mr.  Eugene  Hale,  of 
Maine,  presented  Mr.  Belford's  certificate,  and  moved  that  he  be  sworn  in.  The 
question  was  discussed  on  the  17th,  22d,  24th,  and  25th.^  Mr.  Hale  urged  that  as 
Mr.  Belford  had  a  certificate  in  due  form  he  was  entitled  prima  facie  to  the  seat. 
But  it  was  objected  that  as  the  certificate  specified  that  the  election  was  on  October 
3,  it  became  the  duty  of  the  House  in  determining  the  prima  facie  right  to  decide 
whether  October  3  was  really  the  election  day. 

On  October  25,^  by  a  vote  of  yeas  137,  nays  130,  the  House  substituted  for 
the  motion  of  Mr.  Hale  the  following,  proposed  by  Mr.  John  T.  Harris,  of  Virginia: 

Resolved,  That  the  certificate  presented  by  James  B.  Belford  and  the  certified  abstracts  of  votes 
cast  upon  the  7th  day  of  November,  A.  D.  1876,  for  Representative  to  the  Forty-fifth  Congress,  and 
accompanying  papers,  presented  by  Thomas  M.  Patterson,  upon  which  each  claims  the  office  of  Repre- 
sentative to  the  Forty-fifth  Congress  of  the  United  States  from  the  State  of  Colorado,  be  referred  to  the 
Committee  on  Elections,  to  be  appointed  hereafter,  with  instructions  to  said  committee  to  report  either 
as  to  the  prima  facie  right  or  final  right  of  said  claimants,  as  the  committee  shall  deem  proper,  and  that 
neither  claimant  be  sworn  in  until  said  committee  reports. 

Then  Mr.  Hale's  motion  as  amended  by  the  substitute  was  agreed  to. 

524.   The  election  case  of  Patterson  and  Belford,  continued. 

A  question  as  to  the  right  of  a  constitutional  convention  of  a  State 
to  fix  the  time  for  the  election  of  Representatives  in  Congress. 

A  claimant  who  received  a  small  vote,  not  officially  canvassed  or 
declared,  but  cast  on  the  legal  day,  was  preferred  to  one  receiving  a 
far  larger  vote  on  a  day  not  the  legal  one. 

Votes  cast  on  a  legal  election  day  were  held  valid  by  the  House 
although  the  State  official  had  withdrawn  his  proclamation  calling  the 
election  for  that  day. 

The  fact  that  a  large  portion  of  the  electors  fail  to  participate  does 
not  invalidate  an  election  held  on  the  legal  day. 

A  question  as  to  the  authority  of  a  construction  of  law  by  State 
officials  and  people  in  a  case  relating  to  time  of  electing  Congressmen. 

On  December  6,  1877,*  Mr.  John  T.  Harris,  of  Virginia,  from  the  Committee 
on  Elections,  submitted  the  report  of  the  majority  of  the  committee. 

The  report  disregarded  the  question  of  prima  facie  right,  and  proceeded  at  once 
to  a  discussion  of  the  merits  of  the  case. 

'  Journal,  p.  25;  Record,  p.  94. 

2  Record,  pp.  94,  118,  135,  150-163. 

3  Journal,  pp.  38-40. 

••House  Report  No.  14,  second  session  Forty-fiith  Congress;  1st  Ellsworth,  p.  52. 


662       PRECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES.  §  524 

In  brief,  two  elections  were  held  in  the  State,  and  the  question  at  issue  was  as 
to  which,  if  either,  was  the  legal  election.  The  circumstances  of  the  two  elections 
were  thus  stated  in  one  of  the  minority  views: 

At  a  general  election  held  in  that  State  on  the  3d  day  of  October,  A.  D.  1876,  votes  were  cast  for 
a  Representative  in  both  the  Forty-fourth  and  Forty-fifth  Congresses.  A  little  over  2G,000  votes  were 
polled  for  the  two  candidates,  which  is  admitted  to  be  a  full  vote  for  the  State.  The  vote  for  the  Rep- 
resentative for  the  Forty-fifth  Congress,  as  polled  and  returned,  was  a  little  larger  than  that  for  Repre- 
sentative in  the  Forty-fourth  Congress.  There  is  no  reasonable  doubt  that  both  political  parties  did, 
in  fact,  cast  their  full  vote  at  that  election  for  Representative  in  both  Congresses,  and  that  if  said  elec- 
tion can  be  considered  as  a  lawful  election  for  a  Member  of  the  Forty-fifth  Congress,  James  B.  Belford 
is  entitled  to  the  seat,  he  having  received  a  majority  of  the  votes  cast.     As  to  this  there  is  no  dispute. 

Thomas  M.  Patterson,  who  received  a  minority  of  the  votes  cast  for  Representative  in  the  Forty- 
fifth  Congress  at  the  election  above  mentioned,  seems  to  have  claimed,  prior  to  the  October  election, 
that  no  valid  election  for  the  present  Congress  could  be  held  in  October,  but  that  the  7th  of  November, 
the  day  fixed  by  Federal  statute  (if  such  statute  controlled  the  matter),  was  the  day  on  which  the  elec- 
tion for  the  Forty-fifth  Congress  must  be  held.  He  accordingly  seems  to  have  taken  steps  to  have  an 
election  held  on  said  7th  of  November,  and  on  that  day  3,829  votes  were  cast  for  Representative  in 
this  Congress,  of  which  3,580  were  cast  for  said  Patterson  and  172  for  said  Belford,  the  rest  scattering. 
If  said  7th  of  November  was  the  lawful  day  for  holding  said  election,  and  if  a  real  election  was  then 
held  by  the  people  of  Colorado,  Thomas  M.  Patterson  is  entitled  to  the  seat,  he  having  received  nearly 
all  the  votes  cast. 

A  question  arose  in  the  course  of  the  discussion  as  to  whether  or  not  the 
November  election  could,  in  view  of  the  small  number  of  votes  cast,  be  considered 
an  election.     The  majority  of  the  committee  held  that  it  could  be,  saying: 

Objection  has  been  made  to  the  seating  of  Mr.  Patterson,  upon  the  ground  that  there  was  a  light 
vote  polled  at  the  November  election,  compared  with  the  vote  at  the  October  election.  But  Mr.  Bel- 
ford can  not  complain  of  this,  nor  can  his  political  supporters,  for  his  name  was  withdrawn  from  the 
canvass  three  weeks  before  the  November  election,  and  his  supporters  were  advised  not  to  participate 
in  the  election.  The  absence  of  a  contest  would  naturally  result  in  a  light  vote.  At  the  recent  elec- 
tion for  governor  and  other  State  officers  in  the  State  of  Virginia  there  were  polled  in  the  city  of  Rich- 
mond less  than  2,000  votes  out  of  an  aggregate  voting  population  of  13,000.  There  was  no  contest  between 
opposing  forces,  and  a  light  vote  was  the  result.  But  no  one  will  seriously  contend  that  this  impaired, 
in  the  slightest  degree,  the  validity  of  the  election.  The  law  is  well  settled  on  this  point.  Mr.  McCrary, 
in  his  work  on  the  law  of  elections,  states  the  rule  thus  (sec.  448); 

"If  an  election  is  held  according  to  law,  and  a  fair  opportunity  is  presented  to  all  voters  to  partici- 
pate, those  who  do  not  vote  are  bound  by  the  result." 

In  the  case  of  Rex  v.  Munday  (2  Couper,  238),  Lord  Mansfield,  in  delivering  the  opinion  of  the 
court,  said: 

"Upon  the  election  of  a  member  of  Parliament,  where  the  electors  must  proceed  to  an  election 
because  they  can  not  stop  for  that  day  to  defer  it  to  another  time,  there  must  be  a  candidate  or  candi- 
dates; and  in  that  case  there  is  no  way  of  defeating  the  election  of  one  candidate  proposed  but  by  voting 
for  another." 

In  the  case  of  The  Commonwealth  v.  Read  (Brightly's  Election  Cases,  130-131)  this  rule  is  recog- 
nized to  the  fullest  extent.  In  this  case  it  was  the  duty  of  the  board  of  county  commissioners,  under 
the  statute,  to  elect  a  county  treasurer.  The  board  consisted  of  20  members,  all  of  whom  were  present, 
but  a  controversy  arose  among  them  as  to  the  manner  of  voting,  whether  viva  voce  or  by  ballot,  and 
only  one  of  their  number,  Abraham  Miller,  voted  by  ballot,  while  the  others  voted  viva  voce.  The 
statute  required  the  election  to  be  by  ballot,  and  by  virtue  of  this  one  vote  Read  claimed  to  be  elected. 
The  court  instructed  the  jury  as  follows: 

"In  all  our  public  elections  those  who  neglect  or  refuse  to  vote  according  to  law  are  bound  by  the 
votes  of  those  who  do  vote,  no  matter  how  small  a  minority  those  who  do  vote  are  of  the  whole  constit- 
uency. It  is  an  historical  fact  that  about  40,000  electors  who  voted  for  one  or  the  other  of  the  candi- 
dates for  governor  at  the  late  election  did  not  cast  any  vote  for  or  against  the  amended  constitution, 


§524 


TIMES,   PLACES,   AND    MANNER    OF    ELECTION.  663 


and  yet  that  inetrument  has,  hy  a  comparatively  small  minority,  become  the  supreme  law  of  the  land. 

The  result  of  our  opinion  is  that  if  you  are  satisfied  from  the  evidence  that  Abraham  Miller  tendered  a 
vote  by  ballot  for  the  defendant,  and  that  his  vote  by  ballot  was  received  as  such,  then  has  the  defend- 
ant sustained  his  plea  of  having  been,  on  the  1st  of  April  last,  duly  elected  county  treasurer." 

A  former  Committee  of  Elections  of  this  House  (Nineteenth  Congress,  first  session),  in  the  case  of 
Biddle  and  Richard  v.  Wing  (Clark  and  Hall,  p.  507),  laid  down  the  rule  which  has  always  been 
recognized.     The  report  in  that  case  held  that — 

"The  law  appoints  a  particular  time  and  place  for  the  expression  of  the  public  voice.  When  that 
tune  is  past  it  is  too  late  to  inquire  who  did  not  vote,  or  the  reason  why.  The  only  question  now  to  be 
determined  is  for  whom  the  greatest  number  of  legal  votes  have  been  given." 

The  small  vote  on  the  7th  of  November  in  Colorado  was  not  the  result  of  intimidation  of  voters; 
but,  on  the  contrary,  the  supporters  of  one  of  tlie  claimants  of  the  seat  voluntarily  absented  themselves 
from  the  election  by  preconcerted  arrangement,  and  for  the  very  purpose  of  invalidating  the  election, 
so  far  as  it  was  in  their  power  to  do  so  by  their  absence.  Conceding  that  there  was  an  honest  difference 
of  opinion  among  the  voters  of  Colorado  as  to  the  legal  day  for  the  election,  some  believing  the  3d  day 
of  October  and  others  the  7th  day  of  November  to  be  the  lawful  day,  yet  it  will  not  be  pretended  that 
the  proper  construction  of  an  act  of  Congress  is  to  be  determined  by  the  voters  of  a  particular  district. 
The  provisions  of  law  which  fix  the  time  or  place  of  holding  elections  are  mandatory.  As  to  the  time 
of  election,  the  day  can  not  be  changed  even  by  the  consent  of  all  the  voters.     (McCrary,  sec.  114.) 

Ignorance  of  the  proper  time  or  a  misunderstanding  of  the  law  on  the  part  of  a  portion  of  the 
electors  will  not  deprive  those  who  do  understand  the  law  and  who  do  act  upon  the  day  prescribed  by 
law  from  their  right  to  vote  and  control  the  election.  It  is  not  denied  that  the  election  on  the  7th  day 
of  November  was  conducted  in  accordance  with  the  general  election  law  of  the  State,  that  all  electors 
who  desired  to  do  so  were  permitted  to  vote,  and  that  the  canvass  and  result  were  honestly  made  and 
published. 

Mr.  J.  D.  Cox,  of  Ohio,  who  filed  individual  views,  held  the  opposite  view: 

In  regard  to  the  7th  of  November  election,  the  day  was  not  only  not  the  lawful  one,  as  we  have 
above  shown,  but  the  State  officials  had  become  convinced  of  this  and  withdrawn  the  election  procla- 
mation and  notices. 

The  condition  of  the  public  mind  is  probably  best  described  by  the  secretary  of  state,  Mr.  Clark, 
who  testifies: 

"Many  were  doubting  the  legality  of  an  election  for  Representative  in  the  Forty-fifth  Congress 
on  the  7th  day  of  November,  others  claiming  that  it  would  be  a  mere  matter  of  form  anyway,  because 
there  was  some  kind  of  an  understanding  between  Mr.  Belford  and  Mr.  Patterson  that  whichever  was 
beaten  at  the  October  election  would  not  be  a  contestant  against  the  other  at  the  November  election; 
others  claimed  that  only  a  Member  to  the  Forty-fourth  Congress  could  be  elected  under  the  constitution 
and  that  the  general  assembly  must  provide  by  law  for  the  holding  of  an  election  for  the  Forty-fifth 
Congress."     (Record,  p.  16.) 

■^Tien  in  the  midst  of  the  public  uncertainty  thus  described,  in  which  the  confusion  was  increased 
by  the  acts  of  party  committees,  prompted  by  the  fear  that  their  opponents  would  get  the  start  of  them, 
an  election  was  nominally  held,  in  which  hardly  more  than  one-seventh  of  the  electors  took  part,  less 
than  one-third,  even,  of  the  party  claiming  the  victory,  and  almost  none  of  their  opponents;  when  in 
the  city  of  Denver,  the  capital  of  the  State,  and  where  were  the  political  managers  and  committeemen, 
the  proportion  of  votes  cast  was  not  larger  than  in  the  rest  of  the  State;  and  when  in  eight  counties  there 
was  not  even  a  show  of  election,  it  would  be  doing  violence  to  language  and  to  justice  to  call  the  result 
an  expression  of  the  popular  will  or  the  formalities  which  took  place  an  election  by  the  people  of  the 
State. 

In  the  debate  on  December  13,'  this  feature  of  the  case  was  discussed  some- 
what at  length,  the  minority  citing  the  case  of  Buttz  v.  Mackey,  where  after  casting 
out  a  third  of  the  poll  it  was  decided  that  the  remainder  of  the  votes  were  not 
sufficient  to  constitute  an  election  and  the  seat  was  declared  vacant.     In  opposi- 

'  Record,  pp.  186,  187. 


664  PKECEDENTS   OF   THE    HOUSE   OF   KEPEESENTATIVES.  §   524 

tion  the  majority  cited  the  West  Virginia  election  cases  of  1873  and  the  vote  for 
Mr.  Hagans.  H 

But  the  main  issue  of  the  case  was  as  to  wluch  election  was  legal.  Section  25 
of  the  Revised  Statutes  of  the  United  States  provided: 

The  Tuesday  next  after  the  first  Monday  in  November,  in  the  year  eighteen  hundred  and  seventy- 
six,  is  established  as  the  day,  in  each  of  the  States  and  Territories  of  the  United  States,  for  the  election 
of  Representatives  and  Delegates  to  the  Forty-fifth  Congrass;  and  the  Tuesday  next  after  the  first 
Monday  in  November,  in  every  second  year  thereafter,  is  established  as  the  day  for  the  election,  in 
each  of  said  States  and  Territories,  of  Representatives  and  Delegates  to  Congress  commencing  on  the 
fourth  day  of  March  next  thereafter. 

On  March  3,  1875,  after  the  above  law  had  been  enacted,  the  law  admitting 
Colorado  as  a  State  was  approved.     It  contained  this  provision: 

That  until  the  next  general  census  said  State  shall  be  entitled  to  one  Representative  in  the  House 
of  Representatives  of  the  United  States,  which  Representative,  together  with  the  governor  and  State 
and  other  officers  provided  for  in  said  constitution,  shall  be  elected  on  a  day  subsequent  to  the  adoption 
of  the  constitution  and  to  be  fixed  by  said  constitutional  convention;  and  until  such  State  officers  are 
elected  and  qualified  under  the  provisions  of  the  constitution,  the  Territorial  officers  shall  continue  to 
discharge  the  duties  of  their  respective  offices. 

In  accordance  with  this  enabling  act  the  constitutional  convention  of  Colorado 
adopted  the  following  sections: 

One  Representative  in  the  Congress  of  the  United  States  shall  be  elected  from  the  State  at  large  at 
the  first  election  under  this  constitution,  and  thereafter  at  such  times  and  places  and  in  such  manner 
as  may  be  provided  by  law. 

Sec.  16.  The  votes  cast  for  Representative  in  Congress  at  the  first  election  held  under  this 
constitution  shall  be  canvassed  and  determined  in  the  manner  provided  by  the  laws  of  the  Territory 
for  the  canvass  of  votes  for  Delegates  in  Congress. 

Section  7  of  the  Colorado  constitution  provided: 

A  general  election  shall  be  held  on  the  first  Tuesday  of  October,  in  the  years  of  our  Lord  1876, 
1877,  and  1878,  and  annually  thereafter  on  such  day  as  may  be  prescribed  by  law.' 

These  conflicting  provisions  left  a  doubt  as  to  when  the  election  of  1876  for 
Congressman  should  be  held.     The  majority  report  thus  sets  forth  what  was  done: 

The  following  facts  are  established  beyond  controversy: 

1.  That  the  secretary  of  state  did,  on  the  31st  day  of  August,  1876,  issue  his  proclamation  (printed 
Record,  p.  138)  notifying  the  people  that  there  would  be  an  election  on  the  3d  day  of  October,  1876, 
for  State  officers  and  for  "one  Representative  for  the  unexpired  term,  Forty-fourth  Congress;"  that 
this  proclamation  made  no  mention  of  the  election  of  a  Representative  in  the  Forty-fifth  Congress, 
and  that  the  sheriffs  of  the  several  counties  of  the  State  promulgated  like  proclamations  and  notices. 

2.  Thatonthel4thdayof  September,  1876,  the  secretary  of  state  issued  his  proclamation  (printed 
Record,  p.  254)  giving  notice  of  an  election  to  be  held  November  7,  1876,  for  a  Representative  from 
the  State  at  large  for  the  Forty-fifth  Congress;  that  no  other  officers  were  to  be  elected  at  such  election, 
and  that  the  sheriffs  of  the  several  counties  issued  like  notices  in  their  several  counties. 

3.  That  these  proclamations  by  the  secretary  of  state  and  the  sheriffs  of  the  several  counties 
were  the  only  notices  published  by  legal  authority  or  otherwise  relating  to  said  elections  until  after 
the  election  on  the  3d  day  of  October. 

4.  That  the  names  of  both  contestant  and  contestee  were  printed  generally  upon  the  tickets  used 
at  the  election  on  the  3d  day  of  October  for  both  the  Forty-fourth  Congress  (unexpired  term)  and  the 
Forty-fifth  Congress;  but  there  was  no  agreement  between  the  respective  claimants  or  their  friends 

'  This  provision  of  the  constitution  appears  in  full  in  the  debates.  Record,  p.  147. 


§   524  TIMES,  PLACES,   AND   MANNER   OF   ELECTION.  665 

as  to  whether  the  3d  day  of  October  was  the  day  prescribed  by  law  for  holding  the  election  for  a  Repre- 
sentative in  the  Forty-fifth  Congress. 

5.  That  on  the  10th  day  of  October,  one  week  after  the  election  on  the  3d  day  of  that  month,  J.  C. 
Wilson,  chairman  of  a  State  political  committee  favoring  the  election  of  Mr.  Belford,  issued  an  address 
(Record,  pp.  45-47)  calling  on  the  friends  of  Mr.  Belford  to  prepare  by  registration  and  otherwise  for 
the  election  on  the  7th  day  of  November. 

6.  That  on  the  16th  day  of  October  the  secretary  of  state  issued  a  proclamation  withdrawing  his 
proclamation  of  September  14,  which  gave  notice  of  the  election  on  the  7th  of  November. 

7.  That  on  the  14tli  day  of  October  the  said  J.  C.  Wilson,  on  behalf  of  Mr.  Belford,  withdrew 
his  name  from  any  further  candidacy  for  Congress,  claiming  that  he  had  been  elected  on  the  3d  day  of 
October  to  the  Forty-fifth  Congress,  as  well  as  to  the  unexpired  term  of  the  Forty-fourth  Congress,  and 
advised  Mr.  Belford's  friends  to  take  no  part  whatever  in  the  election  on  the  7th  day  of  November. 

8.  That  the  votes  cast  at  the  election  on  the  7th  day  of  November  were  counted  by  the  proper 
oflBcers  in  11  counties  and  transmitted  to  the  secretary  of  state,  but  were  not  canvassed  by  that  officer 
or  by  any  State  canvassing  board;  that  in  the  other  15  counties  of  the  State  no  abstracts  of  the  votes 
cast  were  sent  to  the  secretary  of  state  by  the  county  clerks;  but  the  stipulation  filed  by  the  parties 
to  the  contest,  and  above  set  forth,  shows  the  true  result  of  the  votes  actually  cast  in  the  whole  State. 

A  diversity  of  opinion  existed  in  the  committee  and  the  House  as  to  which 
day  the  law  designated  for  the  election.  The  majority  contended  that  November  7 
was  the  legal  day.  The  minority  views,  presented  by  Mr.  John  T.  Wait,  of  Connec- 
ticut, contended  that  the  October  election  was  the  legal  one,  while  Mr.  Cox  con- 
tended that  neither  was  legal. 

The  majority  admitted  that  the  failure  of  the  proper  officer  to  give  notice 
of  the  election  of  a  Congressman  in  October  did  not  invahdate  the  election,  since 
it  was  settled  by  authorities  (Cooley  and  McCrary)  "that  where  the  time  and  place 
for  holding  an  election  are  fixed  by  statute,  any  voter  has  a  right  to  take  notice 
of  the  law  and  to  deposit  his  ballot." 

Also  the  majoritj'  held  that  the  failure  to  canvass  the  votes  and  declare  the 
result  "does  not  invalidate  an  election  otherwise  regular  and  valid." 

This  therefore  left  as  the  important  question  the  determination  of  the  day 
fixed  by  law. 

The  majority  held  that  the  enabhng  act  did  not  repeal  the  statute  fixing  gen- 
erally the  day  of  election  in  all  the  States,  citing  authorities  to  show  the  danger 
of  the  doctrine  of  repeal  by  imphcation.  The  law  of  Congress  was  the  supreme 
law  of  the  land,  and  Congress  having,  in  the  exercise  of  its  constitutional  power, 
fixed  the  time  for  holding  the  election  for  Representative  in  the  Forty-fifth  Congress 
in  all  the  States,  from  the  moment  of  the  passage  of  the  act  of  Congress  it  became 
and  was  engrafted  upon  the  statutes  of  every  State  in  the  Union,  and  it  required 
no  auxiliary  State  legislation  to  give  effect  to  the  national  statute.  But  the  election 
laws  of  the  several  States  which  fixed  the  places  and  prescribed  the  manner  of  such 
elections  were  not  afl'ected,  altered,  or  repealed;  and  the  national  statute  fixing 
the  time  and  the  State  statutes  fixing  the  places  and  prescribing  the  manner  of  hold- 
ing the  Congressional  elections,  formed  a  complete  election  machinery  for  the 
election  of  Representatives  in  Congress. 

The  schedule  to  the  Colorado  constitution  (sec.  1 )  provided  that  all  laws  in  force 
in  Colorado  at  the  adoption  of  the  constitution  should  remain  in  force  until  altered 
or  repealed  by  the  legislature.  It  was  not  disputed  that  there  was  a  well-defined 
and  perfect  code  of  election  laws  in  force  in  Colorado  at  the  time  of  the  adoption 


666  PRECEDENTS   OF    THE   HOUSE   OF   BEPEESENTATIVES.  §  524 

of  the  constitution.  In  pursuance  of  these  laws,  the  State  election  and  the  election 
for  Representative  in  Congress  for  the  unexpired  term  of  the  Forty-fourth  Con- 
gress were  held  on  the  3d  day  of  October,  1876,  and  Mr.  Belford  did  not  question 
the  vahdity  of  such  laws,  for  he  claimed  his  own  election  on  the  3d  of  October,  1876, 
to  this  Congress,  by  virtue  of  an  election  held  in  pursuance  thereof.  These  State 
laws  provided  fully  for  the  places  and  prescribed  the  manner  in  which  "  all  general 
and  special  elections"  should  be  held  in  the  State.  There  were,  then,  in  force  in 
the  State  of  Colorado  on  the  7th  day  of  November,  1876,  laws  providing  a  full, 
complete,  and  perfect  election  machinery  for  electing  a  Representative  to  the 
Forty-fifth  Congress — the  time  fixed  by  Congress,  and  the  places  and  manner  pro- 
vided by  the  State  statutes. 

The  minority,  after  quoting  section  16  of  the  Colorado  constitution,  say: 

That  the  constitutional  convention  assumed  it  had  full  jurisdiction  of  the  question  and  intended 
to  exercise  it  the  last-quoted  section  makes  apparent;  it  continued  the  election  laws  of  the  Territory 
to  the  election  in  October  and  no  further,  and  by  the  provisions  of  the  constitution  fixing  the  time 
of  the  assembling  of  the  first  legislature  of  the  State  and  its  methods  of  enacting  laws,  it  was  impossible 
for  it  to  provide  election  laws  for  the  first  Tuesday  after  the  first  Monday  in  November  (see  constitution 
of  Colorado);  the  inference  follows  it  assumed  a  Representative  to  this  Congress  was  to  be  elected  in 
October,  1876;  otherwise  it  intended  not  to  make  provision  for  such  an  election. 

The  minority  contended,  on  another  point,  that  the  action  of  the  people  of 
Colorado  settled  the  question: 

But  the  State  of  Colorado  and  her  people  alone  are  interested  in  this  question.  She  is  entitled 
to  representation,  and  the  proper  and  only  function  of  the  House  is  to  see  that,  within  the  principles 
of  representation  underlying  the  legislative  branch  of  our  Government,  she  has  her  constitutional  right. 
And  upon  this  complex  question — for  we  suppose  it  must  be  complex,  since  the  views  of  members 
of  your  committee  are  so  diverse — her  people  have  put  a  construction. 

We  suppose  it  to  be  well  settled  in  cases  of  the  doubtful  construction  of  a  statute  involving  the 
rights  of  the  people,  and  only  their  rights  as  distinguished  from  individual  rights,  the  adoption  of  a  par- 
ticular construction  with  entire  unanimity  has  never  been  disturbed  by  a  power  only  interested  to  pre- 
serve the  rights  of  the  State;  certainly  never  when  the  only  possible  injury  to  the  constituency  is  in 
the  political  associations  of  the  individual  who  shall  represent  the  State  if  that  construction  shall  remain 
unreversed.  And  we  affirm  most  confidently  the  people  of  Colorado  have  construed  the  provisions 
hereinbefore  discussed  in  accordance  with  our  views. 

The  majority  considered  that  the  constitution  of  Colorado  intended  to  fix 
only  the  day  for  the  election  of  the  first  Congressman,  and  it  was  contended  in 
debate  that  this  was  as  far  as  a  constitutional  convention  might  go.'  The  minority 
views,  however,  contended  that  the  convention  might  fix  also  the  times  of  other 
elections,  citing  the  case  of  Shiel  v.  Thayer.     This  also  was  urged  in  debate.^ 

The  majority  concluded  that  Mr.  Patterson  was  entitled  to  the  seat  and  pre- 
sented a  resolution  so  declaring.^ 

The  minority  presented  a  resolution  declaring  Mr.  Belford  entitled  to  the  seat. 

The  report  was  debated  at  length  on  December  12  and  14.^  On  the  latter  day 
the  House  disagreed  to  the  minority  resolution,  yeas  109,  nays  126.     The  proposi- 

'  Record,  p.  160. 
'  Record,  p.  180. 

'  Congress  passed  a  law  to  remove  any  ambiguity  as  to  the  next  election  in  Colorado.     Second 
session  Forty-fifth  Congress,  Record,  pp.  4082,  4083;  20  Stet.  L.,  p.  112. 
♦Record,  pp.  145,  178-199. 


S  525  TIMES,  PLACES,   AND   MANNER   OF   ELECTION.  667 

tion  declaring  that  there  had  been  no  legal  election  was  decided  in  the  negative, 
yeas  116,  nays  117.  Then  the  resolution  of  the  majority  was  agreed  to,  yeas  116, 
nays  110.     Mr.  Patterson  was  then  sworn  ia.' 

525.  The  Iowa  election  case  of  Holmes,  Wilson,  Sapp,  and  Carpen- 
ter in  the  Forty-sixth  Congress. 

An  instance  after  the  enactment  of  the  law  regulating  election  con- 
tests wherein  a  contest  was  institvited  by  petition. 

An  election  for  Congressmen  not  called  or  sanctioned  by  State  offi- 
cers, and  participated  in  by  a  fraction  merely  of  the  people,  would  not 
be  valid  even  although  held  on  the  legal  day. 

Discussion  of  the  force  to  be  given  by  the  House  to  a  construction 
by  the  proper  State  officials  of  a  State  law  fixing  the  time  for  electing 
Congressmen. 

The  constitution  of  a  State  may  not  control  its  legislature  in  fixing, 
under  the  Federal  Constitution,  the  time  of  election  of  Congressmen. 

Reference  to  practice  of  agreeing  to  questions  of  fact  in  contested 
election  cases  as  liable  to  abuse. 

An  instance  wherein  an  elections  committee  held  certain  testimony, 
which  was  not  legal  in  form,  as  an  offer  of  proof. 

On  December  21,  1880,'  Mr.  Walbridge  A.  Field,  of  Massachusetts,  from  the 
Gonmiittee  on  Elections,  submitted  a  report  in  the  Iowa  election  cases  raised 
by  the  petitions  of  J.  C.  Holmes  and  John  J.  Wilson.  All  of  the  committee  but 
one  concurred  in  the  conclusions  of  this  report,  but  four  of  the  ten  stated  that 
they  did  not  concur  in  all  the  legal  opinions  stated  in  the  report.  Mr.  Walpole  G. 
Golerick,  of  Indiana,  filed  minority  views  dissenting  from  both  the  reasoning  and 
the  conclusion. 

The  salient  facts  underlying  the  question  are  included  in  the  following  extract 
from  the  minority  views: 

The  Constitution  of  the  United  States  declares  that  "The  times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  shall  be  prescribed  in  each  State  by  the  legislature  thereof, 
but  the  Congress  may  at  any  time  by  law  make  or  alter  such  regulations,  except  as  to  the  places  of  choos- 
ing Senators."     (Art.  I,  sec.  4.) 

Under  this  provision  of  the  Constitution  the  legislature  of  the  State  of  Iowa  was  authorized  and 
required  to  prescribe  the  time,  place,  and  manner  of  holding  elections  in  that  State  for  Representatives 
in  Congress,  subject  to  the  power  of  Congress  to  alter  at  any  time  such  regulations.  By  virtue  of  this 
provision  of  the  Constitution  the  legislature  of  that  State  did  enact  a  law  prescribing  "the  time,  place, 
and  manner"  of  holding  elections  for  Representatives,  and  designated  the  second  Tuesday  in  October 
as  the  time  for  the  holding  of  said  election.  Subsequently,  in  February,  1872,  Congress,  exercising  the 
power  conferred  upon  it  by  the  Constitution,  altered  the  regulations  so  prescribed  by  the  legislature 
of  Iowa,  as  to  the  time  designated  for  the  holding  of  said  election,  by  the  following  enactment: 

"The  Tuesday  after  the  first  Monday  in  November,  in  the  year  1876,  is  established  as  the  day 
in  each  of  the  States  and  Territories  for  the  election  of  Representatives  and  Delegates  in  the  Forty- 
fifth  Congress,  and  the  Tuesday  next  after  the  first  Monday  in  November  in  every  second  year  there- 
after is  established  as  the  day  for  the  election  in  each  of  said  States  and  Territories  of  Representatives  and 
Delegates  to  the  Congress  commencing  on  the  4th.  day  of  March  thereafter."  (Sec.  25  Rev.  Stat.,  U.  S., 
1878.) 

'Journal,  pp.  113-116. 

*  Third  session  Forty-sixth  Congress,  House  Report  No.  19;  1  Ellsworth,  p.  322. 


668 


PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES. 


§  525 


Afterwards  Congress  modLfled  said  law,  as  follows: 

"That  section  25  of  the  Revised  Statutes,  prescribing  the  time  for  the  holding  elections  for  Repre- 
sentatives to  Congi-ess  is  hereby  modified  so  as  not  to  apply  to  any  State  that  has  not  yet  changed  its 
day  of  election,  and  whose  constitution  must  be  amended  in  order  to  effect  a  change  in  the  day  of  the 
election  of  State  officers  in  said  State."     (Sec.  6,  ch.  130,  acts  2d  sess.  43d  Cong.,  approved  Mar.  3,  1875.) 

The  question  presented  to  us  is,  Does  the  State  of  Iowa  come  within  the  exception  named  in  said 
act,  as  modified?  Must  her  constitution  be  amended  "in  order  to  effect  a  change  in  the  day  of  the 
election  of  State  officers  in  said  State  "? 

The  constitution  of  Iowa  provides  that  "The  first  election  for  secretary  of  state,  auditor,  and 
treasurer  of  state,  attorney-general,  district  judges,  members  of  the  board  of  education,  district  attorneys. 
Members  of  Congress,  and  such  State  officers  as  shall  be  elected  at  the  April  election  in  the  year  1857, 
*    *    *    shall  be  held  on  the  second  Tuesday  of  October,  1858."     (Sec.  7,  art.  12.) 

This  language  of  the  constitution  gave  rise  to  a  doubt  as  to  whether  the  con- 
stitution would  have  to  be  amended  in  order  to  effect  the  change  prescribed  by  the 
law  of  Congress. 

At  the  general  election  of  October  8,  1878,  in  Iowa,  Messrs.  William  F.  Sapp 
and  Cyrus  G.  Carpenter  were  elected  Representatives,  respectively,  from  the  Eighth 
and  Ninth  districts  of  Iowa,  received  their  certificates  from  the  governor,  and  were 
seated  in  the  House. 

But  Mr.  J.  C.  Holmes,  in  the  Eighth  district,  and  Mr.  John  J.  Wilson,  in  the 
Ninth  district,  offered  themselves  for  election  on  November  5,  1878,  claiming  that 
it  was  the  legal  election  day,  according  to  the  constitution  and  laws  of  Iowa. 

In  Mr.  Holmes's  district  votes  were  cast  in  four  townships,  and  the  report  thus 
summarizes : 

The  result  is,  in  the  case  of  Holmes,  that  the  papers,  if  taken  to  be  true  statements,  show  that 
in  these  four  townships  certain  voters  got  together  and  went  through  the  forms  of  an  election  for  Rep- 
resentative in  Congress;  that  in  all  171  votes  were  cast,  of  which  Holmes  received  162,  Sapp  2,  and  Chap- 
man 6,  and  there  was  1  blank;  and  that  these  votes  were  never  canvassed  by  any  State  officers  and 
no  certificate  of  election  issued.  In  the  Congressional  Directory,  which  refers  to  the  election  held 
in  October,  Sapp  is  put  down  as  receiving  15,343  votes,  against  7,453  votes  for  Keatley,  Democrat, 
and  7,760  votes  for  Hicks,  National,  in  all  30,556  votes. 

It  does  not  appear  that  the  voters  of  this  Representative  district  understood  generally  that  an 
election  was  to  be  held  on  the  5th  day  of  November,  being  the  Tuesday  next  after  the  first  Monday  of 
November,  for  Representative  in  Congress,  or  that  any  attempt  would  be  made  by  anybody  to  hold 
such  an  election  or  that  any  person  had  notice  that  any  such  election  would  be  held,  except  the  persons 
voting. 

It  does  not  appear  that  the  governor  issued  his  proclamation  for  any  such  election,  which  by 
section  577  of  the  code  of  Iowa  he  is  required  to  issue  thirty  days  before  any  general  election,  "desig- 
nating all  the  offices  to  be  filled  by  the  votes  of  the  electors  of  the  State,  or  by  those  of  any  Congres- 
sional, legislative,  or  judicial  district,  and  transmit  a  copy  thereof  to  the  sheriff  of  each  county." 

It  docs  not  appear  that  the  sheriff  gave  "at  least  ten  days'  notice  thereof,  by  causing  a  copy  of 
such  proclamation  to  be  published  in  some  newspaper  printed  in  the  county,  or  if  there  be  no  such 
paper,  by  posting  such  a  copy  in  at  least  five  of  the  most  public  places  in  the  county,"  as  required  by 
section  578  of  the  code. 

It  does  not  appear  that  any  registry  of  voters  was  established,  or  that  any  of  the  regularly  appointed 
officers,  except  one  township  clerk,  took  any  part  in  this  election,  or  that  the  board  of  supervisors  of 
the  county  canvassed  the  returns  and  made  abstracts  thereof,  as  provided  in  section  635  of  the  code  of 
Iowa,  or  that  any  abstracts  thereof  were  forwarded  to  the  secretary  of  state  or  filed  by  the  county 
auditor  (section  637  of  code),  or  that  any  canvass  was  made  by  the  executive  council  (sections  651, 
652,  code),  or  that  any  certificate  of  election  was  issued  under  the  seal  of  the  State  (section  653  of  code). 
So  far  as  appears  this  might  have  been  an  election  held  by  a  few  persons  in  only  four  townships,  without 


§   525  TIMES,   PLACES,  A^TD   MANNER   OF   ELECTION.  669 

any  knowledge  on  the  part  of  anybody  except  themselves  that  any  attempt  to  hold  an  election  would 
be  made,  and  without  any  recognition  at  all  by  the  authorities  of  the  State. 

It  was  stated  in  argument  that  Mr.  Holmes  had  his  ballots  secretly  printed  in  St.  Louis,  Mo.,  and 
that  the  election  was  in  fact  a  secret  to  nearly  all  the  electors  of  the  district,  but  as  the  committee  have 
not  been  authorized  to  take  testimony,  the  undersigned  have  considered  this  as  hearsay,  and  have 
not  regarded  it. 

In  ilr.  Wilson's  district  the  result  is  thus  summarized: 

If  the  statements  in  these  papers  are  taken  to  be  true  there  were  votes  cast  in  twelve  townships 
on  the  5th  of  November,  1878,  for  Representative  in  Congress  to  the  number  of  357,  of  which  Wilson 
received  260  and  Carpenter  97.  In  the  Congressional  Directorj-,  which  refers  to  the  October  election, 
Carpenter  is  put  down  as  receiving  16,489  votes,  against  1,202  for  W.  H.  Brown,  Democrat,  and  12,338 
votes  for  L.  Q.  Hoggatt,  National;   in  all,  30,029  votes. 

There  is  the  same  absence  of  any  evidence  of  action  on  the  part  of  the  authorities  of  the  State  in 
making  proclamation  and  giving  notice  of  the  election  and  canvassing  the  votes  cast  after  the  elections 
as  in  Holmes's  case,  and  there  is  no  evidence  whatever  that  it  was  generally  understood  that  an  election 
for  Representative  in  Congress  was  to  be  held  on  the  5th  day  of  November,  or  that  any  attempt  was  to 
be  made  to  hold  any  election  on  that  day,  or  that  it  was  known  to  anybody  except  the  persons  voting 
that  any  such  election  was  to  be  held.  The  papers  do  show  that  the  governor  of  Iowa  was  ad^nsed  by 
the  persons  named  that  such  an  election  could  lawfully  be  held  only  on  the  second  Tuesday  of  October. 

Several  questions  arose  from  this  dispute  as  to  the  date  of  election  and  the 
proceedings  resulting  therefrom: 

(1)  Both  Holmes  and  Wilson  petitioned,  not  against  the  election  of  Messrs. 
Sapp  and  Carpenter,  but  that  such  action  might  be  taken  as  would  give  them  their 
legal  rights  as  Representatives  elected  in  November.  Their  petitions  were  referred 
to  the  Committee  of  Elections.  That  conmiittee,  after  discussing  its  own  powers, 
said: 

The  power  of  the  House  to  judge  of  the  elections,  returns,  and  qualifications  of  its  members  is 
ample,  and  it  can  proceed  in  its  own  way;  a  committee  of  the  House  has  such  power  as  is  given  it. 

The  importance  of  election  cases  demands  that  the  testimony  should  be  taken  on  notice  to  all 
persons  interested,  with  the  right  on  their  part  to  cross-examine  witnesses  and  to  exhibit  testimony 
in  reply,  so  far  as  their  rights  may  be  affected  by  the  inquiry-. 

This  may  be  done  under  or  after  the  analogj'  of  the  statute  relating  to  contested  elections,  or  by 
simunoning  witnesses  before  the  committee,  or  in  any  other  manner  the  House  may  direct. 

None  of  the  certificates  or  affidavits  found  in  the  papers  in  a  judicial  court  wovdd  prove  themselves 
or  be  judicially  recognized  except  the  certificates  of  the  sitting  Members. 

The  conmiittee  sent  notice  of  the  pendency  of  these  petitions  to  the  Members  in  Congress  from 
the  State  of  Iowa,  and  some  of  them  appeared  specially,  without  acknowledging  by  their  appearance 
that  their  rights  could  be  determined  under  these  petitions.  The  undersigned  agree  with  the  remainder 
of  the  committee  that  chapter  8  of  the  Revised  Statutes  of  the  United  States,  relating  to  contested 
elections,  has  no  direct  application  to  a  contest  between  persons  claiming  under  elections  held  on  differ- 
ent days,  and  could  only  be  made  applicable  by  a  resolution  of  the  House  authorizing  such  parties  to 
proceed  after  the  analogy  of  the  statute  and  fixing  in  the  resolution  a  time  from  which  the  first  thirty 
days  should  begin  to  run. 

The  undersigned  think  that  the  words  ' '  such  election  "  in  the  third  line  of  section  105  of  the  Revised 
Statutes  mean  an  election  contested,  and  a  person  claiming  to  be  elected  on  a  subsequent  day  might 
not  be  elected  until  more  than  thirty  days  after  the  result  of  the  first  election  had  been  determined, 
and  might  not  be  able  under  the  statute  to  give  any  notice  at  all;  but  they  think  that  the  provisions 
of  that  chapter  or  some  analogous  provisions  ought  in  general  to  be  made  applicable  to  any  contest  in 
which  the  rights  of  sitting  Members  are  involved,  or  else  that  the  Committee  on  Elections  should  be 
authorized  to  summon  persons  and  take  testimony,  with  notice  to  the  sitting  members,  and  perhaps,  in 
a  case  like  this,  to  the  State  of  Iowa,  to  appear  and  by  testimony  and  arguments  be  heard.      The 


670  PEECEDENTS   OF   THE   HOUSE   OF   KEPEESENTATIVES.  §   525 

petitions  in  these  cases  should  not,  therefore,  be  dismissed  merely  because  they  do  not  conform  to  the 
statutes. 

The  agreement  of  parties  has  sometimes  been  received  as  to  disputed  questions  of  fact,  but  it  has 
always  been  held  that  this  should  be  done  with  great  caution,  as  these  are  not  merely  contests  between 
the  parties,  but  the  rights  of  the  people  of  the  district  and  of  the  State  and  of  the  people  of  the  United 
States  are  involved  and  can  not  be  agreed  away. 

In  these  cases  no  testimony  has  been  taken  by  the  committee;  there  are  no  parties  and  no  agreement 
of  parties.  Certain  facts  have  been  stated  in  argvunent  for  and  against  the  cases  of  the  petitioners,  and 
have  been  conceded  in  argument  by  counsel,  but  the  undersigned  do  not  feel  at  liberty  to  consider 
them  as  agreed  facts. 

It  was  suggested  to  the  coimsel  of  the  petitioners  that  if  they  proposed  to  prove  any  other  facts 
than  those  set  forth  in  their  papers,  they  should  state  them;  but  there  was  no  intimation  that  they  desired 
to  ofier  evidence  of  any  other  facts  than  those  alleged  in  the  papers. 

In  determining  what  should  be  done  with  the  petitions,  the  undersigned  were  of  the  opinion  that 
the  affidavits  and  certificates  accompanying  the  petitions  should  be  regarded  as  offers  of  proofs;  that  is, 
statements  by  the  petitioners  of  the  facts  which  they  propose  to  prove;  and  that  the  committee  should 
consider  whether,  if  all  these  statements  of  facts  were  taken  to  be  true,  the  petitions  could  be  main- 
tained; that  if  they  could  not,  it  would  not  be  worth  while  to  ask  this  House  for  authority  to  take  testi- 
mony on  the  subject,  or  to  take  any  other  action  than  to  dismiss  the  petitions. 

(2)  After  reviewing  the  facts  as  to  tlie  alleged  November  elections,  the  report 
says: 

The  undersigned  think  that  it  is  impossible  to  hold  on  these  alleged  facts,  if  proved,  that  either 
Mr.  Holmes  or  Jlr.  Wilson  has  been  duly  elected  Representative  in  Congress,  whether  the  Tuesday  after 
the  first  Monday  of  November  or  the  second  Tuesday  of  October  be  the  lawful  day  for  such  an  election, 
and  that  there  is  no  need  of  taking  testimony  in  these  cases,  because  the  facts  alleged,  if  proved,  would 
not  entitle  either  of  these  gentlemen  to  a  seat,  and  that  the  committee  should  be  discharged  from  any 
further  consideration  of  these  petitions;  and  that  in  coming  to  this  conclusion  it  is  not  necessary  to 
decide  whether  the  authorities  of  the  State  were  right  or  not  in  determining  that  the  legal  day  of  election 
was  the  8th  day  of  October,  because  if  it  be  assumed  to  be  true  that  the  5th  day  of  November  was  the 
legal  day  of  election,  the  election  was  not  held  under  the  sanction  of  the  authorities  of  the  State  of  Iowa, 
was  not  generally  known  so  far  as  appears,  and  was  not  participated  in  by  such  numbers  of  the  people 
of  Iowa  that  on  any  grounds  this  House  would  be  justified  in  declaring  Mr.  Holmes  or  Mr.  Wilson  entitled 
to  a  seat. 

These  petitions,  as  has  been  said,  can  not  be  considered  as  petitions  of  citizens  or  voters  of  Iowa 
asking  that  the  whole  election  in  Iowa  for  Representatives  in  Congress  in  October  shotild  be  declared 
void. 

They  are  not  drawn  with  any  such  intention  and  pray  no  such  relief.  So  far  as  appears,  if  Holmes 
and  Wilson  can  not  be  seated  they  are  content  as  citizens  of  Iowa  that  the  existing  delegation  of  Iowa 
should  retain  their  seats. 

If  resolutions  should  be  offered  in  the  usual  form  declaring  either  Mr.  Holmes  or  Mr.  Wilson  entitled 
to  a  seat,  the  undersigned  think  that  they  should  be  decided  in  the  negative. 

The  minority  views  reach  the  same  conclusion : 

While,  in  my  judgment,  the  failure  of  the  governor  to  issue  a  proclamation,  and  the  omission  of 
other  officers  to  perform  their  duties  would  not  alone  invalidate  the  election,  as  their  neglect  or  refusal 
to  comply  with  their  duties  should  not  result  in  depriving  the  people  of  the  right  to  elect  their  officers 
at  the  time  fixed  by  law  for  that  purpose,  yet  it  is  quite  evident  from  the  very  small  vote  cast  that  the 
voters  of  the  district  generally  abstained  from  voting  or  taking  any  part  whatever  in  said  election,  and 
it  is  fair  to  assume  that  the  cause  of  their  failure  to  do  so  is  alone  attributable  to  the  fact  that  they 
believed  that  the  election  which  had  been  held  in  October  for  Representative  to  Congress  was  authorized 
by  law  and  legal,  and  that  said  subsequent  election  was  unauthorized  and  illegal,  and  by  reason  of 
this  belief,  so  created,  they  failed  to  participate  in  said  election  and  thereby  the  wUl  of  the  people  was 
not  fairly  or  fully  expressed  at  the  election  held  in  November,  and  therefore  I  do  not  think  that  the 
claimants  who  base  their  right  to  the  seats  in  dispute  tinder  and  by  virtue  of  said  election  are  entitled 
to  the  same. 


§  525  TIMES,   PLACES,  AND   MANNER   OF   ELECTION.  671 

(3)  The  majority  further  held  that  under  the  petitions  in  the  present  case  the 
committee  might  not  investigate  the  validity  of  the  October  election: 

And  if  resolutions  should  be  offered  declaring  Mr.  Sapp  and  Mr.  Carpenter  entitled  to  their  seats, 
that  they  should  be  decided  in  the  affirmative,  because  nothing  as  yet  has  appeared  to  invalidate  the 
title  by  which  they  now  hold  them;  and  that  as  a  decision  of  the  validity  of  the  election  of  Messrs.  Sapp 
and  Carpenter,  or  perhaps  of  all  the  delegation  from  Iowa,  is  not  necessary,  in  the  opinion  of  the  under- 
signed, in  order  to  make  a  proper  disposition  of  these  petitions,  a  decision  against  them  or  against  the 
whole  delegation  of  Iowa  should  not  be  made  without  formal  notice  to  the  Representatives  of  Iowa,  and 
perhaps  to  the  State  of  Iowa,  and  after  taking  testimony  of  such  facts  and  circumstances  surrounding 
the  election  on  the  second  Tuesday  of  October  as  might  properly  be  considered  in  construing  the  statutes 
and  laws  relating  to  the  legality  of  an  election  on  that  day. 

Mr.  Colerick,  having  concluded  that  the  law  and  constitution  of  Iowa  were  so 
worded  that  the  legal  time  of  election  was  in  November,  said  that  it  followed  that 
the  seats  of  Messrs.  Sapp  and  Carpenter  were  vacant,  and  he  proposed  resolutions 
declaring  the  vacancies. 

(4)  The  majority,  while  deeming  it  unnecessary  under  their  view  of  the  case 
to  investigate  the  legaHty  of  the  October  election,  still  discussed  the  question,  since 
other  opinions  had  been  expressed.  In  this  discussion  the  following  questions 
appeared : 

(a)  The  report  points  out  that  the  House  might,  if  it  chose,  take  action  as  to 
Messrs.  Sapp  and  Carpenter  independently  of  the  petitions.  But  it  appeared  that 
both  political  parties  and  the  State  officials,  with  the  acquiescence  of  the  great  mass 
of  the  people,  had  decided  that  the  laws  and  constitution  of  Iowa  were  of  such 
tenor  as  to  make  the  October  election  the  legal  one.  These  facts  were  undoubted, 
although  there  might  be  a  question  as  to  whether  they  were  properly  before  the 
committee.     They  were  of  great  significance,  for — 

It  is  the  doctrine  of  the  Supreme  Court  of  the  United  States  that  decisions  of  the  highest  judicial 
coiui;  of  a  State  upon  the  meaning  of  the  State  laws  and  constitution,  when  its  decisions  are  uniform, 
are  binding  on  that  coiut. 

The  construction  of  the  Constitution  and  laws  of  the  United  States  belongs  of  course  to  the  courts 
of  the  United  States  in  any  controversy  before  those  courts;  but  in  considering  whether  the  laws  and 
constitution  of  a  State  conflict  with  the  laws  and  Constitution  of  the  United  States  as  construed  by  the 
courts  of  the  United  States,  those  courts  take  the  laws  and  constitution  of  the  State  as  construed  by 
the  courts  of  the  State  when  their  decisions  are  imiform. 

The  undersigned  are  not  prepared  to  hold  that  the  decision  of  the  highest  authority  of  a  State  upon 
the  meaning  of  its  constitution  in  reference  to  whether  the  day  of  the  election  of  State  officers  is  fixed 
by  that  constitution  or  not,  so  far  as  it  is  material  in  determining  the  legality  of  an  election  of  Represent- 
atives in  Congress,  is  absolutely  binding  upon  this  House. 

In  a  report  from  the  Committee  on  Elections,  adopted  by  this  House  April  11,  1871,  in  the  matter 
of  the  Tennessee  election  (Digest  of  Election  Cases,  compiled  by  J.  M.  Smith,  p.  1),  the  committee  say. 

'It  is  a  well-established  and  most  salutarj-  rule  that  where  the  proper  authorities  of  the  State 
government  have  given  a  construction  to  their  own  constitution  or  statutes,  that  construction  will  be 
followed  by  the  Federal  authorities.  This  rule  is  absolutely  necessary  to  the  harmonious  working  of 
our  complex  Government,  State  and  national,  and  your  committee  are  not  disposed  to  be  the  first  to 
depart  from  it." 

We  are  not  disposed  to  be  the  first  to  depart  from  it,  and  we  certainly  think  that  such  a  decision 
made  in  good  faith  and  acquiesced  in  at  the  time  by  the  people  of  the  State,  and  followed  by  a  fuU 
and  fair  election,  should  not  be  overthrown  or  questioned  except  for  the  gravest  reasons,  foimded  on 
an  undoubting  conviction  that  it  was  plainly  an  error,  and  that  the  error  had  worked  some  substantial 
injury. 


672  PKECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §  525 

Mr.  Golerick,  in  the  minority  views,  denied  this  reasoning: 

While  it  is  true  that  the  Federal  courts  have  repeatedly  held  that  the  construction  placed  upon 
the  constitution  and  laws  of  the  respective  States  by  the  latest  utterances  of  the  highest  judicial  tribunals 
thereof,  will  be  respected  and  adopted  by  the  Federal  courts  (7  Wallace,  523;  9  Wallace,  35;  14  Howard, 
438;  23  Wallace,  108),  yet  they  have  never,  so  far  as  I  am  aware,  extended  the  limits  of  this  rule  so  as 
to  embrace  decisions  rendered  by  any  other  than  the  judicial  department  of  a  State.  It  is  not  claimed 
that  the  highest  or  any  other  judicial  tribunal  of  the  State  of  Iowa  has  given  a  construction  to  these 
provisions  if  her  constitution,  and  in  the  absence  of  such  decision  we  are  left  unrestrained  to  place  our 
own  construction  thereon. 

(&)  As  to  the  sufficiency  of  a  provision  in  a  State  constitution  prescribing  the 
time  of  electing  Representatives  in  Congress,  the  majority  report  says: 

Section  4,  article  1,  of  the  Constitution  of  the  United  States  confers  power  on  the  legislatures  of 
the  States  to  prescribe  the  time  of  electing  Representatives  in  Congress  in  the  absence  of  any  controlling 
regulations  by  Congress. 

The  provisions  of  the  constitution  of  a  State  can  not  take  this  power  from  the  legislature  of  a  State 
and  Congress  can  not  take  from  a  State  the  right  to  fix  either  by  its  constitution  or  by  its  laws  the  day  of 
electing  State  officers. 

The  object  of  section  G,  chapter  130,  of  the  acts  of  1875,  was  to  prevent  compelling  any  State  against 
the  will  of  its  legislature  to  have  two  elections  on  different  days,  one  for  Representatives  in  Congress 
and  one  for  State  officers,  or  else  to  change  its  constitution. 

We  are  therefore  of  opinion  that  the  governor  of  Iowa  adopted  the  right  construction  of  the  con- 
stitution of  that  State  in  deciding  that  it  did  fix  the  day  of  election  of  State  officers  (with  the  exception 
perhaps  of  the  attorney-general),  whether  those  State  officers  were  to  be  elected  on  the  odd  or  even 
numbered  years,  so  that  it  would  require  a  change  in  that  constitution  to  elect  State  officers  (who  were 
required  by  the  State  constitution  to  be  regularly  elected  by  the  people  in  the  year  1878)  on  the  Tuesday 
next  after  the  first  Monday  in  November,  and  that  the  election  of  Representatives  in  Congress,  held  in 
accordance  with  the  laws  of  the  State  on  the  second  Tuesday  in  October,  1878,  was  held  on  the  day  on 
which  alone  it  could  lawfully  have  been  held. 

In  reaching  this  conclusion  we  disregard  altogether  the  provision  for  the  election  of  Members  of 
Congress  found  in  section  7,  article  12,  of  the  constitution  of  Iowa.  That  provision  may  tend  to  show 
that  it  was  the  intention  of  the  people  of  Iowa  that  Members  of  Congress  should  be  elected  on  the  second 
Tuesday  in  October  of  the  even  numbered  years  not  Presidential,  but  the  time  of  electing  Members  of 
Congress  can  not  be  prescribed  by  the  constitution  of  a  State,  as  against  an  act  of  the  legislature  of  a  State 
or  an  act  of  Congress,  and  the  amendment  to  the  twenty-fifth  section  of  the  Revised  Statutes  of  the 
United  States  is  confined  to  States  whose  constitutions  fix  the  day  of  election  of  State  officers  in  said 
State. 

The  only  apparent  exception  has  been  in  the  constitutions  which  have  been  formed  by  Territories, 
and  with  which  such  Territories  have  been  admitted  into  the  Union  as  States;  but  this,  if  it  be  a  valid 
exception,  does  not  prove  that  Territories  have  the  right  by  a  constitution  to  fix  the  time  for  electing 
Representatives  in  Congress  when  they  become  States;  but  the  authority  of  these  provisions  rests  on 
the  sanction  and  adoption  of  them  by  Congress  in  admitting  such  Territories  as  States  with  constitutions 
containing  such  provisions. 

(c)  As  to  the  interpretation  of  the  constitutional  provision  of  Iowa,  the  major- 
ity concluded  that  it  would  need  to  be  amended  in  order  to  effect  a  change  of  the 
election  day,  and  so  the  law  of  Congress  fixing  elections  in  November  would  not 
apply  in  Iowa.     Mr.  Colerick  took  the  opposite  view. 

In  accordance  AV'ith  their  conclusions  the  majority  reported  the  following: 

Resolved,  That  the  petitioner,  J.  C.  Holmes,  in  the  matter  of  his  petition  asking  to  be  admitted  to  a 
seat  in  the  Forty-sixth  Congress  as  a  Representative  from  the  Eighth  Congressional  district  of  the  State  of 
Iowa,  have  leave  to  withdraw  his  petition. 

And  also  a  similar  resolution  applying  to  Mr.  Wilson. 


§   526  TIMES,   PLACES,   AND    MANNER    OF    ELECTION.  673 

On  January  31,  1881,'  these  resolutions  were  agreed  to  in  the  House  without 
debate  or  division. 

526.  The  election  case  relating  to  Delegate  Wilcox,  of  Hawaii,  in 
the  Fifty-sixth  Congress. 

Failure  of  a  Territorial  legislature  to  prescribe  specially  time,  place, 
and  manner  of  electing  a  Delegate  did  not  invalidate  an  election  actu- 
ally held. 

Instance  of  the  impeachment  of  the  election  and  qualifications  of  a 
Delegate  through  proceedings  instituted  by  a  memorial. 

Instance  of  examination  by  a  House  Committee  of  charges  of  bigamy 
and  treason  against  a  Delegate. 

The  organic  act  of  Hawaii  fixed  the  qualifications  of  the  Delegate 
therefrom. 

A  memorial  preferring  charges  against  Mr.  Robert  W.  Wilcox,  Delegate  from 
Hawaii,  having  been  referred  to  the  Committee  on  Elections  No.  1,  at  a  time  after 
the  Delegate  had  taken  the  oath,  that  committee  on  March  1,  1901,^  submitted  a 
report.^  The  charges  were  three:  (1)  that  he  was  guilty  of  bigamy;  (2)  that  he  was 
guilty  of  treason  against  the  United  States,  and  (3)  that  there  had  been  no  valid 
election  for  Delegate  from  Hawaii. 

1 .  As  to  the  first  charge  the  committee  found  that  Mr.  Wilcox  had  married  his 
second  wife  under  an  erroneous  impression  that  he  had  secured  a  valid  divorce  from 
his  first  wife.  But  as  there  was  no  pretense  that  he  had  lived  with  the  two  women  at 
the  same  time  or  held  himself  out  as  the  husband  of  two  women  the  committee  did 
not  conceive  that  a  question  of  ineligibility  was  presen*^ed. 

2.  In  regard  to  the  charge  of  treason  the  committee  found: 

On  the  7th  of  July,  1898,  Congress  adopted  a  joint  resolution  to  provide  for  annexing  the  Hawaiian 
Islands  to  the  United  States.  The  organic  act  providing  for  a  system  of  government  for  these  islands  was 
not  passed  until  April  30,  1900.  Early  in  1S99  Wilcox  wrote  several  letters  to  an  Italian  friend  of  his  in 
Washington,  and  one  letter  of  introduction  of  this  friend  to  certain  representatives  of  the  Philippines 
then  in  Washington,  in  which  he  gave  expression  to  unpatriotic  and  treasonable  propositions.  In  one  of 
these  letters  he  told  the  Philippine  representatives  that  he  was  ready  to  give  his  services  to  their  country 
and  ready  to  obey  orders  to  go  to  their  country  and  fight  for  the  independence  of  their  people. 

Yotur  committee  has  carefully  considered  the  duty  of  the  House  in  this  relation,  and  after  full 
discussion  and  consideration  are  clearly  of  opinion  that  under  the  circumstances  of  the  case  no  action 
ought  to  be  taken  by  the  House. 

Wilcox  was  one  of  the  adherents  of  Queen  Liliuokalani,  and  therefore  of  the  "royalist  party." 
Against  his  will,  and  in  spite  of  his  objection  and  the  objection  of  his  associates,  the  monarchy  was 
overthrown  and  a  republic  created.  No  doubt  this  revolution  was  in  the  interest  of  civilization  and  good 
government,  but  the  attitude  of  those  who  believed  in  the  monarchy  and  whose  government  was  over- 
thrown was  not  to  be  scrutinized  with  the  same  care  as  if  those  whose  conduct  was  questioned  could 
justly  be  compelled  to  show  instant  allegiance  to  the  new  governing  power. 

When  in  1898  the  Kepublic  of  Hawaii  proposed  to  the  United  States  terms  of  annexation,  which 
were  accepted  by  the  joint  resolution  of  .Tuly  7,  1898,  it  is  not  strange  that  those  who  were  opposed  to  the 
Republic  and  hoped  for  the  restoration  of  the  monarchy  should  be  unwilling  to  yield  allegiance  to  the 
power  which,  aa  it  seemed  to  them,  had  forcibly  assumed  jurisdiction  of  their  country.     At  the  time 

'  Record,  p.  1074. 

-  Second  session  Fifty-sixth  Congress,  House  Report  No.  3001;  Rowell's  Digest,  p.  601. 

^The  report  was  drawn  by  Mr.  R.  W.  Tayler,  of  Ohio. 

5994— VOL  1—07 43 


674  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    526 

when  Wilcox  wrote  his  treasonable  letters  the  only  government  which  the  Hawaiian  people  had  was  that 
which  the  Republic  of  Hawaii  had  set  up,  supplemented  by  the  resolution  of  1898,  which  merely  trans- 
ferred nominal  sovereignty  to  the  United  States.  WTien  in  1900  Congress  provided  a  system  of  govern- 
ment for  the  Hawaiian  people  at  once  just  and  generous,  by  the  orderly  operation  of  which  the  Hawaiian 
people,  on  a  full  and  representative  vote,  elected  Wilcox  as  their  Delegate  in  Congress,  it  was  natural 
that  a  revolution  in  public  sentiment  should  occur. 

A  Territorial  Delegate  has  no  legislative  power;  he  can  in  no  respect  influence  the  legislation 
applicable  to  the  States;  he  has  no  power  to  be  feared,  and  is  indeed  merely  the  agent  and  spokesman  of 
his  people.  Such  being  the  case,  in  view  of  the  changed — the  radically  changed — political  relations 
between  the  Hawaiian  people  and  the  United  States,  resulting  from  the  act  of  April,  1900,  we  do  not 
think  that  the  conduct  of  a  native  of  the  Hawaiian  Islands  a  year  or  more  prior  to  the  adoption  of  that 
organic  act,  however  improper  it  may  have  been,  abstractly  viewed,  ought  to  deprive  the  Hawaiian 
people  of  the  representative  whom  they  have  solemnly  sent. 

3.  The  objection  that  the  election  was  not  vaHd  was  foimd  by  the  committee  to 
be  technically  of  some  force : 

The  organic  act  passed  April  13,  1900,  has  this  provision: 

"Sec.  85.  That  a  Delegate  to  the  House  of  Representatives  of  the  United  States,  to  serve  during 
each  Congress,  shall  be  elected  by  the  voters  qualified  to  vote  for  members  of  the  house  of  representatives 
of  the  legislature;  such  Delegate  shall  possess  the  qualifications  necessary  for  membership  of  the  senate 
of  the  legislature  of  Hawaii.  The  times,  places,  and  manner  of  holding  elections  shall  be  as  fixed  by 
law.  The  person  having  the  greatest  number  of  votes  shall  be  declared  by  the  governor  duly  elected, 
and  a  certificate  shall  be  given  accordingly.  Every  such  Delegate  shall  have  a  seat  in  the  House  of 
Representatives,  with  the  right  of  debate  but  not  of  voting." 

It  is  not  clear  that  the  expression  "shall  be  as  fixed  by  law"  does  not  mean  as  fixed  by  the  law 
then  in  force  in  the  Hawaiian  Islands.  This  organic  act  reenacts  all  of  the  election  laws  of  the  Republic 
of  Hawaii,  in  so  far  as  they  are  applicable  to  the  conditions  then  existing,  or  made  to  exist,  by  the  organic 
act  itself.  Under  the  Hawaiian  system  of  government  the  only  officials  elected  were  the  representatives 
and  senators  to  the  legislature  of  the  Republic.  For  the  election  of  these  senators  and  representatives 
full  and  complete  machinery  was  devised  and  had  been  in  operation  up  to  the  time  of  the  joint  resolution 
annexing  the  islands.  Of  course  they  made  no  provision  for  the  election  of  a  Delegate  to  Congress,  nor 
was  any  additional  legislation  had,  except  that  which  is  contained  in  section  85  of  the  act  of  Congress 
above  referred  to.  With  no  machinery  of  election  except  that  provided  by  the  laws  of  the  Republic  of 
Hawaii  and  section  85  above  quoted,  it  is  claimed  that  no  valid  election  coxild  be  held.  In  this  view 
we  do  not  concur. 

Previous  to  the  election  of  November,  1900,  the  proper  officers  issued  a  proclamation  calling  for  the 
election  of  a  Delegate  to  the  United  States  Congress,  as  well  as  for  the  election  of  representatives  and 
senators  to  the  Territorial  legislature.  Separate  ballot  boxes  were  provided,  tickets  were  printed,  and 
the  whole  machinery  set  in  perfect  motion  for  the  election  of  the  Delegate  to  Congress.  The  same  pre- 
cautions were  observed  and  the  same  kind  of  machinery  of  election  provided  for  the  election  of  Delegate 
as  for  representative  and  senator  in  the  Territorial  legislature.  Practically  all  of  the  people  voted,  and 
quite  as  many  voted  for  Delegate  to  Congress  as  for  representatives  and  senators  in  the  Territorial  legisla- 
ture. There  was  a  full  and  free  expression  of  the  popular  will,  under  the  theory  that  the  Territory  was 
entitled  to  send  a  Delegate  to  Congress,  and  as  a  result  of  that  full  and  free  popular  expression,  Wilcox 
was  chosen  by  a  considerable  plurality.  He  comes  here,  therefore,  as  the  agent  of  his  people,  chosen 
apparently  under  the  forms  of  and  with  all  the  solemnity  which  surrounds  the  most  carefully  conducted 
election,  and  we  think  he  ought  to  be  permitted  to  retain  his  seat  as  their  representative  in  the  capacity 
of  a  Delegate. 

We  are  not  uninfluenced,  in  arriving  at  this  conclusion,  by  a  consideration  of  the  fact  that  the  people 
who  send  him  here  are  to  a  large  extent  unfamiliar  with  the  methods,  the  policy,  and  the  inspiration,  of 
a  free  government. 

The  report  was  not  acted  on  by  the  House,  and  Mr.  Wilcox  of  course  retained 
his  seat. 


§  527  TIMES,   PLACES,   AND   MANNER   OP   ELECTION.  675 

527.  The  election  case  of  laukea  v.  Kalanianaole  from  the  Territory 
of  Hawaii  in  the  Fifty-ninth  Congress. 

Instance  in  the  absence  of  specific  law  of  an  election  of  a  Delegate 
on  rules  based  on  analogy  to  the  law  providing  for  election  of  other 
Territorial  officers. 

Ballots  which  were  by  error  cast  with  a  numbered  stub  still  attached 
were  deducted  from  the  poll  as  bearing  a  distinguishing  mark  forbidden 
by  law. 

An  informal  removal  of  a  numbered  stub  by  election  officers  from 
ballots  erroneously  cast  with  such  illegal  distinguishing  mark  did  not 
save  the  ballots  from  rejection  by  the  House. 

On  March  26,  1906,^  Mr.  Michael  E.  Driscoll,  of  New  York,  from  the  Committee 
on  Elections  No.  3,  submitted  the  report  of  the  committee  in  the  case  of  laukea  v. 
Kalanianaole  from  the  Territory  of  Hawaii. 

The  report  sets  forth  at  the  outset  the  following  conditions: 

The  Territory  of  Hawaii  is  divided  into  6  election  districts  and  69  election  or  voting  precincts. 
The  said  election  took  place  on  the  8th  day  of  November,  1904.  Thereafter  the  votes  cast  at  said  election 
for  the  office  of  Delegate  to  Congress  were  counted  and  canvassed,  and  as  the  result  of  said  count  and 
canvass  Hon.  Jonah  K.  Kalanianaole,  the  contestee,  was  declared  to  have  received  6,833  votes,  Hon. 
Curtis  P.  laukea,  the  contestant,  to  have  received  2,868  votes,  and  the  Hon.  Charles  Notley,  the  condidate 
of  the  Home  Rule  party,  to  have  received  2,289  votes,  making  a  total  of  11,990  votes  cast  for  this  office, 
and  the  governor  of  the  Territory  issued  to  the  contestee  herein  the  certificate  of  election. 

The  notice  of  contest  was  served  by  the  contestant  on  the  contestee  within  the  time  specified  by 
law,  and  sets  forth  the  allegations  and  charges  on  which  this  contest  is  based,  and  which,  briefly  stated, 
are  substantially  as  follows: 

That  the  official  Ijallots  prepared  by  the  secretaiy  of  the  Territory  of  Hawaii  and  furnished  to  the 
various  inspectors  of  election  throughout  the  Territory  were  illegal,  in  that  said  ballots  had  printed 
thereon  numbers  whereby  they  could  be  identified,  contrary  to  the  express  provisions  of  law  regulating 
such  election ;  that  said  ballots  with  the  numbers  on  were  actually  cast  or  voted  in  many  of  the  precincts; 
that  the  numbers  on  such  ballots  corresponded  with  the  numbers  entered  on  the  poll  book  opposite  the 
electors'  names,  and  by  that  method  the  secrecy  of  the  ballot  was  destroyed;  that  many  of  the  electors 
in  the  Territory  were,  prior  to  and  at  the  time  of  said  election,  in  the  employ  of  the  Territorial  govern- 
ment, whose  officers  and  agents  were  the  party  friends  and  supporters  of  the  contestee,  and  the  fact  that 
the  election  inspectors  could  determine  how  any  man  voted  afforded  a  means  of  intimidating  and  coer- 
cing those  employees  to  vote  for  the  contestee  even  against  their  convictions;  that  employees  of  the 
Territorial  government  engaged  in  the  construction  of  roads  and  other  public  works  were  organized  into 
political  clubs  by  government  officials  in  authority  over  them  and  were  prevented  from  attending  or 
participating  in  meetings  held  in  behalf  of  contestant,  and  were  threatened  with  loss  of  employment  if 
they  manifested  any  favor  for  his  candidacy,  and  that  such  employees  were  marched  to  the  polls  and 
voted  in  bodies  while  wearing  the  uniforms  of  such  clubs,  and  were  threatened  with  loss  of  employment 
if  they  did  not  vote  for  the  contestee;  that  there  were  several  precincts  in  which  ballots  were  cast  with 
the  numbers  on,  and  such  numbers  were  torn  off  by  the  election  officers  before  they  were  counted  or 
before  they  were  opened  and  credited  to  the  several  candidates;  that  this  was  a  mutilation  of  the  ballots, 
and  that  those  ballots  were  void  and  should  have  been  rejected. 

In  due  time  the  contestee  filed  an  answer  to  the  notice  of  contest,  which  is,  in  substance,  a  general 
denial  of  the  material  allegations  set  forth  in  the  notice  of  contest. 

The  contestant,  through  his  counsel,  expressly  stated  that  the  contestee  was  not  personally  respon- 
sible, directly  or  indirectly,  for  any  of  the  irregularities  or  violations  of  law  set  forth  in  the  notice  of 
contest. 

'  First  session  Fifty-ninth  Congress,  Record,  p.  4285;  House  Report  No.  2651. 


676  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   527 

Section  85  of  the  organic  act  for  the  government  of  the  Territory  of  Hawaii  provides: 

"That  a  Delegate  to  the  House  of  Representatives  of  the  United  States,  to  serve  during  each 
Congress,  shall  be  elected  by  the  voters  qualified  to  vote  for  members  of  the  house  of  representatives 
of  the  legislature.  Such  Delegate  shall  possess  the  qualifications  necessary  for  membership  of  the  senate 
of  the  legislature  of  Hawaii.  The  times,  places,  and  manner  of  holding  elections  shall  be  as  fixed  by 
law.  The  person  having  the  greatest  number  of  votes  shall  be  declared  by  the  governor  duly  elected, 
and  a  certificate  shall  be  given  accordingly.  Eveiy  such  Delegate  shall  have  a  seat  in  the  House  of 
Representatives  with  the  right  of  debate,  but  not  of  voting." 

Section  6  of  that  act  provides:  "That  the  laws  of  Hawaii  not  inconsistent  with  the  Constitution 
or  laws  of  the  United  States  or  the  provisions  of  this  act  shall  continue  in  force,  subject  to  repeal  or 
amendment  by  the  legislatiu-e  of  Hawaii  or  the  Congress  of  the  United  States." 

Section  64  of  said  act  provides  that  the  rules  and  regulations  for  holding  elections  under  the  Repub- 
lic shall  continue  in  force  after  the  annexation,  with  a  few  modifications  therein  set  forth,  which  were 
made  necessary  by  the  change  of  government  from  the  Republic  to  its  present  status  as  a  Territory  of 
the  United  States,  and  no  provision  is  there  made  for  the  election  of  a  Delegate  to  the  Congress. 

Section  65  of  said  act  provides:  "That  the  legislature  of  the  Territory  may  from  time  to  time 
establish  and  alter  the  borndaries  of  election  districts  and  voting  precincts,  and  apportion  the  senators 
and  representatives  to  be  elected  from  such  districts." 

Section  55  of  said  act,  which  sets  forth  and  enumerates  the  legislative  powers  of  the  Territory, 
confers  no  jurisdiction  on  the  Territorial  legislatiu'e  to  modify  or  amend  the  election  law,  and  makes  no 
reference  to  it.  The  election  laws  of  the  Republic  contained  no  provision  for  the  election  of  a  Delegate 
to  Congress,  for  no  such  office  existed,  and  the  organic  act  has  no  provision  for  that  purpose  except  as 
contained  in  section  85,  and  apparently  confers  no  power  on  the  legislature  of  Hawaii  to  amend  or  sup- 
plement those  laws.  But  Hawaii  is  entitled  to  a  Delegate  in  Congress,  and  such  Delegate  must  be 
elected  by  the  voters  qualified  to  vote  for  members  of  the  house  of  representatives  of  its  legislature. 
The  time  for  holding  such  election  is  fixed  by  section  14  of  the  organic  act,  but  neither  in  that  act  nor 
in  the  laws  of  the  Territory  is  there  any  definite  procedure  for  the  conduct  of  such  election.  Therefore 
the  secretary  of  the  Territory  was  obliged  to  formulate  entirely  new  and  independent  rules  and  regula- 
tions for  the  election  of  a  Delegate,  or  to  so  adjust  and  supplement  its  present  election  laws  and  machinery 
as  to  accomplish  the  same  purpose.  The  counsel  for  both  parties  to  this  contest  assumed  that  the  Dele- 
gate should  be  elected  according  to  the  election  laws  of  the  Territory,  so  far  as  they  applied,  and  made 
their  briefs  and  arguments  on  that  assumption.  The  report  in  the  Wilcox  contested-election  case 
(Rowell's  Digest  of  Contested  Election  Cases,  p.  601)  is  an  authority  in  support  of  their  action. 

The  committee  were  unanimous  (with  the  possible  exception  of  one  Member) 
in  declaring  that  they  did  not  find  in  the  record  sufficient  evidence  of  intimidation, 
fraud,  corruption,  or  irregularities  of  any  kind  to  justify  it  in  unseating  the  con- 
testee  or  in  setting  aside  the  election. 

In  conclusion  the  committee  respectfully  recommended  to  the  House  of  Repre- 
sentatives that  the  election  laws  of  the  Territory  of  Hawaii  be  so  amended  and 
supplemented  as  to  provide  definitely  for  the  election  of  a  Delegate  to  the  Congress. 

On  the  remaining  question,  that  of  the  ballots,  five  Members  concurred  in  the 
report,  which  purged  the  poll,  while  three,  Messrs.  W.  E.  Humphrey,  of  Washington, 
Marshall  Van  Winkle,  of  New  Jersey,  and  Frank  B.  Fulkerson,  of  Missouri,  did 
not  agree  that  any  ballots  should  be  rejected. 

The  report  found  as  follows  in  regard  to  the  ballots: 

Under  the  Hawaiian  election  law  it  was  the  duty  of  the  secretary  of  state  to  have  all  the  ballots 
printed  and  sent  to  the  several  voting  precincts,  to  furnish  ballot  boxes,  and  generally  to  provide  the 
ways  and  means  for  holding  elections.  This  he  undertook  to  do.  The  statute  requires  that  two  suitable 
ballot  boxes  be  provided  for  each  election  precinct.  That  one  be  marked  in  plain  letters,  "For  senators," 
and  the  other  "For  representatives."  That  was  done,  and  a  third  box  was  provided  and  marked, 
"For  Delegate."  The  statute  requires  that  ballots  for  senators  be  of  blue  paper,  and  the  ballots  for 
representatives  of  white  paper,  and  in  the  absence  of  statutory  direction  the  ballots  for  Delegate  were 


§   527  TIMES,   PLACES,    AND    MANNER    OF    ELECTION.  677 

made  of  pink  paper.  Thus  far  no  fault  is  found  with  the  preparations  made  or  criticism  offered  on  the 
action  of  the  secretary  of  state  in  supplementing  the  statute  by  providing  for  separate  balloting  for 
Delegate.  Aside  from  the  Delegate  to  Congress,  senators  and  representatives  to  the  legislature  of  the 
Territory  of  Hawaii  are  the  only  officers  of  that  government  elected  by  the  people.  The  secretary  of 
state  and  election  officers  of  Hawaii,  having  attempted  to  follow  the  election  law  in  the  choice  of  Delegate, 
with  the  apparent  consent  of  the  several  candidates  for  that  office,  are  bound  by  that  law. 

They  should  not  be  permitted  to  invoke  it  for  one  purpose  and  reject  it  for  another.  So  far  as 
it  goes  it  is  definite  and  clear.  It  declares  that  the  ballot  shall  bear  no  word,  motto,  device,  sign,  or 
symbol  other  than  allowed  therein,  and  shall  be  so  printed  that  the  tj'pe  shall  not  show  a  trace  on  the 
back;  and  if  a  ballot  contains  any  mark  or  symbol  contrary  to  the  provisions  therein  set  forth  it  must 
be  rejected,  and  otherwise  carefully  guards  and  protects  the  secrecy  of  the  ballot.  It  has  no  provision 
for  numbering  the  ballots,  or  implied  authority  so  far  as  your  committee  can  discover.  However,  in 
the  year  1903  the  ballots  prepared  for  the  county  election  did  contain  numbers.  Those  were  on  the 
sides  of  and  separated  from  the  main  parts  of  the  ballots  by  perforated  lines.  This  was  done  to  avoid 
substitutions  and  perhaps  other  possibilities  of  fraud  or  irregularity,  and  according  to  the  evidence 
they  proved  satisfactory  and  tended  toward  honest  elections.  In  the  preparation  of  the  ballots  for 
the  general  election  of  1904  the  secretary  of  state  adopted  the  same  plan  so  far  as  numbering  was  con- 
cerned.    But  the  numbers  were  not  placed  in  the  same  relative  positions. 

The  ballots  were  printed  and  put  up  in  pads  of  100  each  and  numbered  in  sequences  from  1  to  100. 
Clear  across  the  top  of  each  liallot  and  separating  it  from  its  stub  was  a  distinctly  perforated  line,  and 
a  number  on  such  stub  corresponded  with  the  number  on  the  upper  right-hand  corner  of  the  ballot 
separated  from  the  balance  of  it  by  less  distinctly  perforated  lines.  It  was  the  intention  that  the  ballot 
should  be  torn  off  from  the  stub  on  such  large  perforated  line.  But  this,  by  mistake  of  the  election 
officers,  was  not  done  in  all  instances.  The  two  numbers,  one  on  the  stub  and  one  on  the  upper  right- 
hand  comer  of  the  ballot  proper,  were  liable  to  lead  to  confusion  and  mistakes  on  the  part  of  election 
officers,  some  of  whom  naturally  had  not  much  experience  and  were  not  paiticularly  instructed  as  to 
their  duty.  When  an  elector  was  given  a  ballot  his  name  was  put  down  on  the  poll  list,  and  his  num- 
ber, which  was  apt  to  correspond  with  the  last  figures  on  his  ballot  number.  It  is  therefore  clear  that 
if  the  number  were  not  removed  from  the  liallot  before  depositing  it  in  the  Ijox  the  identity  of  his  vote 
could  be  determined  by  the  election  officers  or  other  persons  who  afterwards  examined  the  ballots 
and  poll  lists,  and  the  secrecy  of  the  ballot  was  violated.  This  was  admitted  by  contestee's  counsel. 
It  was  the  intention  of  the  secretary  of  state  that  the  number  in  the  upper  right-hand  corner  of  the 
ballot  should  be  removed  before  such  ballot  was  deposited  in  the  box,  for  the  instructions  sent  out 
by  him  to  the  voters  and  election  officers  alike  contained  this  provision: 

"Before  leaving  the  compartment  the  voter  is  to  refold  his  ballot  just  as  he  received  it  from  the 
chairman,  and  thus  folded  deliver  it  to  the  inspector  of  election  in  charge  of  the  ballot  box  and  announce 
his  name.  After  his  name  is  checked  on  the  register,  the  inspector  shall  remove  the  perforated  slip, 
so  that  the  ballot  shall  have  no  mark  of  identification,  and  then  deposit  it  in  the  ballot  box." 

The  "perforated  slip"  here  referred  to  is  clearly  intended  to  be  the  perforated  slip  in  the  upper 
right-hand  comer.  This  perforation  is  not  so  distinct  as  the  one  across  the  top  of  the  ballot  dividing 
it  from  the  stub,  and  it  was  claimed  by  contestant's  counsel  that  it  was  not  in  fact  a  perforation,  but 
an  indentation.  However,  it  is  very  frequently  spoken  of  by  witnesses  for  both  parties  as  a  "perfora- 
tion" and  a  "perforated  line."  Besides,  if  the  number  were  left  on  the  ballot  it  would  contain  a  mark 
of  identification,  which  the  instruction  sought  to  guard  against. 

In  many  of  the  precincts  the  election  officers,  by  a  misconception  of  the  law  and  directions,  did 
not  detach  the  numbers  in  the  upper  right-hand  corners  of  the  ballots  before  depositing  them  in  the 
boxes.  Of  those  ballots  5,127  were  cast.  In  the  afternoon  of  election  day  the  secretary  of  state  learned 
that  at  some  of  the  precincts  ballots  were  being  deposited  with  the  numbers  on,  and  he  immediately 
notified  the  election  officers  as  far  as  possible,  by  the  use  of  the  telephone  and  special  messengers,  that 
they  were  making  mistakes.  After  the  polls  were  closed  some  of  them  undertook  to  correct  those 
mistakes  by  removing  the  numbers  from  such  ballots  before  they  were  counted,  or,  at  all  events,  before 
they  were  opened  and  credited  to  the  several  candidates.  Of  those  ballots  from  which  the  numbers 
were  removed  there  were  2,200,  leaving  2,927  on  which  the  numbers  were  allowed  to  remain.  The 
counsel  for  the  contestee  in  their  briefs  and  arguments  admitted  that  these  2,927  ballots  were  void  and 
should  be  rejected  from  the  count.     But  they  insisted  that  the  2,200  ballots  from  which  the  numbers 


678  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    527 

had  been  removed  were  valid  and  should  be  counted.  With  this  conclusion  your  committee  can 
not  agree.  If  the  2,927  ballots  from  which  the  numl^ers  were  not  removed  were  void,  we  are  of  the 
opinion  that  the  2,200  from  which  the  numbers  were  removed  were  void  also.  Those  ballots  were 
cast  when  they  were  deposited  in  the  boxes,  and  if  void  then  nothing  which  the  election  officers  did 
afterwards  could  make  them  valid. 

Section  95  of  the  Hawaiian  election  law  provides  that  "all  questions  as  to  the  validity  of  any 
ballot  sliall  be  decided  immediately,  and  the  opinion  of  a  majority  of  the  inspectors  shall  be  final  and 
binding,  subject  to  revision  by  the  supreme  court  as  herein  provided." 

But  this  does  not  permit  the  inspectors  to  add  to,  take  from,  or  change  any  ballot,  nor  is  any  power 
or  discretion  to  do  that  given  them  anywhere  in  the  law.  They  must  pass  on  the  validity  of  a  ballot 
and  return  it  just  as  it  is,  with  their  decision  thereon,  subject  to  revision  by  the  supreme  court.  Open 
the  door  and  permit  election  inspectors,  after  the  polls  are  closed,  to  meddle  with  the  ballots,  even  to 
correct  their  own  mistakes,  and  no  one  can  tell  what  the  abuse  of  that  discretion  may  lead  to.  The 
duties  of  such  inspectors  are  and  should  be  strictly  ministerial.  There  should  be  no  relaxation  of  the 
law  in  this  regard.  They  should  be  required  to  carefully  follow  the  statute,  leaving  discretionary 
power,  if  at  all,  to  the  court  or  reviewing  boards.  This  procedure  is  apt  to  secure  more  uniformity  and 
safer  results.  If  the  election  inspectors  had  the  right  to  remove  the  numbers  from  the  2,200  ballots  and 
count  them,  it  may  be  argued  with  considerable  force  that  the  canvassing  board  had  a  right  to  remove 
the  numbers  from  the  2,927  ballots  and  count  them. 

We  therefore  reject  5,127  ballots  as  void.  Deducting  these  from  the  total  of  11,990  it  leaves  6,863 
valid  ballots.     Of  these,  contestee  received  4,097;  contestant,  1,578;  Mr.  Notley,  1,188. 

The  contestee  received  a  plurality  over  contestant  of  2,519,  and  a  majority  over  all  of  1,331.  We 
are  of  the  opinion,  after  a  careful  examination  of  tlie  record,  that  the  secretary  of  state  intended  no 
wrong  in  preparing  the  ballots  in  the  manner  described,  nor  do  we  find  that  a  conspiracy  was  entered 
into  for  party  success  by  means  of  fraud  or  intimidation.  We  believe  that  the  depositing  of  the  ballots 
without  detaching  the  numbers  was  done  by  mistake  and  misapprehension  on  the  part  of  the  election 
inspectors,  and  not  through  any  design  or  concerted  plan  to  commit  any  wrong  against  the  contestant 
or  any  other  candidate.  An  examination  of  the  returns  confirms  this  view.  One  would  naturally 
expect,  if  there  was  a  scheme  devised  for  the  purpose  of  intimidating  voters  to  support  contestee,  that 
he  would  have  received  an  unduly  large  proportion  of  the  votes  where  such  scheme  was  carried  out, 
whereas  the  contrary  appears  to  be  the  fact,  for  his  percentage  of  the  void  and  rejected  ballots  was  not 
as  large  as  of  all  the  ballots  cast  nor  was  it  as  large  as  his  percentage  of  the  valid  ballots. 

The  following  resolutions,  in  which  all  the  committee  concurred,  were  agreed  to 
without  division  by  the  House: 

Resolved,  That  Curtis  P.  laukea,  the  contestant,  was  not  elected  a  Delegate  to  the  Fifty-ninth 
Congress  from  the  Territory  of  Hawaii. 

Resolved,  That  Jonah  K.  Kalanianaole,  the  contestee,  was  duly  elected  a  Delegate  to  the  Fifty- 
ninth  Congress  from  the  Territory  of  Hawaii,  and  is  entitled  to  a  seat  therein. 


Chapter   XVIIL* 
CREDENTIALS  AND  PRIMA  FACIE  TITLE." 


1.  In  due  form  from  Becognized  Constituency,  sections  628-537.^ 

2.  Questions  as  to  Validity  of,  sections  538-543.^ 

3.  In  Relation  to  Questions  as  to  the  Fact  of  Election,  sections  644-652.'' 

4.  Befusal  of  State  Executives  to  Issue,  sections  653-564.' 
6.  In  relation  to  Questions  as  to  Vacancy,  sections  565-570.^ 
6.  As  related  to  Contested  Elections,  sections  671-588.' 


528.  The  House  admits  on  his  prima  facie  showing  and  without  re- 
gard to  final  right  a  Member-elect  from  a  recognized  constituency  w^bose 

*  See  Volume  VI,  Chapter  CLX. 

'  Question  of  prima  facie  title  not  to  be  reopened  when  once  decided.     Section  847  of  Volume  II. 

As  related  to  enrollment  by  the  Clerk.     Chapter  II,  sections  30-60  of  this  volume. 

As  related  to  qualifications.  Cases  of  Connor  (sec.  469  of  this  volume).  Roberts  (sec.  474).  Smoot 
(sec.  481),  and  others  (sees.  415,  416,  420,  429,  432,443,468);  also  cases  involving  question  of  loyalty 
(sees.  443,  448,  453,  457,  460,  461,  462). 

2  In  relation  to  districts  distracted  by  war.  Cases  of  Foster  (sec.  362);  Segar  (sec.  363);  Clements 
(sec.  365);  Wing  v.  McCloud  (sec.  368);  Pigott  (sec.  369);  Grafflin  (sec.  371);  McKenzie  v.  Kitchen 
(sec.  374);  Chandler  and  Segar  (sec.  375);  Fields  (sec.  376);  Flanders  and  Hahn  (sec.  379);  Johnson, 
Jacks,  and  Rogers  (sec.  380);  Louisiana  Members  (sec.  381);  also  Senate  cases,  sections  382-384. 

Members-elect  from  States  lately  in  secession  not  admitted  on  prima  facie  title.  Chapter  XI, 
sections  387-388  of  this  volume.     Senate  decisions,  sections  389-395. 

Delegates  elected  in  unorganized  Territories  not  admitted  on  prima  facie  title.  Sections  405,  410 
of  this  volume. 

'  See  cases  of  Brockenbrough  v.  Cabell  (sec.  812  of  this  volume),  and  Wiggington  v.  Pacheco  (sec. 
927  of  Vol.  II). 

*  Case  of  the  New  Jersey  Members  (sees.  791-794  of  this  volume);  of  Tennessee  Members  (sec.  521); 
Gilbert  and  Wright  (sec.  520);  Minnesota  members  (sec.  519),  and  a  case  involving  apportionment  (sec. 
309). 

'  Refusal  of  State  executive  to  sign.     Sections  353,  415  of  this  volume. 

^  Cases  of  Mississippi  Members  (sec.  518  of  this  volume);  Newton  (sec.  489);  Blakely  v.  Gol- 
laday  (sec.  322),  and  cases  wherein  States  have  sent  Members  in  excess  of  the  apportionment  (sees.  314- 
318  of  this  volume);  also  the  Senate  case  of  Stanton  v.  Lane  (sec.  491). 

'  See  also  House  cases  as  follows:  Letcher  xk  Moore  (sec.  53);  "Broad  Seal"  case  (sec.  103);  Smith 
V.  Brown  (sec.  459);  Symes  v.  Trimble  (sec.  452);  Louisiana  cases  (sees.  328,  332);  Chalmers  v.  Manning 
(sees.  44,  45);  Gunter  v.  Wilshire  (sec.  37);  Wallace  v.  McKinley  (sec.  986  of  Vol.  II);  Atkinson  v.  Pen- 
dleton (sec.  1020  of  Vol.  II);  McGinnis  v.  Alderson  (sec.  1036  of  Vol.  II). 

As  to  prima  facie  right  when  returned  Member  dies  pending  a  contest.     Section  735  of  this  volume. 

Contestant  not  to  be  seated  becaiwe  a  partial  investigation  reveals  for  him  a  prima  facie  title.  Sec- 
tion 772  of  this  volume. 

The  certificate  of  the  State  executive  is  prima  facie  evidence  only.     Section  637  of  this  volume. 

Also  see  Senate  cases  as  follows:  Kellogg,  Spofford,  and  Manning  (sees.  354-357);  Ray  v.  McMillen 
(sec.  345);  Pinchback,  McMillen,  Marr,  and  Eustis  (sees.  347-353);  Sykes  v.  Spencer  (sec.  342);  Morgan 
and  Lamar  (sec.  359);  Sanders,  Power,  Clark,  and  Maginnis  (sec.  358). 

679 


680  PRECEDENTS   OF    THE   HOUSE    OF   KEPEESENTATIVES.  §   529 

credentials  are  in  due  form  and  whose  qualifications  are  unquestioned. — 
On  September  4,  1837,'  at  the  organization  of  the  House,  the  Clerk  was  calling  the 
roll  of  Members-elect  by  States,  and  had  reached  Mississippi  when  Mr.  Charles  F. 
Mercer,  of  Virginia,  arose  and  having  questioned  the  right  of  the  two  gentlemen  from 
Mississippi  present  to  seats,  offered  this  resolution: 

Resolved,  That  sufficient  evidence  has  not  been  afforded  to  this  House  that  John  F.  H.  Claiborne 
and  Samuel  J.  Gholson  are  lawfully  entitled  to  seats  therein. 

It  appeared  in  the  course  of  the  debate  that  the  Members  from  Mississippi  had 
regular  credentials  from  the  governor  of  the  State,  and  one  of  them  annoimced  his 
piupose,  in  case  he  was  challenged,  to  challenge  every  Member  present  to  produce 
his   credentials. 

Mr.  Mercer's  resolution  was  laid  on  the  table — ayes  131,  noes  5 — and  the  names 
of  the  Members  from  Mississippi  were  called. ' 

529.  On  December  1,  185G,''  Mr.  John  S.  Pelhps,  of  Missouri,  presented  the 
credentials  of  John  W.  VvTiitfield  as  a  Delegate  from  the  Territory  of  Kansas,  to 
fill  the  vancancy  existing  by  the  decision  of  the  House  unseating  Mr.  Whitfield  at 
the  first  session  of  the  present  Congress. 

The  credentials  having  been  read,  Mr.  Phelps  stated  that  the  Delegate-elect 
was  now  present  and  was  ready  to  take  the  usual  oath. 

Mr.  Galusha  A.  Grow,  of  Pennsylvania,  objected  to  the  administration  of  the 
oath  to  the  said  Delegate-elect,  when  the  Speaker  *  said  that  the  question  was  for 
the  determination  of  the  House,  viz.  Shall  the  oath  to  support  the  Constitution  of 
the  United  States  be  administered  to  John  W.  Whitfield  as  the  Delegate-elect 
from  the  Territory  of  Kansas  ? 

It  was  urged  by  Mr.  Phelps  that,  the  credentials  being  in  due  form,  the 
Delegate-elect  was  entitled,  by  prima  facie  right,  to  be  sworn  in.  Such  had  been 
the  practice  of  the  House. 

On  the  other  hand,  Mr.  Grow  cited  the  New  Jersey  cases,  and  that  of  Moore 
and  Letcher,  in  former  Congresses,  as  precedents  to  justify  the  objection  in  the 
present  case. 

The  question  being  taken,  the  House,  by  a  vote  of  yeas  97,  nays  104,  decided  that 
the  oath  should  not  be  administered  to  Mr.  Whitfield. 

Thereupon  a  motion  was  made  to  reconsider,  and  after  a  parliamentary 
struggle  of  long  duration,  the  vote  was  reconsidered,  and  on  December  9,  the 
question  being  again  taken,  the  House  voted,  by  111  yeas  to  108  nays,  that  the 
oath  should  be  administered  to  Mr.  Whitfield,  and  he  was  accordingly  qualified. 

530.  On  March  4,  1869,^  Mr.  William  Lawrence,  of  Ohio,  submitted  the 
following  resolution  during  the  administration  of  the  oath  to  Members  at  the 
organization  of  the  House: 

'  First  session  Twenty-fifth  Congress,  Journal,  p.  4;  Globe,  pp.  2,  3. 

^See  section  518  of  this  volume  for  full  explanation  of  the  conditions  under  which  these  credentials 
were  given. 

3  Third  session  Thirty-fourth  Congress,  Journal,  pp.  7,  8,  84,  85;  Globe,  pp.  2,  08,  69. 

'Nathaniel  P.  Banks,  jr.,  of  Massachusetts,  Speaker. 

'First  session  Forty-first  Congress,  Journal,  p.  9;  Globe,  p.  7. 


§   531  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  681 

Recoiled,  That  A.  A.  C.  Rogers,  claiming  to  be  the  Representative  in  the  Forty-first  Congress 
from  the  Second  district  of  Arkansas,  shall  not  now  be  permitted  to  take  the  oath  of  office  or  a  seat  as 
such  Representative,  but  his  credentials  shall  be  and  are  referred  to  the  Committee  of  Elections  when 
appointed. 

Mr.  Lawrence  stated  that  he  held  a  certificate  from  the  governor  of  Arkansas 
stating  that  in  a  portion  of  the  district  which  Mr.  Rogers  represented  there  had  been 
great  disorder  and  no  fair  election. 

It  was  urged  La  opposition  that  Mr.  Rogers  held  a  certificate  regular  in  form 
and  that  he  should  be  sworn  in,  leaving  his  final  right  to  the  seat  to  be  determined 
later. 

A  motion  to  lay  the  resolution  on  the  table  was  agreed  to,  and  the  oath  was 
administered  to  Mr.  Rogers. 

531.  On  March  4,  18G9,'  after  the  election  of  the  Speaker,  and  while  the 
oath  of  office  was  being  administered  to  the  Members-elect,  Mr.  James  Brooks,  of 
New  York,  proposed,  when  the  Members  from  Missouri  presented  themselves  to  be 
sworn,  the  following: 

Resolved,  That  the  right  of  Robert  T.  Van  Horn  and  David  P.  Dyer  to  seats  upon  this  floor  be 
inquired  into  by  the  Committee  of  Elections  before  they  are  permitted  to  be  sworn  in  as  Members  of 
the  Forty-first  Congress. 

The  reason  given  for  the  presentation  of  tliis  resolution  was  that  the  two 
gentlemen  had  not  been  elected,  although  it  appeared  that  their  credentials  were 
regular  in  form.  It  was  urged  against  the  adoption  of  the  resolution  that,  while 
there  might  be  a  question  as  to  the  final  right  of  the  two  gentlemen  to  their  seats, 
there  could  be  no  question  as  to  their  prima  facie  right.  Mr.  John  F.  Benjamin, 
of  ^Missouri,  submitted  a  motion  that  the  oath  be  administered. 

After  further  debate,  Messrs.  Van  Horn  and  Dyer  stood  aside,  and  on  the  suc- 
ceeding day  the  motion  was  put  that  the  oath  be  administered  to  them.  On  a  motion 
to  lay  that  motion  on  the  table,  there  appeared,  j^eas  4,  nays  163.  The  motion 
that  the  oath  be  administered  was  then  agreed  to.  Messrs.  Van  Horn  and  Dyer 
then  appeared  and  took  the  oath. 

532.  On  December  5,  1870,"  at  the  ojjening  of  the  session,  the  credentials 
of  R.  W.  T.  Duke,  Member-elect  from  the  Fifth  Congressional  district  of  Virginia, 
were  presented  to  the  House. 

Mr.  James  H.  Piatt,  jr.,  of  Virginia,  presented  a  resolution  referring  the  papers 
in  a  contest  against  the  right  of  Mr.  Duke  to  a  seat,  as  well  as  the  credentials,  to 
the  Committee  on  Elections,  with  instructions  to  report  at  an  early  date  on  his 
prima  facie  right  to  a  seat. 

Mr.  Samuel  J.  Randall,  of  Pennsylvania,  urged  that  it  was  in  accordance  with 
the  practice  of  the  House  to  allow  the  Member-elect  to  be  seated  when  his 
credentials  were  in  due  form,  leaving  the  question  of  final  right  to  the  seat  to 
be  determined  later.  In  this  case  Mr.  Randall  showed  the  credentials  were  in 
proper  form  according  to  the  provisions  of  the  law  of  Virginia. 

'  First  session  Forty-first  Congress,  Journal,  pp.  9,  10;  Globe,  pp.  7,  10. 
^ Third  session  Forty-first  Congress,  Journal,  pp.  7,  8;  Globe,  pp.  11,  12. 


682  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   533 

The  House  having  declined  by  a  vote  by  tellers  of  ayes  57,  noes  60,  to  second 
the  previous  question  on  the  motion  of  Mr.  Piatt,  it  was  then,  on  motion  of  Mr. 
Randall, 

Ordered,  That  the  oath  of  office  be  administered  to  the  said  R.  W.  T.  Duke. 

533.  On  January  24,  1871,^  Mr.  P.  M.  B.  Young,  of  Georgia,  presented 
the  credentials  of  Mr.  Stephen  A.  Corker,  of  the  Fifth  Congressional  district  of 
Georgia,  and  asked  that  he  be  sworn  in. 

Jilr.  Benjamin  F.  Butler,  of  Massachusetts,  objected,  and  after  presenting  the 
memorial  of  Thomas  P.  Beard,  claiming  the  seat,  moved  that  the  petition  and  the 
credentials  of  Mr.  Corker  be  referred  to  the  Committee  on  Elections.  The  objection 
urged  in  behalf  of  Mr.  Beard  was  that  there  had  been  outrage  and  intimidation  in 
the  district  which  had  rendered  illegal  the  election  of  Mr.  Corker.  It  was  not  denied 
that  Mr.  Corker's  credentials  were  in  regular  form,  properly  signed  and  sealed. 

In  the  course  of  the  debate  on  Mr.  Butler's  motion,  Mr.  Henry  L.  Dawes,  of 
Massachusetts,  said: 

Sir,  I,  as  the  organ  of  the  Committee  on  Elections  for  twelve  years,  have  time  and  again  so  stated. 
It  has  been  stated  on  behalf  of  that  committee  on  the  floor  of  this  House,  and  it  stands  in  the  Globe,  as 
well  on  the  part  of  one  side  of  the  House  as  on  the  other,  that  the  certificate  of  a  Member,  where  there 
was  no  allegation  against  his  eligibility,  of  his  lack  of  loyalty,  or  other  ineligibility,  entitled  him  to  be 
sworn  in.  It  has  been  the  struggle  during  all  these  disturbed  times  of  that  Committee  on  Elections  to 
hold  to  the  precedents  and  to  the  law  against  passion  and  against  prejudice,  so  that  if  the  party  should 
ever  fall  into  a  minority  they  should  have  no  precedent  of  their  own  making  to  be  brought  up  against 
them  to  their  own  great  injury.  Now,  with  nothing  to  be  gained,  but  with  everything  to  be  lost,  by  the 
precedent  now  sought  to  be  established,  I  entreat  the  House  to  adhere  to  the  ancient  rule. 

The  question  being  taken,  the  motion  of  Mr.  Butler  was  disagreed  to — ^yeas  42, 
nays  147. 

The  question  then  recurred  on  the  motion  of  Mr.  Young  that  the  oath  be 
administered  to  Mr.  Corker,  and  it  was  agreed  to.  Thereupon  Mr.  Corker  appeared 
and  took  the  oath. 

534.  On  December  5,  1881,"  at  the  time  of  the  organization  of  the  House, 
and  while  the  Speaker  was  administering  the  oath  to  the  Members-elect,  Mr.  George 
W.  Jones,  of  Texas,  challenged  Mr.  Joseph  Wheeler,  of  Alabama,  and  later  offered 
the  following  resolution : 

Resolved,  That  the  question  of  the  prima  facie  as  well  as  the  final  right  of  Joseph  Wheeler  and 
William  M.  Lowe,  contestants,  respectively  claiming  a  seat  in  this  House  from  the  Eighth  district  of 
Alabama,  be  referred  to  the  Committee  on  Elections  hereafter  appointed,  and  until  such  committee 
shaU  report  and  the  Hoiise  decide  such  question  neither  of  said  contestants  shall  be  seated. 

The  credentials  of  Mr.  Wheeler  were  read,  and  proved  to  be  regular  in  form  and 
in  accordance  with  the  law  and  the  Constitution. 

The  House,  after  debate,  and  without  division,  voted  that  Mr.  Wheeler  be 
permitted  to  take  the  oath  in  accordance  with  his  prima  facie  right. 

On  the  same  day  Mr.  James  R.  Chalmers,  of  Mississippi,  was  challenged,  and 
imder  similar  circumstances,  the  House  without  division  voted  that  he  be  allowed 
to  take  the  oath. 

'Third  session  Forty-first  Congress,  Journal,  p.  209;  Globe,  pp.  703-707. 
-First  session  Forty-seventh  Congress,  Journal,  pp.  11,  12;  Record,  pp.  9-14. 


§   535  CBEDENTIALS   AND   PKIJIA   FACIE    TITLE.  683 

535.  Credentials  being  in  regular  form,  and  unimpeached,  the  House 
honors  them,  although  there  may  be  a  question  as  to  the  proper  limits  of 
the  constituency. 

Credentials  being  unimpeached,  the  status  of  the  district  under  an 
apportionment  law  is  a  question  of  final  rather  than  prima  facie  right. 

Forms  of  credentials  borne  by  persons  elected  to  fill  vacancies. 

On  December  13,  1880/  ilr.  Amos  Townshend,  of  Ohio,  presented  the  following 
credentials: 

In  the  name  and  by  the  authority  of  the  State  of  Ohio,  Charles  Foster,  governor  of  said  State,  to  all  whom 
these  presmts  shall  come,  greeting: 

By  virtue  of  the  powers  conferred  on  me  by  law,  I  do  hereby  certify  that  at  the  special  election  held 
on  the  fifth  Tuesday,  being  the  30th  day  of  November,  A.  D.  1880,  Ezra  B.  Taylor  was  duly  elected 
Representative  in  the  Forty-sixth  Congress  of  the  United  States  for  the  Nineteenth  district  of  Ohio,  to 
fill  the  vacancy  caused  by  the  resignation  of  James  A.  Garfield. 

In  testimony  whereof  I  have  hereunto  subscribed  my  name  and  fixed  the  great  seal  of  the  State  of 
Ohio,  at  Colimabus.  this  8th  day  of  November,  1880. 

[seal.]  Charles  Foster,  Governor. 

Milton  Barnes, 

Secretary  of  State. 

Mr.  Frank  Hurd,  of  Ohio,  objected  to  the  immediate  swearing  in  of  Mr.  Taylor, 
on  the  grotmd  that  after  the  election  of  Mr.  Garfield  and  prior  to  the  election  of 
Mr.  Taylor,  the  legislature  of  Ohio,  had  by  law  changed  the  limits  of  the  Congres- 
sional districts  of  that  State,  and  that  the  Nineteenth  district  resulting  from  that 
change  of  law  contained  one  comity  not  in  the  district  before  the  change,  and  had 
lost  one  comity  that  it  contained  before  the  change.  After  the  resignation  of  Mr. 
Garfield  the  governor  had  issued  the  writ  of  election,  not  to  the  new  Nineteenth 
district,  but  to  the  counties  composing  the  old  Nineteenth,  although  that  district 
had  ceased  to  exist.  Therefore  Mr.  Taylor  had  been  elected  from  a  district  that  had 
no  existence  at  all. 

On  the  other  hand  it  was  argued  by  Mr.  William  McKinley,  of  Ohio,  and  by 
others  that  Mr.  Taylor's  prima  facie  right  to  be  sworn  in  was  perfect,  the  certificate 
raising  no  doubt  as  to  its  completeness  and  legality. 

The  House,  after  Mr.  Hurd  had  withdra\vn  his  objection,  voted  that  Mr.  Taylor 
should  be  sworn  in,  and  referred  the  credentials  to  the  Committee  on  Elections. 

536.  On  December  19,  1883,=  the  credentials  of  Thomas  G.  Skinner,  of  the 
First  Congressional  district  of  North  Carolina,  were  presented  to  the  House.  Mr. 
J.  Warren  Keifer,  of  Ohio,  objected  to  the  administration  of  the  oath  to  him,  and 
offered  a  resolution,  with  a  preamble.  This  preamble  recited  that  Walter  R.  Pool 
was  at  the  November  election,  in  1882,  elected  to  Congress  from  the  First  Congres- 
sional district  of  North  Carolina,  composed  of  certain  counties,  including  the  county 
of  Bertie,  but  not  including  the  coimty  of  Carteret.  By  Mr.  Pool's  death,  on  August 
25,  1883,  a  vacancy  occurred  in  the  district.  Since  the  election  of  said  Pool  the 
legislature  of  the  State  had  redistricted  the  State,  constituting  a  new  First  district, 

'Third  session  Forty-sixth  Congress,  Journal,  p.  58;  Record,  pp.  102-106. 

2  First  session  Forty-eighth  Congress,  Journal,  pp.  149,  150;  Record,  pp.  179-189. 


684  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   537 

which  did  not  inchide  the  county  of  Bertie  but  did  include  the  county  of  Carteret. 
The  preamble  then  proceeds: 

Whereas  to  fill  the  vacancy  occurring  as  aforesaid,  the  governor  of  North  Carolina  ordered  an 
election  in  the  said  new  First  district,  by  virtue  of  which  election  Hon.  Thomas  G.  Skinner  now  claims 
a  seat  in  this  House;  and 

■\\"hereas  to  admit  him  to  the  seat  would  leave  the  said  county  of  Bertie  without  any  district  rep- 
resentation in  this  Congress,  and  the  said  county  of  Carteret  would  be  doubly  represented ;  therefore. 

Be  it  resolved.  That  the  credentials  of  Mr.  Skinner  be  referred  to  the  Committee  on  Elections  of 
this  House,  when  appointed,  with  power  to  ascertain  and  report  all  the  facts  pertaining  to  this  vacancy 
and  the  said  election  to  fill  the  same,  at  as  early  a  day  as  practicable,  together  with  the  law  governing 
the  case. 

Mr.  Keifer  cited  precedents  applying  to  the  case,  but  after  debate  the  House, 
by  a  vote  of  117  yeas  to  108  nays,  preferred  the  following  substitute: 

Resolved,  That  Thomas  G.  Skinner  be  sworn  in,  and  that  it  be  referred  to  the  Committee  on 
Elections,  when  appointed,  to  report  at  the  earliest  practicable  moment  whether  the  said  Thomas  G. 
Skinner  wa.?  elected  from  the  First  Congressional  district  of  North  Carolina  as  created  before  the  last 
Congressional  apportionment  of  Representatives  in  Congress  or  from  a  district  in  North  Carolina  created 
in  that  State  since  the  election  of  Walter  R.  Pool,  deceased,  and  to  further  report  whether  in  the  judg- 
ment of  said  committee  said  Skinner  was  elected  from  the  proper  district. 

537.  The  Virginia  election  case  of  Garrison  v.  Mayo,  in  the  Forty- 
eighth  Congress. 

The  House  should  not  disturb  the  prima  facie  title  of  a  Member 
already  seated  on  credentials  in  due  form  and  unimpeached  by  any- 
thing properly  presented  to  the  House. 

The  House  overruled  the  action  of  State  officers  who  had  rejected  a 
county  return  because  of  a  writing  on  the  seal  of  the  clerk's  certificate. 

Votes  found  in  the  -wrong  ballot  box  have  been  counted  without 
proof  of  mistake,  although  there  was  dissent  in  the  committee. 

A  question  as  to  the  best  rule  for  elimination  of  an  excess  of  ballots 
in  the  box. 

Testimony  as  to  what  a  voter  said  after  election  as  to  his  vote  is 
not  admissible  to  prove  for  whom  the  vote  was  cast. 

Where  voters  are  disqualified  for  crime,  a  vote  should  not  be  rejected 
unless  there  is  proper  evidence  of  the  conviction  of  the  person  offering  it. 

On  December  3,  1883,'  at  the  organization  of  the  House,  the  name  of  Robert  M. 
Mayo,  of  the  First  district  of  Virginia,  appeared  on  the  clerk's  roll  of  members- 
elect,  and  the  oath  was  administered  to  him  without  objection. 

On  December  4,  Mr.  J.  Randolph  Tucker,  of  Virginia,  offered  this  resolution: 

Resolved,  That  the  certificates  and  all  other  papers  relating  to  the  election  of  a  Representative 
of  the  First  Congressional  district  of  Virginia  in  the  Forty-eighth  Congress  be  referred  to  the  Committee 
on  Elections,  when  appointed,  with  instructions  to  report  at  as  early  a  day  as  practicable  which  of  the 
rival  claimants  to  the  seat  from  that  district  lias  the  prima  facie  right  thereto,  reserving  to  the  other  party 
the  privilege  of  contesting  the  case  upon  the  merits. 

It  was  at  once  objected,  especially  by  Mr.  William  H.  Calkins,  of  Indiana, 
who  had  been  chaLrman  of  the  Committee  of  Elections  in  the  preceding  Congress, 
that  it  was  unusual,  if  not  unprecedented,  for  the  House  to  inquire  into  the  prima 

'  First  session  Forty-eighth  Congress,  Journal,  pp.  21,  31;  Record,  pp.  3,  28,  43,  44. 


§   537  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  685 

facie  riglit  of  a  Member  after  he  had  been  sworn  in.  The  svrearing  in  was  the 
decision  on  the  prima  facie  right. 

The  debate  on  the  resolution  was  resumed  December  .5,  and  Mr.  Tucker  main- 
tained that  the  House  being  judge  of  the  election,  returns,  and  qualifications  of  its 
own  Members,  it  certainly  might  inquire  as  to  the  right  of  the  Member  to  hold  the 
seat  during  the  intermediate  time  between  the  swearing  in  and  the  decision  as  to 
the  final  right. 

Mr.  Aylett  H.  Buckner,  of  Missouri,  offered  this  resolution,  wliich  was  agreed  to : 

Resolved,  That  the  resolution  be  committed  to  the  Comimittee  on  Elections,  when  formed,  with 
instructions  to  report  on  the  legal  question  involved  therein. 

On  February  8,  1884,'  Mr.  Robert  Lowry,  of  Indiana,  submitted  the  report  of 
a  majority  of  the  committee.     The  report  held — 

It  will  be  observed  that  by  the  resolution  adopted  the  former  resolution  was  simply  referred  to  this 
committee  to  report  upon  the  legal  question  involved,  without  any  instructions  to  determine  whether 
upon  the  face  of  the  papers  filed  in  the  contested  election  case,  and  as  appears  by  them,  the  contestor 
or  contestee  is  prima  facie  entitled  to  the  seat.  This  being  so,  especially  as  the  contestee  has  been  sworn 
in,  unless  the  House  itself  shall  determine  to  go  behind  the  certificate  of  the  governor  (which,  under 
some  circumstances,  and  keeping  within  the  i-ules  of  parliamentary  law,  the  House,  in  the  opinion  of 
this  committee,  is  empowered  to  do),  the  committee  is  further  of  the  opinion,  upon  the  le^al  question 
involved,  that  the  certificate  of  the  governor  of  the  State  of  Virginia,  showing  that  Robert  M.  ilayo  was 
regularly  elected  as  such  Representative,  being  in  due  form,  in  the  absence  of  anj'thing  properly  pre- 
sented to  us  to  impeach  it,  is  conclusive. 

This  conclusion  is  based  upon  the  premise  that  the  House  has  not  instructed  the  committee  to 
consider  the  evidence  outside  of  the  certificate  referred  to  in  the  original  resolution  proposed  by  Mr. 
Tucker,  tending  to  impeach  the  certificate  of  the  governor  of  Virginia,  but  merely  referred  that  resolu- 
tion to  the  committee  with  instructions  to  report  upon  the  legal  question  involved;  and  the  certificate 
being  regular  upon  its  face,  and  the  House  not  having  authorized  or  directed  the  consideration  of 
extrinsic  evidence  to  impeach  the  commission  of  the  sitting  Member,  the  conclusion  reached  is  based 
upon  the  principle  that  the  integrity  of  the  certificate  is  not  duly  challenged. 

In  order  to  dispose  of  the  question  submitted,  the  committee  therefore  recommends  the  adoption 
of  the  following  resolution,  and  that  the  committee  be  discharged  from  the  further  consideration  of  this 
part  of  the  case: 

"Resolved,  That  upon  the  legal  question  involved  in  the  case  of  Garrison  v.  Mayo,  the  retm-n  of 
the  governor,  in  the  absence  of  an>-thing  appearing  thereon  or  properly  presented  in  connection  there- 
with tending  to  impeach  it,  is  conclusive  as  to  the  prima  facie  right,  and  that,  pending  the  contest  on 
the  merits,  the  sitting  Member  is  therefore  in  this  case  entitled  to  retain  the  seat." 

It  does  not  appear  that  this  proposition  was  acted  on.^ 

On  March  20  ^  ^Ir.  Henry  G.  Turner,  of  Georgia,  submitted  the  report  on  the 
question  of  final  right  in  the  contest  of  Garrison  v.  Mayo. 

As  to  what  may  be  tenned  the  actual  result  shown  by  the  returns  that  came 
to  the  State  canvassing  board  the  report  says: 

Upon  the  basis  of  this  statement  giving  Mr.  Mayo  a  plurality  of  1  vote,  the  board  further  certified 
that  Mr.  Mayo  was  duly  elected.  It  is  due  to  the  governor  to  say  that  he  did  not  sign  this  latter  cer- 
tificate. 

This  plurality  of  1  vote,  upon  which  Mr.  Mayo  was  accredited  as  a  Representative  of  Virginia, 
was  obtained  by  the  rejection  of  the  return  of  the  election  in  Gloucester  County.     That  return  was  in  the 


'  House  Report,  No.  286;  Mobly,  p.  53;  Journal,  p.  532;  Record,  p.  995. 

-  It  was  stated  in  the  debate  that  the  report  was  not  acted  on.     Record,  p.  2114. 

'■'  House  Report  No.  954;  Mobly,  p.  55. 


686  PRECEDENTS    OF    THE    HOUSE    OF    EEPRESENTATIVTIS.  §    537 

usual  form,  and  was  excluded  by  the  board  from  the  canvass  upon  the  ground  that  the  certificate  of  the 
clerk  of  the  county  court  of  that  county  was  authenticated  by  a  seal  impressed  upon  the  paper  from 
which  it  appeared  that  the  word  "circuit"  in  the  seal  had  the  word  "county"  written  over  it.  That 
county  gave  the  contestant  a  majority  over  Mr.  Mayo  of  57  votes. 

It  also  appears  that  the  return  from  Hog  Island,  in  Northampton  County,  an  island  situate  in  the 
bay,  many  miles  from  the  mainland,  was  delayed  for  a  day  or  two,  and  was  therefore  excluded  from  the 
count. 

That  precinct  gave  the  contestant  a  majority  of  14. 

Mr.  Mayo,  during  the  argimient  before  the  committee  having  conceded  that  the  majorities  for  con- 
testant cast  in  Gloucester  County  and  Hog  Island  precinct  of  Northampton  County  should  be  counted 
for  contestant,  no  argument  is  necessary  to  justify  their  addition  to  the  votes  allowed  to  him  by  the  State 
board  of  canvassers.     Indeed,  no  reason  can  be  given  for  their  exclusion,  and  none  was  attempted. 

This  statement  demonstrates  for  contestant  a  majority  of  72  votes.  It  being  thus  made  to  appear 
that  the  contestant  was  elected,  the  biuden  is  devolved  upon  the  sitting  Member  to  show  by  other  evi- 
dence that  he  was  himself  elected.  This  he  undertook  to  accomplish  by  the  various  methods  which 
will  now  be  stated. 

Passing  to  the  objections  made  by  sitting  Member,  the  committee  considered 
the  following  questions  of  law : 
(1)  The  report  says: 

It  appears  that  on  the  day  of  the  election  in  question  there  was  a  separate  box  for  votes  on  consti- 
tutional amendments  then  submitted  to  the  people  for  ratification.  At  Saluda  precinct,  in  Middlesex 
County,  6  ballots  for  Congressional  candidates  were  found  in  the  box  set  apart  for  the  constitutional 
amendments.  The  judges  of  election  burnt  these  ballots.  There  were  also  found  in  the  box  provided 
for  the  reception  of  ballots  for  Members  of  Congress  6  ballots  or  tickets  on  the  constitutional  amendment. 
The  judges  of  election,  who  are  charged  by  law  with  the  duty  of  holding  the  election  and  certifying  the 
result,  did  not  regard  this  coincidence  as  sufficient  evidence  of  mistake  to  justify  counting  these  votes, 
and  no  other  evidence  of  mistake  has  been  presented.  Mr.  Mayo  insists  that  these  6  votes  shotild  be 
counted  for  him.  But  only  2  of  the  6  are  shown  by  any  satisfactory  evidence  to  have  contained  his 
name.  The  witness  had  the  impression  that  one  of  them  was  a  ticket  for  contestant,  and  thought,  from 
the  appearance  of  the  paper,  that  the  other  3  were  tickets  for  Mr.  Mayo.  It  is  obvious,  therefore,  that 
in  no  view  of  this  evidence  can  all  of  these  ballots  be  counted  for  the  sitting  Member. 

4.  At  Wicomico  Church  precinct,  Northumberland,  2  ballots  for  Mr.  Mayo  were  found  in  the  box 
for  constitutional  amendments,  and  2  ballots  for  constitutional  amendments  were  found  in  the  box 
provided  for  candidates  for  Congress.  At  Jamaica  precinct,  Middlesex,  25  ballots  for  Mr.  Mayo  were 
found  in  the  constitutional  amendment  box,  and  a  number  (not  known  by  the  witness)  of  ballots  for 
constitutional  amendments  were  found  in  the  box  provided  for  the  Congressional  election.  Waiving 
the  question  as  to  whether  this  state  of  facts  sufficiently  shows  that  these  27  votes  for  Mr.  Mayo  should 
have  been  counted  for  him  under  the  precedents,  we  can  not  add  them  to  the  vote  certified  for  him, 
because  it  nowhere  appears  in  the  evidence  that  the  commissioners  of  election  who  canvassed  the  votes 
of  these  two  counties  (Middlesex  and  Northumberland)  in  fact  excluded  the  votes  in  question.  The 
testimony  shows  that  the  precinct  judges  at  Jamaica  counted  and  returned  separately  the  25  votes  found 
for  Mr.  Mayo  in  the  wrong  box,  and  that  the  same  was  done  by  the  judges  at  Wicomico  precinct  as 
to  the  2  votes  in  like  situation  at  that  place,  "so  that  the  commissioners  [at  the  county  site]  might  count 
them  or  not,  as  they  thought  proper"  (Record,  pp.  321,  365,  369,  370).  The  sitting  Member  claims 
these  27  votes  in  addition  to  the  votes  certified  for  him  from  these  two  counties  and  allowed  by  the 
board  of  State  canvassers.  We  can  not  accede  to  his  demand,  because  he  has  not  shown  that  they 
were  rejected  by  the  county  commissioners. 

While  the  report  of  the  committee  was  unanimous  as  to  the  conclusion  that 
sitting  Member  was  elected,  and  while  no  minority  views  were  presented,  Mr. 
Ambrose  A.  Ranney,  of  Massachusetts,  one  of  the  members  of  the  committee,  said 
in  debate '  that  he  believed  that  votes  in  a  wrong  box  should  not  be  counted  unless 

'  Record,  p.  2115. 


§   537  CREDENTIALS    AND    PBIMA   FACIE    TITLE.  687 

a  satisfactory  explanation  was  made  to  show  that  they  were  put  into  the  box  by 
the  mistake  of  the  voter  or  by  the  error  or  fraud  of  the  election  officer.  If  it  were 
to  be  held  otherwise,  a  dishonest  voter  might  put  a  vote  for  Congressman  in  each 
box,  and  so  have  two  votes.  It  was  true  that  the  House  had  adjudicated  otherwise  in 
the  case  of  Cook  v.  Cutts,  but  he  dissented  then  and  should  dissent  now. 

(2)  The  report  rules  in  another  case: 

Mr.  Mayo  claims  that  7  votes  cast  for  him  at  The  Hague,  in  Westmoreland  County,  were  Ulegally 
rejected  by  the  precinct  judges.  At  this  precinct  there  were  found  in  the  ballot-box  for  candidates  for 
Congress  7  more  tickets  than  names  on  the  poll-books.  In  such  a  case  the  law  of  Virginia  requires  the 
excessive  ballots  to  be  taken  from  the  box  by  one  of  the  judges,  who  shall  be  blindfolded,  etc.  In 
this  case  one  of  the  judges  (who  is  the  witness  for  the  sitting  Member)  swears  that  ''without  seeing  any 
difference  in  the  tickets  he  turned  his  back  on  the  box  and  drew  out  7  tickets."  He  adds  that  they 
were  Mayo  tickets.  If  the  witness  is  to  be  believed,  he  did  not  see  the  tickets  until  after  they  were 
taken  from  the  box.  There  seems  to  have  been  a  substantial  compliance  with  the  law.  But  if  these 
ballots  were  unfairly  and  illegally  taken  from  the  box  and  rejected  from  the  count,  it  does  not  follow 
that  7  votes  should  be  added  to  the  votes  returned  for  Mr.  Mayo.  The  question  remains,  By  what 
process  shall  we  eliminate  the  excess  of  votes?  We  can  not  count  more  votes  than  were  cast  by  the 
voters.  Shall  we  count  them  all,  and  then  deduct  the  excess  from  the  two  candidates,  as  suggested  by 
one  of  the  text  writers,  in  proportion  to  the  relative  vote  of  each  at  the  precinct  where  the  excess  occurs? 
We  can  not  comply  with  this  rule,  because  there  is  no  evidence  in  the  record  showing  the  relative  vote 
of  each  candidate  at  this  precinct.  The  return  of  the  aggregate  vote  cast  in  the  entire  county  of  West- 
moreland shows  that  Mr.  Mayo  received  868  and  Mr.  Garrison  383.  Upon  the  ratio  of  these  numbers, 
Mr.  Mayo  would  lose,  on  account  of  the  excessive  votes,  more  than  twice  as  many  as  Mr.  Garrison  would 
lose  under  the  rule  suggested.  We  think  the  clearer  course  is  to  acquiesce  in  the  action  of  the  precinct 
judges. 

(3)  A  question  as  to  the  evidence  of  how  a  voter  voted  is  thus  discussed: 

At  Wicomico  precinct,  Northumberland  County,  the  name  of  Charles  Yeatman  appeared  twice 
on  the  poll  book.  This  name,  where  it  first  appeared  on  the  poll  book,  was  changed  by  the  judges  of 
election  to  Charles  Hartman;  but  why  this  change  was  made  is  not  explained.  If  any  such  person  as 
Charles  Hartman  voted  it  was  illegal,  because  no  such  name  appeared  on  the  registration  book;  but  it 
is  not  shown  how  he  voted.  It  is  insisted  by  the  sitting  member  that  the  best  theory  is  that  Charles 
Yeatman  voted  twice,  and  perhaps  this  view  is  correct.  But  there  is  no  evidence  to  show  how  Yeatman 
voted,  except  that  a  witness  swears  that  Yeatman  said,  on  the  Sunday  following  the  election,  that  he 
voted  for  contestant. 

Mr.  Ranne}'  also  dissented  from  this,  holding  that  the  evidence  was  competent 
to  show  how  Yeatman  voted. ^ 

(4)  The  report  rules  as  to  evidence  to  justify  the  rejection  of  a  vote: 

We  think  that  the  vote  of  Henrj-  Bromly,  offered  for  Mr.  Mayo  at  Wicomico  Church  precinct,  was 
illegally  rejected,  and  ought  to  be  counted  for  him.  We  also  think  that  three  other  persons  whose  votes 
would  have  been  for  Mr.  Mayo,  but  whose  votes  were  rejected  because  of  alleged  disqualifications  on 
account  of  crime,  should  be  counted  for  the  sitting  Member,  there  being  no  proper  evidence  of  their 
conviction  and  punishment  to  be  found  in  the  record. 

The  decision  of  these  questions,  and  the  settlement  of  certain  questions  of  fact, 
made  it  clear  to  the  committee  that  sitting  Member  had  not  overcome  the  real 
majority  of  the  contestant,  so  the  committee  recommended  these  resolutions: 

Resolved,  That  Robert  M.  Mayo  was  not  elected  as  a  Representative  to  the  Forty-eighth  Congress 
from  the  First  Congressional  district  of  Virginia,  and  is  not  entitled  to  the  seat. 

Resolved,  That  George  T.  Garrison  was  duly  elected  from  the  First  Congressional  district  of  Vir- 
ginia, and  is  entitled  to  his  seat. 

'  Record,  p.  2115. 


688  PRECEDENTS   OF    THE   HOUSE    OF   REPRESENTATIVES.  §   538 

After  debate,'  the  resolutions  were  agreed  to  without  division,  and  Mr.  Garrison 
appeared  and  took  the  oath. 

538.  The  Kentucky  election  case  of  Chrisman  v.  Anderson,  in  the 
Thirty-sixth  Congress. 

An  instance  wherein  the  Elections  Committee  reported  on  both  prima 
facie  and  final  right  after  one  of  the  parties  to  the  contest  had  taken  the 
oath. 

A  county  board,  charged  by  law  with  the  immediate  canvassing  and 
transmittal  of  precinct  returns,  may  not  change  a  prima  facie  result  by 
correcting  alleged  errors  in  precinct  returns. 

Returns  of  State  officers  are  not  binding  on  the  House,  which  may 
go  behind  all  returns  in  determining  final  right. 

A  return  not  certified  by  any  of  the  officers  of  election  was  rejected, 
although  on  report  of  a  divided  committee. 

On  June  14,  1860,^  the  Committee  on  Elections  reported  in  the  Kentucky  elec- 
tion case  of  Clirisman  v.  Anderson.^ 

This  case  involved  two  questions: 

(1)  The  first  as  to  the  prima  facie  right  to  the  seat. 

(2)  The  second  as  to  the  final  right,  involving  a  question  of  the  rejection  of  the 
vote  of  a  precinct  for  informality  in  the  return. 

As  to  the  first  point,  the  report  of  the  committee  makes  the  following  statement 
of  facts: 

The  Fourth  Congressional  district  of  Kentucky  comprises  eleven  counties  and  sixty-four  voting 
precincts.  By  the  laws  of  that  State  the  election  board  at  each  precinct  consists  of  two  judges,  a  clerk 
(who  are  appointed  by  the  county  court),  and  the  sheriff  or  his  deputy.  It  is  the  duty  of  this  board  to 
count  the  votes  cast  at  each  precinct  and  certify  the  result,  under  their  signatures,  to  the  board  of  county 
canvassers.  The  latter  board  consists  of  the  presiding  judge  of  the  county  court,  the  clerk  thereof,  and 
the  .sheriff  or  other  officer  acting  for  him  at  an  election. 

The  poll  books  from  the  different  precincts  are  required  by  law  to  be  deposited  with  the  county 
clerk  within  two  days  after  an  election.  On  the  next  day  the  board  (that  is,  the  county  board)  shall 
meet  in  the  clerk's  office,  between  10  and  12  o'clock  in  the  morning,  compare  the  polls,  ascertain  the 
correctness  of  the  summing  up  of  the  votes,  and  in  case  of  an  election  for  a  Representative  in  Congress, 
it  is  made  the  duty  of  the  board  of  examiners  of  each  county,  immediately  after  the  examination  of  the 
poll  books,  to  make  out  three  or  more  certificates  in  wnting,  over  their  signatures,  of  the  number  of  votes 
given  in  the  county  for  each  candidate  for  said  office;  one  of  the  certificates  to  be  retained  in  the  clerk's 
office,  another  the  clerk  shall  send  by  the  next  mail,  under  cover,  to  the  secretary  of  state,  at  Frankfort, 
and  the  other  to  be  transmitted  to  the  secretary  by  any  private  conveyance  the  clerk  may  select. 

The  governor,  attorney-general,  and  secretary  of  state,  and,  in  the  absence  of  either,  the  auditor, 
or  any  two  of  them,  are  a  board  for  examining  the  returns  of  elections  for  Representatives  in  Congress 
and  certain  State  officers. 

The  State  board  is  required  when  the  returns  are  all  in,  or  on  the  fourth  Monday  after  an  election, 
whether  they  are  in  or  out,  to  make  out,  in  the  secretary's  office,  from  the  returns  made,  duplicate  cer- 
tificates in  writing,  over  their  signatures,  of  the  election  of  those  having  the  highest  number  of  votes. 

These  are  the  main  features  of  the  law  prescribing  the  mode  of  canvassing  the  votes  and  ascer- 
taining the  result  of  an  election  in  Kentucky;  and  your  committee  believe,  from  an  examination  of  the 


'Record,  pp.  2112-2117;  Journal,  pp.  885,  886. 

^FirstsessionThirty-sixthCongress,  House  Report  No.  627;  Bartlett,  p.  328;  Rowell'sDigest,  p.  167. 
'Mr.  Anderson  had  received  the  certificate,  been  enrolled  by  the  Clerk,  and  had  taken  the  oalh 
with  the  other  Members  after  the  election  of  the  Speaker.     Journal,  p.  166. 


§   538  CBEDEKTIALS    AND    PRIMA    FACIE    TITLE.  689 

evidence  and  exhibits  in  the  case,  with  the  exception  of  a  single  precinct  (which  we  Bhall  hereafter 
refer  to),  these  requirements  were  substantially  complied  with. 

The  voting  is  viva  voce,  the  name  of  each  voter  and  of  the  candidate  for  whom  he  votes  being 
publicly  cried  by  the  sheriff  or  his  deputy  and  recorded  by  the  clerk. 

According  to  the  summing  up  and  certificate  of  the  board  of  State  canvassers,  of  the  whole  niun- 
ber  of  votes  cast  Mr.  Anderson  received  7,204  and  Mr.  Chrisman  7,201. 

The  returns  were  made  in  accordance  witli  the  above  provisions  of  law,  but 
after  they  were  made  certificates  were  received  by  the  State  canvassers  from  the 
board  of  three  counties  amendatory  of  the  original  returns.  In  Boyle  County 
after  the  county  canvassers  had  adjourned  they  reassembled  to  coiTect  an  alleged 
error,  made  a  recount,  and  transmitted  an  amended  certificate  to  the  State  can- 
vassers. It  seems  that  ia  this  county  the  mistakes  were  discovered  in  the  poll 
book  by  gentlemen  to  whom  the  county  clerk  had  loaned  them.  The  corrections 
made  in  the  return  of  Boyle  Coimty  and  two  other  counties  were  sufficient  to  show 
a  majority  for  the  contestant. 

The  State  board  of  canvassers  declined  to  admit  these  corrections.  The  law 
provided  that  the  judges  should  sirm  up  the  votes,  certify  the  poll  books,  and 
"deliver  them  in  a  sealed  envelope  to  the  sheriff."  The  State  canvassers  thought 
that  this  provision  for  sealing  the  poll  books  negatived  the  idea  of  a  correction 
after  the  books  had  been  opened  and  in  the  hands  of  other  persons.  Furthermore, 
the  State  canvassers  concluded  that  after  the  county  board  acted  on  the  poll  book 
of  the  whole  county  and  their  certificate  had  been  transmitted  to  the  secretary  of 
state  they  had  no  power  to  recall  or  change  those  certificates.  Their  functions, 
which  were  confined  to  the  summing  up  of  votes  and  could  not  be  construed  to 
justify  inquiry"  as  to  corrections,  ceased  when  the  return  was  made. 

The  majority  of  the  committee  approved  this  decision  of  the  State  canvassers. 
The  minority  disapproved  it,  holding  that  the  sealing  of  the  poll  books  for  delivery 
to  the  coimt}-  board  was  not  the  imposition  of  a  seal  of  authority,  but  the  mere 
act  of  sealing  the  envelope  to  perfect  the  security  of  returns  in  passing  from  the 
judges  of  election  to  the  county  canvassers,  and  also  contending  that  it  was  a 
perversion  of  right  that  a  county  board  should  be  precluded  from  correcting  an 
error.  The  period  of  twenty-five  days  allowed  by  law  between  the  meetings  of  the 
county  and  State  canvassers  suggested  that  such  corrections  were  expected.  The 
minority  also  urged  that  a  precedent  of  the  State  board  in  1857  justified  this  view. 
The  majority  denied  the  force  of  this  precedent. 

But  while  the  majority  of  the  committee  found  that  the  prima  facie  title  could 
not  be  changed,  they  say : 

Your  committee,  however,  do  not  suppose  that  the  action  of  the  State  board  is  final  and  conclu- 
sive upon  this  House.  In  everj-  case  of  a  contested  election  we  believe  it  to  be  the  duty  of  the  House, 
by  its  constituted  agents,  to  go  behind  all  certificates  for  the  purpose  of  inquiring  into  and  correcting 
all  mistakes  which  may  he  brought  to  its  notice. 

The  committee  then  proceeded,  in  the  light  of  the  testimony,  to  make  correc- 
tions in  the  poll,  showing  enough  errors,  besides  those  which  the  coimty  boards  had 
sought  to  correct,  to  give  a  majority  of  7  votes  for  the  sitting  Member. 

Besides  these,  the  majority  of  the  committee  made  a  change  still  fm'ther  in 
favor  of  the  sitting  Member  by  throwing  out  the  entire  vote  of  Casey  precinct, 

.5994— vol,  1—07 44 


690  PEECEDENTS    OF    THE    HOUSE    OF    BEPBESENTATIVES.  §    539 

because  it  was  "not  certified  to  by  any  of  the  officers  of  the  election,  neither  judges 
nor  clerk.  Its  correctness  is  vouched  for  by  no  one. "  It  appears  from  the  debate  ' 
that  the  return  came  in  as  a  mere  loose  piece  of  paper,  with  certain  figirres  on  it 
and  the  words  "George  W.  Earles,  clerk."  There  was  nothing  about  it  to  show 
that  it  was  a  copy  of  a  poll  book  required  to  be  made  by  law  and  certified  by  the 
proper  and  legal  officers. 

The  minority  of  the  committee  did  not  approve  this  disposal  of  the  Casey  pre- 
cinct retimi,  and  say: 

The  answer  to  the  objection  is  verj'  simple,  that  the  provision  of  the  statute  is  directory  merely, 
and  the  omission  of  the  judges  to  do  their  duty  was  not  intended  by  the  legislature  to  disfranchise  the 
voters.  That  would  be  punishing  the  innocent  voters  for  the  sin  of  the  judges.  (See  The  People  v. 
Cook,  14  Barbour,  259;  S.  C,  4  Selden,  67;  Truehart  v.  Addicks,  2  Texas,  217;  Ex  parte  Heath  et  al., 
3  Hill,  43;  Batman  v.  Meguvan,  1  Metcalf's  Ky.  Rep.,  535.) 

It  might  as  well  be  contended  that  if  an  envelope  was  not  used  for  inclosing  the  poll  book,  before 
delivering  it  to  the  sheriff,  that  circumstance  would  vitiate  the  election,  though  the  poll  book  was 
more  surely  protected  than  it  could  be  in  an  envelope.  The  construction  of  the  sitting  Member  would 
invalidate  almost  every  election. 

There  were  also  certain  questions  as  to  illegal  votes,  easily  disposed  of  because 
of  the  viva  voce  method  of  election. 

On  the  whole  the  majority  found  a  majority  of  109  for  the  sitting  Member, 
and  reported  a  resolution  declaring  him  entitled  to  the  seat. 

The  minority  found  contestant  entitled  to  a  majority  of  at  least  8  votes. 

On  June  16  and  18^  the  report  was  debated  at  length  in  the  House,  and  the 
recommendation  of  the  majority  was  agreed  to — yeas  112,  nays  61. 

539.  Although  a  Member  stated  that  credentials  were  based  on 
forged  returns,  the  House  seated  the  bearer,  there  being  no  conflicting 
credentials. — On  October  IT,  1877,^  the  House  considered  the  case  of  Mr. 
Romualdo  Pacheco,  of  California,  who  was  challenged  at  the  organization  of 
the  House  and  stepped  aside  without  taking  the  oath,  although  his  name  was 
on  the  Clerk's  roll. 

Mr.  William  M.  Springer,  of  Illinois,  who  had  challenged  Mr.  Pacheco  and 
objected  to  his  receiving  the  oath,  stated  that  by  reason  of  fraud  Mr.  Pacheco's 
opponent  had  been  deprived  of  two  votes,  whereby  Mr.  Pacheco  had  been  declared 
elected  by  one  vote.  The  fraud  had  been  committed  by  the  clerk  in  Monterey 
County,  who  had  altered  the  record  by  changing  a  figure  "9"  to  a  "7."  The 
secretary  of  state  had  declined  to  certify  the  vote  to  the  governor  because  of 
this  fraud,  but  had  been  compelled  by  mandamus  proceedings  to  certify  the  vote 
as  it  was  certified  to  him  by  the  clerks.  Therefore  it  was  claimed  that  fraud 
vitiated  the  credentials. 

It  was  urged  that  the  credentials  of  Mr.  Pacheco  were  regular  in  form,  according 
to  the  law,  and  that  there  were  no  other  credentials.  His  prima  facie  right  was 
therefore  absolute  and  unquestioned. 

The  House,  'n-ithout  division,  voted  that  Mr.  Pacheco  be  sworn  in. 

1  Globe,  p.  3076. 

2  Journal,  p.  1127;  Globe,  pp.  3075,  3123-3133. 

^  First  session  Forty-fifth  Congress,  Journal,  p.  24;  Record,  pp.  92,  93. 


§   540  CEEDEJfTIALS    AND    PRIMA   FACIE    TITLE.  691 

540.  The  House  honored  credentials  regular  in  form,  but  impeached 
by  a  dociiment  alleging  that  the  election  was  not  held  on  the  day  provided 
by  law. — On  March  4,  1871/  while  the  Speaker  was  administering  the  oath  to  the 
Members-elect  at  the  time  of  the  organization  of  the  House,  Mr.  Job  E.  Stevenson, 
of  Ohio,  objected  to  the  administration  of  the  oath  to  the  Tennessee  delegation, 
and  presented  and  had  read  the  remonstrance  of  W.  F.  Prosser,  which  stated  that 
the  gentlemen  of  the  delegation  were  not  elected  according  to  the  laws  of  Tennessee, 
in  that,  as  he  alleged,  they  had  not  been  elected  on  the  day  provided  by  the  law. 

After  debate,  the  House,  without  division,  agreed  to  a  motion  that  the 
Tennessee  Members  be  sworn  in,  and  that  the  memorial  and  their  credentials  be 
referred  to  the  Committee  on  Elections. 

541.  The  New  Mexico  case  of  Chaves  v.  Clever,  in  the  Fortieth 
Congress. 

Credentials  being  impeached  by  a  paper  from  a  Territorial  oflacer,  the 
House  declined  to  permit  the  oath  to  be  administered  until  the  prima  facie 
right  had  been  examined. 

Credentials  issued  in  accordance  with  the  organic  law  of  a  Territory 
are  recognized  in  preference  to  credentials  authorized  by  a  conflicting 
Territorial  law. 

Credentials  should  be  based  on  the  face  of  the  returns  and  not  on  an 
examination  of  the  votes. 

On  November  21,  1867,'  the  Speaker  laid  before  the  House  credentials  from  the 
governor  of  New  Mexico  showing  the  election  of  Charles  P.  Clever  as  Delegate  from 
the  Territory'.  At  the  same  time  a  commimication  addressed  to  the  Speaker  and 
signed  by  the  secretary  of  the  Territory  was  presented.  The  secretary  asserted  in 
this  communication  that  the  law  of  the  Territory  made  it  the  duty  of  the  secretary 
to  give  the  certificate  of  election,  that  the  governor  had  assumed  that  duty  and 
given  an  illegal  certificate,  and  that  he,  the  secretary,  had  afiixed  the  seal  thereto 
under  protest.  The  secretary  further  asserted  that  the  election  of  Mr.  Clever  was 
shown  by  including  votes  false  and  fraudulent,  and  that  Mr.  J.  Francisco  Chaves 
had  really  been  elected.  The  letter  of  the  secretary  showed  the  returns  to  be  in 
favor  of  Mr.  Clever,  however. 

Mr.  Henry  L.  Dawes,  of  Massachusetts,  referring  to  the  precedent  in  the  Colorado 
case,  moved  that  the  credentials  and  communication  be  referred  to  the  Committee 
on  Elections,  and  that  neither  claimant  be  sworn  in  until  after  investigation.  This 
motion  was  agreed  to  without  division. 

On  December  19 '  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee 
on  Elections,  reported  that  Mr.  Clever  had  the  prima  facie  right. 

It  appeared  that  the  organic  law  organizing  the  Territory  provided  for  a  cer- 
tificate such  as  the  governor  had  given  Mr.  Clever.  It  further  appeared  that  in 
preceding  years  certificates  had  uniformly  been  issued  in  that  form.  A  Territorial 
law  prescribed  that  the  votes  should  be  returned  and   coimted  by  the  secretary 

'  First  session  Forty-second  Congress,  Journal,  p.  9;  Globe,  p.  7. 
-  First  session  Fortieth  Congress,  Journal,  p.  255;  Globe,  p.  778. 
'Journal,  p.  126;  Globe,  pp.  291-294. 


692  PRECEDENTS    OF    THE    HOUSE    OF    EEPKESENTATIVES.  §    542 

and  that  he  should  give  the  certificate;  but  the  committee  held  that  this  law,  if 
in  conflict  with  the  organic  law,  must  yield  to  it. 

Furthermore  the  letter  of  the  secretary  showed  that  on  the  face  of  the  returns 
Mr.  Clever  had  a  majority;  and  this  was  as  as  far  as  the  secretary  was  authorized 
to  go.  When  he  attempted  to  say  that  some  of  Mr.  Clever's  votes  were  not  good 
votes  he  trenched  on  the  prerogatives  of  the  House. 

The  question  being  taken  on  agreeing  to  the  report,  there  were — yeas  78,  nays  31 ; 
so  Mr.  Clever  was  sworn  in. 

On  three  several  occasions,  December  20,  1867,  and  Februarj^  20  and  July 
25,  1868,'  the  time  for  taking  testimony  in  this  case  was  extended. 

542.    The  case  of  Chaves  v.  Clever,  continued. 

Instance  wherein  the  person  seated  after  examination  of  prima  facie 
right  was  unseated  after  examination  of  final  right. 

The  returns  of  a  precinct  being  shown  to  have  been  fraudulently 
altered,  the  House  corrected  the  return  by  the  count  as  made  at  the  polls. 

Although  the  voting  place  was  illegally  and  fraudulently  located, 
and  there  was  intimidation  at  the  polls  as  well  as  fraudulent  alteration 
of  the  returns,  the  entire  vote  was  not  rejected. 

Votes  cast  at  precincts  having  no  legal  existence  at  the  time  of 
the  election  were  thrown  out  by  the  House. 

Returns  made  up  from  additions  of  names  of  voters  on  the  poll  books 
instead  of  from  count  of  the  ballots  were  rejected,  although  there  was  no 
evidence  of  error  or  fraud  in  the  returns. 

Poll  books  not  being  authenticated  by  a  proper  certificate  as  required 
by  law,  the  returns  of  the  precinct  were  rejected. 

On  February  9,  1869,^  Mr.  S.  Newton  Pettis,  of  Pennsylvania,  reported  from 
the  Committee  on  Elections  on  the  final  right  to  the  seat.  On  the  face  of  the 
retiuns  sitting  Member  had  received  a  majority  of  540  votes.  The  committee, 
as  a  result  of  their  investigations,  found  a  majority  of  389  for  contestant.  In 
reaching  this  result  several  questions  were  determined: 

(1)  In  one  precinct  of  Eio  Arriba  County,  and  one  precinct  of  Mora  County, 
the  votes  were  apparently  correctly  coimted  at  the  close  of  the  polls;  but  after 
the  counting  and  before  the  probate  judge  sent  an  abstract  with  the  poll  books  to 
the  secretary  of  the  Territory,  as  prescribed  by  law,  the  poll  books  were  fraudu- 
lently altered  so  as  to  increase  sitting  Alember's  majority  by  518  votes.  The  com- 
mittee determined  that  this  excess  should  be  deducted,  leaving  the  vote  to  stand 
as  counted  at  the  close  of  the  polls. 

(2)  In  La  Junta  precinct,  in  Mora  Countj',  it  appeared  that — 

The  place  of  voting  was  illegally  and  fraudulently  placed  beyond  the  settlements  and  resident 
voters  of  the  precincts  and  held  in  a  shed  erected  for  that  purpose  upon  an  open  plain,  and  that  persons 
who  were  desirous  of  voting  for  him  were  grossly  and  violently  assailed  by  the  friends  of  the  sitting 
Member,  and  by  such  means  were  intimidated  and  entirely  prevented  from  voting,  and  that  after  the 
polls  were  closed  the  returns  were  so  changed  as  to  fraudulently  increase  the  vote  of  the  sitting  Delegate 
100,  and  that  the  great  majority  of  persons  who  voted  at  such  poll  were  camp  followers  and  had  no  legal 
right  to  vote  under  the  laws  of  the  Territory. 

'Journal,  pp.  131,  371,  1195;  Globe,  pp.  312,  1293,  4479. 

2  Third  session  Fortieth  Congress,  House  Report  No.  18;  2  Bartlett,  p.  467;  Rowell's  Digest,  p.  225. 


§    543  CREDENTIALS    AND   PRIMA    FACIE    TITLE.  693 

The  committee  is  unable  to  find  any  good  reason  for  the  fixing  of  a  place  so  unusual  as  was  the  one 
in  this  instance  for  the  holding  of  an  election,  and  does  believe  from  the  evidence  that  coarse,  improper, 
vulgar,  and  threatening  language  was  used  by  the  friends  and  followers  of  the  sitting  Member,  and 
evidently  for  the  purpose  of  intimidating  and  preventing  persons  from  voting  for  the  contestant;  yet 
the  committee  can  not  for  such  reasons  recommend  the  throwing  out  of  the  whole  vote  of  such  precinct. 

It  appearing,  however,  that  the  poll  book  had  been  so  altered  as  to  give  100 
votes  to  sitting  Delegate  more  than  he  was  entitled  to,  the  committee  corrected 
the  return. 

(3)  It  appeared  that  pretended  elections  were  held  in  several  precincts  which 
had  no  legal  existence  in  September,  1867,  the  time  of  the  election,  but  were  created 
by  the  legislature  of  1868.  Therefore  the  committee  were  of  opinion  that  the 
entire  votes  of  such  precincts  should  be  thrown  out. 

(4)  It  appeared — 

That  the  poll  books  and  abstract  of  the  probate  judge  of  Mora  County  were  not  by  him  sent  to  the 
said  secretary-  of  the  Territory  by  a  special  messenger,  as  required  by  law,  but  came  to  the  hands  of  Wil- 
liam H.  Moore,  acting  sutler  within  the  militarj'  reserA-ation  and  post  of  Fort  Union,  and  were  then 
indorsed  to  Robert  B.  Mitchell,  the  governor  of  said  Territory,  and  marked  value  $5,000,  and  put  in  the 
charge  of  the  civil  express  company  carrvang  the  mails,  and  by  said  express  conveyed  to  Governor 
Mitchell,  who  produced  the  poll  books  and  abstract  to  the  secretarj'  of  said  Territory. 

The  committee  finds,  upon  reference  to  the  Territorial  law,  a  plain  provision  requiring  the  probate 
judge  of  each  county  to  forward  to  the  secretary  of  the  Territory,  by  special  messenger,  a  true  extract 
of  the  votes  cast  in  their  respective  counties,  together  with  a  poll  book  of  each  precinct,  and  from  the 
testimony  of  Vicente  Romero  and  Henrj'  V.  Harris  that  the  law  of  the  Territorj-  in  this  respect  was 
disregarded,  which,  to  say  the  least,  is  censurable  so  far  as  the  conduct  of  the  officers  in  that  behalf  is 
concerned,  since  there  is  much  force  in  the  argument  of  contestant's  counsel  in  favor  of  throwing  out 
the  entire  vote  of  Mora  County  for  the  reason  that  a  plain  provision  of  the  law  was  violated  in  the  trans- 
mission of  the  returns  from  that  county,  and  especially  when  considered  in  connection  with  the  e\'idence 
that  seems  to  point  toward  the  presumption  that  the  returns  as  forwarded  were  tampered  with  upon 
the  way,  and  the  additional  fact  in  evidence  that  in  two  districts  or  precincts  in  said  county  the  vote 
of  1867  amounted  to  948,  although  in  1866  the  same  precincts  were  in  one  and  polled  but  337  votes. 

(5)  In  Bernalillo  precinct,  in  the  county  of  that  name,  the  majority  was 
declared  for  the  contestant  from  an  addition  of  the  poll  books  without  counting  the 
votes  in  the  ballot  box,  and  although  there  was  no  evidence  that  the  retiuTis  were 
incorrect  or  fraudulent,  yet  the  committee  recommended  that  the  majority  of  139 
returned  for  the  contestant  from  this  precinct  be  stricken  out. 

(6)  The  committee  also  deducted  the  vote  of  Chilili  precinct  because  "  the  poll 
books  were  not  authenticated  by  a  proper  certificate  required  by  law." 

The  report  was  debated  at  length  on  February  20,'  and  on  that  day  the  reso- 
lutions as  reported,  unseating  Mr.  Clever  and  seating  Mr.  Chaves,  were  agreed  to — 
ayes  105.  noes  10. 

Mr.  Chaves  then  appeared  and  qualified. 

543.  In  the  Senate,  in  1857,  credentials  regular  in  form  were  hon- 
ored, although  a  memorial  from  the  State  legislature  impeached  the  elec- 
tion of  the  bearer. — On  February  9,  18.5T,-  the  credentials  of  Graham  X.  Fitch 
as  Senator-elect  from  Indiana,  were  presented  in  the  Senate.  At  the  same  time  a 
protest  was  presented  from  the  senate  of  Indiana  in  impeachment  of  the  election 


'Journal,  p.  405:  Globe,  pp.  1421,  1423,  1424;  Appendix,  p.  248. 

''Third  session  Thirty-fourth  Congress,  Globe,  p.  626;  Appendix  to  Globe,  pp.  193-210. 


694  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   544 

of  Mr.  Fitch.  A  question  at  once  arose  as  to  whether  or  not  the  oath  should  be 
administered  to  Mr.  Fitch  on  the  prima  facie  evidence  of  the  certificate.  A  long 
and  learned  debate  followed,  covering  the  precedents  of  the  Senate  from  its  earliest 
years,  from  the  case  of  Mr.  Kensey  Johns,  of  Delaware,  who  in  1794  was  not  allowed 
to  take  the  seat  on  presentation  of  his  credentials,  down  to  the  recent  case  of  Mr. 
Dixon,  of  Kentucky.  It  was  held,  on  the  one  hand,  that  the  credential,  when  it 
did  not  on  its  face  suggest  a  doubt,  should  allow  the  oath  to  be  taken.  On  the 
other  hand,  it  was  argued  that  the  credential,  being  prima  facie  evidence,  was  liable 
to  be  rebutted  at  any  stage. 

Finally,  on  February  10,  on  a  motion  to  commit  the  credentials,  a  test  vote 
was  had,  and  by  a  vote  of  yeas  12,  nays  33,  the  motion  to  commit  was  disagreed 
to.     Thereupon  the  oath  was  administered  to  Mr.  Fitch. 

544.  There  being  a  question  as  to  a  Member's  election,  he  was  sworn 
in  and  his  credentials  were  referred  to  a  committee  with  instructions. — 
On  December  1,  1902,'  on  the  first  day  of  the  session,  the  Speaker  administered 
the  oath  of  office  to  several  new  Members,  including  Mr.  Carter  Glass,  of  Virginia. 
No  question  was  raised  at  the  time  the  oath  was  taken,  but  later  Mr.  Robert  W. 
Tayler,  of  Ohio,  presented  a  resolution  as  follows: 

Resolved,  That  the  credentials  this  day  presented  by  Carter  Glass,  esq.,  as  Representative  in  the 
Fifty-seventh  Congress  from  the  Sixth  district  of  Virginia  be,  and  tliey  are  hereby,  referred  to  Com- 
mittee on  Elections  No.  1,  with  direction  to  inquire  and  report  with  all  convenient  speed,  whether 
they  are  based  upon  returns  of  a  lawful  election  for  Members  of  Congress,  held  in  Virginia,  November 
4,  1902,  and  upon  what  character  of  registration  lists,  and  under  color  of  what  constitution  or  ordinances 
said  election  was  held;  and  whether  at  said  election  the  right  of  franchise  was  accorded  to  all  citizens 
of  Virginia  alike,  without  regard  to  race  or  color;  and  whether  any  citizens  of  the  United  States  who 
were  entitled  to  vote  for  Members  of  Congress  at  said  election  were,  under  color  of  any  constitution, 
law,  statute,  or  ordinance,  unlawfully  deprived  of  their  rights,  privileges,  and  immunities  secured  to 
them  under  the  Constitution  and  laws. 

Resolved,  That  said  committee  be  empowered  to  hold  its  sessions  at  such  times  and  places  in  or 
out  of  the  State  of  Virginia  as  it  may  seem  best,  and  to  summon  before  it  and  examine  any  and  all 
persons  and  papers  which  it  may  deem  necessary  to  the  investigation  hereby  provided  for,  and  to  employ 
such  stenographers  and  clerks  as  may  be  necessary  to  perform  its  business;  and  the  expenses  of  such 
inquiry  and  investigation  shall  be  paid  out  of  the  contingent  fund  of  the  House  on  the  voucher  of  the 
chairman  of  said  committee. 

This  resolution  was  referred  to  the  Committee  on  Elections  No.  1.^ 

'  Second  session  Fifty-seventh  Congress,  Journal,  p.  6;  Record,  p.  4. 

^On  April  28,  1900  (first  session  Fifty-sixth  Congress,  Record,  p.  4805),  Mr.  Francis  R.  Lassiter, 
of  Virginia,  appeared  at  the  bar  of  the  House  with  credentials  in  due  form  entitling  him  to  his  seat  as 
Representative  from  the  Fourth  Congressional  district  of  Virginia. 

There  had  also  been  filed  a  protest  against  the  seating  of  Mr.  Lassiter,  directed  to  "The  Speaker 
and  Members  of  the  House  of  Representatives,"  alleging  defects  in  the  vote  in  the  district,  and  signed 
by  "James  Selden  Cowden,  the  candidate  receiving  the  highest  acknowledged  opposition  vote  to  Major 
Lassiter." 

The  certificate  and  protest  having  been  read,  the  Speaker,  David  B.  Henderson,  of  Iowa,  said: 

"The  time  has  not  expired  for  the  party  whose  communication  has  been  read  to  file  notice  of  con- 
test, and  the  Chair  sees  no  reason  why  the  gentleman  whose  credentials  have  been  read  should  not  be 
sworn  in  unless  the  House  desires  to  take  some  action  in  the  matter.  [A  pause.]  The  gentleman  will 
please  come  forward  and  take  the  oath." 

Mr.  Lassiter  came  forward,  accompanied  by  Mr.  Hay  and  Mr.  Underwood,  and  was  duly  qualified 
by  taking  the  oath  prescribed  by  law. 


§      545  CREDENTIALS   AND    PRIMA    FACIE    TITLE.  695 

545.  The  Senate  election  case  of  Lane  and  McCarthy  v.  Fitch  and 
Bright,  from  Indiana,  in  the  Thirty-fourth  and  Thirty-fifth  Congresses. 

The  Senate  decided  that  a  person  presenting  credentials  in  due  form 
should  be  sworn  in,  although  a  question  had  been  raised  as  to  his  elec- 
tion. 

In  a  State  whereof  the  constitution  required  two-thirds  for  a  quorum 
of  each  house  of  the  legislature,  a  Senator  was  elected  by  a  majority 
merely  of  the  total  membership  of  the  two  houses. 

In  the  absence  of  a  State  or  Federal  law  regulating  election  of  Sen- 
ators the  Senate  declined  to  hold  that  an  election  must  be  participated 
in  by  each  house  in  its  organized  capacity. 

On  February  9,  1857,'  the  credentials  of  Mr.  Graham  N.  Fitch,  of  Indiana,  for 
the  term  ending  March  4,  1861,  were  presented  in  the  Senate,  and  at  the  same  time 
was  presented  a  protest  from  the  Senate  of  Indiana  urging  that  he  and  Jesse  D. 
Bright  had  not  in  fact  been  elected.  The  oath  was  administered  after  debate  as  to 
prima  facie  right  of  Mr.  Fitch  to  be  sworn,  and  the  papers  in  the  case  were  referred 
to  the  Committee  on  the  Judiciary. 

On  March  13  ^  Mr.  Robert  Toombs,  of  Georgia,  submitted  a  report  in  favor  of 
an  investigation  of  the  question.  With  this  report  were  two  documents  explana- 
tory of  the  issues.  The  first  was  a  memorial  of  certain  members  of  the  Indiana 
house: 

The  undersigned,  duly  elected  and  qualified  members  of  the  house  of  representatives  of  the  gen- 
eral assembly  of  the  State  of  Indiana,  hereby  protest  against  the  pretended  election  of  Jesse  D.  Bright 
and  Graham  N.  Fitch,  on  the  4th  day  of  February,  A.  D.  1857,  as  Senators  of  the  State  of  Indiana  in  the 
Congress  of  the  United  States,  the  former  for  the  six  years  from  the  4th  day  of  March  next,  and  the  latter 
for  the  six  years  from  the  4th  day  of  March,  1855,  by  a  portion  of  the  senators  and  representatives  of  said 
general  assembly,  for  the  following  reasons: 

First.  There  was  no  agreement  of  the  two  houses  of  the  general  assembly,  by  resolutions  or  other- 
wise, to  proceed  to  the  appointment  or  election  of  Senators  in  Congress  on  said  day,  or  any  other  day  of 
the  present  session  of  the  general  assembly. 

Second.  There  was  no  joint  convention  of  the  two  houses  of  the  said  general  assembly  on  said  day, 
nor  was  there  any  law  of  the  State  authorizing  a  joint  convention  on  that  or  any  other  day  for  the  appoint- 
ment or  election  of  United  States  Senators;  nor  was  there  any  resolution,  or  joint  resolution,  approved 
or  adopted  by  the  two  houses  of  the  said  general  assembly,  or  either  of  them,  authorizing  such  joint 
convention. 

Third.  Said  pretended  joint  convention  was  a  mere  assembly  of  a  portion  of  the  senators  and  repre- 
sentatives of  the  said  general  assembly,  not  in  a  legislative  capacity,  but  as  individuals,  without  any 
authority  of  law,  without  precedent  in  the  history  of  legislature  of  the  State,  and  having  no  legislative 
sanction;  and  said  senators  and  representatives,  when  so  convened,  had  no  more  constitutional  right  to 
appoint  or  elect  Senators  than  any  equal  nmnber  of  private  citizens  of  the  State. 

Fourth.  There  was  not  a  constitutional  quorum  of  either  house  of  the  general  assembly  present  in 
said  pretended  joint  convention,  there  being  only  twenty-three  senators  and  sixty-one  representatives, 
when,  by  the  eleventh  section  of  the  fourth  article  of  the  constitution  of  this  State,  it  requires  two-thirds 
of  each  house  to  constitute  a  quorum  to  do  business,  and  when,  by  the  law  of  the  State,  the  number  of 
senators  is  fixed  at  fifty  and  the  number  of  representatives  at  one  hundred  in  said  general  assembly. 

Fifth.  Because  the  undersigned,  as  legally  elected  and  qualified  representatives  in  said  general 
assembly,  have  been  deprived  of  their  constitutional  right  to  assist  in  the  legal  election  of  the  Senators 
in  the  Congress  of  the  United  States  by  said  illegal,  revolutionary,  and  unauthorized  election. 

'Third  session  Thirty-fourth  Congress;  Globe,  pp.  626,  774;  Appendix,  pp.  193-210. 
-  Senate  Report  No.  2,  third  session  Thirty-fourth  Congress. 


696  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   545 

Sixth.  Because  the  legislature  of  Indiana,  as  such  legislature,  either  by  separate  action  of  the  two 
houses,  or  otherwise,  as  such  legislature,  had  no  part  or  voice  in  such  pretended  elections,  and  the  same 
were  in  direct  violation  of  the  third  section  of  the  first  article  of  the  Constitution  of  the  United  States 
and  the  fourth  section  of  the  said  article. 

Seventh.  Because  said  pretended  elections  are  wholly  void. 

Eighth.  Because  if  said  elections  are  held  valid,  such  decision  will  destroy  the  legal  existence  of 
the  general  assembly  of  this  State,  and  install  in  its  place  any  mob  which  may  see  proper  to  take  forcible 
possession  of  the  house  as  a  joint  convention  of  the  general  assembly,  without  the  concurrence  of  either 
body,  the  sanction  of  the  Constitution,  or  authority  of  law. 

For  these  and  other  reasons  which  might  be  named  the  undersigned  protest  against  the  validity 
of  said  pretended  elections  and  ask  that  the  Senate  of  the  I'nited  States  may  declare  them  null  and 
void. 

Given  under  our  hands  this  4th  day  of  February  at  Indianapolis,  A.  D.  1857. 

Also  this  statement  of  Mr.  Fitch: 

The  undersigned,  a  Senator  of  the  United  States  from  the  State  of  Indiana,  and  now  acting  as 
a  duly  qualified  Senator  of  the  United  States,  submits  to  the  honorable  the  Judiciary  Committee  of 
the  body  to  whom  the  validity  of  his  election  has  been  referred,  the  following  as  points  upon  which 
he  believes  and  is  advised  that  his  own  rights  and  the  rights  of  his  State  require  that  evidence  be 
taken  and  be  before  the  committee  in  order  to  enable  them  to  decide  understand ingly  and  justly  in  the 
premises. 

First.  That  he  was  elected  to  said  office  by  a  majority  of  all  the  members  composing  the  legislature 
of  the  State,  they  being  then  and  for  that  purpose  assembled  in  joint  convention. 

Second.  That  he  was  elected,  whilst  in  such  joint  convention,  by  a  majority  of  the  legally  quali- 
fied members  of  the  senate  of  the  State  and  of  the  legally  qualified  members  of  the  house  of  representa- 
tives, respectively. 

Third.  That  in  order  to  ascertain  the  facts  stated  in  the  preceding  point,  he  will  be  able,  by  evi- 
dence, to  show  that  three  of  the  persons  who  are  contesting  his  election  were  not  then,  and  are  not  now, 
legally  members  of  the  said  State  senate,  and  had  no  right  whatever,  under  the  laws  and  constitution  of 
the  State,  to  be  considered,  or,  in  any  particular,  to  act  as  members  of  that  body;  and  that  this  was  at 
the  time,  and  still  is,  well  known  to  the  other  contestants. 

Fourth.  That  in  the  organization  of  the  State  senate,  according  to  the  constitution,  laws,  and  usage 
of  the  State,  the  lieutenant-governor  presides  and  superintends  the  admission  of  the  members,  and  the 
taking  the  required  oaths  of  office.  That  upon  this  occasion,  in  violation  of  such  constitution,  laws,  and 
usage,  the  said  three  members,  who  were  without  the  expressly  required  credentials  of  election,  the  cer- 
tificate of  the  proper  and  only  returning  officer,  and  whose  seats  were  also  known  to  be  contested,  and 
on  grounds  of  fraud,  also  known  to  be  true,  were,  by  a  presiding  officer,  chosen  for  the  piu'pose  by  the 
members  of  the  senate,  designated  as  Republicans,  contrary  to  all  law,  and  by  naked  wrong,  directed, 
notwithstanding,  to  be  sworn  in,  and  for  the  clear  purpose,  illegal  and  fraudulent  in  fact,  of  defeating 
an  election  of  Senators  of  the  United  States. 

Fifth.  That  the  said  convention  by  whom,  as  hereinbefore  alleged,  the  undersigned  was  elected  a 
Senator  of  the  United  States,  was  assembled  in  accordance  with  an  express  provision  of  the  constitu- 
tion of  the  State,  and  that,  in  accordance  with  the  long  and  uniform  usage  of  the  State  in  that  particu- 
lar, the  same  was  adjourned  from  day  to  day  by  the  proper  presiding  officer  thereof,  and  vested  with  the 
authority  so  to  adjoiun,  and  that  each  adjournment  was  made  without  objection  by  a  majority  of  the 
senate  even  considering  the  three  persons  aforesaid  to  have  been  members  of  that  body  being  present. 

Sixth.  That  there  is  not  now,  in  said  State,  as  the  undersigned  is  advised,  any  law  for  the  regula- 
tion of  the  election  of  Senators  of  the  United  States,  or  in  any  way  providing  for  the  same;  and  that 
according  to  the  best  professional  and  judicial  opinions  in  the  State,  the  election  is  to  be  made  by  the 
convention  of  the  legislature  assembled  under  the  constitution  of  the  State,  to  count  the  votes  and  decide 
upon  the  election  of  governor  and  lieutenant-governor,  as  a  power  necessarDy  existing  in  the  legislature, 
and  from  the  obligations  of  the  State  to  elect  Senators. 

Seventh.  That  before  the  adoption  of  the  present  State  constitution  there  was  a  law  regulating 
such  election,  and  that  although  the  same  was  no  longer  in  force,  the  said  convention  did,  as  far  as  it  was 
possible,  conduct  the  present  election  according  to  the  provisions  thereof. 


§    545  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  697 

The  undersigned,  in  conclusion,  submits  what,  indeed,  must  be  obvious  to  the  committee,  that  as 
the  witnesses  and  proofs  to  the  matters  above  stated  are  only  to  be  had  in  the  State  of  Indiana,  and  can 
only  properly  be  obtained  by  careful  examination,  and  under  the  superintendence  of  himself,  that  it 
can  not  be  in  his  power  to  procure  it  at  this  or  the  approaching  extra  session  of  the  United  States  Senate, 
even  were  he  to  abandon  his  duty  as  a  Senator,  which  he  has  no  right  to  do,  and  proceed  at  once  to  the 
place  where  the  testimony  is  to  be  had.  He  further  submits,  therefore,  that  the  committee  will  so 
dispose  of  the  matter  now  as  will  enable  him  and  the  contestants  at  a  future  period  to  present  the 
entire  case  fairly  and  fully  before  them. 

No  action  was  taken  before  the  expiration  of  the  Congress. 

At  the  first  of  the  next  session  the  papers  were  again  referred  to  the  Judiciary 
Committee,  and  on  January  21,  1858,'  Mr.  James  A.  Bayard,  of  Delaware,  from 
that  committee,  reported  a  resolution: 

Resolved,  That  in  the  case  of  the  contested  election  of  the  Hon.  Graham  N.  Fitch  and  the  Hon. 
Jesse  D.  Bright,  Senators  returned  and  admitted  to  their  seats  from  the  State  of  Indiana,  the  sitting 
members,  and  all  persons  protesting  against  their  election,  or  any  of  them  by  themselves  or  their 
agents  or  attorneys,  be  permitted  to  take  testimony  on  the  allegations  of  the  protestants  and  the  sitting 
members  touching  all  matters  of  fact  therein  contained,  before  any  judge  of  the  district  court  of  the 
United  States,  or  any  judge  of  the  supreme  or  circuit  courts  of  the  State  of  Indiana,  by  first  giving  ten 
days'  notice  of  the  time  and  place  of  such  proceeding  in  some  public  gazette  printed  at  Indianapolis. 

Mr.  Lyman  Trumbull,  of  Illinois,  submitted  views  of  the  minority: 

The  legislature  of  Indiana,  called  the  general  assembly,  is  composed  of  a  senate  of  fifty  members 
and  a  house  of  representatives  of  one  hundred  members,  and  two-thirds  of  each  house  is,  by  the  consti- 
tution, required  to  constitute  a  quorum  thereof.  Each  house  is  declared  to  be  judge  of  the  election 
and  qualification  of  its  memVjers,  and  required  to  keep  a  journal  of  its  proceedings.  No  regulation 
exists  by  law  in  Indiana  as  to  the  manner  in  which  memljers  of  the  State  senate  are  to  be  inducted 
into  office.  No  law  or  regulation  is  there  existing  providing  the  time,  place,  or  manner  of  electing 
United  States  Senators. 

It  appears  by  the  journal  of  the  senate  of  Indiana  that  on  the  opening  of  the  senate  at  the  meeting 
of  the  legislature,  January  8,  1857,  forty-nine  of  the  senators  were  present,  and  that  all  the  newly  elected 
members  were  duly  sworn,  took  their  seats,  and  continued  thereafter  to  act  with  the  other  senators  till 
the  close  of  the  session.  The  only  absentee  senator  took  his  seat  January  13,  1857.  Protests  were  filed 
contesting  the  seats  of  three  of  the  newly  elected  members,  which  were  afterwards  examined  and  con- 
sidered by  the  senate,  and  they  were  each  found  and  declared  to  be  entitled  to  seats,  respectively,  by 
majorities  more  or  less  numerous,  all  which  is  entered  upon  and  appears  by  the  journal  of  said  senate. 

The  State  constitution  makes  it  the  duty  of  the  speaker  of  the  house  of  representatives  to  open 
and  publish  the  votes  for  governor  and  lieutenant-governor  in  the  presence  of  both  houses  of  the  general 
assembly.  No  provision  exists  by  the  constitution  making  such  meeting  or  presence  of  the  two  houses 
a  convention,  or  providing  any  officers  therefor,  or  authorizing  or  empowering  the  same  to  transact 
any  business  whatever,  except  by  joint  vote  forthwith  to  proceed  to  elect  a  governor  or  lieutenant- 
governor  in  case  of  a  tie  vote. 

Both  houses  being  in  session,  the  speaker  notified  them  that  he  should  proceed  to  open  and  publish 
the  votes  for  governor  and  lieutenant-governor  on  Monday,  the  12th  day  of  January,  at  2.30  o'clock 
p.  m.,  in  the  hall  of  the  house.  Shortly  before  the  hour  arrived  the  president  of  the  senate  announced 
that  he  would  proceed  immediately  to  the  hall  of  the  house  of  representatives;  and  thereupon,  together 
with  such  senators  as  chose  to  go,  being  a  minority  of  the  whole  number  thereof,  he  repaired  to  the 
hall  of  the  house  of  representatives,  and  there,  in  their  presence,  and  in  the  presence  of  the  members 
of  the  house,  the  votes  for  governor  and  lieutenant-governor  were  duly  counted  and  published  by  the 
speaker,  and  A.  P.  Willard,  the  then  president  of  the  senate,  was  declared  duly  elected  governor  and 
A.  A.  Hammon  lieutenant-governor  of  said  State. 

At  the  close  of  this  business,  a  senator  present,  without  any  vote  for  that  purpose,  declared  the 
meeting  (by  him  then  called  a  convention)  adjourned  to  the  2d  day  of  February,  1857,  at  2  o'clock. 

'  First  session  Thirty-fifth  Congress,  Senate  Report  No.  19. 


698  PRECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES.  §  545 

The  senate  hearing  of  this  proceeding,  on  the  29th  day  of  January,  1857,  as  appears  by  its  journal, 
passed  a  resolution  protesting  against  the  proceedings  of  said  so-called  convention,  disclaiming  all  con- 
nection therewith  or  recognizance  thereof,  and  protesting  against  any  election  of  United  States  Senators 
or  any  other  officer  thereby.  On  the  2d  of  February,  1857,  the  president  of  the  senate,  with  a  minor- 
ity of  its  members,  again  attended  in  the  hall  of  the  house,  and  without  proceeding  to  any  business, 
and  without  any  vote,  declared  the  meeting  (by  him  called  a  convention)  adjourned  until  the  4th 
day  of  February,  1857,  at  which  time  the  president  of  the  senate,  with  twenty-four  of  its  members, 
went  to  the  hall  of  the  house  of  representatives,  and  there  they,  together  with  sixty-two  members  of 
the  house,  proceeded  to  elect  two  Senators  of  the  United  States,  to  wit,  Graham  N.  Fitch  and  Jesse  D. 
Bright,  they  each  receiving  eighty-three  votes,  and  no  more,  at  their  respective  elections,  twenty-three 
of  which  votes  were  by  members  of  the  senate. 

Against  these  elections  so  made  protests  by  twenty-seven  members  of  the  senate  of  Indiana  and 
thirty-five  members  of  the  house  of  representatives  of  said  State  have  been  duly  presented,  alleging 
that,  in  the  absence  of  any  law,  joint  resolution,  or  regulation  of  any  kind  by  the  two  houses  composing 
the  legislature  of  Indiana  providing  for  holding  a  joint  convention,  it  is  not  competent  for  a  minority 
of  the  members  of  the  senate  and  a  majority,  but  less  than  a  quorum,  of  the  members  of  the  house  of 
representatives  of  said  State  to  assemble  together  and  make  an  election  of  United  States  Senators. 

Of  the  tacts  as  herein  stated  there  is  no  dispute,  as  we  understand. 

It  is  now  alleged  by  the  sitting  Senators,  respectively,  as  we  understand  the  substance  of  their 
allegations,  in  contradiction  of  the  senate  journal,  that  the  three  State  senators  whose  seats  were  con- 
tested were  not  legally  elected  and  qualified;  that  they  were  without  the  expressly  required  credentials, 
the  certificate  of  the  proper  and  only  returning  officer,  and  that  they  were,  notwithstanding,  directed 
to  be  sworn  in  by  a  presiding  officer  chosen  for  the  purpose  by  the  members  of  the  senate  designated 
as  Kepublicans,  for  the  clear  purpose,  illegal  and  fraudulent  in  fact,  of  defeating  an  election  of  Senators 
of  the  United  States. 

Under  these  circumstances  we  object  to  the  adoption  of  the  resolution  for  the  taking  of  testimony 
to  sustain  these  allegations,  because  the  said  election  of  United  States  Senators,  so  conducted,  is  obvi- 
ously illegal  and  insufficient,  and  can  not  be  cured  by  any  proof  of  these  allegations;  and  we  insist  that 
the  Senate  should  now  proceed  to  a  definitive  decision  of  the  question. 

The  report  was  debated  on  February  15  and  16,  1858,'  resulting  in  agreement 
to  the  resolution  in  amended  form  as  follows: 

Resolved,  That  in  the  case  of  the  contested  election  of  the  Hon.  Graham  N.  Fitch  and  the  Hon. 
Jesse  D.  Bright,  Senators  returned  and  admitted  to  their  seats  from  the  State  of  Indiana,  the  sitting 
members,  and  all  persons  protesting  against  their  election,  or  any  of  them,  by  themselves  or  their  agents 
or  attorneys,  be  permitted  to  take  testimony  on  the  allegations  of  the  protestants  and  the  sitting  mem- 
bers touching  all  matters  of  fact  therein  contained,  before  any  judge  of  the  district  court  of  the  United 
States,  or  any  judge  of  the  supreme  or  circuit  courts  of  the  State  of  Indiana,  by  first  giving  ten  days' 
notice  of  the  time  and  place  of  such  proceeding  in  some  public  gazette  printed  at  Indianapolis:  Pro- 
vided, That  the  proofs  to  be  taken  shall  be  returned  to  the  Senate  of  the  United  States  within  ninety 
days  from  the  passage  of  this  resolution:  And  provided.  That  no  testimony  shall  be  taken  under  this 
resolution  in  relation  to  the  qualification,  election,  or  return  of  any  member  of  the  Indiana  legislature. 

On  May  24"  Mr.  George  E.  Pugh,  of  Ohio,  from  the  Committee  on  the  Judi- 
ciary, submitted  a  report  as  follows : 

The  Committee  on  the  Judiciary,  to  whom  were  referred  the  credentials  of  Graham  N.  Fitch  and 
Jesse  D.  Bright,  Senators  from  the  State  of  Indiana,  together  with  the  documents  and  testimony  relative 
to  that  subject,  have  had  the  same  under  consideration,  and  report,  by  resolution,  as  follows: 

Resolved,  That  Graham  N.  Fitch  and  Jesse  D.  Bright,  Senators  returned  and  admitted  from  the 
State  of  Indiana,  are  entitled  to  the  seats  which  they  now  hold  in  the  Senate  as  such  Senators  aforesaid, 
the  former  until  the  4th  of  March,  1861,  and  the  latter  until  the  4th  of  March,  1863,  according  to  the 
tenor  of  their  respective  credentials. 

'  First  session  Thirty-fifth  Congress,  Globe,  pp.  698-710,  720-724. 
2  Senate  Report  No.  275;  Globe,  p.  2353;  1  Bartlett,  p.  629. 


§  546  CKEDENTLiLS   AND   PRIMA   FACIE   TITLE.  699 

On  June  1 1  ^  this  resolution  was  debated  at  length,  and  on  June  12,^  Mr.  Hannibal 
Hamlin,  of  Maine,  proposed  to  amend  the  resolution  by  striking  out  all  after  the 
word  "resolved,"  and  inserting: 

That  the  case  of  Jesse  D.  Bright  and  Graham  N.  Fitch  be  recommitted  to  the  Committee  on  the 
Judiciary,  with  instructions  to  report  specially  the  grounds  on  which  the  resolution  is  based  declaring 
said  Bright  and  Fitch  elected. 

On  motion  by  Mr.  Tnmibtdl  to  amend  the  proposed  amendment  by  striking 
out  all  after  the  word  "that"  and  inserting  "in  the  opinion  of  the  Senate,  no  election 
of  a  Member  of  this  body  made  by  the  legislature  of  a  State  consisting  of  two 
branches  is  valid,  when  made  in  a  meeting  of  indi-vidual  members  of  both,  unless 
such  meeting  for  that  purpose  was  prescribed  by  law,  or  had  been  previously  agreed 
to  by  each  house  acting  separately  in  its  organized  capacity,  or  is  participated  in 
by  a  majorit}'  of  the  members  of  each  house,  or  is  subsequently  ratified  in  some 
form  b}'  each  house  in  its  organized  capacity,"  it  was  determined  in  the  negative- 
yeas  17,  nays  26. 

Mr.  Hamlin's  motion  was  then  disagreed  to — yeas  16,  nays  34. 

On  motion  by  Mr.  Trumbull  to  amend  the  resolution  by  inserting  after  the 
word  "are"  and  before  the  word  "entitled"  the  word  "not,"  it  was  determined  in 
the  negative — yeas  2.3,  nays  30. 

Then  the  resolution  reported  by  the  Judiciary  Committee  was  agreed  to. 

546.   The  case  of  Lane  and  McCarthy  v.  Fitch  and  Bright,  continued. 

In  1859  the  Senate  declined  to  admit  claimants  of  seats  to  the  privi- 
leges of  the  floor. 

A  State  legislature  may  not  revise  a  decision  of  the  United  States 
Senate  that  two  persons  have  been  duly  elected  Senators. 

A  decision  of  the  Senate,  made  after  examination  of  all  the  facts,  as  to 
election  of  a  Senator  is  judicial  in  its  nature  and  final,  precluding  further 
inquiry. 

At  the  next  session  of  Congress,  on  January  24,  1859,^  the  Vice-President  pre- 
sented a  memorial  of  the  State  of  Indiana,  by  its  senators  and  representatives  in 
general  convention  assembled,  representing  that  it  is  the  wish  and  desire  of  the 
State  that  the  Hon.  Henry  S.  Lane  and  the  Hon.  William  Monroe  McCarty  be 
admitted  to  seats  in  the  Senate  of  the  United  States  as  the  only  legally  elected  and 
constitutionally  chosen  Senators  of  the  State  of  Indiana;  which  was  read  and 
referred  to  the  Committee  on  the  Judiciary. 

On  the  same  day  ilr.  William  H.  Seward,  of  New  York,  presented  this  reso- 
lution, which,  on  January  26,  was  laid  on  the  table  after  debate:'' 

Resolved,  That  the  Hon.  Henry  S.  Lane  and  the  Hon.  William  M.  McCarty,  who  claim  to  have  been 
elected  Senators  from  the  State  of  Indiana,  be  entitled  to  the  privileges  of  admission  on  the  floor  of  the 
Senate  until  their  claims  shall  have  been  decided. " 

On  February  3,  1859,^^  Mr.  James  A.  Bayard,  of  Delaware,  submitted  from 
the  Committee  on  the  Judiciary  a  report  reviewing  the  proceedings  as  to  Messrs. 

'  Globe,  pp.  2923-2949.  •*  Globe,  pp.  599-602. 

2  Globe,  p.  2981.  «  Senate  Report  No.  368. 

'  Second  session  Thirty-fifth  Congress,  Globe,  pp.  534,  535. 


1^-'  '■ 

I 


700  PRECEDENTS    OF    THE   HOUSE    OF   KEPKESENTATIVES.  §   546 

Fitch  and  Bright  up  to  the  consideration  of  the  resolution  declaring  them  entitled 
to  their  seats,  and  continues: 

The  resolution  was  under  consideration  in  the  Senate,  and  fully  debated  at  several  subsequent 
times,  and  was  finally,  after  the  rejection  of  several  proposed  amendments,  passed  by  the  Senate  without 
amendment  or  alteration.  In  the  opinion  of  the  committee,  this  resolution  (no  motion  having  been 
made  to  reconsider  it)  finally  disposed  of  all  questions  presented  to  the  Senate  involving  the  respective 
rights  of  the  Hon.  Graham  N.  Fitch  and  the  Hon.  Jesse  D.  Bright  to  their  seats  in  the  Senate  as  Senators 
from  the  State  of  Indiana  for  the  terms  stated  in  the  resolution.  It  appears  by  the  memorial  that  the  ^'i 
legislature  of  Indiana,  at  its  recent  session  in  December  last,  assumed  the  power  of  revising  the  final  <; 
decision  thus  made  by  the  Senate  of  the  United  States  under  its  unquestioned  and  undoubted  consti- 
tutional authority  to  "be  the  judge  of  the  qualifications  of  its  own  members."  Under  this  assumption, 
it  also  appears  by  the  journals  of  the  senate  and  house  of  representatives  of  the  State  of  Indiana,  the 
legislature  of  Indiana,  treating  the  seats  of  the  Senators  from  that  State  as  vacant,  proceeded,  subse- 
quently, by  a  concurrent  vote  of  the  senate  and  house  of  representatives  of  the  State,  to  elect  the  Hon. 
Henry  S.  Lane  as  a  Senator  of  the  United  States  for  the  State  of  Indiana,  to  serve  as  such  until  the 
4th  of  March,  1863,  and  the  Hon.  William  Monroe  McCarty  as  a  Senator  for  the  same  State,  to  serve  as 
such  until  the  4th  of  March,  A.  D.  1861.  Under  this  action  of  the  legislature  of  Indiana  those  gentle- 
men now  claim  their  seats  in  the  Senate  of  the  United  States. 

It  may  be  conceded  that  the  election  would  have  been  valid,  and  the  claimants  entitled  to  their 
Beats,  had  the  legislature  of  Indiana  possessed  the  authority  to  revise  the  decision  of  the  Senate  of  the 
United  States  that  Messrs.  Fitch  and  Bright  had  been  duly  elected  Senators  from  Indiana,  the  former 
until  the  4th  of  March,  1861,  and  the  latter  until  the  4th  of  March,  1863. 

In  the  opinion  of  the  committee,  however,  no  such  authority  existed  in  the  legislature  of  Indiana. 
There  was  no  vacancy  in  the  representation  of  that  State  in  the  Senate;  and  the  decision  of  the  Senate, 
made  on  the  12th  of  June,  1858,  established  finally  and  (in  the  absence  of  a  motion  to  reconsider) 
irreversibly  the  right  of  the  Hon.  Graham  N.  Fitch  as  a  Senator  of  the  State  of  Indiana  until  the  4th 
of  March,  1861,  and  the  right  of  the  Hon.  Jesse  D.  Bright  as  a  Senator  from  the  same  State  until  the  4th 
of  March,  A.  D.  1863. 

The  decision  was  made  by  an  authority  having  exclusive  jurisdiction  of  the  subject;  was  judicial 
in  its  nature;  and,  being  made  on  a  contest  in  which  all  the  facts  and  questions  of  law  involving  the 
validity  of  the  election  of  Messrs.  Fitch  and  Bright,  and  their  respective  rights  to  their  seats,  were  as 
fully  known  and  presented  to  the  Senate  as  they  are  now  in  the  memorial  of  the  legislature  of  Indiana, 
the  judgment  of  the  Senate  then  rendered  is  final,  and  precludes  further  inquiry  into  the  subject  to 
which  it  relates. 

There  being,  by  the  decision  of  the  Senate,  no  vacancy  from  the  State  of  Indiana  in  the  Senate 
of  the  United  States,  the  election  held  by  the  legislature  of  that  State  at  its  recent  session  is,  in  the 
opinion  of  the  committee,  a  nullity,  and  merely  void,  and  confers  no  rights  upon  the  persons  it  assumed 
to  elect  as  Senators  of  the  United  States. 

The  committee  ask  to  be  discharged  from  the  further  consideration  of  the  memorial  of  the  legis- 
lature of  Indiana. 

Mr.  Jacob  Collamer,  of  Vermont,  presented  views  of  the  minority,  on  behalf 
of  himself  and  Mr.  Lyman  Trimibull,  as  follows : 

The  power  of  the  Senate  to  judge  of  the  election  and  qualification  of  its  own  members  is  unlimited 
and  abiding.  It  is  not  exhausted  in  any  particular  case  by  once  adjudicating  the  same,  as  the  power  of 
reexamination  and  the  correction  of  error  or  mistake  incident  to  all  judicial  tribunals  and  proceedings 
remains  with  the  Senate  in  this  respect,  as  well  to  do  justice  to  itself  as  to  the  States  represented  or 
to  the  persons  claiming  or  holding  seats.  Such  an  abiding  power  must  exist,  to  purge  the  body  from 
intruders,  otherwise  any  one  might  retain  his  seat  who  had  once  wrongly  procured  a  decision  of  the 
Senate  in  his  favor  by  fraud  or  falsehood,  or  even  by  papers  forged  or  fabricated. 

In  what  cases  and  at  whose  application  a  rehearing  will  at  all  times  be  granted  is  not  now  necessary 
to  inquire;  but  when  new  parties,  with  apparently  legal  claim,  apply,  and  especially  when  a  sovereign 
State,  by  its  legislature,  makes  respectful  application  to  be  represented  by  persons  in  the  Senate  legally 
elected,  and  insists  that  the  sitting  members  from  that  State  were  never  legally  chosen,  we  consider  that 


M 


§   546  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  701 

the  subject  should  be  fully  reexamined,  and  that  neither  the  State,  the  legislature,  nor  the  persons  now 
claiming  seats  can  legally  or  justly  be  estopped,  or  even  prejudiced,  by  any  former  proceedings  of  the 
Senate  to  which  they  were  not  parties. 

At  the  first  session  of  the  legislature  of  Indiana  after  the  present  sitting  members  were  declared  by 
the  Senate  as  entitled  to  their  seats,  and  at  the  earliest  time  it  could  take  action,  it  declared  their  pre- 
tended election  as  inoperative  and  void,  and  that  the  State  was  in  fact  unrepresented;  and  they  pro- 
ceeded to  elect  H.  S.  Lane  and  William  M.  McCarty  as  Senators  of  the  United  States  for  said  State, 
according  to  the  Constitution  of  the  L'nited  States;  and  they  send  here  their  memorial,  alleging  that  the 
present  sitting  members  were  never  legally  elected;  and  they  show  facts,  in  addition  to  what  was  here- 
tofore presented  to  the  Senate,  tending,  as  they  consider,  to  sustain  this  allegation.  The  said  Lane  and 
McCarty  present  their  certificates  and  claim  their  seats.  We  consider  the  matters  stated  in  said  memorial 
as  true.  The  said  Lane  and  McCarty  have  presented  their  brief  sustaining  their  claim  to  seats,  which 
is  in  the  words  following: 

Brief  of  W.  M.  McCarty  and  Henry  S.  Lane,  submitted  to  the  Judiciary  Committee  of  the  Senate. 

The  State  is  entitled  to  the  office.  The  legislature  is  her  supreme  instrument  and  donee  of  the 
power  to  elect  Senators.  It  is  the  creature  of  the  constitution,  which  is  the  chart  of  its  power,  vested 
only  in  two  coordinate  branches;  a  quonmi  of  two-thirds  of  the  members  is  requisite  to  give  either  a 
legal  entity;  each  is  equivalent  in  power,  with  an  absolute  veto  on  the  power  of  the  other. 

The  legislattire  is  a  corporation  aggregate,  with  only  such  power  as  its  creator  has  seen  fit  to  endow 
it  with,  to  be  exercised  in  conformity  to  the  laws  of  its  birth. 

To  the  joint  wisdom  and  counsel  of  these  colleges  is  the  legislative  power  intrusted.  It  is  not 
parceled  out  to  its  component  elements  in  integrals,  neither  is  it  vested  in  an  amalgamated  body  of  the 
two.  The  one  is  erected  as  a  banner  to  the  other.  The  ordeal  of  both  must  be  passed.  This  guaranty 
against  abuse  can  not  be  broken  down  without  destroying  one  of  the  safeguards  of  our  Government. 
The  sovereign  voice  is  an  unit.  The  power  that  utters  it  is  an  entirety — an  invisible,  intangible,  artificial 
person.  The  power  is  in  the  organism  called  "the  general  assembly,"  and  not  in  the  individual  mem- 
bers. It  is  not  the  rights  or  powers  of  the  members,  but  the  delegated  trust  powers  of  the  State  that  are 
wielded  in  senatorial  elections  or  other  exercises  of  legislative  powers.  Without  a  quoriun  of  either 
house  it  did  not  exist — without  either,  the  legislature  did  not  exist,  and  without  a  legislature  no  election 
would  be  had. 

Now,  the  facts  are  that  a  quorum  of  neither  house  was  present  at  the  pretended  election  of  Messrs. 
Bright  and  Fitch,  nor  even  a  majority  of  the  senate,  nor  did  either  house  prescribe  the  time,  place,  or 
manner  of  electing. 

It  is  of  the  essence  of  legislative  power  that  its  exercise  shall  be  free  from  all  restraint;  each  body 
free  to  deliberate  and  act  in  its  duties;  each  entitled  to  its  full  powers.  The  facts  are  that  the  senate, 
upon  eight  occasions,  refused  to  go  into  joint  convention  with  the  house,  and  at  no  time  consented.  She 
could  not  be  compelled  to  merge  her  individuality,  or  surrender  her  veto  power,  or  adopt  the  joint-vote 
mode  of  electing  Senators;  or,  in  other  words,  dilute  or  annihilate  her  power,  upon  the  mandate  of  the 
house,  as  that  would  degrade  her  from  an  equal  to  an  inferior.  On  the  contrarj',  she  had  the  right  to 
determine  the  time,  place,  and  manner,  and  did  do  it  by  resolution,  to  elect  by  separate  vote,  at  a  proper 
time,  in  which  the  house  never  conctured.  Where  diverse  duties  are  imposed,  she  must  determine 
which  are  most  imperative  and  shall  have  priority. 

The  constitution  of  Indiana  only  provides  for  a  joint  convention  upon  the  contingency  of  a  tie  vote 
tor  governor  and  lieutenant-governor.  That  contingency  did  not  exist ;  therefore  the  convention  did  not. 
To  say  that  a  duty  to  form  a  joint  convention  creates  it  is  as  absurd  as  to  say  that  the  subpoena  of  a 
witness  works  his  presence,  or  the  commands  of  the  decalogue  their  observance. 

Failing  to  get  the  senate  into  a  joint  convention,  a  false  record  of  that  pretended  fact  was  made,  to 
be  used  as  evidence,  and  which  has  been  used  as  veritable  and  true,  and  the  absolute  verity  and  the 
unimpeachable  quality  of  a  record  claimed  for  the  fabrication. 

The  resolves  of  the  senate  are  those  of  the  whole  body.  The  mutinous  senators  who  usurped  the 
name  and  power  of  the  senate  in  said  pretended  convention  were  subject  to  arrest  by  order  of  that  body 
for  absence,  and  the  attempt  to  nullify  the  wiU  of  the  majority  by  attempting  a  business  at  a  time,  place, 
and  in  a  manner  vetoed  by  that  body  by  a  resolve,  then  unvacated  and  unrescinded.     Said  convention. 


702  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   546 

if  it  existed,  expired  with  the  duty  that  called  it  into  life.  The  president  of  the  senate,  when  inaugu- 
rated governor,  his  office  as  president  of  the  senate  expired,  and  with  it  that  of  his  deputy  president. 
The  president  not  only  usurped  the  power  to  appoint  a  clerk — an  office  not  known  to  the  law  and  void — 
who  only  authenticated  this  pretended  election  by  interpolating  it  into  the  journal  of  the  house.  This 
president,  whose  power  expired  with  that  of  his  creator,  arrogated  that  of  adjourning  it  to  a  fixed  day; 
in  other  words,  commanding  it  to  obey  his  arbitrary  rescript;  and,  at  a  subsequent  one,  the  more  impe- 
rious mandate  commanded  them  to  elect  Senators,  no  agreement  whatever  having  been  had  by  the 
house  therefor  as  to  time,  place,  and  manner. 

We  aver  that  not  only  did  no  usage  exist  in  Indiana,  but  that  in  no  solitary  instance  was  an  election 
had  without  the  consent  of  both  houses,  fixing  time,  place,  etc.,  by  law  or  resolution.  While  said  pre- 
tended convention  was  in  existence,  but  adjourned  to  a  fixed  day,  numerous  attempts  were  made  in 
both  houses  to  create  one  by  the  members  who  voted  for  Messrs.  Bright  and  Fitch,  thus  offering  evidence 
that  they  did  not  consider  that  one  had  been  formed  and  was  in  existence.  No  forced  convention  could 
be  had.  Mutual  consent  was  necessary,  and  it  was  never  had  by  a  vote,  which  is  the  only  mode  of 
altering  the  will  of  a  legislative  body. 

The  history  of  joint  conventions  in  Indiana  will  also  show  that  no  other  business  was  ever  trans- 
acted than  that  for  which  it  was  specially  convened.  And  we  insist  that  the  validity  oft  he  acts  of  a 
joint  convention  is  due  to  the  separate  action  of  the  two  houses  as  the  general  assembly.  It  is  also 
necessary  to  the  validity  of  all  elections  by  corporate  bodies  that  notice  be  given  of  the  time,  etc.,  and 
the  journals  of  neither  house  show  any  such  notice  or  any  conventional  agreement  for  the  same. 

Upon  the  facts  and  law  above  no  legal  election  could  have  been  had. 

To  sustain  the  title  of  Messrs.  Bright  and  Fitch  the  constitution  of  Indiana,  depositing  her  legisla- 
tive power  in  two  coordinate  houses,  must  be  broken  down — that  which  requires  two-thirds  of  the 
members  to  exercise  any  of  her  attributes  of  sovereignty,  and  that  one  house  can  not  coerce  the  other. 
Not  only  is  this  election  in  defiance  of  these  injunctions,  but  in  the  face  of  a  positive  dissent  by  one 
branch,  armed  by  the  people  with  an  absolute  veto.  But  a  presiding  officer,  who  is  no  part  of  the 
legislature,  usurped  the  powers  and  prerogatives  of  the  legislature;  all  the  forms  and  guaranties  with 
which  the  people  hedged  in  their  legislative  servant  were  disregarded,  and  it  is  claimed  that  the  act  is 
as  valid  as  if  they  had  been  observed. 

To  sustain  Messrs.  Bright  and  Fitch  the  constitution  of  Indiana  is  made  a  dead  letter.  Will  the 
Senate,  the  peculiar  guardians  of  State  rights,  reared  up  for  that  especial  purpose,  exclude  Indiana  from 
her  weight  and  voice  in  it  by  instruments  empowered  by  her?  AVUl  she  be  allowed  to  interpret  her  own 
constitution  and  acts,  or  will  the  Senate,  under  any  pretense,  blot  her  out  of  the  confederacy,  and  realize 
all  those  fears  portrayed  by  some  of  the  framers  of  the  Constitution  by  an  absorption  of  and  encroach- 
ment upon  State  rights? 

The  legislative  power  enshrines  and  protects  aU  rights  subject  to  its  jurisdiction.  Prior  to  the 
confederation  the  several  States  owed  this  duty  to  their  citizens.  They  did  not  stirrender  it,  but 
intrusted  it  to  the  Federal  for  their  better  protection,  with  the  right  guaranteed  them  of  a  voice  in  the 
Senate  as  a  means  of  enforcing  this  duty  through  the  Federal  instrument. 

We  deny  that  imder  a  constitutional  grant  of  power,  with  prescribed  modes  of  its  exhibition,  that 
you  can.  discriminate  between  elections  and  laws.  The  selection  of  a  general,  upon  whose  skill  the  fate 
of  an  army  or  the  country  may  depend,  or  of  a  judge  upon  whose  legal  attainments  and  integrity  the 
lives,  liberties,  and  property  of  the  citizen  may  depend,  is  of  less  moment  than  some  petty  law. 

The  same  power  is  as  requisite  to  the  creation  of  the  one  as  the  other. 

But  it  may  be  said  that  this  question  is  res  adjudicata. 

We  deny  that  our  rights  or  title  are  barred  by  a  decision  had  before  they  were  created. 

We  deny  that  the  judicial  power  of  the  Senate  is  capable  of  self-exhaustion.  We  deny  that  the 
political  right  of  the  State  is  capable  of  aimihilation  without  annihilating  the  Constitution  which 
creates  the  right. 

We  insist  that  the  right  to  judge  of  the  election  and  qualification  of  members  must  continue  while 
the  term  continues. 

The  qualifications  are  continuing  conditions  of  title. 

We  deny  that  courts  are  ever  estopped  by  their  own  action. 

We  deny  that  sovereigns  are  estopped. 


§  546  CBEDENTIALS   AND   PRIMA   FACIE    TITLE.  703 

We  deny  that  Indiana  was,  prior  to  this  time,  a  party  to  the  proceedings  of  the  Senate,  or  had 
opportunity  to  allege  or  elicit  the  true  facts. 

We  deny  the  power  of  the  Senate,  under  the  power  to  judge,  to  create  Senators  for  Indiana. 

We  claim  for  her  a  superior  knowledge  of  her  own  acts  and  grants. 

We  insist  that  the  simple  admission  of  a  Senator  to  his  seat  upon  credentials  is  a  decision,  and  that 
it  was  never  pretended  this  precluded  his  ouster  if  his  title  were  not  good. 

If  the  Senate  have  not  power  to  exclude  foreign  elements  at  all  times,  it  is  not  equal  to  the  duties 
intrusted  to  its  guardianship. 

And  we  will  not  believe  that  the  Senate  is  the  only  tribunal  on  earth  whose  wrongs,  once  done, 
are  eternal  and  irrevocable. 

W.  M.  McCakty. 
H.  S.  Lane. 

In  the  case  of  the  State  of  Mississippi,  in  the  House  of  Representatives  in  the  Twenty-fifth  Congress, 
the  power  to  reexamine  a  decision  made  on  an  election  of  Members  was  fully  considered  and  decided. 

On  Februarj^  14  '  the  report  was  considered  by  the  Senate,  and  an  amendment 
was  proposed  by  Mr.  Seward  to  amend  the  resolution  to  discharge  the  Gommittee 
on  the  Judiciary  by  striking  out  all  after  "resolved"  and  inserting: 

That  Henry  S.  Lane  and  WiUiam  M.  McCarty  have  leave  to  occupy  seats  on  the  floor  of  the  Senate 
pending  the  discussion  of  the  report  of  the  Committee  on  the  Judiciary  on  the  memorial  of  the  legislature 
of  Indiana  declaring  them  her  duly  elected  Senators,  and  that  they  have  leave  to  speak  to  the  merits  of 
their  rights  to  seats  and  on  the  report  of  the  committee. 

On  motion  by  Mr.  Pugh  to  amend  the  amendment  proposed  by  Mr.  Seward,  by 

striking  out  all  after  "that"  and  inserting  "the  resolution  of  the  Senate,  adopted 
June  12,  1858,  affirming  the  right  of  Graham  N.  Fitch  and  Jesse  D.  Bright  as  Sena- 
tors elected  from  the  State  of  Indiana,  the  former  imtil  the  4th  day  of  March,  1861, 
and  the  latter  until  the  4th  day  of  March,  1863,  was  a  final  decision  of  all  the  premises 
then  in  controversy,  and  conclusive  as  well  upon  the  legislature  of  Indiana,  and  all 
persons  claiming  under  its  authority,  as  upon  the  Senators  named  in  the  resolution." 
On  motion  by  Mr.  Harlan — 

That  all  the  papers  in  this  case  be  recommitted  to  the  Committee  on  the  Judiciary  with  instruc- 
tions to  inquire  whether  Graham  N.  Fitch  and  Jesse  D.  Bright  or  Henry  S.  Lane  and  W.  M.  McCarty, 
or  any  one  of  them,  has  been  elected  to  the  office  of  Senator  of  the  LTnited  States  from  the  State  of 
Indiana  as  pro\'ided  by  the  Constitution  of  the  United  States,  and  in  accordance  with  the  laws  and 
usages  of  the  State  of  Indiana,  and  report  the  facts  connected  with  and  bearing  on  the  supposed  election 
of  each  to  the  Senate,  and  that  the  contestants  be  allowed  to  appear  at  the  bar  of  the  Senate  when  such 
report  shall  be  made  and  argue  their  right  to  seats. 

After  debate,  a  division  of  the  motion  made  by  Mr.  Harlan  was  called  for  by 
Mr.  Stuart;  and  the  question  being  taken  on  the  first  division,  viz,  "that  all  the 
papers  in  this  case  be  recommitted  to  the  Committee  on  the  Judiciary,"  it  was 
determined  in  the  negative — yeas  14,  nays  32;  so  the  motion  to  recommit  with 
instructions  was  disagreed  to. 

The  question  recurring  on  agreeing  to  the  amendment  proposed  by  Mr.  Pugh 
to  the  amendment  proposed  by  Mr.  Seward,  it  was  determined  in  the  affirmative — 
yeas  30,  nays  16. 

On  the  question  to  agree  to  the  amendment  of  Mr.  Seward,  as  amended,  it  was 
determined  in  the  affirmative — yeas  29,  nays  16. 

'  Globe,  pp.  1014-1019;  Appendix,  pp.  128-148. 


704  PRECEDENTS    OF    THE    HOUSE    OF    EEPEESENTATIVES.  §   547 

On  the  question  to  agree  to  the  resolution  from  the  Gommittee  on  the  Judiciary, 
amended,  as  follows: 

Resolved,  That  the  committee  be  discharged  from  the  further  consideration  of  the  memorial  of  the 
State  of  Indiana,  and  that  the  resolution  of  the  Senate  adopted  June  12,  1858,  affirming  the  right  of 
Graham  N.  Fitch  and  Jesse  D.  Bright  as  Senators  elected  from  the  State  of  Indiana,  the  former  until  the 
4th  day  of  March,  1861,  and  the  latter  until  the  4th  day  of  March,  1863,  was  a  final  decision  of  all  the 
premises  then  in  controversy,  and  conclusive  as  well  upon  the  legislature  of  Indiana,  and  all  persons 
claiming  under  its  authority,  as  upon  the  Senators  named  in  the  resolution. 

It  was  determined  in  the  affirmative — yeas  30,  nays  15. 

547.  An  instance  wherein  the  House  authorized  an  investigation 
of  the  credentials  and  elections  of  persons  already  seated  on  prima  facie 
showing. 

Instance  wherein  the  House  ordered  examination  of  the  title  to  a 
seat  on  the  strength  of  a  memorial. 

At  the  organization  of  the  House  on  March  4,  187 1,'  a  question  was  raised 
as  to  the  swearing  in  of  the  Mississippi  delegation,  whose  names  were  on  the  roll  of 
the  Clerk.  But  after  debate  the  House  ordered  the  oath  to  be  administered  to  them, 
and  the  credentials  to  be  referred  to  the  Committee  on  Elections. 

On  April  17  -  Mr.  Luke  P.  Poland,  of  Vermont,  from  the  Committee  on  Elections, 
reported  this  resolution,  which  was  agreed  to  by  the  House: 

Resolved,  That  the  Committee  on  Elections  be  authorized  to  take  testimony  in  relation  to  the 
credentials  of  the  sitting  Members  from  the  State  of  Mississippi,  the  validity  of  the  election  under 
which  said  Members  claim  seats,  and  the  allegations  touching  the  same,  contained  in  the  memorial  of 
A.  C.  Fisk,  and  that  said  committee,  for  that  purpose,  be  authorized  to  send  for  persons  and  papers. 

548.  Certain  instances  wherein  the  House  has  referred  credentials 
to  the  Elections  Committee,  the  oath  not  being  administered  to  the 
bearers.— On  March  16,  1871,'  the  Speaker  laid  before  the  House  the  creden- 
tials of  Thomas  H.  Reeves,  claiming  to  be  a  Representative  at  Large  from  the  State 
of  Tennessee.  The  credentials  were  referred  to  the  Gommittee  of  Elections,  Mr. 
Reeves  not  being  sworn  in. 

On  March  4  *  the  credentials  of  J.  P.  M.  Epping,  elected  Representative  at  Large 
from  the  State  of  South  Carolina,  were  referred  to  the  Gommittee  of  Elections,  Mr. 
Epping  not  being  sworn  in. 

On  March  7  ^  the  credentials  of  R.  T.  Daniels,  as  Member  at  Large  from  Virginia, 
were  similarly  referred  to  the  Committee  of  Elections. 

549.  Federal  law  directs  the  issuance  and  prescribes  the  form  of  cre- 
dentials of  Senators-elect. — The  Revised  Statutes,  section  18,  provide: 

It  shall  be  the  duty  of  the  executive  of  the  State  from  which  any  Senator  has  been  chosen  to  certify 
his  election,  under  the  seal  of  the  State,  to  the  President  of  the  Senate  of  the  United  States. 

The  above  law  dates  from  July  25,  1866. 

'  First  session  Forty-second  Congress,  Journal,  p.  10;  Globe,  pp.  7-10. 

-Journal,  p.  178;  Globe,  p.  736. 

^  First  session  Forty-second  Congress,  Journal,  p.  73;  Globe,  p.  132. 

*  Journal,  p.  13;  Globe,  p.  11. 

'Journal,  p.  16;  Globe,  p.  16. 


§   550  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  705 

Section  19  of  the  Revised  Statutes,  dating  also  from  July  25,  1866,  provides: 

The  certificate  mentioned  in  the  preceding  section  shall  be  countersigned  by  the  secretary  of 
state  of  the  State.' 

550.  The  Speaker  declined  to  administer  the  oath  to  a  person  whose 
prima  facie  right  was  under  investigation  by  the  House. — On  February  15, 

1884,-  the  House  had  under  consideration  the  contested  election  case  of  Chal- 
mers f.  Manning.  The  resolution  before  the  House  was  to  discharge  the  com- 
mittee from  further  consideration  of  the  prima  facie  right  to  the  seat,  and  to 
this  was  pending  a  substitute  declaring  that  Manning  held  perfect  credenitals  and 
was  entitled  to  be  sworn  in. 

During  the  debate  Mr.  Andrew  G.  Curtin,  of  Pennsylvania,  advanced  to  the 
Clerk's  desk,  in  company  with  Mr.  Manning,  and  said: 

I  present  Van  H.  Manning  to  be  sworn  in  as  a  Member  of  this  House  upon  the  certificate  of  the 
governor  of  Mississippi,  attested  by  the  broad  seal  of  that  great  and  loyal  State. 

A  point  of  order  being  made,  the  Speaker^  said: 

The  Chair  thinks  it  unnecessary  to  decide  any  point  of  order  in  this  case,  because  the  question 
whether  or  not  Mr.  Manning  is  entitled  to  take  the  oath  of  office  is  the  verj'  question  which  the  House 
is  now  considering  and  upon  which  it  is  about  to  vote.  Of  course  the  Chair  would  not  undertake  to 
administer  the  oath  of  office  to  any  person  claiming  to  be  a  Member-elect  while  the  House  is  coiwidering 
his  right  to  a  seat. 

551.  The  Senate  election  case  of  David  Turpie  in  the  Fiftieth  Con- 
gress. 

The  Senate  gave  immediate  prima  facie  effect  to  regular  credentials, 
although  a  memorial  impeached  the  regularity  and  legality  of  the 
election. 

The  Senate  declined  to  inquire  into  the  titles  of  the  members  and 
presiding  officer  of  a  legislative  body,  the  legality  of  the  organization 
being  unimpeached. 

On  February  10,  1887,^  the  President  pro  tempore  laid  before  the  Senate  reso- 
lutions adopted  bj"  a  joint  convention  of  the  two  houses  of  the  general  assembly  of 
the  State  of  Indiana,  reciting  that  at  the  joint  convention  of  February  2,  1887, 
Hon.  Alonzo  G.  Smith,  a  member  of  the  senate  of  the  said  assembly,  had  declared 
that  Hon.  David  Turpie  had  received  a  majority  of  all  the  votes  cast  in  the  said 
convention  for  United  States  Senator;  that  the  speaker  of  the  house  of  representa- 
tives presiding  at  the  joint  convention  had  declared  that  there  had  been  no  legal 
election  of  a  United  States  Senator,  and  that  it  was  believed  that  there  were  enough 
illegal  votes  cast  for  the  said  Hon.  David  Turpie  to  overcome  the  apparent  majority 
of  votes  cast  for  him.  This  document  was  referred  to  the  Committee  on  Privileges 
and  Elections. 

On  February  16^  the  President  pro  tempore  presented  "what  pm-ported  to  be 

'  Credentials  of  Members  of  the  House  are  in  forms  prescribed  by  the  laws  of  the  several  States. 

^  First  session  Forty-eighth  Congress,  Record,  p.  1168;  Journal,  pp.  587,  588. 

'  John  G.  Carlisle,  of  Kentucky,  Speaker. 

*  Second  session  Forty-ninth  Congress,  Record,  p.  1564. 

^Record,  p.  1801. 

.'5994— vol,  1—07 4."> 


706  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   551 

the  credentials  of  Hon.  David  Turpie,  elected  a  Senator  from  the  State  of  Indiana 
for  six  years  from  the  4th  of  March  next. " 
These  credentials  were  in  form  as  follows : 

The  State  of  Indiana,  Executive  Department. 
In  pursuance  ot  the  provisions  of  section  18  of  the  Revised  Statutes  of  the  United  States,  I,  Isaac 
P.  Gray,  governor  of  the  State  of  Indiana,  do  hereby  certify  that  the  legislature  of  said  State  assembled 
in  joint  assembly  at  12  o'clock  meridian  on  Wednesday,  the  2d  day  of  February,  1887,  pursuant  to 
adjournment,  to  elect  a  Senator  in  Congress,  to  serve  for  a  term  of  six  years,  commencing  on  the  4th  day 
of  March,  1887;  that  the  Hon.  David  Turpie,  of  the  State  of  Indiana,  received  76  votes,  being  a  majority 
of  the  votes  of  all  the  members  of  said  joint  assembly,  and  a  majority  of  all  the  members  elected  to  said 
legislature,  all  the  members  elected  to  said  legislature  being  present  and  voting;  and  the  said  David 
Turpie  was  declared  duly  elected  Senator  in  Congress,  to  represent  the  State  of  Indiana  in  Congress  for 
the  said  term  of  six  years,  commencing  on  the  4th  day  of  March,  1887. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  to  be  affixed  the  seal  of  the  State,  at 
the  city  of  Indianapolis,  this  9th  day.  of  February,  in  the  year  of  our  Lord  1887,  the  seventy-first  year 
of  the  State,  and  of  the  independence  of  the  United  States  the  one  hundred  and  eleventh. 

Isaac  P.  Gray, 
Governor  of  Indiana. 
The  above  and  foregoing  is  the  certificate,  and  the  signature  thereto  attached  the  genuine  signa- 
ture of  Isaac  P.  Gray,  governor. 

Charles  F.  Griffin, 
Secretary  of  State. 
To  Hon.  John  Sherman, 

President  of  the  Senate  of  the  United  States  of  America. 

On  motion  of  Mr.  George  F.  Hoar,  of  Massachusetts,  the  paper  was  referred  to 
the  Committee  on  Privileges  and  Elections. 

On  March  1,  1887/  at  a  later  date  in  the  same  session,  Mr.  Hoar  offered  the 
following,  which  was  agreed  to : 

Ordered,  That  the  Committee  on  Privileges  and  Elections  be  discharged  from  the  further  consid- 
eration of  *  *  *,  a  paper  purporting  to  be  the  credentials  of  David  Turpie,  and  a  resolution  of  the 
joint  convention  of  the  legislature  of  Indiana  contesting  the  validity  of  the  election  of  David  Turpie  as 
United  States  Senator  from  that  State. 

On  the  same  day,  at  a  later  time,  Mr.  Orville  H.  Piatt,  of  Connecticut,  inquired 
whether  or  not  the  action  taken  would  have  any  effect  on  the  question  of  accepting 
the  credentials.  If  it  would  have  such  effect,  he  proposed  to  make  a  motion  to 
reconsider. 

Mr.  Hoar  replied : 

Under  the  rules  of  the  Senate  all  papers  committed  to  any  committee  are  to  be  returned  to  the  files 
of  the  Senate  at  the  expiration  of  the  Congress,  and  the  function  of  the  committee  itself  expires  with  the 
Congress.  If  the  credentials  of  Mr.  Turpie  had  been  retained  by  the  Committee  on  Privileges  and 
Elections  without  action  until  noon  on  the  4th  day  of  March,  under  the  operation  of  that  general  rule 
precisely  the  thing  would  have  happened  then  that  has  happened  this  morning — that  is,  the  paper 
would  have  gone  back  to  the  files  of  the  Senate  and  the  committee  would  have  been  discharged  from  its 
consideration.  The  only  alternative  to  that  course  would  have  been  an  assumption  by  the  committee 
or  by  the  Senate  at  the  present  session  to  deal  with  the  credentials  of  a  gentleman  claiming  to  be  a  Sen- 
ator-elect before  the  time  had  arrived  for  the  beginning  of  his  term,  and  before  he  had  presented  himself 
to  be  heard  upon  the  subject. 

The  Senate  is  a  continuing  body  which  was  organized  at  the  beginning  of  the  Government  in 
1789,  and  that  organization  is  to  continue,  as  we  fondly  hope,  until  time  shall  be  no  more,  certainly 

'Record,  pp.  2461,  2474. 


§  551  CREDENTIALS   AND   PRIMA   FACIE   TITLE,  707 

until  the  destruction  of  the  American  Constitution.  It  is  therefore  possible  that  it  might  be  within 
the  constitutional  power  of  the  Senate  to  determine  in  advance  the  right  of  a  Senator  to  a  seat  upon 
this  floor,  and  it  would  be  a  violation  of  all  constitutional  precedent,  and  it  would  be,  in  my  judgment, 
a  violation  of  the  sense  of  justice  and  propriety  of  the  Senate  and  of  the  American  people. 

The  effect,  therefore,  of  this  report  is  simply  to  remand  to  the  action  of  the  Senate  to  be  taken 
after  the  4th  of  March  without  prejudice — without  being  in  the  least  affected  by  any  action  now  (on) 
any  question  which  any  person  may  see  fit  to  raise,  and  that  is  all.  No  prejudice,  for  no  prejudice 
against  any  person  who  may  conceive  himself  entitled  to  a  seat  on  this  floor  hereafter  will  arise  or  has 
arisen  in  consequence  of  the  report  of  the  committee  or  of  the  Senate  in  accepting  it. 

On  March  3/  ilr.  Benjamin  Harrison,  of  Indiana,  presented  a  memorial  of 
eighteen  State  senators  of  Indiana,  and  of  the  house  of  representatives  of  that 
State,  protesting  against  the  alleged  election  of  Mr.  Tiirpie.  This  memorial  was 
laid  on  the  table. 

On  December  5,  1887,-  at  the  swearing  in  of  Senators-elect,  Mr.  Turpie 
appeared  and  took  the  oath  without  objection.  But  immediately  thereafter  ^Ir. 
Hoar  presented  the  memorial  of  a  committee  of  members  of  the  general  assembly 
of  Indiana  in  regard  to  Mr.  Turpie's  election.  This  paper,  together  with  all  other 
papers  on  file  relating  to  the  case,  were  referred  to  the  Committee  on  Privileges 
and  Elections. 

On  Ma}'  14^  Mr.  Hoar  submitted  the  report  of  the  committee,  as  follows: 

Mr.  Turpie  received  a  certificate  of  his  election  from  the  governor  of  Indiana,  which  constitutes 
a  prima  facie  title  to  his  seat,  and  has  been  admitted  thereupon  to  take  the  oath. 

The  two  houses  of  the  legislature  of  Indiana,  having  failed  to  concur  in  the  appointment  of  a 
Senator,  met  in  joint  convention,  and  after  sundry  ballotings.  in  which  no  person  had  a  majority  of 
the  votes  cast,  a  ballot  was  had  in  which  Mr.  Turpie  received  2  more  votes  than  all  others.  A  quorum 
of  said  joint  convention  and  a  quorum  of  each  house  was  present  and  voted.  The  proceedings  were 
in  all  respects  regular,  and  resulted  in  a  valid  election  of  Mr.  Turpie,  unless  the  facts  which  the 
remonstrants  offer  to  prove  constitute  a  valid  objection. 

They  offer  to  show,  first,  that,  there  being  a  vancancy  in  the  office  of  lieutenant-governor,  the 
Hon.  Robert  S.  Robertson  was  duly  elected  to  fill  such  vacancy,  and  thereby  became  entitled  by  the 
constitution  and  laws  of  Indiana  to  preside  over  the  senate;  but  that,  on  the  meeting  of  the  senate 
on  the  6th  day  of  January,  18S7,  being  the  first  day  of  the  session  of  the  legislature  at  which  said  alleged 
election  of  Mr.  Turpie  took  place,  one  Alonzo  G.  Smith  usurped  the  office  and  function  of  such  presiding 
officer,  was  supported  and  maintained  in  such  usurpation  by  a  majority  of  said  body,  excluded  Mr. 
Robertson  from  said  office  and  function,  and  continued  so  to  preside  and  so  to  exclude  Mr.  Robertson 
diuring  all  the  sessions  of  said  senate,  including  its  attendance  on  said  joint  convention,  until  after  the 
said  alleged  election  of  Mr.  Turpie. 

Second.  That  before  said  alleged  election  the  senate  wrongfully,  and  for  the  purpose  of  obtaining 
a  majority  for  said  Turpie  in  said  joint  convention,  declared  two  members,  who  had  been  duly  and 
lawfully  elected  members  thereof,  not  entitled  to  their  seats,  and  declared  two  other  persons,  who  had 
not  been  duly  and  lawfully  elected,  to  be  entitled  to  such  seats,  and  thereupon  seated  such  persons, 
and  that  this  was  done  without  right,  without  evidence,  and  without  hearing  or  debate;  and  that  said 
persons  so  seated  thereafter  were  present  and  voted  for  Mr.  Turpie  in  said  convention,  and  that  without 
such  votes  said  Turpie  would  not  have  received  a  majority. 

The  committee  are  of  the  opinion  that  the  facts  offered,  if  proved,  will  not  warrant  the  Senate 
in  declaring  the  sitting  Member  not  entitled  to  his  seat.  There  can  be  no  doubt  that  the  body  in 
question  was  the  constitutional  senate  of  Indiana.  The  journals  of  both  houses  of  the  legislature  of  the 
State  have  been  submitted  to  us.  It  appears  that  the  body  was  recognized  as  the  senate  by  the  governor 
and  by  the  house  of  representatives.  Statutes,  to  which  its  constitutional  assent  was  necessary,  were 
enacted  and  have  become  part  of  the  law  of  the  State. 

'  Record,  p.  2627.  ^  First  session  Fiftieth  Congress,  Record,  p.  4.       ^  Senate  Report  No.  1291. 


708 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§  552 


It  seems  to  us  that,  without  entering  upon  the  (juestion  whether  there  was  a  vacancy  in  the  office 
of  lieutenant-governor  which  Mr.  Robertson  was  duly  elected  to  fill,  the  recognition  of  Mr.  Smith  by  a 
majority  of  the  senate  as  its  lawful  presiding  officer,  and  the  recognition  of  the  senate  as  a  lawfully 
organized  I»dy  l)y  the  other  house  as  well  as  liy  all  its  own  members  who  remained  and  took  part  in  its 
legislative  proceedings,  and  by  the  executive  department,  require  us  to  consider  it  as  the  lawful  senate, 
lawfully  organized  so  far  as  to  be  entitled  to  take  part  in  the  joint  convention  which  elected  a  Senator 
of  the  United  States. 

We  also  think  that  the  judgment  of  the  senate  of  Indiana  as  to  the  title  of  Messrs.  Branahan  and 
McDonald,  the  two  members  in  question,  to  their  seats  is  binding  upon  the  Senate  of  the  United 
States.  This  body  is  made  by  the  Constitution  the  judge  of  the  elections,  qualifications,  and  returns 
of  its  members.  The  senate  of  Indiana  is  likewise  the  judge  of  the  election,  qualifications,  and  returns 
of  its  own  members.  We  must  determine  all  questions  arising  out  of  the  proceeding  of  the  electors. 
But  who  sustain  the  character  of  electors  is  to  be  determined  by  the  legislative  body  of  the  State.  We 
can  not  inquire  into  the  motive  which  controlled  its  judgment.  In  rendering  that  judgment,  whether 
it  shall  give  a  hearing  to  parties,  permit  debate,  examine  witnesses,  act  upon  evidence  or  without 
evidence,  are  matters  within  its  own  discretion.  If  that  discretion  were  exercised  in  the  manner 
charged  by  the  remonstrants,  a  majority  of  the  committee  think  that  a  great  public  crime  was  com. 
mitted,  for  which  the  offenders  are  responsible  to  the  people  of  Indiana.  But  we  can  not  try  the 
question. 

A  majority  of  the  committee  do  not  mean  to  be  understood  as  now  committing  ourselves  to  an 
opinion  upon  the  question  whether  the  Senate  can  not  refuse  to  admit  to  a  seat  a  claimant  who  owes 
his  election  to  a  legislative  body  which  is  itself  the  result  of  fraud  or  crime,  which  has  overcome  the 
true  will  of  the  people,  even  if  it  have  possessed  itself  of  legislative  authority,  and  of  the  technical 
evidence  of  a  rightful  character,  or  whether  the  judgments  of  such  a  body  as  to  the  title  to  seats  of  its 
individual  members  are  entitled  to  any  respect  whatever.  If  that  question  shall  hereafter  unhappily 
arise  it  will  be  dealt  with  on  its  own  merits.  The  committee  ask  to  be  discharged  from  the  further 
consideration  of  the  several  memorials. 

On  May  15  '  the  question  of  discharging  the  committee  was  debated.  Mr. 
William  E.  Chandler,  of  New  Hampshire,  took  exception  to  the  latter  portion  of 
the  report,  which  held  that  the  judgment  of  the  senate  of  Indiana  was  binding  on 
the  Senate  of  the  United  States  on  the  question  at  issue.  It  seemed  to  him  that 
the  power  of  imseating  Members  might  be  carried  to  such  an  extent  in  a  legislative 
body  that  the  Senate  of  the  United  States  would  be  justified  in  reviewing  the 
decisions  of  the  legislature.  Mr.  Hoar  and  others  sustained  the  position  of  the 
report. 

The  motion  to  discharge  the  committee  was  agreed  to  without  division.^ 

552.  The  Senate  election  case  of  La  Fayette  Grover,  of  Oregon,  in  tlie 
Forty-fifth  Congress. 

The  credentials  of  a  Senator-elect  being  regular  and  unimpeached, 
and  the  election  having  been  by  the    one   legally   organized   legislature, 


'  Record,  pp.  4145-4147. 

2  In  1891  the  Senate  considered  the  case  of  Wilkinson  Call,  of  Florida.  December  7,  1891,  R.  H.  M. 
Davidson  presented  the  credentials  from  the  governor  of  Florida  and  at  the  same  time  a  transcript  of 
the  proceedings  of  the  two  houses  of  the  legislature  of  Florida  in  a  joint  convention,  composed  of  a 
majority  of  the  members  of  the  two  houses,  but  not  of  a  majority  of  the  members  of  each,  recording 
what  purported  to  be  the  election  of  Wilkinson  Call.  Mr.  Call  presented  himself  on  the  same  day, 
claiming  the  right  to  take  the  oath  by  virtue  of  the  proceedings  of  that  joint  convention.  The  facts 
set  forth  in  the  transcript  were  undisputed.  The  matter  went  over  under  objection  to  the  next  day, 
when  Mr.  Call  was  admitted  to  take  the  oath,  on  motion  by  Mr.  Hoar,  and  the  credentials  were  referred 
to  the  Committee  on  Privileges  and  Elections.  (Election  Cases,  Senate  Doc.  No.  11,  special  session 
Fifty-eighth  Congress,  p.  805.) 


§    552  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  709 

the  Senate  seated  the  bearer  at  once,  although  charges  were  filed  against 
him  personally. 

Discussion  of  the  elements  of  a  prima  facie  case  as  made  out  by  the 
credentials  of  a  Member-elect. 

On  March  2,  1877,'  in  the  Senate,  the  credentials  of  La  Fayette  Grover,  elected 
a  Senator  by  the  legislature  of  Oregon  for  the  term  commencing  March  4,  1877, 
were  presented. 

On  March  7,  1877,'  Mr.  Grover  presented  himself  to  be  sworn,  when  Mr.  Hannibal 
Hamlin,  of  Maine,  stated  that  Mr.  John  H.  Mitchell,  Senator  from  Oregon,  had  cer- 
tain papers  relating  to  Mr.  Grover's  title  to  the  seat,  and  suggested  that  the  oath 
be  deferred  until  Mr.  Mitchell  should  be  present. 

Later  in  the  day  Mr.  Mitchell  presented  the  following  memorial : 

To  the  Senate  of  the  United  States: 

Whereas  it  is  currently  reported  and  generally  believed  that  L.  F.  Grover,  by  bribery,  the  corrupt 
use  of  money,  and  other  unlawful  and  dishonorable  means,  procured  his  election  to  the  Senate  of  the 
United  States  by  the  legislature  of  the  State  of  Oregon  at  its  last  session;  and 

Whereas  the  said  L.  F.  Grover,  in  obedience  to  a  corrupt  scheme  to  defraud  the  State  of  Oregon 
of  its  proper  electoral  vote,  as  the  governor  thereof  did  unlawfully,  dishonestly,  corruptly,  and  by  acta 
of  usurpation,  declare  elected  to  the  office  of  Presidential  elector  for  the  State  of  Oregon,  on  the  6th 
day  of  December,  1876,  and  did  issue  a  certificate  of  election  to  one  E.  A.  Cronin,  who  had  been  defeated 
by  the  people  for  said  office  by  more  than  1,000  majority;  and 

Whereas  the  said  L.  F.  Grover  did  fraudulently  undertake  to  sustain  his  said  act  by  falsely  tes- 
tifying as  a  witness  concerning  the  same  before  the  Senate  Committee  on  Privileges  and  Elections  on 
or  about  the  6th  day  of  January,  1877: 

Now,  therefore,  we,  the  undersigned,  citizens  of  the  State  of  Oregon,  earnestly  but  respectfully 
ask  that  the  said  L.  F.  Grover  be  denied  a  seat  in  the  United  States  Senate  as  a  Senator  from  the  State 
of  Oregon  imtil  the  foregoing  charges  are  thoroughly  investigated  and  disproved. 

M.  L.  WiLMOT  and  others. 

On  March  8,^  at  the  suggestion  of  Mr.  Aaron  A.  Sargent,  of  Pennsylvania,  and 
after  modification  by  Mr.  Roscoe  Conkling,  of  New  York,  this  resolution  was  pre- 
sented by  Mr.  William  A.  Wallace,  of  Pennsylvania: 

Whereas,  under  the  Constitution  and  the  laws  and  the  practice  of  the  Senate,  La  Fayette  Grover, 
claiming  to  be  a  Senator  from  the  State  of  Oregon — his  credentials  being  regular  and  in  due  form  and 
there  being  no  contestant  for  the  seat — and  there  being  in  said  State  but  one  body  claiming  to  be  the 
legislature,  and  but  one  person  claiming  to  be  the  governor,  and  there  being  no  doubt  or  dispute  as  to 
the  existence  of  one  legal,  rightful  State  government,  is  entitled  to  admission  to  a  seat  in  this  body, 
on  the  prima  facie  case  presented  by  such  credentials,  notwithstanding  the  objections  contained  in  the 
petition  of  citizens  of  the  State  of  Oregon  against  his  admission:  Therefore, 

Resolved,  That  the  credentials  of  La  Fayette  Grover  be  taken  from  the  table  and  the  oaths  of 
office  be  now  administered  to  him. 

Resolved  further,  That  the  petition  of  citizens  uf  Oregon  containing  charges  against  La  Fayette 
Grover  lie  on  the  table  until  the  Committee  on  Privileges  and  Elections  is  organized,  when  they  shall 
be  referred  to  such  committee,  together  with  his  credentials,  with  instructions  to  investigate  such 
charges  and  report  to  the  Senate  as  to  their  truth  or  falsity. 

Mr.  Conkling  had  suggested  the  words  "and  there  being  in  the  said  State  but 
one  body  claiming  to  be  the  legislature,  and  but  one  person  claiming  to  be  governor." 

'  Second  session  Forty-fourth  Congress,  Record,  p.  2069. 

-Special  session  of  Senate,  Forty-fifth  Congress,  Record,  pp.  17,  22. 

^  Record,  pp.  31-39. 


710  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   553 

In  the  debate  Mr.  Conkling  went  on  to  show  that  the  condition  set  forth  in 
these  words  constituted  an  essential  element  of  a  prima  facie  case.  Mr.  Oliver  P. 
Morton,  of  Indiana,  did  not  concur  in  the  idea  that  these  words  should  be  followed 
to  their  idtimate  significance.  "A  prima  facie  case,  as  I  understand  it,"  he  said, 
"is  one  which  is  regular  upon  its  face — good  upon  its  face  according  to  the  law 
of  the  State  from  which  it  emanates.  The  idea  that  the  existence  of  a  pretended 
legislature  can  invalidate  the  effect  and  value  of  a  prima  facie  case  seems  to  me  to 
be  a  contradiction  in  terms.  If  a  Senator  of  the  United  States  or  a  person  elected 
to  the  Senate  comes  here  with  the  certificate  of  the  governor  and  the  proper  cre- 
dentials according  to  the  forms  of  law,  his  prima  facie  case  is  not  invalidated  if 
some  other  person  presents  a  certificate  which  is  not  signed  or  executed  according 
to  the  forms  of  law." 

The  question  being  taken  on  the  preamble  and  the  first  resolution,  they  were 
agreed  to  without  division. 

The  second  resolution  was  withdrawn,  on  the  assurance  that  at  a  later  day 
Mr.  Grover  proposed  to  demand  an  investigation. 

553.  The  election  case  of  James  H.  McLean,  from  Missouri,  in  the 
Forty-seventh  Congress. 

The  State  authority  having  declined  to  issue  credentials  to  a  person 
whose  election  was  not  disputed,  the  House  administered  the  oath  to 
him  on  satisfying  itself  of  his  election. 

Where  the  fact  of  election  was  not  disputed  the  House  seated  a  Mem- 
ber-elect without  reference  to  the  Elections  Committee,  although  the 
State  authority  had  denied  him  credentials. 

On  December  15,  1882,'  Mr.  Thomas  B.  Reed,  of  Maine,  claiming  the  floor  for 
a  question  of  privilege,  presented  the  memorial  of  James  H.  McLean,  which  set 
forth  that  a  vacancy  was  caused  in  the  Second  Congressional  district  of  Missouri  by 
the  death  of  Thomas  Allen  on  April  7,  1882 ;  that  on  November  7,  1882,  at  an  election 
duly  called  by  the  governor  of  the  State,  for  the  said  Second  district,  there  were  cast 
8,264  votes  for  the  memorialist,  8,087  for  James  D.  Broadhead,  and  362  for  B.  A. 
Hill,  the  said  memorialistthereby  receiving  the  highest  number  of  votes;  =  "that  the 
abstracts  of  the  votes  so  cast  and  duly  certified  were  forwarded  to  the  secretary'  of 
state  of  Missouri,  where  the  same  are  required  by  law  to  be  sent,  but  that  the  secre- 
tary of  state  of  said  State  has  failed  and  utterly  refuses  to  give  your  memorialist  a 
certificate  of  his  election  as  aforesaid."  With  the  memorial  were  presented  two 
certificates  from  the  county  clerk  and  recorder,  giving  the  abstract  of  the  votes  cast. 

It  appeared  from  the  remarks  of  Mr.  Reed  and  from  uncontradicted  statements 
of  Representatives  from  Missouri  that  there  was  no  doubt  as  to  the  correctness  of 
these  returns;  and  that  Mr.  Broadhead,  the  rival  candidate,  did  not  contest  the  fact 
that  Mr.  McLean  was  elected. 

It  appeared  that  under  the  law  of  Missouri  it  was  the  duty  of  the  secretary  of 
state  to  issue  the  credentials,  but  that  he  had  declined  to  do  so,  apparently  for  the 

'  Second  session  Forty-seventh  Congress,  Record,  pp.  328-331. 

-The  highest  number  of  votes  was  required  for  election  in  Missouri,  although  the  memorial  did 
not  so  specify. 


§   554  CREDENTIALS   AND    PRIMA    FACIE    TITLE.  711 

reason  that  the  State  had  been  redistricted  after  the  election  of  Thomas  Allen  and 
before  the  special  election  called  to  fill  the  vacancy  caused  by  his  death;  but  nothing 
before  the  House  indicated  whether  the  governor  had  called  the  special  election  in 
the  old  or  the  new  district.  For  this  reason  especially  Mr.  Richard  D.  Bland,  of 
Missouri,  urged  that  the  memorial  should  be  referred  to  the  committee  on  credentials 
for  examination,  but  Mr.  Reed  pointed  out  that  tbe  only  reason  why  Mr.  McLean 
was  not  sworn  in  without  dissent  was  because  the  secretary  of  state  had  declined  to 
do  his  duty,  since  no  one,  not  even  his  opponent,  doubted  his  right  to  the  seat. 
There  was  not  time  for  Mr.  McLean  to  compel  the  secretary  of  state  by  mandamus 
to  issue  the  certificate,  and  in  justice  to  Mr.  McLean  and  the  constituency  who 
elected  him  he  shoidd  be  given  the  seat  at  once. 

The  House  voted — ayes  144,  noes  15 — that  Mr.  McLean  should  be  permitted  to 
take  the  oath,  and  he  appeared  and  qualified. 

554.  The  Pennsylvania  election  case  of  Morris  v.  Richards  in  the 
Fotirth  Congress. 

The  governor  having  declined  to  issue  credentials  because  of  doubt 
as  to  the  election,  the  House,  in  1796,  determined  the  final  right  before 
seating  the  one  surviving  claimant. 

An  election  return,  required  by  law  to  be  made  on  or  before  a  certain 
day,  should  be  counted  if  presented  after  that  day,  provided  it  be  other- 
wise correct. 

A  vote  not  returned  within  the  time  required  by  law,  and  of  which 
the  returns  were  not  in  the  required  form,  was  rejected. 

A  return  seasonably  made  and  in  legal  form,  but  giving  certain  proxy 
votes  and  votes  of  persons  disqualified,  w^as  purged  and  not  rejected. 

On  January  18,  1796,'  the  House  decided  that  John  Richards,  of  Pennsylva- 
nia, was  entitled  to  a  seat  in  the  House. 

This  was  a  case  in  which  the  governor  of  Pennsylvania,  after  the  election,  had 
issued  no  certificate  because  he  was  in  doubt  whether  James  Morris  or  John  Richards 
was  elected.  Mr.  Morris  died  before  the  meeting  of  Congress.  After  Congress 
assembled  Mr.  Richards  petitioned  for  the  seat. 

The  committee  foimd  that,  by  the  law  of  Pennsylvania,  the  county  judges  of 
election  were  required  to  meet  on  November  10,  and  that  the  district  judges  should 
meet  on  November  15,  to  examine  the  count}"  returns  and  certif}"  the  result.  Cer- 
tain of  the  voters  were  away  on  the  western  expedition,  so  it  was  provided  that 
army  returns  should  be  sent  to  the  prothonotaries  of  the  respective  counties  by  the 
said  10th  of  November,  and  that  on  that  day  the  prothonotaries  should  deliver 
them  over  to  the  comity  judges.  The  retm-n  of  the  Montgomery  County  soldiers 
was  received  by  the  prothonotary  after  the  10th  and  before  the  15th,  and  by  him 
delivered  over  to  some  of  the  coimty  judges,  two  of  whom  made  up  a  return  and 
certified  it  on  the  14th.  This  retxmi  was  laid  before  the  judges  of  the  district  on 
the  15th,  but  was  not  coimted  by  them.  The  Committee  on  Elections  reported, 
however,  that  the  district  judges  should  have  counted  this  retimi,  in  spite  of  the 

■  First  session  Fourth  Ciongress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  95; 
Rowell's  Digest,  p.  45. 


712  PRECEDENTS   OF   THE   HOUSE    OF   REPBESENTATIVES.  §   555 

informality.'  It  also  appeared  that  the  vote  of  the  Bucks  County  soldiers,  not 
being  returned  before  the  15th  of  November  and  not  being  canvassed  by  the  dis- 
trict judges,  was  filed  with  the  secretary  of  state  on  January  18,  1795.  These  returns 
were  also  defective  on  their  face,  being  unaccompanied  by  a  list  of  names  of  those 
voting.  So  the  Committee  on  Elections  reported  that  this  return  should  not  be 
counted.  It  further  appeared  that  the  return  of  the  Northampton  soldiers,  which 
alone  was  properly  received  before  the  required  date,  November  10,  contained  2 
proxy  votes  and  16  votes  of  persons  evidently  not  qualified  to  vote.  These  16 
votes  were  for  James  Morris. 

The  Committee  on  Elections,  therefore,  by  counting  the  Montgomery  return, 
rejecting  the  Bucks  return  and  the  18  unauthorized  votes  in  Northampton,  found 
that  John  Richards  was  duly  elected. 

The  House,  in  accordance  with  this  finding,  seated  Mr.  Richards. 

555.  The  Pennsylvania  election  case  of  John  Sergeant  in  the  Nine- 
teenth Congress. 

Two  candidates  having  equal  numbers  of  votes,  the  governor  did 
not  issue  credentials  to  either,  but  ordered  a  new  election  after  they 
had  waived  their  respective  claims. 

Candidates  at  an  inconclusive  election  having  waived  their  claims, 
the  House  held  that  the  result  of  a  new  election  might  not  be  disturbed 
because  of  alleged  errors  in  the  first  election. 

Instance  of  an  election  case  instituted  by  sundry  citizens. 

On  January  14,  1828,^  the  Committee  on  Elections  reported  in  the  case  of  sun- 
dry citizens  v.  Sergeant,  of  Pemisylvania, 

At  the  election  of  October  10,  1826,  John  Sergeant  and  Henry  Horn  had  an 
equal  number  of  votes.  It  appearing  that  the  people  had  failed  to  make  a  choice, 
the  executive  seems  to  have  considered  the  case  in  the  light  of  a  vacancy,  but  not 
to  an  extent  sufficient  to  warrant  him  in  directing  another  election  until  both  Mr. 
Sergeant  and  Mr.  Horn  informed  him  in  writing  that  they  relinquished  all  claims 
to  the  seat  in  virtue  of  the  election  of  1826.  In  consequence  of  this  letter  the 
governor  ordered  an  election  to  supply  the  vacancy,  to  be  held  on  October  9,  1827. 

At  that  election  it  appeared  that  John  Sergeant  was  duly  elected. 

But  the  memorialists  alleged  that  the  rectification  of  an  error  which  they 
poiated  out  in  the  count  of  the  election  of  1826 — the  first  election — would  show 
the  election  of  Henry  Horn. 

Certain  letters  and  ex  parte  depositions  were  submitted  to  the  committee  and 
decided  insufficient  to  invalidate  the  rights  of  the  sitting  Member.  The  committee 
asserted  that  they  thought  it  quite  unnecessary  to  go  into  an  investigation  of  the 
rights  of  the  parties  under  the  fu'st  election,  because,  whatever  those  rights  were, 
they  had  been  voluntarily  relinquished.  Therefore  the  committee  reported  the  fol- 
lowing resolution,  which  was  agreed  to  without  debate  or  division  : 

Resolved,  That  John  Sergeant  is  entitled  to  a  seat  in  this  House. 

'  In  a  first  report,  which  was  recommitted,  it  was  held  that  these  returns  should  bo  rejected. 
2  First  session  Nineteenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  516; 
Rowell's  Digest,  p.  85. 


§  556  CKEDENTIALS   AKD  PKIMA  FACIE   IIXLE.  713 

556.  The  Pennsylvania  election  cases  of  Koontz  v.  Coffroth.  and  Ful- 
ler V.  Dawson  in  the  Thirty-ninth  Congress. 

Conflicting  returns  rendering  it  impossible  for  a  governor  to  issue 
any  credentials,  the  Clerk  enrolled  neither  claimant  to  the  seat. 

Neither  claimant  to  a  seat  having  credentials,  the  House  referred 
the  papers  with  instructions  that  the  prima  facie  right  be  determined, 
without  prejudice  to  a  later  contest  on  the  merits. 

In  determining  prima  facie  right  the  majority  of  the  Elections  Com- 
mittee, in  a  sustained  report,  declined  to  consider  papers  other  than 
those  coming  legally  from  the  proper  certifying  officers  of  the  district. 

The  House,  acting  on  a  divided  report,  determined  the  prima  facie 
right  by  the  returns  of  the  district  certifying  officers,  although  they 
were  impeached  by  accompanying  papers. 

Form  of  resolutions  for  seating  a  claimant  on  prima  facie  showing 
and  for  the  institution  of  a  contest  on  the  merits. 

On  December  5,  1865,'  the  House  agreed  to  the  following  resolution: 

Resolved,  That  the  certificates  and  all  other  papers  relating  to  the  election  in  the  Sixteenth  Con- 
gressional district  of  Pennsylvania  be  referred  to  the  Committee  of  Elections,  when  appointed,  with 
instructions  to  report,  at  as  early  a  day  as  practicable,  which  of  the  rival  claimants  to  the  vacant  seat 
from  that  district  has  the  prima  facie  right  thereto,  reserving  to  the  other  party  the  privilege  of  contesting 
the  case  upon  the  merits,  without  prejudice  from  lapse  of  time  or  want  of  notice. 

On  January  26,  1866,^  the  Committee  of  Elections  reported.  In  this  case  the 
names  of  neither  Mr.  Coffroth  nor  Mr.  Koontz,  the  rival  claimants  for  the  seat,  had 
been  put  on  the  Clerk's  roll,  for  the  reason  that  the  governor  of  Pennsylvania,  in 
his  proclamation  of  the  names  of  the  persons  elected  in  the  various  Congressional 
districts,  had  declared — 

that  no  such  returns  of  the  election  in  the  Sixteenth  Congressional  district  have  been  sent  to  the  secretary 
of  the  Commonwealth  as  would ,  under  the  act  of  assembly  of  July  2,  A.  D.  1839,  authorize  me  to  proclaim 
tlie  name  of  any  person  as  having  been  returned  as  duly  elected  a  Member  of  the  House  of  Representa- 
tives of  the  United  States  for  that  district. 

The  act  of  July  2,  1839,  provided  the  following  method  for  returning  the  results 
of  an  election  in  a  Congressional  district,  as  stated  by  the  report: 

When  two  or  more  counties  compose  a  district  for  the  choice  of  a  Member  of  the  House  of  Represen- 
tatives of  the  United  States,  it  is  provided,  after  an  election  has  been  held,  that  the  judges  of  election  in 
each  county  having  met,  the  clerks  shall  make  out  a  fair  statement  of  all  the  votes  which  shall  have  been 
given  at  such  election,  within  the  county,  for  every  person  voted  for  as  such  Member,  which  shall  be 
signed  by  said  judges  and  attested  by  the  clerks;  and  one  of  the  said  judges  is  to  take  charge  of  said  cer- 
tificates of  votes,  and  produce  the  same  at  a  meeting  of  one  judge  from  each  county,  at  such  place  in  such 
district  as  is,  or  may  be,  provided  by  law  for  that  purpose.  The  judges  of  the  several  counties  (com- 
posing such  district)  having  met  as  aforesaid,  are  then  required  to  cast  up  the  several  county  returns  and 
make  duplicate  returns  of  all  the  votes  given  for  such  office  of  Representative  in  Congerss  in  said  district, 
and  of  the  name  of  the  person  elected,  and  to  deposit  one  of  said  returns  for  said  office  of  Representative 
in  the  office  of  the  prothonotary  of  the  court  of  common  pleas  of  the  county  in  which  they  shall  meet, 
and  to  place  the  other  return  in  the  nearest  post-office,  sealed  and  directed  to  the  secretay  of  the 
Commonwealth. 

'  First  session  Thirty-ninth  Congress,  Journal,  p.  32;  Globe,  p.  10. 
=  2  Bartlett,  p.  25;  House  Report  No.  12. 


714  PRECEDENTS   OF   THE   HOUSE   OF   KEPEESENTATIVES.  §   556 

The  said  return  judges  are  also  required  to  transmit  to  the  person  elected  to  serve  in  Congress  a 
certificate  of  his  election,  within  five  days  after  the  day  of  making  said  return. 

On  the  receipt  of  the  return  of  the  election  of  Members  of  the  House  of  Representatives  of  the 
United  States,  as  aforesaid,  by  the  secretary  of  the  Commonwealth,  the  governor  is  required  (section 
113)  to  declare,  by  proclamation,  the  names  of  the  persons  so  returned  as  elected  in  the  respective  dis- 
tricts, and  also  to  transmit,  as  soon  as  conveniently  may  be  thereafter,  the  returns  so  made  to  the  House 
of  Representatives  of  the  United  States. 

There  were  five  counties  in  the  district — Adams,  Bedford,  Franklin,  Fulton,  and 
Somerset. 

In  each  of  the  three  last  counties  all  of  the  precinct  judges  united  in  certifying 
the  results,  and  there  was  no  question  as  to  them.  But  in  Franklin  County  there  was 
a  difficulty  as  to  the  selection  of  the  judge  who  should  present  the  return  of  the 
county  at  the  meeting  of  the  district  board.  Mr.  Wilhelm  was  at  first  chosen,  but 
later  this  action  was  rescinded  and  Mr.  Laker  was  chosen,  and  appears  to  have 
become  the  actual  possessor  of  the  return. 

In  Adams  and  Bedford  counties  there  was  a  difficulty  about  the  counting  of  the 
soldiers'  votes,  and  the  return  from  each  of  these  counties  was  certified  by  a  majority 
only  of  the  precinct  judges.  In  each  of  these  counties  the  minoritj'  judges  made 
another  return. 

The  next  complication  occurred  when  the  board  of  district  judges  (composed  of 
one  judge  from  each  coimty,  bearing  the  return  of  his  county)  met  to  make  up  the 
district  return.     In  fact  two  boards  met — a  Coffroth  and  a  Koontz  board. 

The  Koontz  board  appears  to  have  been  composed  of  the  two  representatives 
of  the  minority  judges  in  Adams  and  Bedford  counties;  of  Mr.  Wilhelm,  the  super- 
seded representative  of  Franklin  Coimty;  of  Mr.  Winter,  the  regular  representative 
of  Fulton  County,  who  later  attended  the  Coffroth  board;  and  Mr.  Willis,  the  lawful 
bearer  of  the  undisputed  return  of  Somerset  County,  who  did  not  attend  the  Coffroth 
board  at  all.  This  Koontz  board  made  the  return  in  the  form  required  of  the 
district  board,  and  the  return  was  transmitted  to  the  State  authorities  in  regular 
order.     This  return  showed  a  majority  of  32  votes  for  Mr.  Koontz. 

The  Coffroth  board,  which  assembled  later  in  the  day,  was  composed  of  the  two 
majority  judges  of  the  counties  of  Adams  and  Bedford,  of  Mr.  Laker,  the  last-chosen 
representative  judge  of  Franklin  County,  and  of  Mr.  Winter,  the  regular  representa- 
tive of  Fulton  County.  This  board  made  out  in  regular  form  a  district  return,  and 
transmitted  it  to  the  State  authorities  in  the  regular  way.  This  return  showed 
a  large  majority  in  favor  of  Mr.  Cafl'roth,  but  also  showed  on  its  face  that  the  return 
of  the  county  of  Somerset  was  not  included. 

In  point  of  fact,  although  it  did  not  officially  appear  on  this  district  return,  the 
vote  of  Somerset  County,  which  was  imdisputed,  would  have  reduced  but  not  over- 
come the  majority  showed  for  Mr.  Coffroth  by  the  other  four  counties.  Mr. 
Coffroth's  majority  on  this  basis  was  93  for  the  whole  district. 

The  attorney-general  of  Pennsylvania,  in  an  opinion  given  to  the  governor, 
maintained  that  the  action  of  a  majority  of  the  return  judges  of  a  county  was  to  be 
presumed  to  be  valid;  but  also  held  that  the  district  judges  should  have  by  adjoin- 
ment  endeavored  to  procure  the  complete  return,  including  the  county  of  Somerset. 

The  Committee  on  Elections,  acting  under  direction  of  the  House,  examined  the 
question  as  to  where  they  should  look  for  the  prima  facie  title  to  the  seat,  and  in 


I 


&   556  CREDENTIALS    AND   PRIMA   FACIE    TITLE.  715 

their  conclusions  the  committee  divided,  a  bare  majority  concurring  in  the  report. 
The  majority  say: 

The  retxim  certified  by  the  majoritj-  certainly  embraces  the  covinties  of  Adams,  Bedford,  Franklin, 
and  Fulton,  and  is  an  official  certificate  of  all  the  returns  presented,  and  of  the  aggr^ate  returns  of 
votes  from  these  counties;  and  as  the  vote  of  Somerset  County  is  undisputed  and  would  not  have  changed 
the  result,  we  see  no  occasion  or  justification,  on  a  prima  facie  hearing,  for  going  beyond  the  action  of 
these  return  judges  who  met  on  the  day  and  at  the  place  fixed  by  law,  and  did  all  that  the  law  required 
them  to  do. 

If,  however,  we  should  waive  this  position  and  go  beyond,  not  behind,  the  action  of  the  district 
return  judges,  it  would  only  be  to  ascertain  the  vote  of  Somerset  County;  and  that  being  obtained  and 
added  to  the  other  certified  returns,  as  we  have  seen,  still  gives  Mr.  Coffroth  the  certified  majority  of  all 
the  votes  cast  in  the  district  and  the  prima  facie  right  to  the  seat. 

Clearly  the  district  board  of  return  judges  had  no  right  to  go  behind  the  certified  returns  brought 
by  each  rettim  judge  from  his  coimty,  and  in  determining  a  prima  facie  right  to  a  seat  the  same  rule  would 
seem  applicable  to  and  binding  upon  the  Committee  on  Elections  and  the  House.  But  suppose  we  should 
see  fit,  in  violation  of  this  rule,  to  go  behind  the  action  of  the  district  return  judges,  we  come  then  next 
to  the  certified  returns  of  the  several  boards  of  county  return  judges  of  each  county  in  the  district,  which 
returns  were  not  separately  before  the  governor.  In  three  of  these,  ^dz,  Franklin,  Somerset,  and  Fulton, 
all  of  the  return  judges  unite  in  certifj-ing  the  result,  and  the  claimants  each  admitted  before  the  com- 
mittee, that  on  this  hearing  of  a  claim  to  the  prima  facie  right  to  the  seat ,  neither  of  them  could  go  behind 
any  one  of  these  three  returns  thus  certified. 

The  home  vote  of  Bedford  County  is  also  certified  by  aU  of  the  return  judges,  and  is  undisputed 
by  the  claimant,  but  the  soldiers'  vote  of  Bedford  County  is  certified  by  a  majority  of  the  return  judges,  as 
318  for  Koontz,  and  94  for  Coffroth,  while  the  minority  of  the  return  judges  sign  another  return,  which, 
of  course,  is  of  no  validity. 

A  majority  of  the  return  judges  of  Adams  County  certifj-  to  the  returns  of  votes  cast  in  that  county, 
including  the  soldiers"  vote,  giving  Coffroth  2,707  votes,  and  Koontz  2.366. 

The  minority  sign  another  return,  purporting  to  include  the  home  vote  and  the  soldiers'  vote,  but 
nothing  appears  on  the  face  of  the  majority  return,  from  either  Adams  or  Bedford  County,  to  show  but 
what  they  constitute  the  whole  board  of  return  judges  present  for  each  of  said  counties. 

The  majority  of  the  committee  also  say: 

But  it  is  claimed,  on  the  part  of  Mr.  Koontz,  not  only  that  the  act  of  the  majority  of  the  county 
return  judges  in  certifying  these  returns  from  Adams  and  Bedford  is  void,  but  that  the  Committee  on 
Elections  and  the  House,  in  this  investigation  of  the  prima  facie  right  to  the  seat ,  may  not  only  go  behind 
these  returns  from  Adams  and  Bedford,  but  also,  in  effect,  behind  the  unanimous  returns  of  all  the  other 
counties  of  Franklin,  Fulton,  and  Somerset,  so  far  as  the  soldiers'  vote  is  concerned.  The  statement 
of  such  a  proposition  on  an  investigation  of  this  kind  would  seem  to  be  sufficient  for  its  own  refutation. 
It  would  be  attempting  to  hear  the  case  on  the  merits,  without  gi\ing  the  claimants  the  opportunity  of 
presenting  their  evidence  in  full;  would  be  utterly  disregarding  all  credentials,  and  would  obliterate  all 
distinction  between  a  prima  facie  right  on  the  certificates  and  papers  from  the  proper  certif>"ing  officers 
and  a  claim  founded  on  the  merits  on  a  full  hearing  of  all  the  evidence  that  might  be  adduced  by  either 
claimant  in  support  of  his  claim.  (See  case  of  Jayne  v.  Todd,  vol.  1,  p.  1,  Reports  of  Committees,  first 
session  Thirty-eighth  Congress.) 

It  should  be  borne  in  mind  that  by  the  resolution  of  the  House  referring  this  case  to  the  committee, 
the  committe  are  restricted  in  their  first  examination  and  report  to  the  prima  facie  right  of  either  claimant 
to  the  seat;  and  the  committee  are  to  determine  this  from  the  certificates  and  papers  referred  to  them, 
including  always  the  admission  of  the  claimants  themselves  before  the  committee;  but  only  those  papers 
are  to  be  considered  which  come  from  the  proper  certifying  officers,  and  which  those  officers  are  author- 
ized by  law  to  make,  and  also  which  are  pertinent  to  the  case. 

Many  papers  have  been  referred  to  the  committee  which,  on  this  hearing,  are  not  evidence  for  any 
purpose. 

From  the  legal  certificates  and  returns  of  the  district  and  county  boards  of  return  judges  in  this  case, 
nothing  appears  in  relation  to  the  rejection  of  any  soldiers'  votes;  and  those  who  all^e  such  rejection  are 


716  PRECEDENTS   OF   THE   HOUSE   OF    REPBESENTATIVES.  §   557 

compelled  to  look  outside  of  these  certificates  and  returns  and  resort  to  papers  and  statements  which 
are  not  legitimate  evidence  on  this  investigation  and  which,  without  further  proof,  would  few,  if  any 
of  them,  be  evidence  of  themselves  on  the  hearing  of  a  contest  on  the  merits. 

The  committee  therefore  recommended  the  following  resolution : 

Resolved,  That  Alexander  H.  Coffroth,  upon  the  certificates  and  papers  relating  to  the  election  in 
the  Sixteenth  Congressional  district  of  the  State  of  Pennsylvania,  has  the  prima  facie  right  to  the  vacant 
seat  from  that  district  and  is  entitled  to  take  the  oath  of  office  and  occupy  a  seat  in  this  House  as  the 
Representative  in  Congress  from  said  district,  without  prejudice  to  the  right  of  William  H.  Koontz,  claim- 
ing to  have  been  duly  elected  thereto,  to  contest  his  right  to  said  seat  upon  the  merits. 

Resolved,  That  William  H.  Koontz,  desiring  to  contest  the  right  of  Hon.  Alexander  H.  Coffroth  to 
a  seat  in  this  House  as  a  Representative  from  the  Sixteenth  district  of  the  State  of  Pennsylvania,  be,  and 
he  is,  required  to  serve  upon  the  said  Coffroth,  within  fifteen  days  after  the  passage  of  this  resolution,  a 
particular  statement  of  the  grounds  of  said  contest,  and  that  the  said  Coffroth  be,  and  he  is  hereby, 
required  to  serve  upon  the  said  Koontz  his  answer  thereto  within  fifteen  days  thereafter,  and  that  both 
parties  be  allowed  sixty  days  next  after  the  service  of  said  answer  to  take  testimony  in  support  of  their 
several  allegations  and  denials,  notice  of  intention  to  examine  witnesses  to  be  given  to  the  opposite  party 
at  least  five  days  before  their  examination,  but  neither  party  to  give  notice  of  taking  testimony  within 
less  than  five  days  between  the  close  of  taking  it  at  one  place  and  its  commencement  at  another,  but  in 
all  other  respects  in  the  manner  prescriljed  in  the  act  of  February  19,  1851. 

The  minority  of  the  committee  took  the  view  that  neither  claimant  had  showed 
a  prima  facie  case.  The  proclamation  of  the  governor  of  Pennsylvania,  which 
would  have  been  the  best  evidence,  showed  that  no  such  returns  had  been  received 
as  would  authorize  him  to  proclaim  anyone  elected.  The  return  of  the  board  of 
district  judges  transmitted  by  the  governor  would  establish  such  a  prima  facie  right 
if  unimpeaclied. 

But  neither  by  a  return  of  the  district  board  to  the  secretary  of  the  common- 
wealth, nor  by  a  certificate  of  that  board  to  either  of  the  claimants,  has  such  prima 
facie  right  been  shown  in  this  case  before  the  committee. 

The  minority  rather  considered  that  the  House  intended  the  committee  to 
determine  from  all  the  papers  submitted  the  title  to  the  seat.  Therefore  they 
examined  into  the  validity  of  the  returns  of  soldiers'  votes  and  came  to  a  conclusion 
favorable  to  Mr.  Koontz. 

On  February  16  and  19 '  the  report  was  debated  at  length,  after  which  the  ques- 
tion was  taken  on  the  motion  of  the  minority  to  substitute  resolutions  declaring 
Mr.  Koontz  entitled  prima  facie  to  the  seat.  This  motion  was  disagreed  to — yeas  58, 
nays  83. 

The  resolutions  as  reported  from  the  committee  were  then  agreed  to,  and  Mr. 
Coffroth  was  sworn  in. 

557.  The  cases  of  Koontz  v.  Coffroth  and  Fuller  v.  Davidson,  con- 
tinued. 

The  name  of  a  witness  who  swore  to  his  own  vote  not  being  mentioned         'j; 
in  the  notice  to  take  depositions  as  required  by  law,  the  vote  was  rejected.         ' 

A  precinct  return,  defective  because  the  certificate  of  oaths  of  election 
ofiacers  was  wanting,  but  supplemented  by  a  paper  containing  the  re- 
quired certificate,  was  accepted  by  the  House,  the  State  law  forbidding 
rejection  for  mere  informalities. 

'Journal,  pp.  282,  297,  298;  Globe,  pp.  887,  923-930. 


§   557  CKEDENTIAI.S    AND    PRIMA    FACIE    TITLE.  717 

Two  companies  of  soldiers  having  voted  together  wliere  the  law  re- 
quired a  separate  poll  for  each,  the  vote  was  counted  on  testimony  show- 
ing honesty  and  fairness  in  the  proceedings,  the  law  forbidding  rejection 
for  mere  informalities. 

Returns  of  soldiers'  votes  made  to  the  county  of  their  residence  w^ere 
not  rejected  by  the  House  because  a  vote  from  another  county  was 
included,  but  that  vote  was  rejected. 

On  July  9,  1866,'  the  Committee  on  Elections  reported  on  the  question  of  the 
final  right,  finding  that  Mr.  Coffroth  had  not  been  elected  and  that  Mr.  Koontz  was 
entitled  to  the  seat. 

The  contestant  alleged  that  the  official  count  omitted  in  the  counties  of  Bed- 
ford, Fulton,  and  Adams  the  votes  of  certain  soldiers,  25S  of  which  were  cast  for  Mr. 
Koontz  and  99  for  ^Ir.  Coffroth.  He  further  alleged  that  certain  votes  of  paupers 
had  been  unla^\■fully  cast  for  sitting  Member. 

The  sitting  Member,  besides  opposing  the  allegations  of  contestant,  alleged 
that  certain  votes  counted  for  contestant  in  the  official  returns  were  illegal. 

In  the  examination  of  contestant's  claims  questions  of  fact  as  to  the  casting 
and  counting  of  soldiers'  votes  were  largely  dealt  with.  Certain  principles  were 
laid  down  by  the  committee,  however,  in  determining  the  result. 

The  contestant  claimed  one  vote  at  the  Cuyler  Hospital,  in  Philadelphia.  The 
committee  decided  not  to  count  this  vote  in  the  table  of  votes  claimed  by  contestant 
for  the  following  reason : 

The  committee  need  not  examine  this  return,  notwithstanding  all  informality  is  cured  by  the 
testimony  of  the  voter  who  swears  he  voted  for  Mr.  Koontz.  But  the  name  of  the  witness  is  not  men- 
tioned in  the  notice  to  take  depositions,  as  required  by  the  law  regulating  contests  in  elections  cases, 
and  of  this  the  sitting  Member  claims  the  benefit.  We  therefore  deduct  one,  which  is  estimated  for 
Mr.  Koontz  in  the  above  table. 

The  return  of  the  McClellan  Hospital,  in  Philadelphia,  was  claimed  by  the  sitting 
Member  to  be  fatally  defective,  but  the  committee  held: 

It  is  the  duty  of  the  committee  to  approach  as  nearly  as  possible  the  ballot  box,  and,  by  an  exami- 
nation of  all  the  testimony,  see  that  no  legal  voter  is  deprived  of  his  just  right  to  the  elective  franchise. 

We  find  in  the  evidence  referred  to  the  committee  by  the  House  two  properly  certified  papers, 
one,  if  taken  by  itself,  defective,  because  the  certificates  of  oaths  are  wanting,  *  *  »  but,  never- 
theless evidence  of  what  it  contains,  to  wit,  the  poll  book  and  tally  paper,  with  signatures  of  the  judges 
and  clerks;  the  other,  which  is  not  in  conflict  with  the  first,  poll  book,  eertificate  of  oath  of  officers,  and 
names  and  number  of  electors,  signed  Ijy  same  judges  and  clerks.  This  makes  the  testimony  complete. 
The  last-mentioned  poll  book,  etc.,  of  itself,  though  informal,  is  substantially  in  compliance  with  the  law. 
This  committee  and  the  House  are  not  circumscribed  by  the  formalities  that  regulate  proceedings  of  a 
board  of  return  judges.  They  can  go  to  the  ballot  box  if  necessary.  In  this  instance,  by  looking  at  the 
two  returns,  no  doubt  remains  of  the  fact  that  Mr.  Koontz  received  three  votes,  which  should  be  counted. 

At  Front  Royal,  Va.,  two  companies  of  the  One  himdred  and  thirty-eighth 
Pennsylvania  Regiment  voted  together,  although  the  law  directed  that  a  poll 
should  be  opened  in  each  company.  While  this  was  sufficient  to  exclude  the  return 
as  a  prima  facie  case,  j'et  in  a  case  on  the  merits  the  majority  of  the  committee  con- 
cluded that,  as  the  testimony  showed  the  voting  to  have  been  conducted  honestly, 

'  First  session  Thirty-ninth  Congress,  Report  Xo.  92:  2  Bartlett,  p.  138;  Rowell's  Digest,  p.  207. 


718  PRECEDENTS    OP    THE    HOUSE    OF    EEPRESENTATIVES.  §   558 

and  with  perfect  fairness,  the  votes  should  be  counted.     The  report  also  notes  the 
fact  that  this  decision  did  not  affect  the  result. 

As  to  the  One  hundred  and  eighty-fourth  Regiment,  the  return  of  which  came  to 
Adams  Count}-,  the  sitting  Member  objected  that  it  contained  a  voter  of  Franklin 
County.     The  committee  say: 

In  his  argument  he  objected  to  the  return  because  it  contained  a  voter  in  Franklin  County. 

That  objection  can  not  deprive  the  qualified  voters  of  Adams  County  of  their  right,  when  a  perfect 
return,  as  this  is,  is  properly  certified  by  the  prothonotary. 

But  the  certificate  of  prothonotary  of  Adams  County  is  not  evidence  to  us  of  vote  in  Franklin 
County.  In  the  absence  of  other  testimony  we  reject  one  vote  from  this  return  for  Mr.  Koontz,  and 
count  for  Mr.  Koontz  38,  for  Mr.  Coffroth  21. 

558.  The  cases  of  Koontz  v.  Coffroth  and  Fuller  v.  Davidson,  con- 
tinued. 

Instance  wherein  a  claimant  seated  after  examination  of  prima  facie 
title  was  unseated  after  examination  of  final  right.  i.*) 

Election  judges  and  clerks  sworn  by  one  having  no  legal  right  to  ad- 
minister the  oath  were  regarded  by  the  House  as  de  facto  oflB.cers  and  the 
returns  were  counted,  the  State  law^  forbidding  rejection  for  mere  infor- 
malities. 

The  State  law  being  silent  as  to  the  right  of  paupers  to  vote,  the  House 
has  counted  the  votes  of  such  persons. 

Oral  testimony  impeaching  a  return  already  counted  by  return  judges 
was  held  not  suflBcient  to  cause  rejection  of  the  vote,  the  actual  return 
not  being  identified  and  offered. 

As  to  the  Twenty -first  Pennsylvania  Cavalry  at  City  Point,  Va.,  the  committee 
say: 

The  judges  and  clerks  were  sworn  by  Capt.  James  Mickley,  who  was  a  qualified  voter,  but  not  a 
judge  or  clerk  of  the  election  who  are  authorized  by  the  law  to  administer  such  oath. 

The  sitting  Member  claims  this  return  should  be  deducted,  because  Captain  Mickley  was  not  an 
election  officer.  The  soldiers'  law,  section  fifth,  says  "the  oath  may  be  administered  by  judges  or  clerks." 
Others  may  administer.  But  Captain  Mickley  not  being  a  public  officer,  had  no  legal  right  to  administer 
the  oath.  But  the  judges  and  clerks  became,  by  taking  the  oath  in  good  faith,  public  officers  de  facto, 
for  the  purpose  of  conducting  the  election,  and  their  acts  are  valid.  This  principle  is  laid  down  in  second 
Kent,  page  339:  "In  the  case  of  public  officers  who  are  such  de  facto,  acting  under  color  of  office,  by  an 
election  or  appointment  not  strictly  legal,  or  without  ha\-ing  qualified  themselves  by  the  requisite  tests, 
or  by  holding  over  after  the  period  prescribed  for  a  new  appointment,  their  acts  are  held  valid  as  respects 
the  rights  of  third  persons  who  have  an  interest  in  them,  and  as  concerns  the  public,  in  order  to  prevent  a 
failure  of  justice." 

The  decision  in  the  Thirty-sixth  Congress  (see  Bartlett's  Election  Cases,  p.  313),  in  the  case  of  Blair 
V.  Barret,  is  also  in  point.  We  find  the  following  language  in  the  report  of  the  majority,  which  was  sus- 
tained: "  There  was  no  evidence"  (referring  to  certain  precincts)  "  returned  with  the  return  of  votes, 
now  before  the  committee,  in  any  shape  at  the  hearing  that  the  judges  of  election  were  sworn.  Had  it 
appeared  from  the  evidence  that  the  election  had  been  fairly  conducted  at  these  precincts,  and  there  were 
no  traces  of  fraud,  no  taint  of  the  ballot  box,  the  committee  would  not  have  been  willing  to  have  recom- 
mended a  rejection  of  these  polls.  The  honest  electors  should  not  be  disfranchised  and  their  voice 
stifled  from  a  mere  omission  of  the  officers  of  election  to  take  the  oath  of  office."  In  the  case  before  us 
there  was  not  an  omission,  as  we  have  seen.  The  evidence  is,  that  "the  election  was  conducted  very 
strictly  and  fairly;  inquiry  was  made  as  to  age  and  pajntnent  of  taxes.  Those  whom  we  were  not  posi- 
tively certain  were  of  age  were  sworn.  The  voters  presented  certificates  showing  the  payment  of  tax 
within  two  years,"  etc. 

We  are  therefore  clearly  of  the  opinion  that  this  poll  should  be  counted. 


§  559  CREDENTIALS   AND   PEIilA   FACIE   TITLE.  719 

The  committee  finally  concluded  that  Mr.  Koontz  had  a  majority  of  40  votes. 

The  House,  on  July  18/  without  division,  seated  Mr.  Koontz,  the  contestant. 

The  committee  make,  as  a  part  of  their  report,  a  compilation  of  the  Pennsyl- 
vania election  laws,  among  which  was  the  following  section  relating  to  the  voting 
of  soldiers : 

No  mere  informality  in  the  manner  of  carrying  out  or  executing  any  of  the  provisions  of  this  act 
shall  invalidate  any  election  held  under  the  same,  or  authorize  the  return  thereof  to  be  rejected  or  set 
aside;  nor  shall  any  failure  on  the  part  of  the  commissioners  to  reach  or  visit  any  regiment  or  company, 
or  part  of  company,  or  the  failure  uf  any  company  or  part  of  company  to  vote,  invalidate  any  election 
which  may  be  held  under  this  act. 

The  contestant  also  claimed  that  the  votes  of  16  paupers  should  be  deducted 
from  the  poll  of  the  sitting  Member  in  Adams  County.     The  committee  say: 

The  committee  can  not  see  why  the  16  in  Adams  County  should  be  deducted  from  the  count  of 
the  sitting  Member.  Each  State  frames  its  own  laws  for  the  maintenance  and  care  of  its  poor.  The  laws 
provide  protectors  for  the  poor,  who,  "by  reason  of  age,  disease,  infirmity,  or  other  disability,"  become 
unable  to  work.  With  regard  to  the  exercise  of  the  elective  franchise  by  such,  the  laws  of  Pennsyl- 
vania are  silent.  As  they  are  not  expressly  deprived  of  the  right,  we  can  not  see  why  the  unfortunate, 
provided  for  by  the  public,  may  not  vote  as  well  as  if  provided  for  by  a  parent  or  a  son — certainly  not 
until  the  authorities  of  Pennsylvania  shall  have  decided  for  themselves  the  law,  for  which  they  have 
had  frequent  opportunities;  therefore  we  here  make  no  deductions. 

The  sitting  Member  claimed  the  deduction  of  certain  votes  on  the  ground  that 
soldiers'  returns  improperly  made  up  had  been  improperly  counted  in  the  original 
official  count.  This  was  attempted  to  be  proven  by  testimony  of  clerks  of  county 
return  boards,  who  testified  that  certain  returns  were  counted  by  the  return  judges, 
but  the  actual  returns  so  counted  were  not  identified  and  made  part  of  the  record 
in  the  case.' 

559.  The  Pennsylvania  election  case  of  Covode  v.  Foster  in  the  Forty- 
first  Congress. 

The  governor  having  declined  to  issue  credentials  because  of  unsatis- 
factory returns,  the  Clerk  declined  to  enroll  either  claimant,  although  the 
governor  officially  expressed  an  opinion  that  a  certain  one  was  elected. 

In  a  case  where  there  were  no  credentials  the  House,  in  examining  as 
to  prima  facie  right,  declined  to  permit  the  election  returns  to  be  con- 
sidered by  the  committee. 

The  law  requiring  a  formal  proclamation  of  the  governor,  the  House 
declined  to  give  prima  facie  effect  to  an  informal  executive  communica- 
tion, especially  as  the  House  had  the  returns. 

'  Journal,  p.  1039. 

-  On  June  21,  1866,  the  Comimttee  on  Elections  reported  on  the  case  of  Fuller  v.  Dawson,  from 
Pennsylvania — a  case  involving  in-^tances  of  informalities  in  returns  of  soldiers'  votes  under  the  terms 
of  the  Pennsylvania  law.  The  majority  of  the  committee  and  a  large  majority  of  the  House  sustained 
the  sitting  Member,  whose  majority  depended  on  rather  a  strict  requirement  as  to  records  of  oaths  of 
election  officers  and  accuracy  and  regularity  of  returns,  etc.  In  the  debate,  which  occurred  on  July  11 
and  12,  it  was  urged  that  the  provisions  of  the  Pennsylvania  law  waiving  strict  requirements  had  not 
been  given  fuU  effect;  but  the  House  sastained  the  committee  and  the  sitting  Member.  (First  session 
Thirty-ninth  Congress,  Journal,  p.  1014;  Globe,  pp.  3747,  3771,  3802;  House  Report  No.  83;  2  Bartlett, 
p.  126;  Pvowell's  Digest,  p.  207.) 


720  PKECEDENTS  OF  THE  HOUSE  OF  KEPBESENTATIVES.         §  559 

Form  of  resolution  instituting  a  contest  in  a  case  wherein  neither 
claimant  is  seated  on  prima  facie  showing. 

Certain  papers  being  sent  to  a  committee  as  the  basis  of  a  decision 
and  report,  the  committee  does  not  take  into  account  other  pertinent 
papers  in  possession  of  the  House. 

On  March  4,  1869,'  at  the  time  of  the  organization  of  the  House,  when  the 
Clerk's  roll  of  Members-elect  was  called,  it  appeared  that  no  name  had  been  entered 
for  the  Twenty-first  district  of  Pennsylvania.  A  proposition  to  amend  the  roll  in 
this  particular  was  superseded  by  a  motion  to  proceed  to  the  election  of  Speaker. 

On  the  next  day,  March  5,-  after  the  election  of  Speaker,  the  subject  came  up 
in  the  House  again.  It  appeared  that  there  were  before  the  Clerk  and  also  in  pos- 
session of  the  House : 

(a)  The  general  proclamation  of  the  governor  of  Pennsylvania,  dated  November 
17,  1868,  declaring  who  were  elected  to  Congress  from  the  several  districts  of  that 
State,  but  stating,  in  regard  to  the  Twenty-first  district : 

That  no  such  returns  of  the  elections  have  been  received  by  the  secretary  of  the  commonwealth 
as  would,  under  the  election  laws  of  the  State,  authorize  me  to  proclaim  the  name  of  any  person  as  having 
been  returned  duly  elected  a  Member  of  the  House  of  Representatives  of  the  United  States  for  that 
district. 

(b)  The  following  letter  from  the  governor  to  the  Clerk  of  the  House,  dated 
some  months  later  than  the  proclamation: 

Pennsylvania  Executive  Chamber, 

Earrisburg,  Pa.,  February  23,  1869. 
Sir:  I  have  the  honor  to  transmit  herewith  additional  affidavits  and  evidences  of  fraud  submitted 
to  me  in  regard  to  the  election  of  Member  of  Congress  in  the  Twenty-first  Congressional  district  of  this 
State. 

These  affidavits  were  taken  before  officers  properly  authorized  to  administer  oaths,  and  indicate 
the  election  of  Hon.  John  Covode. 

Most  respectfully,  your  obedient  servant,  Jno.  W.  Geary, 

Governor  of  Pennsylvania. 
Hon.  Edward  McPherson, 

Clerk  Hcnise  of  Representatives,  Washington,  D.  0. 

State  op  Pennsylvania, 
Office  of  the  Secretary  of  the  Commonwealth, 

Earrisburg,  Pa.,  February  23,  1869. 
I  hereby  certify  that  the  signature  of  John  W.  Geary,  governor  of  this  Commonwealth,  to  the 
attached   letter,  is  his  genuine  signature;  and  that  the  accompanying  affidavits  and  papers  are  the 
originals  filed  in  this  office  from  time  to  time  since  the  election  held  •on  the  13th  of  October  last. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  secretary's  office  to 
be  affixed  the  day  and  year  above  written. 

[seal.]  F.  Jordan, 

Secretary  of  the  Commonuealth. 

(c)  The  affidavits  reciting  the  alleged  frauds  which  had  determined  the  mind  of 
the  governor  as  to  the  right  to  the  seat.' 

'  First  session  Forty-first  Congress,  Globe,  p.  3. 
=  Journal,  pp.  13,  14;  Globe,  pp.  13-16. 
'For  these  affidavits,  see  Globe,  p.  452. 


§  559  CBEDENXIALS   AND   PKIMA   FACIE   TITLE.  721 

(d)  The  ofBcial  retiims,  both  of  the  district  returning  board  and  from  the  three 
county  boards.  One  of  the  three  district  judges,  after  participating  in  the  pro- 
ceedings, had  refused  to  sign  the  district  returns,  which  was  signed  by  two  judges 
only.  These  two  judges  had  appended  a  certificate  of  the  refusal  of  the  third  judge 
to  sign. 

The  Clerk  had  declined  to  put  the  name  of  either  claimant  on  the  roll  on  the 
strength  of  these  papers. 

The  case  being  taken  up  in  the  House,  Mr.  George  W.  Woodward,  of  Pennsyl- 
vania, proposed  a  resolution  that  "the  returns  of  the  election'"  be  referred  to  the 
Committee  on  Elections  with  instructions  to  report  which  claimant  had  the  prima 
facie  right  to  the  seat.  Mr.  Glenni  W.  Schofield  proposed  a  resolution  seating  one 
claimant,  Mr.  Covode,  on  the  strength  of  the  documents  furnished  by  the  governor. 

Both  of  these  propositions  were  finally  put  aside  in  order  to  adopt  the  following 
substitute  proposed  by  Mr.  Henry  L.  Dawes,  of  Massachusetts: 

Resolved,  That  so  much  of  the  proclamation  of  the  governor  of  Pennsylvania,  dated  November  17, 
1868,  as  relates  to  the  election  of  Representative  in  the  Twenty-first  district  of  that  State,  and  the  letter 
of  said  governor,  dated  February  23,  1869,  relative  thereto,  together  with  all  the  papers  referred  to  in 
said  letter,  be  referred  to  the  Committee  of  Elections,  when  appointed,  with  instructions  to  report  to  the 
House  what  person,  according  to  said  proclamation,  letter  and  papers,  is  entitled  prima  facie  to  repre- 
sent said  Twenty-first  district  in  the  Forty-first  Congress  pending  any  contest  that  may  arise  concerning 
the  right  to  such  representation. 

It  is  to  be  noticed  that  the  returns  were  not  included  among  the  papers  referred 
to  the  committee:  and  on  March  18'  Mr.  Woodward  proposed  a  resolution  as  follows: 

That  the  certified  returns  of  the  return  judges  of  the  said  Twenty-first  district,  and  all  the  papers 
connected  therewith  now  in  the  hands  of  the  Clerk  of  the  House,  be  referred  to  the  Committee  on  Elections 
with  the  same  effect  as  if  they  had  been  included  in  the  resolution  of  the  5th  instant. 

After  debate,  in  which  there  seemed  to  exist  some  confusion  as  to  the  real  natiu-e 
of  the  documents  required  of  the  governor  to  constitute  a  prima  facie  case,  the  House 
laid  Mr.  Woodward's  resolution  on  the  table. 

On  March  26^  the  committee  reported,  the  report  of  the  majority  being  pre- 
sented by  Mr.  John  Cessna,  of  Pennsylvania.  After  quoting  the  proclamation  of 
the  governor  and  his  later  letter  to  the  Clerk  of  the  House,  the  report  says: 

The  signature  of  the  governor  to  this  document  was  duly  certified  by  the  secretary  of  the  Common- 
wealth, and  the  seal  of  the  State  attached. 

It  is  claimed  by  Mr.  Covode  that  this  letter  gives  him  a  prima  facie  right  to  the  seat — it  being  a 
supplemental  proclamation,  as  he  alleges,  and  intended  to  be  the  decision  of  the  governor  that  he, 
Covode,  was  elected  in  the  Twenty-first  district. 

By  the  general  election  law  of  Pennsylvania  (Purdon's  Digest,  eighth  edition,  section  63)  it  is 
provided ,  where  two  or  more  counties  compose  a  district  for  the  choice  of  a  Member  of  the  House  of  Repre- 
sentatives, that  after  an  election  has  been  held,  the  judges  of  election  in  each  county  having  met,  the 
clerks  shall  make  out  a  fair  statement  of  all  the  votes  which  shall  have  been  given  at  such  election, 
within  the  county,  for  every  person  voted  for  as  such  Member,  which  shall  be  signed  by  said  judges 
and  attested  by  the  clerks;  and  one  of  the  said  judges  is  to  take  charge  of  said  certificates  of  votes  and 
produce  the  same  at  a  meeting  of  one  judge  from  each  county,  at  such  place  in  such  district  as  is,  or  may 
be,  provided  by  law  for  that  purpose.     The  judges  of  the  several  counties  having  met,  are  required 

'Journal,  p.  71;  Globe,  pp.  139-143. 

'Journal,  p.  122;  Globe,  p.  309;  House  Report  No.  2;  2  Bartlett,  p.  619;  Rowell's  Digest,  p.  231. 
.5994— VOL  1—07 46 


722  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §  559 

(sec.  64)  to  cast  up  the  several  county  returns  and  make  duplicate  returns  of  all  the  votes  given  for  such 
office  of  Representative  in  Congress  in  said  district,  and  of  the  name  of  the  person  elected,  and  to 
deposit  one  of  said  returns  for  said  office  of  Representative  in  the  office  of  the  prothonotary  of  the  court 
of  common  pleas  of  the  county  in  which  they  shall  meet,  and  to  place  the  other  return  in  the  nearest 
post-office,  sealed  and  directed  to  the  secretary  of  the  Commonwealth. 

The  said  return  judges  are  also  required  (sec.  65)  to  transmit  to  the  person  elected  to  serve  in  Con- 
gress a  certificate  of  his  election  within  five  days  after  the  day  of  making  said  return. 

On  the  receipt  of  the  return  of  the  election  of  Members  of  the  House  of  Representatives  of  the 
United  States,  as  aforesaid,  by  the  secretary  of  the  Commonwealth,  the  governor  is  required  (sec.  113) 
to  declare  by  proclamation  the  names  of  the  persons  so  returned  as  elected  in  the  respective  districts, 
and  also  to  transmit  as  soon  as  may  be  conveniently  thereafter  the  returns  so  made  to  the  House  of  Repre- 
sentatives of  the  United  States. 

The  committee  go  on  to  say  that  their  investigations  were  confined  strictly 
to  the  papers  referred  to  them  by  the  committee.  And  they  say  that  they  beUeve 
the  governor  had  a  right  to  decide  as  he  did  in  the  letter  to  the  Clerk,  being  justified 
in  the  precedents  in  the  case  of  Butler  v.  Lehman.     The  committee  further  say: 

As  there  is  no  prescribed  form  in  the  law  of  Pennsylvania  for  the  proclamation,  nor  any  time  fixed 
at  which  it  shall  be  issued,  nor  any  specified  mode  of  publication  required  to  be  made,  it  is  difficult 
to  see  that  anything  is  required  by  the  proclamation  named  in  the  law  more  than  a  decision  as  to  who 
is  duly  elected  in  the  respective  districts  of  the  State,  and  notice  of  such  decision  given  to  the  parties 
elected  and  to  the  House  of  Representatives. 

A  majority  believes  that  the  committee  has  but  little  discretion  in  the  premises.  The  language 
of  the  resolution  under  which  we  are  acting  requires  us  to  report  to  the  House  what  person  is  entitled, 
prima  facie,  to  represent  the  Twenty-first  district  of  Pennsylvania  in  the  Forty-first  Congress,  according 
to  the  papers  referred  to  us.  It  would  seem  from  this  resolution  of  reference  that  the  House  was  satisfied 
that  some  one  had  a  prima  facie  right  to  the  seat  on  these  papers,  and  that  the  only  inquiry  for  us  was 
as  to  the  person  so  entitled. 

The  committee  is  further  sustained  in  this  view  from  the  fact  that  at  the  time  these  papers  were 
referred,  an  effort  was  made  in  the  House  to  refer  other  papers  seeming  to  be  connected  with  the  case, 
and  this  effort  was  unsuccessful.     This  effort  was  subsequently  repeated  with  a  like  result. 

Therefore  the  committee,  finding  that  the  other  claimant  is  nowhere  men- 
tioned in  the  papers  before  the  committee,  except  in  an  unfavorable  light,  find  Mr. 
Covode  having  the  prima  facie  right. 

Therefore  the  majority  of  the  committee  reported  resolutions  giving  the  seat 
to  Mr.  Covode  and  providing  that  Mr.  Foster,  the  other  claimant,  might  contest. 

The  majority  of  the  committee^  concede  that  the  proclamation  of  the  governor 
was  legal  evidence,  but  they  do  not  admit  the  same  as  to  the  letter  to  the  Clerk: 

This  letter,  being  unauthorized  by  law,  has  no  official  character.  It  is  not  the  act  of  the  governor, 
but  the  individual.  It  is  no  more  legal  evidence  than  would  be  the  unsworn  statement  of  any  other 
citizen  of  Pennsylvania.  Furthermore,  it  is  not  under  the  great  seal  of  the  State.  It  is  correctly  char- 
acterized in  the  authenticating  certificate  of  the  secretary  of  the  Commonwealth,  and  in  the  resolution 
of  the  House,  as  a  "  letter."  It  does  not,  like  a  solemn  proclamation,  begin,  '  'In  the  name  of  the  Com- 
monwealth of  Pennsylvania,"  and  end  with  the  words  ' '  Given  under  my  hand  and  the  great  seal  of  the 
State,"  but,  like  an  ordinary  epistle,  it  begins  with  "Sir,"  and  ends  with  "Most  respectfully,  your 
obedient  sers-ant."  It  is  true  that  it  is  subscribed  "Jno.  W.  Geary,  governor  of  Pennsylvania."  But 
a  letter  addressed  by  the  governor,  as  this  is,  to  the  Clerk  of  the  House,  recommending  an  applicant 
for  a  position  in  his  department,  might  have  been,  and  probably  would  have  been,  subscribed  in  the  same 
way,  and  if  so  subscriljed,  would  have  had  the  same  official  character  which  this  letter  has.     And  an 

'H.  E.  Paine,  of  Wisconsin;  John  C.  Churchill,  of  New  York;  Albert  G.  Burr,  of  Illinois,  and 
Samuel  J.  Randall,  of  Pennsylvania,  signed  minority  views. 


§   559  CKEDENTIALS   AND   PRIMA   FACIE   TITLE.  723 

authenticating  certificate  of  the  secretary  of  the  Commonwealth  would  contribute  as  much  of  oflacial 
character  to  such  a  recommendation  as  the  secretary's  certificate  in  this  case  does  to  the  letter.  Inas- 
much as  this  letter  is  not  legal  evidence,  it  is  not  material  to  inquire  whether,  if  it  really  were  competent 
evidence,  it  would  amount  to  prima  facie  proof  that  either  claimant  is  entitled  to  the  seat. 

But  conceding,  for  the  moment,  the  right  of  the  governor  to  issue  a  supplemental  proclamation, 
is  the  document  of  date  Februarj'  23  such  an  instrument  as  is  contemplated  by  the  law  of  Pennsyl- 
vania? A  "  proclamation  "  is  an  official  notice  to  the  public,  a  public  declaration  made  by  competent 
authority.  By  Webster  a  proclamation  is  defined  as  ' '  publication  by  authority,  official  notice  given 
to  the  public,"  "  the  paper  containing  an  official  notice  to  a  people."  But  the  document  in  question 
is  a  mere  private  communication  sent  by  Governor  Gearj'  to  the  Clerk  of  this  House.  It  has  none  of  the 
elements  of  a  proclamation,  is  not  issued  by  competent  authority,  for  it  lacks  authority  of  law;  and  an 
unauthorized  act  by  an  official  has  no  more  legal  force  than  the  same  act  by  a  private  citizen.  It  is  not 
addressed  or  directed  to  the  public,  nor  is  it  intended  for  their  consideration.  It  does  not  declare  a  result, 
but  merely  ventures  an  opinion,  and  that  only  incidentally,  for  the  object  alone  of  the  document  was 
to  transmit  papers,  called  "  affidavits  and  evidences  of  fraud,"  to  the  Clerk.  The  Clerk  himself  does 
not  consider  it  in  any  sense  an  official  document,  else  he  surely  would  have  acted  upon  it  and  placed 
on  the  rolls  the  name  of  Hon.  John  Covode  as  the  Member  from  the  district  in  question.  Further,  the 
paper  under  consideration  has  no  ' '  great  seal  of  the  Commonwealth,"  as  has  the  proclamation  of  Novem- 
ber 17;  and  if  it  be  said  that  the  certificate  of  the  secretarj'  of  the  Commonwealth  shows  this  paper  to 
have  been  issued  by  John  W.  Geary,  as  governor,  it  will  be  seen  that,  by  the  same  certificate,  the  secre- 
tary designates  the  paper  in  question,  not  as  a  proclamation  or  official  document,  but  as  a  "  letter"  only. 
So  far  as  this  is  a  private  communication  we  have  nothing  to  do  with  it;  but  in  so  far  as  we  are  required 
to  consider  it  in  deciding  a  prima  facie  right  to  the  vacant  seat,  the  preceding  comments  are  considered 
justifiable.  In  the  view  of  the  undersigned,  for  the  reason  aforesaid,  neither  the  letter  of  February  23, 
nor  the  affidavits  accompanying,  have  any  legal  value  in  determining  the  question  submitted.  So 
far  as  the  affidavits  are  concerned,  suppose  all  were  considered  as  true  and  in  all  respects  competent 
as  testimony,  what  do  they  show?  At  most,  that  some  votes  were  wrongfully  received,  and  some  errone- 
ously rejected,  at  the  election  in  question.  They  do  not,  nor  do  any  papers  before  the  committee,  show 
how  many  votes  were  cast  for  anyone  as  a  candidate  in  that  district.  The  only  manner  in  which  the 
"affidavits"  could  "indicate"  a  result  would  be  to  furnish  information  whereby  we  might  add  to 
or  subtract  from  the  aggregate  vote  previously  ascertained  to  have  been  cast  for  the  respective  parties; 
but  the  only  ascertained  result  is  embodied  (if  anywhere)  in  the  ' '  returns,"  which  have  been  carefully 
excluded  from  consideration  here,  and  which  had  been  sent  from  the  governor  months  before  he  ascer- 
tained what  the  affidavits  in  question  ' '  indicated." 

The  minority  deny  the  right  of  the  governor  to  do  what  he  did: 

By  virtue  of  what  law  of  Pennsylvania  were  affidavits  of  any  character  submitted  to  the  governor 
for  his  consideration?  By  the  sanction  of  what  law  did  he  transmit  them  to  the  Clerk  of  this  House? 
By  what  legal  right  did  he  base  any  act  of  his  on  such  affidavits,  or  on  any  affidavits  connected  with  an 
election?  He  had  already  done  all  that  in  his  judgment  he  had  any  authority  to  do;  and  had  parted 
with  all  the  records  which  gave  him  an  original  right  to  do  anything  whatever  in  the  case.  If  he  had 
before  that  time  done  all  his  duty,  the  duty  was  ended.  If  he  had  omitted  any  duty,  in  not  having 
officially  declared  a  result  in  the  Twenty-first  district,  the  time  for  the  discharge  of  that  duty  passed, 
and  the  power  to  discharge  it  ceased,  when  the  returns  left  his  possession;  and  any  later  act  of  his  in  the 
premises  was  without  sanction  of  law,  of  none  effect,  and  entitled  to  no  consideration  here  or  elsewhere. 

The  authority  of  the  case  of  Butler  v.  Lehman  is  denied  after  discussion  of  the 
precedent. 

The  minority  therefore  proposed  a  resolution  declaring  that  the  papers  referred 
to  the  committee  did  not  show  what  person  was  entitled  prima  facie  to  represent 
the  district. 

The  report  was  debated  on  April  2}  It  was  pointed  out  that  the  law  of  Penn- 
sylvania did  not  require  the  governor  to  send  his  proclamation  to  the  House,  but  did 

'Globe,  pp.  452-466. 


724  PBECEDENTS    OF   THE   HOUSE    OF   REPRESENTATIVES.  §   560 

require  him  to  send  the  returns.  The  returns  had  in  fact  been  sent,  and  it  was 
asserted  that  these  returns  made  out  a  prima  facie  case  for  Mr.  Foster.  But  the 
House  had  excluded  the  Committee  on  Elections  from  taking  those  returns  into 
consideration.  But  it  was  urged  that  the  House  might  consider  the  returns  if  the 
committee  did  not.  Mr.  H.  E.  Paine,  of  Wisconsin,  proposed  the  following  reso- 
lution, which  was  agreed  to  without  division: 

Resolved,  That  the  contested  election  case  from  the  Twenty-first  Congressional  district  of  Penn 
sylvania  be  recommitted  to  the  Committee  on  Elections  with  instructions  to  report  upon  the  merits  o 
the  case,  who  is  entitled  to  represent  said  district  in  this  House,  with  authority  to  make  regulations  to 
govern  the  mode  of  conducting  the  contest  and  taking  testimony. 

On  April  5 '  the  committee  reported  and  the  House  agreed  to  the  following 
regulations : 

Each  of  the  claimants  shall  serve  upon  the  other  a  notice  of  the  grounds  on  which  he  claims  the 
seat  before  June  1,  1869,  and  an  answer  to  the  notice  of  his  opponent  before  June  20,  1869.  Said  Covode 
shall  take  his  testimony  between  the  1st  and  15th  days,  inclusive,  of  July,  August,  and  September, 
1869;  and  said  Foster  shall  take  his  testimony  between  the  IGth  and  last  days,  inclusive,  of  the  same 
month.  The  statutory  provisions  regulating  ordinary  cases  of  contest  shall  apply  to  this  case  so  far  as  the 
same  are  consistent  with  these  regulations.  All  testimony  shall  be  transmitted  under  seal,  by  the 
officers  before  whom  the  same  shall  be  taken,  to  the  Clerk  of  the  House  at  Washington,  so  as  to  be  received 
by  said  Clerk  before  the  loth  day  of  October,  1869;  before  which  days  the  notices,  answers,  evidence, 
and  exhibits  in  the  case  shall  be  filed  with  said  Clerk.  And  the  clerk  of  the  Committee  on  Elections 
shall  immediately  thereafter  arrange  the  papers  for  the  Public  Printer,  and  cause  the  same  to  be  printed 
before  the  1st  day  of  November,  1869;  and  printed  arguments  of  the  claimants  shall  be  filed  with  the 
Committee  on  Elections  on  the  first  day  of  next  session. 

560.    The  case  of  Covode  v.  Foster,  continued. 

An  instance  of  rejection  of  a  poll  where  irregularities  in  both  the 
reception  and  counting  of  votes,  cumulatively  considered,  showed  a  want 
of  good  faith  and  regard  for  law. 

Participation  of  an  unsworn  person  in  the  count  may  be  held  a 
contributory  irregularity  in  justifying  rejection  of  a  poll. 

On  January  27,  1870,^  Mr.  John  C.  Churchill,  of  New  York,  from  the  Committee 
on  Elections,  submitted  a  report,  the  case  being  called  Covode  v.  Foster.  The 
report  finds  from  the  certificates  of  the  return  judges  of  the  several  counties  in 
the  district  that  Henry  D.  Foster  had  a  returned  majority  of  41  votes.  The 
majority  of  the  committee  were  convinced  that  certain  obviously  proper  corrections 
would  increase  tliis  majority  to  64. 

The  majority  found,  however,  that  this  vote  was  successfully  assailed  by  Mr. 
Covode.     The  examination  of  this  question  divided  itself  into  several  branches. 

(1)  In  Dimbar  Township,  where  a  majority  of  the  board  of  election  officers 
belonged  to  Mr.  Foster's  party,  ballots  were  received  for  a  time  in  a  cigar  box  and 
a  hat,  and  afterwards  transferred  to  the  regular  boxes,  the  proceeding  being  con- 
trary to  the  requirements  of  Peimsylvania  law;  persons,  some  under  the  influence 
of  liquor,  were  near  the  boxes  during  the  day;  one  inspector  of  election  was  under 
the  influence  of  liquor;  challenges  were  disregarded,  in  violation  of  law,  and  evi- 

'  Globe,  p.  510. 

2 House  Report  No.  15,  second  session  Forty-first  Congress,  2  Bartlett,  p.  600;  Rowell's  Digest, 
p.  237. 


§    560  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  725 

dently  resulted  in  the  voting  of  persons  not  entitled  to  vote;  while  the  votes  were 
being  counted  one  election  officer  was  taken  sick  and  one,  William  Speers,  shown 
to  be  an  unscrupulous  partisan  of  Mr.  Foster,  took  the  vacant  place  without  being 
sworn,  and  officiated  until  the  end  of  the  count;  six  more  ballots  were  found  in  the 
box  than  could  be  accoimted  for  by  the  names  on  the  tally  list.  The  majority  of 
the  committee  say: 

From  all  the  evidence,  I  think  we  must  conclude  that  the  returns  of  such  an  election  are  too 
unreliable  to  be  received,  and  as  neither  party  has  attempted  to  prove  what  votes  were  cast  for  him 
at  that  election,  that  the  whole  poll  of  Dunbar  Township  must  be  rejected. 

\Miile  it  is  well  established  that  mere  neglect  to  perform  directory  requirements  of  the  law,  or 
performance  in  a  mistaken  manner,  where  there  is  no  bad  faith  and  no  harm  has  accrued,  wUl  [not] 
justify  the  rejection  of  an  entire  poll,  it  is  equally  well  settled  that  where  the  proceedings  are  so  tarnished 
by  fraudulent,  or  negligent,  or  improper  conduct  on  the  part  of  the  officers  as  that  the  result  of  the 
election  is  rendered  unreliable,  the  entire  returns  wUl  be  rejected,  and  the  parties  left  to  make  such 
proof  as  they  may  of  votes  legally  cast  for  them. 

The  minority '  do  not  agree  to  this : 

We  do  not  concur  in  this  conclusion,  believing  that  in  such  case  it  should  be  made  the  duty  of 
each  party  to  a  contest,  respectively,  to  prove  the  LUegal  votes  cast  at  such  poll,  and  for  whom  such 
illegal  votes  were  given.  Those  not  proved  to  be  illegal  should  stand;  that  is  to  say,  that  such  poll  be 
purged  of  its  illegal  votes  only;  those  left  to  be  duly  counted.  The  merits  of  a  contested  election  depend 
upon  the  finding  out  which  of  the  candidates  received  the  greatest  number  of  legal  votes.  The  only 
way  to  arrive  at  this  is  to  show  of  the  votes  cast  for  each  candidate  those  that  were  illegal.  It  is  at  no 
time  justifiable  to  throw  out  an  entire  poll,  and  in  this  way  disfranchise  the  whole  voting  population 
of  a  district,  if  it  can  be  purged  of  its  illegal  portion.  In  this  case  the  testimony  is  fuU  as  to  Dunbar 
Township,  and  the  illegal  votes,  by  said  testimony,  can  be  readily  and  conclusively  determined.  This 
is  a  Pennsylvania  case,  and  the  courts  of  that  State  have,  in  aU  contested  elections,  held  that  impos- 
sibility of  ascertaining  the  true  state  of  the  poll  is  the  only  ground  for  rejecting  it.  To  show  that  the 
majority  themselves  are  in  doubt  as  to  the  justness  of  rejecting  this  entire  poll,  they  present  to  the 
consideration  of  the  House  the  condition  of  the  poll  after  they  have  purged  it  of  all  the  illegal  votes 
alleged  and  proved  to  have  been  cast.  This  latter  course  should  commend  itself  to  your  judgment, 
and  while  being  in  strict  accordance  with  law  and  precedent,  is,  at  the  same  time,  a  protection  to  the 
honest  voters  in  every  poll. 

After  reviewing  each  irregularity  the  minority  say: 

One  by  one  we  have  disposed  of  the  complaints  and  irregularities  made  against  this  (Dunbar) 
township  poU.  Surely,  if  they  can  not  stand  singly,  they  should  not  be  made  to  prop  each  other  and 
thus  have  force  combined. 

In  the  debate-  the  majority  did  not  contend  that  any  one  of  the  irregularities 
would  justify  the  contemplated  action,  but  did  urge  that  taken  together  they 
showed — 

a  want  of  that  good  faith  and  regard  for  law  the  presumption  of  which  is  the  foundation  of  the  authority 
which  is  given  to  the  returns  of  an  election  board. 

The  position  of  the  minority  against  the  rejection  of  the  return  was  analyzed 
in  the  debate,'  the  point  being  made  that  the  rejection  of  returns  in  which  no  con- 
fidence could  be  placed  was  not  a  disfranchisement  of  legal  voters.     It  was  simplj- 

'  The  minority  views  were  signed  by  Messrs.  Samuel  J.  Randall,  of  Pennsylvania;  Albert  G.  Burr, 
of  Illinois,  and  P.  M.  Dox,  of  Alabama. 

2  Remarks  of  Mr.  Churchill,  Globe,  p.  1116. 

'By  Mr.  Luke  P.  Poland,  of  Vermont,  Globe,  p.  1158. 


726 


PKECEDENTS    OF    THE   HOUSE   OF   EEPEESENTATIVES. 


§561 


a  declaration  that  the  candidates  could  not  use  the  discredited  return  to  prove  the 
votes,  but  must  prove  the  votes  otherwise.  Not  having  submitted  any  proof,  no 
votes  could  be  counted. 

561.   The  case  of  Covode  v.  Foster,  continued. 

Neglect  of  a  mandatory  law  requiring  a  voting  list  to  be  furnished 
at  a  poll  was,  in  connection  with  questionable  acts  of  partisan  election 
oflB.cers,  suflB.cient  to  justify  rejection  of  the  poll. 

Paupers  supported  in  a  county  poorhouse  were  held  to  have  gained  no 
residence  in  the  town  by  reason  of  this  enforced  stay. 

The  House  has  rejected  votes  of  lunatics  whose  votes  had  been  re- 
ceived by  election  officers  and  in  whose  cases  there  had  been  no  findings  in 
lunacy. 

(2)  The  majority  of  the  committee  found  that  through  the  apparently  inten- 
tional irregularities  practiced  by  one  Eisaman,  an  assessor  whose  duty  it  was  to  fur- 
nish the  voting  list  at  Youngstown  election  district,  the  officers  of  election  used  a 
list  which  Eisaman  had  posted  in  accordance  -wath  law,  but  not  the  list  he  was 
required  to  furnish  for  the  election.     The  report  says: 

The  assessor  assessed  persons  who  made  no  personal  application  to  him,  contrary  to  the  law;  the 
names  of  the  persons  so  assessed  he  did  not  enter  upon  the  list  in  his  possession,  as  required  by  law, 
but  upon  a  separate  piece  of  paper,  which  was  not  a  legal  assessment;  nor  did  he  furnish  any  copy  of 
this  to  the  county  commissioners  at  any  time  before  the  election,  nor  to  the  inspectors  of  elections  on 
or  before  8  o'clock  on  the  forenoon  of  the  day  of  election,  as  required  by  law.  All  these  provisions  of 
law  are  not  directory  merely,  but  mandatory,  and  enforced  by  severe  penalties.  (Election  Laws, 
p.  42,  sec.  85.) 

But  whether  the  assessment  made  by  Eisaman  was  a  legal  assessment  or  not  (and  we  think  no 
legal  assessment  was  shown  to  have  been  made),  the  failiu-e  of  Eisaman  to  furnish  to  the  inspectors  a 
copy  of  the  list  had  the  same  effect,  so  far  as  that  election  was  concerned,  as  though  no  assessment  what- 
ever had  been  made. 

The  law  of  Pennsylvania  is  explicit  that  when  the  name  of  the  person  coming  to  vote  is  not  found 
on  the  list  furnished  by  the  commissioners  or  assessors  the  board  must  examine  him  under  oath  as  to 
his  qualifications,  and  he  must  prove  by  at  least  one  witness,  who  must  be  a  qualified  elector,  that  he 
has  resided  in  the  district  at  least  ten  days  next  immediately  preceding  the  election.  (Election  Laws, 
33,  sec.  42,  2  par.,  553,  580-581.)  That  law  further  provides  that  if  any  inspector  or  judge  shall  receive 
the  name  of  any  person  whose  name  shall  not  be  returned  on  the  list  furnished  by  the  commissioners  or 
assessor  without  first  requiring  the  evidence  directed  by  the  act,  the  person  offending  shall,  on  convic- 
tion, be  fined  not  less  than  $60  nor  more  than  $200.     (Election  Laws,  41,  sec.  81.) 

The  assessor  having  failed  to  furnish  the  inspectors  with  any  copy  of  the  list  of  taxables,  the  board 
could  legally  receive  no  vote  at  that  election,  except  by  requiring  him  to  be  examined  as  to  his  quali- 
fications under  oath,  and  to  furnish  the  further  evidence  required  by  the  act.  Nothing  of  this  kind 
was  done;  but,  instead,  the  votes  of  persons  were  rejected  because  their  names  were  not  found  on  this 
paper  taken  from  the  tavern  wall,  and  they  were  permitted  to  vote  because  their  names  were  found 
thereon.     This  alone  we  think  sufficient  to  invalidate  the  election  in  that  district. 

But  the  conduct  of  the  election  board  was  equally  blameworthy  with  that  of  the  assessor.  From 
the  report  which  had  gone  out  that  an  unusually  large  number  had  been  assessed  at  the  monastery, 
and  from  the  gathering  of  strangers  there,  it  was  believed  that  improper  votes  would  be  attempted  to 
be  polled,  and  a  purpose  seems  to  have  been  formed  to  prevent  these  votes  being  received,  except  upon 
proper  examination.  But  from  the  commencement  of  the  election  until  about  11  o'clock,  during 
which  time  the  greater  part  of  these  votes  were  polled,  challenges  were  entirely  disregarded. 

In  addition,  the  paper  used  bj^  the  election  officers  disappeared  after  the  elec- 
tion, and  there  was  no  means  of  determining  as  to  its  value.  Also  all  the  election 
officers  were  of  Mr.  Foster's  party. 


§   561  CREDENTIALS   AND    PRIMA    FACIE    TITLE.  727 

Therefore  the  majority  recommend  the  rejection  of  the  entire  vote  of  Youngs- 
town  as  returned. 

The  minority  find  that  the  assessor  performed  properly  all  the  duties  in  rela- 
tion to  the  lists,  except  one: 

But  the  last  requirement — i.  e.,  to  make  out  duplicates  of  these  lists  and  file  one  in  the  county 
commissioner's  office  and  hand  the  other  to  one  of  the  inspectors  of  the  election  before  8  o'clock  on 
the  morning  of  said  election — was  neglected  to  be  done  by  the  assessor.  And  because  of  the  neglect 
of  this  one,  and  not  the  most  material  requirement,  having  fulfilled  everj'  other  duty  incumbent  on 
him,  and  in  so  doing  acting  under  the  sanctity  of  his  official  oath,  the  majority  ask  now  to  reject  this 
entire  poU. 

If  there  had  been  no  official  act  whatever  performed  by  the  assessor  necessary  to  the  proper  con- 
duct of  this  election,  then  the  committee  might,  with  some  propriety,  ask  for  the  rejection  of  this  poU. 
In  performing  none  of  his  duties,  the  officers  of  the  election  would  have  been  compelled  to  close  the 
polls  or  to  have  proceeded  without  official  knowledge  as  to  who  were  the  taxables  and  voters  of  the 
district;  even  then  we  hold  that  it  would  have  been  competent  for  the  officers  of  the  election  to  have 
received  the  votes  of  all  persons  offering  to  vote,  who,  upon  examination  under  oath,  were  found  to 
have  the  constitutional  qualifications  of  voters.  But  they  were  placed  in  no  such  position  by  the  neg- 
lect of  this  assessor.     They  were  not  without  a  proper  guide  for  the  conduct  of  the  election. 

(3)  It  was  shown  that  in  South  Union  certain  inmates  of  the  local  poorhouse, 
who  were  sent  there  from  other  townships,  had  voted  for  Mr.  Foster.  The  same 
thing  occurred  at  Hemphill  Township.     The  majority  of  the  committee  conclude: 

The  testimony  further  shows  (Zundell,  191)  that  none  of  these  persons  were  assessed  upon  per- 
sonal application,  and  also  that  none  of  them  paid  the  tax  upon  which  they  were  permitted  to  vote 
(192,  273),  but  that  their  names  were  handed  to  the  assessor  and  their  taxes  paid  by  an  official  who 
understood  that  they  would  vote,  and  for  the  purpose  of  enabling  them  to  vote  a'particular  ticket,  both 
assessment  and  payment  of  tax  being  illegal  as  against  the  express  letter  of  the  election  laws  of  Pennsyl- 
vania. (Election  Laws,  24,  sec.  13;  40,  sec.  75.)  Butdid  these  persons  acquire  a  residence  in  the  election 
district  where  the  county-house  was  situated,  within  the  meaning  of  the  law  of  Pennsylvania,  which 
requires  that  the  voter  shall  have  resided  at  least  ten  days  immediately  preceding  the  election  in 
the  district  where  he  offers  to  vote?  We  think  not.  Their  residence  at  this  place  was  not  their  own 
voluntary  act,  but  the  act  of  the  public  authorities,  who,  for  reasons  of  economy  and  convenience, 
sent  them  here  that  they  might  be  supported  at  the  public  expense. 

The  court,  in  Murray  v.  McCarty  (2  Mun.,  397),  says,  that  to  divest  a  person  of  the  character  of 
citizen  of  a  particular  place,  "there  must  be  a  removal  with  an  intention  to  lay  aside  that  character,  and 
he  must  actually  join  himself  to  some  other  community."     The  italics  are  those  of  the  original  report. 

So  Burrill  (Law  Die,  tit.  Residence)  defines  residence  as  "the  place  which  one  has  made  his 
seat,  abode,  or  dwelling."  The  derivation,  as  well  as  the  ordinary  acceptation  of  the  term,  denotes 
the  place  where  the  party  has  seated  himself,  and  his  own  choice  or  free  will  in  the  matter  is  assumed. 
We  think  this  the  legal  as  well  as  the  ordinary  meaning  of  the  term,  and  that  accordingly  the  soldier 
who  occupies  a  place  at  the  command  fif  his  military  superiors,  the  criminal  who  does  the  same  thing 
while  in  custody  in  the  hands  of  the  criminal  authorities,  and  the  pauper  who  is  placed  and  supported 
in  the  county  poorhouse  at  the  public  expense,  gains  no  residence  in  the  town  by  his  enforced  stay. 
We  think,  therefore,  that  these  fifteen  votes  should  be  deducted  from  the  vote  for  Mr.  Foster. 

The  minority  decline  to  sanction  the  deduction  of  the  poorhouse  vote,  quoting 
the  case  of  Koontz  v.  Coffroth. 

(4)  The  majority  rejected  the  votes  of  certain  lunatics,  saying: 

As  to  lunacy,  it  was  held  by  the  court  in  Thompson  r.  Ewing  (1  Brewster,  Rep.,  104),  that  it 
was  proper  to  show  in  a  contested-election  case  that  a  voter  was  non  compos  mentis,  and  that  without 
a  finding  in  lunacy. 


728  PEECEDENTS    OF    THE    HOUSE    OF    KEPEESENTATmiS.  §   562 

The  minority  say : 

As  to  the  lunacy  vote — four  in  number — we  desire  to  say  that  the  constitutional  requirements 
do  not  set  up  any  prohibition  as  against  simple-minded  men  or  lunatics.  The  extent  of  the  mental 
imbecility  would  seem,  therefore,  to  have  been  left  to  the  officers  of  the  election  to  determine,  and 
upon  such  extent  of  weak  intellect  admit  or  reject  the  vote  when  offered. 

562.   The  case  of  Covode  v.  Foster,  continued. 

The  House  rejected  a  vote  found  by  the  judges  in  an  irregular  place 
and  counted  in  spite  of  the  fact  that  it  caused  an  excess  in  the  poll. 

The  House  may  count  votes  improperly  rejected  by  election  officers. 

The  House  may  count  votes  not  cast  because  of  intimidation  practiced 
in  presence  of  the  election  officers  and  which  it  was  their  duty  to  prevent. 

(5)  Certaia  other  votes  the  majority  reject : 

To  these  should  be  added  1  vote  for  Foster  for  Congress  found  in  the  State  box  in  Sewickly  Town- 
ship and  counted  to  him,  although  thereby  the  number  of  votes  for  Congress  was  made  one  greater 
than  the  number  of  names  on  the  list  (377). 

Also,  1  vote  for  Foster  in  South  Huntingdon  Township,  found  upon  the  floor  at  the  close  of 
the  counting,  a  considerable  crowd  standing  around,  and  counted  to  Foster,  although  thereby  the  num- 
ber of  votes  for  C-ongress  was  made  one  more  than  the  number  of  names  on  the  list  of  voters. 

The  minority  say: 

How  such  conclusion  can  be  reached  passes  our  comprehension.  If  anyone  can  determine  that 
the  vote  in  excess  may  not  have  just  as  likely  been  cast  for  Mr.  Covode  as  for  Mr.  Foster,  he  will  have 
succeeded  better  than  can  be  determined  by  those  who  sign  this  report.  So,  also,  with  regard  to  one 
vote  in  South  Huntingdon  Township,  which  was  found  on  the  floor,  and  counted  for  Mr.  Foster. 

In  the  debate  the  majority  retorted  that  the  votes  foimd  not  in  the  ballot 
box  but  in  an  irregular  place  was  certainly  the  one  to  be  deducted. 

(6)  The  majority  also  counted  certain  votes  not  cast.  There  were  votes 
improperly  rejected,  and  one  vote  prevented  by  threats  of  violence  made  in  the 
presence  of  the  election  officers,  and  against  which  it  was  the  duty  of  the  election 
officers  to  protect  the  voter. 

The  majority  of  the  committee  found  Mr.  Covade  elected  by  402  majority, 
and  reported  the  following  resolutions : 

Resolved,  That  Henry  D.  Foster  is  not  entitled  to  a  seat  in  this  House  as  Representative  from 
the  Twenty-first  Congressional  district  of  Pennsylvania. 

Resolved,  That  John  Covode  was  duly  elected  Representative  in  Congress  from  the  Twenty-first 
Congressional  district  of  Pennsylvania  at  the  election  held  therein  on  the  13th  day  of  October,  1868, 
and  that  he  is  entitled  to  a  seat  in  this  House  as  such  Representative. 

The  report  was  debated  at  length  on  February  8  and  9,'  and  on  the  latter  day 
a  resolution  offered  as  a  substitteu  declaring  Mr.  Foster  entitled  to  the  seat  was 
disagreed  to — yeas  49,  nays  122. 

The  first  resolution  of  the  majority  was  agreed  to  without  division.  The 
second  resolution  was  then  agreed  to — yeas  121,  nays  45. 

Mr.  Covode  was  then  sworn  in. 

■  Globe,  pp.  1114,  1121,  1149,  1154-1160;  Journal,  p.  291. 


§   563  CREDENTIALS   AND    PRIMA    FACIE    TITLE.  729 

563.  The  Senate  election  case  of  Henry  A.  Du  Pont,  of  Delaware,  in 
the  Fifty-fourth  Congress. 

A  claimant  to  a  seat  in  the  Senate,  in  a  case  where  there  was  no  con- 
testant and  no  credentials,  petitioned  for  the  seat,  exhibiting  evidence  in 
support  of  his  claim. 

A  Senate  discussion  as  to  incompatible  oflBces  and  as  to  cases  wherein 
the  acceptance  of  one  creates  a  vacancy  in  another. 

A  Senate  committee  concluded  that  the  Journal  entries  of  a  legisla- 
tive body  were  conclusive  as  to  all  the  proceedings  had  and  might  not  be 
contradicted  by  ex  parte  evidence. 

The  senate  of  a  State  having  failed  to  adjudge  a  participating  Mem- 
ber disqualified,  the  United  States  Senate,  in  a  close  decision,  declined  to 
reject  the  vote  of  the  said  Member  for  Senator. 

On  December  4,  1895,*  in  the  Senate,  Mr.  John  H.  Mitchell,  of  Oregon,  pre- 
sented the  following : 

To  the  Senate  of  the  United  States: 

The  undersigned  hereby  claims  the  right  to  be  admitted  as  a  Senator  from  the  State  of  Delaware 
under  an  election  by  the  legislature  of  said  State  on  the  9th  day  of  May,  A.  D.  1895,  to  fill  the  term  of 
six  years,  commencing  on  the  4th  day  of  March,  A.  D.  1895,  and  herewith  presents  evidence  in  support 
of  his  claim. 

H.  A.  Dv  Pont. 

This  paper,  which  was  treated  and  described  as  a  petition,  was  accompanied 
by  a  certificate  of  the  speaker  of  the  Delaware  house  of  representatives,  attested 
by  the  clerk  of  the  said  house,  setting  forth  the  proceedings  by  which  it  was  claimed 
that  Mr.  Du  Pont  had  been  elected,  and  the  particular  question  wherein  a  doubt 
as  to  his  election  was  involved. 

These  papers,  as  well  as  others  filed  at  a  later  date,  were  referred  to  the  Com- 
mittee on  Privileges  and  Elections. 

No  request  was  made  that  Mr.  Du  Pont  should  be  sworn  in;  but  he  was  accorded 
the  privileges  of  the  floor  of  the  Senate. 

On  February  18,  1896,^  Mr.  Mitchell  presented  the  report  of  the  committee, 
which  was  concurred  in  by  Messrs.  George  F.  Hoar,  of  Massachusetts;  William  E. 
Chandler,  of  New  Hampshire;  Julius  C.  Burrows,  of  Michigan;  and  J.  C.  Pritchard, 
of  North  Carolina.  The  minority  dissented  and  filed  views  which  were  signed  by 
Messrs.  David  Ttirpie,  of  Indiana;  James  L.  Pugh,  of  Alabama;  George  Gray,  of 
Delaware,  and  John  M.  Palmer,  of  Illinois. 

As  to  the  facts,  the  report  saj^s: 

The  legislature  of  the  State  of  Delaware  consists  of  a  senate,  composed  of  9  senators,  3  of  whom  are 
elected  from  each  of  the  three  counties  of  the  State,  and  a  house  of  representatives  of  21  members,  7 
of  whom  are  elected  from  each  of  the  three  counties  of  the  State.  WTien  there  are  no  vacancies  in  the 
membership,  and  all  are  present  in  joint  assembly  of  the  two  houses  for  the  purpose  of  electing  a  United 
States  Senator,  such  joint  assembly  is  composed  of  30  members,  thus  requiring  the  votes  of  16  members 
to  elect. 

'  First  session  Fifty-fourth  Congress,  Record,  pp.  29,  30. 

'Record,  pp.  1827-1861.     The  report,  with  minority  views  and  exhibits,  is  printed  in  full  in  the 
Record. 


730  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §   563 

In  the  event  of  one  vacancy  caused  either  by  death,  resignation,  inability  to  act,  or  for  any  other 
reason,  then  the  joint  assembly,  all  others  being  present,  would  be  composed  of  29  members,  in  which 
event  the  votes  of  15  members  would  be  sufficient  to  elect. 

At  the  meeting  of  the  joint  assembly  of  the  legislature  of  Delaware  on  the  9th  day  of  May,  1895, 
which  assembly,  it  is  conceded,  was  in  all  respects  regularly  called  and  held  in  pursuance  of  law,  the 
final  vote  was  as  follows: 

Joint  meeting  proceeded  to  another  ballot,  which  resulted  as  follows: 

H.  A.  Du  Pont  had 15 

Ed.  Ridgley  had 10 

J.  Edward  Addicks  had 4 

Ebe  W.  Tunnell  had 1 

There  being  present  in  such  joint  assembly,  and  each  casting  a  vote,  30  persons,  each  claiming  to 
be  a  member  of  the  legislature  of  the  State  of  Delaware  and  entitled  to  vote  for  United  States  Senator. 
It  is  conceded  by  Mr.  Du  Pont  and  by  your  committee  that  if  this  contention  is  true — that  is,  if 
each  of  the  30  persons  so  present  in  such  joint  assembly  and  each  of  whom  cast  a  vote  for  Senator  was  a 
duly  qualified  member  of  the  legislature  of  the  State  of  Delaware  and  under  no  disability  as  such  which 
would  deprive  him  of  his  right  to  a  seat  in  such  assembly  and  to  cast  a  vote  for  Senator — then  Mr.  Du 
Pont  was  not  elected  Senator  and  is  not  entitled  to  a  seat  in  the  Senate. 

It  is  admitted  upon  the  part  of  Mr.  Du  Pont,  and  such  is  the  fact,  that  of  the  30  persons  so  present 
and  claiming  a  right  to  vote  as  aforesaid,  29  of  them  were  so  qualified.  It  is  contended,  however,  that 
1  of  the  30,  namely,  William  T.  Watson,  claiming  to  be  a  senator  from  the  county  of  Kent,  and  claiming 
to  be  the  speaker  of  the  senate,  and  claiming  the  right,  as  such  senator,  to  be  present  and  participate 
in  the  proceedings  of  such  joint  assembly,  and  to  cast  his  vote  for  Senator,  was  not  entitled  under  the 
constitution  of  the  State  of  Delaware  and  the  laws  of  the  land,  to  be  present  in  such  joint  assembly,  had 
no  right  to  be  counted  therein  in  making  up  the  number  present,  and  had  no  right  to  cast  his  vote  in 
such  assembly  for  any  person  for  Senator. 

If  this  contention  upon  the  part  of  Mr.  Du  Pont  is  correct,  then  it  is  conceded,  provided  the  right 
to  inquire  into  Watson's  qualifications  to  vote  in  such  assembly  now  exists,  that,  inasmuch  as  in  that 
event  there  were  but  29  members  of  the  legislature  of  the  State  of  Delaware  present  entitled  to  vote, 
and  as  it  is  conceded  Mr.  Du  Pont  received  the  votes  of  15  of  such  membere,  no  one  of  which  was  that 
of  Mr.  Watson,  thus  receiving  a  clear  majority  of  all  the  votes  cast,  entitled  to  be  cast,  he  was  duly 
elected  Senator,  and  is  entitled  to  his  seat. 

The  whole  question  involved,  then,  in  this  case  is  as  to  the  right  of  Watson  to  be  present  in  such 
joint  assembly,  and  to  be  counted  therein  in  making  up  the  number  present,  so  as  to  require  the  votes 
of  16  members  to  make  an  election. 

The  ground  upon  which  it  is  claimed  upon  the  part  of  Mr.  Du  Pont  that  Mr.  Watson  was  ineligible 
to  a  seat  in  such  joint  assembly,  and  should  not  have  been  counted  therein  in  making  up  the  number 
constituting  the  same,  is  based  on  the  fact  that,  although  he  had  been  duly  elected  a  senator  from  the 
county  of  Kent,  and  from  the  commencement  of  the  session  in  January,  1895,  until  April  9  of  that  year, 
had  held  and  occupied  a  seat  in  the  senate  and  had  been  elected  speaker  thereof,  and  served  in  that 
capacity,  he  had,  on  the  9th  day  of  April,  1895,  the  governor  of  the  State  of  Delaware.  Joshua  H.  Marvil, 
having  died  the  day  previous,  succeeded  to  the  governorship  of  the  State  in  virtue  of  a  provision  of  the 
constitution  of  that  State,  and  from  that  date  until  the  9th  day  of  May  following  had  continued  to  exer- 
cise the  functions  and  duties  of  executive  of  the  State,  and  has  ever  since  and  still  continues  to  exercise 
the  office  of  governor  of  said  State,  and  that,  therefore,  on  that  date.  May  9,  1895,  he.  then  holding  the 
office  of  and  being  the  governor  of  the  State  of  Delaware,  was  ineligible  to  a  seat  in  said  joint  assembly, 
and  had  no  right  whatever,  under  the  provisions  of  the  constitution  of  the  State  and  of  the  laws  of  the 
land,  to  be  present,  either  to  participate  by  his  vote  or  otherwise,  or  to  be  counted  therein. 
Your  committee  hold  that  this  contention  on  the  part  of  Mr.  Du  Pont  is  well  founded. 
The  clause  in  the  Delaware  constitution  in  pursuance  of  which  Mr.  Watson,  as  speaker  of  the  senate 
became  governor  on  April  9,  1895,  and  which  wiU  be  commented  on  later  in  this  report,  is  found  in 
section  14  of  Article  III,  and  is  as  follows: 


I 


§   563  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  731 

"Upon  any  vacancy  happening  in  the  office  of  governor  by  his  death,  removal,  resignation,  or 
inability,  the  speaker  of  the  senate  shall  exercise  the  office  until  a  governor  elected  by  the  people  shall 
be  duly  qualified." 

It  is  conceded  a  vacancy  in  the  office  of  governor  occurred  on  April  8,  1895,  by  the  death  of  the 
then  governor  of  the  State,  Joshua  H.  Marvil;  also  that  Senator  Watson  was  then  and  on  April  9,  1895, 
speaker  of  the  senate,  and  that  on  this  latter  date  he  took  the  required  oaths,  was  inaugurated,  and 
entered  upon  the  exercise  of  the  office  of  governor,  and  has  continued  to  hold  and  exercise  such  office 
ever  since. 

PROCEEDINGS    OF  THE    LEGISLATURE. 

The  legislature  of  the  State  of  Delaware  met  in  biennial  session  on  the  first  Tuesday  of  January, 
1895,  and  on  that  day  organized  by  the  election  of  speakers  and  other  officers  for  the  senate  and  house  of 
representatives.  There  were  at  that  time  9  members  of  the  senate  and  21  members  of  the  house  of 
representatives,  3  senators  and  7  representatives  ha\'ing  been  chosen  from  each  of  the  three  counties  in 
the  State.  At  the  organization  of  the  senate  William  T.  Watson  was  duly  elected  speaker  and  continued 
in  the  discharge  of  his  official  duties  as  speaker  of  the  senate,  save  during  occasional  absences,  until  the 
9th  day  of  April,  1895,  the  day  following  that  on  which  Joshua  H.  Marvil,  governor  of  the  State  of  Dela- 
ware, died. 

This  legislature  being  charged  with  the  duty  of  electing  a  Senator  of  the  United  States  for  the 
constitutional  term  of  six  years  commencing  on  the  4th  day  of  March,  1895,  and  having  failed  to  elect 
such  Senator  on  the  second  Tuesday  after  the  meeting  and  organization  of  such  legislature,  convened  in 
joint  assembly  on  the  next  day,  being  the  16th  day  of  January,  pursuant  to  the  provisions  of  the  act  of 
Congress  entitled  "An  act  to  regulate  the  times  and  manner  of  holding  elections  for  Senators  in  Congress," 
approved  July  25,  1866,  and  proceeded  to  vote  for  a  United  States  Senator. 

Iso  one  haN-ing  been  elected  to  that  office  on  that  day,  the  legislature,  pursuant  to  the  provisions 
of  said  act,  convened  in  joint  assembly  on  the  following  and  succeeding  days,  Sundays  excepted,  untQ 
and  including  Thursday,  the  9th  day  of  May,  1895.  No  one  was  elected  United  States  Senator  prior  to 
the  day  last  named.  On  the  9th  day  of  April  aforesaid,  immediately  after  the  joint  assembly  of  the  two 
houses  had  separated,  Senator  William  T.  Watson,  who  at  the  time  of  the  death  of  Governor  Marvil, 
which  occvured  on  the  preceding  day,  had  been  speaker  of  the  senate,  took  the  official  oaths  prescribed 
for  the  governor  of  the  State  of  Delaware,  and  forthwith  entered  upon  the  exercise  of  that  office. 

It  is  conceded  that  from  the  commencement  of  the  voting  for  a  United  States  Senator  until  and 
including  the  9th  day  of  April,  Senator  William  T.  Watson  took  part  in  such  voting  except  during 
occasional  absences. 

Furthermore,  it  is  a  conceded  fact,  and  if  not  conceded,  fuUy  borne  out  by  the  journal  entries  and 
other  testimony,  that  from  the  time  he  took  the  oaths  of  office  and  assumed  the  functions  of  governor 
in  the  exercise  of  such  office  until  the  final  joint  assembly  of  the  two  houses  on  the  9th  day  of  May, 
Governor  Watson  did  not  upon  any  occasion  take  any  part  either  in  the  proceedings  of  the  senate  or  of 
the  joint  assembly. 

And,  further,  it  is  clear  to  your  committee  from  the  record  and  other  evidence  submitted  that  from 
the  hour  of  his  inauguration  as  governor,  by  taking  the  constitutional  oaths  required  of  a  governor,  his 
name  was  dropped  from  the  roll  call  of  the  senate  and  was  never  once  called,  either  as  of  speaker  or  as 
of  a  senator,  on  any  roll  call  had  on  any  bill,  resolution,  or  motion  until  the  final  adjournment  of  the 
senate.  Senator  Alrichs,  in  his  affidavit  of  date  January  28,  1986  (Doc.  9,  part  6,  p.  1),  shows  this  con- 
clusively, and  it  is  not  contradicted  by  any  affidavit  filed  in  the  case. 

It  is  conceded,  however,  that  Governor  Watson  did,  on  the  9th  day  of  May  aforesaid,  enter  the  final 
joint  assembly  and  assume  the  right  to  be  counted  as  a  member  of  such  assembly,  and  the  right  to  vote 
therein  for  a  United  States  Senator.  During  this  final  assembly  28  ballots  were  had  for  United  States 
Senator.     The  vote  upon  each  ballot  as  shown  by  the  record  of  such  assembly  was  as  follows: 

Votes. 

Henr>-  A.  Du  Pont l.j 

Ed.  Ridgely 10 

J.  E.  Addicks 4 

E.  W.  Tunnell 1 


732  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    563 

William  T.  Watson,  then  governor  of  the  State  of  Delaware,  as  aforesaid,  cast  his  vote  each  time  fnr 
Ed.  Ridgely. 

It  will  be  seen,  therefore,  the  whole  question  of  tlie  right  of  Mr.  Du  Pont  to  a  seat  in  the  Senate,  as 
claimed,  turns  upon  the  single  question:  Had  William  T.  Watson,  then  holding  and  exercising  the  office 
of  governor  of  the  State  of  Delaware,  a  right  under  the  constitution  of  that  State  and  the  laws  of  the  land, 
to  exercise  the  office  of  State  senator,  and  as  such  to  sit  in  the  joint  assembly  on  May  9,  1895,  to  be 
counted  therein  in  making  up  the  number  constituting  such  joint  a.ssembly,  and  to  vote  therein  for  a 
United  States  Senator?    Your  committee  are  clearly  of  the  opinion  he  had  not. 

PROPOSITIONS    INVOLVED. 

In  determining  this  question  three  different  propositions  are  presented  for  our  consideration: 

First.  Did  the  offices  of  senator  and  speaker  of  the  senate,  held  by  William  T.  Watson  from  the  com- 
mencement of  the  session  of  the  Delaware  legislature  in  January,  1895,  until  April  9,  1895,  become  abso. 
lutely  vacant  on  the  inauguration  of  said  William  T.  Watson  as  governor  of  the  State  by  taking  the  oaths 
of  office  required  of  a  person  entering  upon  the  exercise  of  that  office?     Or, 

Second.  If  such  offices  of  senator  and  speaker  of  the  senate  did  not  become  absolutely  vacant  upon 
such  inauguration  as  governor,  was  the  right  of  Watson  to  exercise  the  functions  of  both  speaker  of  the 
senate  and  senator  held  in  abeyance  and  suspended  for  and  during  the  time  he  should  continue  to  hold 
and  exercise  the  office  of  governor?     Or, 

Third.  While  holding  and  exercising  the  office  of  governor  did  said  William  T.  Watson  not  only 
continue  to  hold  the  offices  of  senator  and  speaker  of  the  senate,  but  did  his  right  to  exercise  all  the  func- 
tions of  such  senator  and  speaker  of  the  senate  while  holding  and  exercising  the  office  of  governor  continue 
to  exist? 

The  answer  to  either  or  both  of  the  first  two  propositions  in  the  affirmative  settles  the  question  in 
favor  of  the  right  of  Mr.  Du  Pont  to  a  seat,  while  an  affirmative  answer  to  the  third  proposition,  which  of 
course  negatives  the  other  two,  would  be  a  denial  of  his  right  to  a  seat. 

The  report  discusses  at  great  length  the  various  questions  involved  in  the  case, 
and  arrives  at  the  following  conclusions  of  law  and  fact: 

(1)  It  is  a  well-settled  rule  of  the  common  law  that  the  same  person  shall  not  exercise  simultane- 
ously two  incompatible  offices;  and  further,  the  acceptance  of  one  is  ipso  facto  a  resignation  of  the  other. 

(2)  Under  the  American  system  executive  and  legislative  offices  are  incompatible,  and  the  same 
person  can  not  exercise  both  simultaneously  in  the  absence  of  either  express  or  clearly  implied  statutorj' 
or  constitutional  authority;  and  the  acceptance  of  the  second  is  ipso  facto  a  resignation  of  the  first. 

(3)  There  is  no  express  or  implied  authority  in  the  constitution  of  the  State  of  Delaware  for  the 
simultaneous  exercise  by  the  same  person  of  the  offices  of  governor  and  senator;  on  the  contraiy,  such 
constitution  expressly  interdicts  such  exercise  of  those  two  offices. 

(4)  Whether  or  not  the  offices  of  State  senator  and  speaker  of  the  senate  became  absolutely  vacant 
when  Speaker  Watson  took  the  oath  of  office,  was  inaugurated  governor  of  the  State,  and  entered  upon 
the  exercise  of  that  office,  there  can  be  no  doubt,  on  a  fair  construction  of  the  several  constitutional  pro- 
visions of  the  State  of  Delaware,  that  his  right  to  exercise  the  office  of  senator  or  speaker  of  the  senate,  or 
any  of  the  functions  connected  therewith  while  he  continued  to  hold  and  exercise  the  office  of  governor, 
was  held  in  abeyance  and  absolutely  suspended. 

(5)  The  theory  that  Mr.  Watson  can  exercise  the  office  of  governor  of  the  State  and  State  senator 
simultaneously,  involves  innumerable  constitutional  repugnancies,  perplexing  difficulties,  and  endless 
absurdities;  while  the  opposite  theory  reconciles  and  harmonizes  all  the  provisions  of  the  Delaware  con- 
stitution relating  to  the  subject  under  consideration. 

(6)  That  Governor  Watson's  exercise  of  the  office  of  senator  in  the  joint  assembly  on  the  9th  day  of 
May,  1895,  and  of  the  office  of  president  of  such  joint  assembly  was  illegal,  and  his  vote  therein  for  United 
States  Senator  a  nullity. 

In  determining  the  above  propositions  your  committee  reach  the  further  following  conclusions: 

(7)  In  determining  the  question  as  to  whether  the  Delaware  senate  on  May  9,  1895,  acted  upon  or 
judged,  either  actually  or  constructively,  the  qualifications  of  Governor  Watson  to  a  seat  in  the  senate, 
the  journal  entries  of  the  proceedings  of  the  Delaware  senate  of  that  date  are  conclusive  as  to  the  number 


§    563  CREDENTIALS    AXD    PRIMA    FACIE    TITLE.  733 

and  names  c£  senators  present,  the  motions  submitted,  the  votes  cast,  and  of  all  the  proceedings  had,  and 
can  not  be  contradicted  by  ex  parte  affidavits. 

(8)  The  right  which  undoubtedly  belongs  exclusively  to  the  Delaware  senate  to  judge  of  the  elec- 
tions, returns,  and  qualifications  of  members,  does  not  vest  in  such  senate  any  exclusive  right  as  would 
conclude  the  Senate  of  the  United  States  to  determine  by  construction  whether  the  constitution  of  the 
State  of  Delaware  does  or  does  not  recognize  a  certain  seat  in  the  senate  as  subject  to  occupation;  nor 
does  it  include  the  power  to  admit  members  to  seats  not  recognized  by  the  constitution  of  the  State  as 
subject  to  occupation,  or,  if  subject  to  occupation,  to  fill  them  in  a  manner  or  by  a  person  which  the 
State  constitution  forbids. 

(9)  Your  committee,  applying  these  rules,  find  as  a  matter  of  fact  the  Delaware  senate  never 
judged  of  the  qualifications  of  Governor  Watson  to  a  seat  in  the  senate,  either  on  the  9th  day  of  May, 
1895,  or  at  any  other  time  subsequent  to  the  date  of  his  inauguration  as  governor. 

(10)  That  on  May  9,  1895,  the  date  on  which  Mr.  Du  Pont  claims  to  have  been  elected,  the  legis- 
lature of  the  State  of  Delaware  consisted  of  but  29  members;  there  were  in  the  joint  assembly  on  that 
date  but  29  members  of  such  legislature  entitled  to  seats  in  such  joint  assembly  and  entitled  to  be 
counted  and  vote  therein.  As  Mr.  Du  Pont  received  15  votes,  being  a  majority  of  the  whole  number 
entitled  to  be  cast  in  such  joint  assembly,  and  a  majority  of  all  the  legal  votes  cast  therein,  he  was 
legally  elected  Senator  from  the  State  of  Delaware  for  the  full  term  commencing  March  4, 1895,  and  is 
entitled  to  be  seated. 

(11)  The  fact  that  such  election  is  not  certified  by  the  governor  of  the  State  in  pursuance  of  the 
statute  on  that  subject  does  not  invalidate  such  election  in  any  respect. 

Your  committee,  therefore,  report  to  the  Senate  the  following  resolution  and  recommend  its 
adoption: 

Resolved,  That  Henry  A.  Du  Pont  is  entitled  to  a  seat  in  the  Senate  from  the  State  of  Delaware 
for  the  full  term  commencing  ilarch  4,  1895. 

The  minority  held  that  because  of  the  pecuUar  provisions  of  the  constitution 
of  Delaware  the  common  law  as  to  incompatibility  would  not  apply. 

The  constitution  of  Delaware  does  not  provide  that  the  speaker  of  the  senate,  on  the  death  of  the 
governor,  shall  either  be  or  become  governor,  but  only  that  such  speaker  "shall  exercise  the  office  of 
governor."  It  does  not  provide  that  he  shall,  in  such  an  event,  cease  to  be  speaker,  or  cease  to  be 
senator,  or  that  a  vacancy  exists  in  either  position;  and  we  do  not  think  that  we  can  amend  the  con- 
stitution of  a  State  by  the  process  of  an  argument  in  a  contested  seat  here. 

Not  only  is  no  vacancy  created  in  such  instance  by  the  devolution  of  "the  exercise  of  the  office  of 
governor"  upon  the  speaker  of  the  senate,  but  the  constitution  of  the  State  expressly  provides  that 
"each  house,  whose  speaker  shall  exercise  the  office  of  governor,  may  choose  a  speaker  pro  tempore" — 
that  is,  a  temporary  speaker  to  preside  in  the  room  of  the  permanent  speaker  when  he  may  be  absent, 
thus  plainly  implying  that  there  is  no  vacancy  in  the  office  of  speaker,  and  that  there  is  no  vacancy 
in  the  office  of  senator  or  representative  (as  no  one  could  be  speaker  except  a  member  of  one  of  the 
houses)  by  this  devolution  of  the  exercise  of  the  office  of  governor. 

In  section  14  of  the  constitution,  where  it  is  provided  that  the  speaker  of  the  house  "shall  exercise 
the  office  of  governor"  if  there  be  no  speaker  of  the  senate,  the  distinction  between  the  speaker  of  either 
house  exercising  the  office  of  governor,  and  the  governor  as  such,  is  ven,-  clearly  implied  in  the  phrase, 
"until  a  governor  elected  by  the  people  shall  be  duly  qualified."  And  in  the  same  section,  afterwards, 
the  person  elected  governor  is  distinguished  from  the  temporary  occupant  exercising  the  office  of  gov- 
ernor by  the  recurrence  three  times  of  the  phrase,  "the  person  who  exercises  the  office  of  governor." 
And  when  the  contingency  arises  of  a  vacancy  in  the  office  of  governor,  and  there  be  no  other  person 
who  can  exercise  the  office  of  governor  within  the  provisions  of  the  constitution,  the  general  assembly 
shall  proceed  to  elect  "a  person  to  exercise  the  office  of  governor  until  a  governor  elected  by  the  people 
shall  be  qualified." 

This  person  so  chosen  is  not  called  governor,  but  a  "person  to  exercise  the  office  of  governor." 

And  when,  in  the  case  of  a  contested  election,  someone  is  to  be  designated  to  perform  guberna- 
torial duties,  it  is  provided  "that  the  speaker  of  the  senate  or  the  speaker  of  the  house  who  may  then  be 
in  the  exercise  of  executive  authority"  shall  continue  therein  until  a  determination  of  the  contest. 
It  is  manifestly  expressed  that  the  person  exercising  the  executive  authority  is  not  the  governor,  but 


734  PRECEDENTS   OF   THE   HOUSE   OF   REPBESENTATIVES.  §   563 

that  he  is,  and  remains,  and  must  continue  to  be  speaker  of  the  senate,  or  speaker  of  the  house,  not- 
withstanding the  fact  that  the  "exercise  of  the  ofiice  of  governor"  may  for  the  time  being  devolve 
upon  him. 

If  this  interpretation  of  the  constitution  of  the  State  were  at  all  doubtful,  it  is  abundantly  sus- 
tained by  practical,  contemporaneous,  and  continuous  construction  in  the  actual  administration  of  the 
government  of  Delaware.  Three  persons,  upon  each  of  whom  at  different  times  devolved,  under  this 
clause,  the  exercise  of  the  office  of  governor  (John  Sykes,  Jacob  Stout,  and  Caleb  Rodney),  speakers  of 
the  senate,  who  temporarily  exercised  the  executive  authority  as  such  speakers,  after  they  had  exer- 
cised the  office  of  governor  ad  interim,  returned  to  the  senate  and  served  out  the  terms  for  which  they 
had  been  elected  as  senators  in  the  senate.  No  suggestion  was  made  that  they  had  vacated  their  office 
as  senators  or  had  become  governors  of  the  State  of  Delaware  by  reason  of  the  temporary  exercise  of 
executive  duties  imposed  upon  them  by  section  14,  article  3,  of  the  constitution. 

Furthermore,  the  minority  contended : 

The  senate  of  the  State  of  Delaware  is  made  by  law  the  judge  of  the  elections,  returns,  and  quali- 
fications of  its  own  members.  In  the  case  presented  by  Mr.  Du  Pont  against  the  legality  of  the  vote  of 
Mr.  Speaker  Watson  as  a  member  of  the  joint  convention,  no  question  is  made  as  to  the  election  and 
return  of  Mr.  Watson  as  a  senator.  The  whole  case  rests  upon  the  question  of  his  qualifications.  And 
even  upon  the  subject  of  qualification,  it  is  not  denied  that  at  the  time  he  took  his  seat  in  the  senate, 
he  was  fully  and  legally  qualified  to  act  and  vote  therein;  but  it  is  earnestly  insisted  that  after  he  had 
taken  his  seat  he  did  and  performed  certain  acts  and  duties  which  deprived  him  of  his  legal  quali- 
fications, and  had  rendered  him  unqualified,  disqualified,  and  incompetent  to  vote  or  act  as  a 
member  of  the  senate  or  of  the  joint  convention. 

This  position  of  the  claimant,  Mr.  Du  Pont,  raises  the  most  serious  question  in  this  case,  which  is, 
as  to  who  can  lawfully  decide  and  determine  as  to  whether  or  not  the  acts  of  Mr.  Speaker  Watson  referred 
to  destroyed  or  suspended  his  qualifications  as  a  senator,  and  by  consequence  as  a  member  of  the  joint 
convention. 

We  think  that  the  senate  of  the  State  of  Delaware,  whereof  he  was  a  member,  is  the  sole  tribunal 
which  could  either  hear  or  determine  lawfully  these  objections  to  the  qualifications  of  Senator  Watson. 

It  is  charged  that  be  was  absent  from  the  senate  from  the  9th  day  of  AprU,  1895,  until  the  day  of 
the  joint  convention.  If  he  were  absent  in  discharge  of  any  duties,  executive  or  official  by  the  law  of 
Delaware,  incompatible  with  the  office  of  senator,  or  if  his  absence  was  contumacious  and  perverse,  this 
might  have  constituted  a  cause  for  the  judgment  of  the  State  senate  for  his  ouster  from  the  senate,  his 
suspension  as  a  senator,  or  the  vacation  of  his  seat.  If,  whether  present  or  absent,  during  his  term,  he 
had  committed  any  act  in  violation  of  the  laws  and  constitution  of  his  State,  or  of  the  United  States, 
this  might  have  constituted  a  cause  for  the  judgment  of  the  State  senate  against  him  for  his  suspension 
or  for  his  expulsion;  the  vacation  of  his  seat  and  office,  and  for  the  issuing  of  a  writ  of  election  for  the 
choice  of  his  successor  as  senator  from  the  county  of  Kent. 

Causes  for  judgment  of  suspension,  ouster,  vacation,  or  expulsion  against  a  sitting  member  or 
senator  are  not,  however  well  founded,  judgments.  They  have  legally  none  of  the  force  or  effect  of 
judgments  or  adjudications.  There  is  no  judgment  or  adjudication  shown  in  the  record  or  joiunal  of 
the  senate  of  Delaware  on  any  of  these  objections  to  the  qualifications  of  Mr.  Watson  as  a  member  of 
that  body. 

If  these  charges  or  objections  to  his  qualifications  had  been  presented  and  heard  in  the  State  senate, 
and  judgment  of  suspension,  ouster,  and  vacation  had  been  rendered  against  him,  the  case  of  Mr.  Du  Pont 
might  have  been  fully  made  out.  This  Senate  and  court  of  the  United  States  would  have  been  bound 
thereby.  If  such  a  hearing  had  terminated  in  his  favor,  the  same  result  would  have  followed.  The 
judgment  of  the  State  senate  is  a  finality. 

As  there  was  no  hearing  or  judgment  in  respect  to  such  charges  in  the  State  senate,  the  seat  and 
office  of  Senator  Watson  remains  undisturbed  and  unaffected  thereby. 

Because  the  State  senate  did  not  pass  upon  these  charges  or  objections  to  the  qualifications  of  their 
fellow-member,  we  in  this  body  are  not  by  law  in  any  way  authorized  to  take  jurisdiction.  We  have  no 
authority  to  originate,  hear,  or  determine  any  objections  to  the  qualifications  of  those  who  acted  and 
voted  as  members  of  the  senate  of  the  State,  or  to  revise  or  review  their  action  or  nonaction  in  the  premises 

These  considerations  rest  upon  the  great  doctrine  of  the  due  distribution  of  powers,  and  of 


§  564  CREDENTIALS   AND   PEIMA   FACIE   TITLE.  735 

the  distinctive  provinces  of  independent  powers,  to  which  the  claimant  in  this  case  has  so  strongly 
appealed,  and  which  we  now  justly  invoke  as  showing  the  error  of  hie  position. 

The  constitution  of  Delaware,  like  that  of  the  other  States,  and  of  the  United  States,  declares  that 
"each  house  shall  judge  of  the  elections,  returns,  and  qualifications  of  its  own  members." 

Each  House  of  Congress  is  a  court  in  such  cases  for  the  judgment  of  its  own  members,  but  neither 
is  a  court  or  can  be  in  any  form  a  tribunal  to  judge  of  the  qualifications  of  any  member  of  the  State 
legislature. 

The  minority  discuss  in  this  connection  the  cases  of  Sykes  v.  Spencer,  Turpie 
and  Clark  and  Magirmis  v.  Sanders  and  Power.     Therefore  the  minority  concluded : 

First.  That  if  there  be  any  questions  as  to  the  lawful  qualifications  of  William  T.  Watson  to  act 
and  vote  as  a  senator,  and,  by  consequence,  as  a  member  of  the  joint  convention,  this  is  not  the  place, 
the  time,  or  the  tribunal  to  either  hear  or  determine  such  questions. 

Second.  The  senate  of  the  State  of  Delaware  had  paramount  and  exclusive  jurisdiction  to  adjudge 
such  questions,  and,  whether  they  exercised  such  jurisdiction  or  not,  the  Senate  of  the  United  States 
has  no  jurisdiction  in  the  premises. 

Third.  That  Mr.  Watson  having  acted  and  voted  as  a  senator  and  as  a  member  of  the  joint  conven- 
tion at  the  time  when  the  vote  was  taken  under  which  Mr.  Du  Pont  claims  his  election  to  a  seat 
in  this  body,  he  is  to  be  counted  as  a  member  of  the  legislature  of  Delaware  in  joint  convention  assembled ; 
that  the  whole  number  of  members  voting,  being  the  whole  number  of  members  of  both  houses,  was  30; 
that  Mr.  Du  Pont  did  not  receive  a  majority  of  this  whole  number;  that  we  can  not  make  his  vote  of 
15  a  majority  of  such  whole  number  by  subtracting  therefrom  the  vote  of  one  whose  right  and  title  to 
vote  is  not  shown  by  the  record  to  have  been  adjudged  against  by  the  body  of  which  he  acted  as  a 
member. 

The  report  was  debated  at  length  in  the  Senate  on  March  5,  9-12,  18,  20,  31, 
April  1,  2,  13-16,  May  4,  14,  15.' 

On  May  15*  the  question  was  taken  on  the  motion  of  Mr.  Turpie  to  insert  the 
word  "  not "  before  the  word  "  entitled  "  in  the  resolution  proposed  by  the  majority. 
This  amendment  was  agreed  to — yeas  31,  nays  30.     So  it  was — 

Resolved,  That  Henry  A.  Du  Pont  is  not  entitled  to  a  seat  in  the  Senate  from  the  State  of  Delaware. 

564.   The  case  of  Henry  A.  Du  Pont,  continued. 

The  Senate  has  decided  that,  while  discovery  of  new  evidence  might 
cause  review  of  a  decision  in  an  election  case,  it  should  not  for  other  rea- 
sons change  a  judgment  once  made. 

On  January  12, 1897,'  at  the  next  session  of  the  Congress,  Mr.  Chandler  presented 
a  memorial  from  Henry  A.  Du  Pont  alleging  that  he  is  justly  entitled  to  a  seat  in 
the  Senate  from  the  State  of  Delaware,  and  that  under  the  circumstances  the  ques- 
tion of  the  validity  of  liis  election  should  again  be  investigated  and  acted  upon,  and 
that  he  hopes  and  expects  to  show  on  another  consideration  of  the  subject  that  he 
is  entitled  to  such  seat,  and  praying  the  Senate  to  reconsider  the  case  and  seat  the 
petitioner. 

The  memorial  was  received  and  referred  to  the  Committee  on  Privileges  and 
Elections. 

At  later  dates  various  petitions  and  memorials  on  the  same  subject  were  pre- 
sented and  referred. 

■  Record,  pp.  2419,  2477,  259.5,  2639,  2684,  2728,  2921,  3004,  3378,  3423,  3469,  3898,  3943,  3981,  4031, 
4768,  5226,  5286. 

^Second  session  Fifty-fourth  Congress,  Record,  p.  706. 


736  PRECEDENTS  OF  THE  HOUSE  OF  EEPEESENTATIVES.         §  564 

On  March  1 '  Mr.  George  F.  Hoar,  of  Massachusetts,  presented  the  unanimoua 

report  of  the  Committee,  as  follows: 

Mr.  Du  Pont  presented  to  the  Senate,  Decenaber  4,  1895,  a  petition  for  admission  aa  Senator  from 
the  State  of  Delaware  for  what  then  remained  unexpired  of  the  term  beginning  March  4,  1895. 

It  appeared  that  at  a  joint  convention  of  the  two  houses  of  the  legislature  of  the  State  of  Delaware, 
duly  held  on  the  9th  day  of  May,  1895,  15  votes  were  cast  for  Mr.  Du  Pont  and  15  votes  for  other  candi- 
dates. One  of  the  votes  cast  for  other  candidates  was  the  vote  of  the  acting  governor  of  the  State  of 
Delaware,  who  had  succeeded  to  the  executive  chair  on  the  death  of  the  governor.  He  was  a  senator 
and  the  speaker  of  the  Delaware  senate  at  the  time  of  the  alleged  election,  the  term  of  office  for  which 
he  had  been  elected  for  senator  and  speaker  having  not  expired.  If  he  were  entitled  to  vote,  Mr.  Du 
Pont  was  not  lawfully  elected.  If  he  were  not  so  entitled,  Mr.  Du  Pont  had  a  majority  of  1  vote.  The 
question  ot  his  right  to  vote  depended  upon  the  question  whether  his  accession  to  the  executive  chair 
by  virtue  of  the  constitution  of  the  State  shoxild  deprive  him  of  his  title  to  vote  as  a  senator. 

That  question  was  the  only  one  raised  in  the  discussion  of  Mr.  Du  Pont's  title  to  a  seat  in  the  Senate. 
The  Committee  on  Privileges  and  Elections  reported  in  his  favor  and  there  was  a  full  discussion  of  the 
question. 

On  the  15th  day  of  May,  1896,  the  Senate  passed  the  following  resolution  by  a  majority  of  1  vote: 

"Resolved,  That  Henry  A.  Du  Pont  is  not  entitled  to  a  seat  in  the  Senate  from  the  State  of  Delaware 
for  the  full  term  commencing  March  4,  1895." 

Mr.  Du  Pont  now  prays  to  have  this  question  reopened.  The  grounds  of  his  application,  as  stated 
in  his  petition  and  by  his  eminent  counsel  in  an  argument  addressed  to  the  committee,  are: 

First.  That  there  was  a  mistake  in  the  pairs  a.s  announced  when  the  vote  on  this  resolution  waa 
taken,  so  that  a  senator  who  was  in  favor  of  Mr.  Du  Pont  was  paired  against  him.  On  investigation  we 
find  that  no  such  mistake  occurred,  and  that  every  Senator  who  desired  to  vote  who  was  in  favor  of 
Mr.  Du  Pont  either  voted  for  him  or  was  paired  in  his  favor. 

Second.  That  the  petitioner  expects  to  satisfy  the  Senate  that  it  was  wrong  in  its  construction  of 
the  constitution  of  Delaware  when  it  held  that  the  vote  of  the  acting  governor  for  another  candidate 
than  Mr.  Du  Pont  was  lawful. 

New  Senators  have  entered  the  Chamber  since  the  resolution  just  cited  was  adopted.  Nothing 
else  has  changed.  The  case  then  stated  and  acted  upon  is  the  case  now  stated.  The  simple  question 
is:  Whether  the  Senate,  notwithstanding  its  decision  of  May  15,  189G,  will  now  admit  Mr.  Du  Pont  to  a 
seat? 

The  majority  of  your  committee  now,  as  then,  are  of  the  opinion  that  this  decision  of  the  Senate 
was  wrong;  but  the  Senate  is  made  by  the  Constitution,  the  judge  of  the  elections,  qualifications,  and 
returns  of  its  Members,  and  its  judgment  is  just  as  binding  in  law,  in  all  constitutional  vigor  and  potency 
when  it  is  rendered  by  one  majority  as  when  it  is  unajiimous. 

It  is  clear  that  the  word  "judge"  in  the  Constitution  was  used  advisedly.  The  Senate  in  the  case 
provided  for  is  to  declare  a  result  depending  upon  the  application  of  law  to  existing  facts,  and  is  not  to 
be  affected  in  its  action  by  the  desire  of  its  members  or  by  their  opinions  as  to  public  policies  or  public 
interest.  Its  action  determines  great  constitutional  rights — the  title  of  an  individual  citizen  to  a  high 
office  and  the  title  of  a  sovereign  State  to  be  represented  in  the  Senate  by  the  person  of  its  choice.  We 
can  not  doubt  that  this  declaration  of  the  Senate  is  a  judgment  in  the  sense  in  which  that  word  is  used 
by  judicial  tribunals.  We  can  conceive  of  no  case  which  can  arise  in  human  affairs  where  it  is  more 
important  that  a  judgment  of  any  court  should  be  respected  and  should  stand  unaffected  by  caprice  or 
anything  likely  to  excite  passion  or  to  tempt  virtue.  When  the  Senate  decided  the  question  it  was 
sitting  as  a  high  constitutional  court.  In  its  action  we  think  it  ought  to  respect  the  principles,  in  giving 
effect  to  its  own  decision,  which  have  been  established  in  other  judicial  tribunals  in  like  cases  and 
which  the  experience  of  mankind  has  found  safe  and  salutary. 

We  do  not  doubt  that  the  Senate,  like  other  courts,  may  review  its  own  judgments  where  new 
evidence  has  been  discovered,  or  where  by  reason  of  fraud  or  accident  it  appears  that  the  judgment 
ought  to  be  reviewed.  The  remedy  which  in  other  courts  may  be  given  by  writs  of  review  or  error  or 
bills  of  review  may  doubtless  be  given  here  by  a  simple  vote  reversing  the  first  adjudication.     We  have 

1  Record,  pp.  2524,  2525. 


§   565  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  737 

no  doubt  that  a  legal  doctrine  involved  in  a  former  judgment  of  the  Senate  may  be  overruled  in  later 
cases.  But  there  is  no  case  known  in  other  judicial  tribunals  in  which  a  final  judgment  in  the  same 
case  can  be  rescinded  or  reversed  merely  because  the  composition  of  the  court  has  changed  or  because 
the  members  of  the  court  who  originally  decided  it  have  changed  their  mind  as  to  the  law  or  fact  which 
is  involved. 

It  seems  to  us  very  important  to  the  preservation  of  constitutional  government,  very  important 
to  the  dignity  and  authority  of  the  Senate,  very  important  to  the  peace  of  the  country,  that  we  should 
abide  by  this  principle.  There  are  few  greater  temptations  which  affect  the  conduct  of  men  than  the 
temptation  to  seize  upon  political  power  without  regard  to  the  obligation  of  law.  To  act  upon  the 
doctrine  upon  which  this  petition  rests  would  expose  the  Senate  to  the  temptation  to  reverse  its  own 
judgments  and  to  vacate  or  to  award  seats  in  this  Chamber  according  as  the  changing  majorities  should 
make  possible.  If  such  practice  should  be  admitted  it  would,  in  our  opinion,  go  far  to  weaken  the 
respect  due  to  this  body  and  the  respect  due  to  constitutional  authority. 

No  further  action  was  taken  on  this  report,  but  at  once  the  Senate  acted  on  the 
conclusions  by  admitting  Mr.  Richard  W.  Kenney  to  fill  the  seat  in  question. 

565.  The  Maryland  election  case  of  Gabriel  Duvall  in  the  Third 
Congress. 

The  House  declined  to  seat  a  person  bearing  credentials  regular  in 
form  until  it  had  ascertained  whether  or  not  the  seat  was  vacant. 

The  resignation  of  a  Member  appears  satisfactorily  from  his  letter 
directed  to  the  governor  of  his  State. 

In  its  early  years  the  House  referred  credentials  for  examination  of 
prima  facie  right  after  the  bearer  had  been  seated. 

On  March  24,  1794,'  Mr.  John  Francis  Mercer,  of  Maryland,  appeared,  produced 
his  credentials,  and  took  his  seat,  the  oath  being  administered  by  the  Speaker. 

As  subsequently  appears,  Mr.  Mercer,  on  April  13,  1794,  by  letter  transmitted 
to  the  governor  of  Maryland  his  resignation.  He  did  not  at  that  time,  and  appar- 
ently did  not  at  any  other  time,  inform  the  House  of  his  resignation. 

On  May  31,  1794,'  the  Speaker  laid  before  the  House  a  letter  from  the  governor 
of  Maryland,  inclosing  a  return  of  the  election  of  Gabriel  Duvall,  in  place  of  Mr. 
Mercer. 

At  the  beginning  of  the  next  session,  on  November  7,  1794,'  these  papers  were 
referred  to  the  Committee  on  Elections,  who  reported  on  November  11,^  as  follows: 

That  it  appears  from  a  certificate  signed  by  the  governor  of  the  State  of  Maryland,  in  council,  and 
under  the  seal  of  the  said  State,  that  Gabriel  Duvall  was  duly  elected  to  serve  in  the  House  of  Repre- 
sentatives of  the  United  States,  in  the  place  of  John  Francis  Mercer,  who  resigned  his  seat. 

That  the  resignation  of  the  said  John  Francis  Mercer  appears  from  his  letter,  dated  the  13th  of 
April,  1794,  directed  to  the  governor  of  Maryland. 

Resolved,  That,  in  the  opinion  of  the  committee,  (labriel  Duvall  is  entitled  to  take  a  seat  in  the 
House,  as  one  of  the  Representatives  for  the  State  of  Maryland,  in  the  stead  of  John  Francis  Mercer. 

The  resolution  was  agreed  to,  and  Mr.  Duvall  took  the  oath. 

566.  On  December  4,  1798,^  on  the  second  day  of  the  third  session  of  the 
Congress,  a  new  Member,  Robert  Brown,  returned  to  serve  in  the  House  as  a  Mem- 

'  First  session  Third  Congress,  Journal  p.  100  (Gales  and  Seaton,  ed.). 
^Journal,  p.  192;  Annals,  p.  742. 

'  Journal,  p.  225,  Annals,  p.  871,  second  session.  Third  Congress. 
*  Journal,  p.  225;  Annals,  pp.  873,  874. 
^  Third  session  Fifth  Congress,  Journal,  p.  400. 
5994— VOL  1—07— — 47 


738 


PRECEDENTS    OF   THE   HOUSE    OF   EEPRESENTATIVES. 


§567 


ber  from  Pennsylvania,  in  the  room  of  Samuel  Sitgreaves,  appointed  a  commissioner 
of  the  United  States  under  the  treaty  with  Great  Britain,  appeared  and  took  his 
seat  in  the  House. 

Although  the  Journal  does  not  so  state  specifically,  it  is  evident  that  he  must 
have  taken  the  oath,  since  on  December  14 '  he  appears  as  voting. 

On  January  13,  1799,^  Mr.  Joseph  B.  Varnum,  of  Massachusetts,  from  the  Com- 
mittee on  Elections,  "to  whom  was  referred  the  certificates  and  other  credentials 
of  the  Members  returned  to  serve  in  this  House,"  made  a  further  report,  as  follows: 

That  it  appears  from  a  letter  of  the  governor  of  Pennsylvania  to  the  Speaker  of  the  House  of  Repre- 
sentatives, bearing  date  the  29th  day  of  December,  1798,  and  a  return  of  the  judge  of  election  *  *  * 
that  Robert  Brown  has  been  duly  elected  as  a  Member  of  this  House  for  the  said  district,  in  the  place 
of  Samuel  Sitgreaves,  who  has  resigned  his  seat. 

That  the  resignation  of  the  said  Samuel  Sitgreaves  satisfactorily  appears  from  his  letter  to  the 
governor  of  Pennsylvania,  bearing  date  the  29th  day  of  August,  1798  (in  the  recess  of  Congress). 

Your  committee  are  therefore  of  opinion  that  Robert  Brown  is  entitled  to  a  seat  in  this  House  as 
one  of  the  Representatives  for  Pennsylvania,  in  the  room  of  Samuel  Sitgreaves. 

567.  The  election  case  of  Benjamin  Edwards,  of  Maryland,  in  the 
Third  Congress. 

The  House  declined  to  seat  a  Member-elect  on  presentation  of  a  letter 
of  a  State  official  showing  that  credentials  had  been  forwarded  to  the 
Speaker. 

The  House  declined  to  seat  a  person  bearing  credentials  regular  in 
form  until  it  had  ascertained  whether  or  not  the  seat  was  vacant. 

A  letter  from  a  Member  stating  that  his  resignation  has  been  for- 
warded to  the  governor  of  his  State  is  satisfactory  evidence  of  his  resigna- 
tion. 

On  January  1,  1795,^  the  Speaker  presented  to  the  House  a  letter  from  Mr. 
Uriah  Forrest,  of  Maryland,  dated  December  24,  stating  that  Benjamin  Edwards 
had  been  elected  in  his  place,  he  having  resigned  to  the  executive  of  the  State 
of  Maryland.  The  Speaker  also  presented  another  letter  from  John  Kilty,  clerk 
of  the  council  of  Maryland,  dated  December  27,  addressed  to  Benjamin  Edwards, 
informing  him  that  an  attested  certificate  of  his  election  as  a  Representative  for 
the  said  State  in  place  of  Uriah  Forrest  had,  by  order  of  the  council  of  the  State, 
been  transmitted  to  the  Speaker  of  the  House  of  Representatives. 

The  House  disregarded  a  suggestion  that  Mr.  Edwards  be  admitted  at  once 
to  a  seat,  and  referred  the  letters  to  the  Committee  of  Elections. 

On  the  same  day  the  committee  reported — 

That  it  appears  from  a  letter  of  the  27th  of  December,  written  by  direction  of  the  council  of  Mary- 
land, signed  by  John  Kilty,  clerk  of  the  councU,  and  directed  to  Benjamin  Edwards,  that  an  attested 
certificate  of  the  election  of  the  said  Benjamin  Edwards,  as  a  Representative  in  the  room  of  Uriah  For- 
rest, had,  on  that  day,  been  transmitted  to  the  Speaker  of  the  House  of  Representatives. 

'  Journal,  p.  408. 
^  Journal,  p.  433. 

'  Second  session  Third  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  92;  Journal, 
pp.  279,  280;  Annals,  p.  1041. 


§  568  CREDENTIALS   AND   PRIMA   FACIE   TITLE.  739 

That  the  resignation  of  the  said  Uriah  Forrest  satisfactorily  appears  from  his  letter  of  the  24th  of 
December  directed  to  the  Speaker  of  the  House  of  Representatives. 

Resolved,  That,  in  the  opinion  of  the  committee,  the  letters  aforesaid  are  insufficient  to  establish 
the  right  of  Benjamin  Edwards  to  a  seat  in  the  House  as  one  of  the  Representatives  for  the  State. 

On  January  2  the  Speaker  informed  the  House  that  he  had  received  from 
the  governor  of  Maryland  the  certificate  of  Mr.  Edwards.  As  the  report  of  the 
committee  had  not  been  acted  on,  the  certificate  was  referred  to  the  committee, 
who  made  an  additional  report. 

568.  A  Member-elect  producing  credentials  showing  his  election  to 
fill  the  vacancy  caused  by  the  decease  of  his  predecessor,  is  sworn  in  at 
once,  although  no  other  notice  of  the  decease  may  have  been  given  to  the 
House. 

In  the  early  practice  it  was  the  duty  of  the  Committee  of  Elections 
to  examine  and  report  on  the  credentials  of  all  the  Members. 

On  January  29,  1795,'  Mr.  Aaron  Kitchell,  retm-ned  from  New  Jersey  in  place 
of  Abraham  Clark,  deceased,  appeared,  produced  his  credentials,  and  having  taken 
the  oath  took  his  seat  in  the  House. 

In  a  similar  manner,  on  February  9,  Robert  Goodloe  Harper,  of  South  Caro- 
lina, was  seated  in  place  of  Alexander  Gillon,  deceased. 

Messrs.  Clark  and  Gillon  were  present  at  the  preceding  session,  answering  to 
their  names  on  the  roll  call.'  No  notice  of  their  deaths  seems  to  have  been  given 
the  House  until  the  credentials  of  their  successors  were  produced. 

On  February  14,'  the  Committee  of  Elections,  to  whom  the  credentials  were 
referred,*  although  the  Members  were  sworn  in,  reported  that  it  appeared  that  each 
was  duly  elected,  in  place  of  his  deceased  predecessor,  and  presented  a  resolution: 

Resolved,  As  the  opinion  of  the  committee,  that  Aaron  Kitchell  is  entitled  to  a  seat  in  this  House, 
as  one  of  the  Representatives  for  the  State  of  New  Jersey,  in  the  room  of  Abraham  Clark,  deceased. 

This,  and  a  similar  resolution  in  the  case  of  Mr.  Harper,  were  agreed  to  by  the 
House. 

'  Second  session  Third  Congress,  Journal,  p.  308  (Gales  &  Seaton  ed.). 

-First  session  Third  Congress,  Journal,  pp.  198,  210  (Gales  &  Seaton  ed.). 

'Second  session  Third  Congress,  Journal,  p.  328. 

*  On  November  7, 1794  (Journal,  second  session  Third  Congress,  p.  224  (Gales  and  Seaton  ed.)),  the 
House  had:  "Resolved,  That  a  standing  committee  of  elections  be  appointed,  whose  duty  it  shall  be  to 
examine  and  report  upon  the  certificates  of  election,  or  other  credentials  of  the  Members  returned  to  serve 
in  this  House;  and  to  take  into  their  consideration  all  such  matters  as  shall  or  may  come  in  question, 
and  be  referred  to  them  by  the  House,  touching  returns  and  elections,  and  to  report  their  proceedings, 
with  their  opinion  thereupon,  to  the  House."  This  became  a  standing  rule  of  the  House  defining  the 
duty  of  the  Committee  of  Elections  (see  Journal,  first  session  Seventh  Congress,  p.  40  (Gales  &  Sea- 
ton ed.)),  and  remained  a  rule  until  the  revision  of  1880. 

This  examination  of  credentials  of  all  Members,  irrespective  of  whether  or  not  any  question 
had  been  raised,  was  a  function  of  the  Elections  Committee  from  the  very  first.  Thus,  on  April  18, 
1789  (Journal,  first  session  First  Congress,  p.  16  (Gales  &  Seaton  ed.)),  the  committee  reported  on  the 
credentials  of  all  the  Members  who  had  appeared.  The  same  course  was  pursued  at  the  beginning 
of  the  Second  and  Third  Congresses,  although  the  form  of  the  above  resolution,  specifically  stating  the 
duties  of  the  Elections  Committee,  dates  from  the  first  session  of  the  Third  Congress.  (Journal,  first 
session  Third  Congress,  p.  5  (Gales  &  Seaton).)  The  oath  was  administered,  in  ordinary  cases,  without 
waiting  for  the  committee's  report.  The  custom  existed  as  late  as  January  3,  1820.  (Journal,  fiirst 
session  Sixteenth  Congress,  p.  96.) 


740 


PRECEDENTS   OF    THE   HOUSE    OF   REPRESENTATIVES. 


§  569 


569.  Tlie  prima  facie  election  case  of  Doty  and  Jones,  from  Wiscon- 
sin Territory,  in  the  Twenty-fifth  Congress. 

A  person  appearing  with  credentials  intended  to  entitle  him  to  a  seat 
already  occupied,  the  House  declined  to  seat  him  at  once  and  referred  the 
credentials. 

On  December  3,  1838,'  at  the  beginning  of  the  third  session  of  the  Congress, 
the  Delegate  from  Wisconsin,  "George  W.  Jones,  appeared  and  took  his  seat,"  ia 
the  language  of  the  Journal.  Mr.  Jones  had  also  been  in  attendance  and  held  the 
position  of  Delegate  from  Wisconsin  at  the  preceding  session. 

After  the  roll  had  been  called  by  States  to  ascertain  the  presence  of  a  quorum, 
and  after  the  new  Members  had  been  sworn  in,  Mr.  Isaac  E.  Crary,  of  Michigan, 
informed  the  House  that  James  Duane  Doty  was  in  attendance,  and  claimed  to  be 
sworn  in  as  the  Delegate  in  tliis  House  from  the  Territory  of  Wisconsin.  At  the 
same  time  Mr.  Crary  presented  the  credentials  of  Mr.  Doty,  which  were  read  at  the 
Clerk's  table.  And  thereupon  Mr.  Crary  moved  that  the  said  James  D.  Doty  be 
quahfied  accordingly. 

Objection  being  made  by  Mr.  George  W.  Jones,  who  claimed  to  be  the  sitting 
Delegate  from  the  Territory  of  Wisconsin,  a  motion  was  made  by  Mr.  Charles  F. 
Mercer,  of  Virginia,  that  the  subject  of  the  right  to  a  seat  in  this  House  as  the 
Delegate  from  the  Territory  of  Wisconsin  be  postponed  until  Thursday  next.  This 
motion  was  agreed  to. 

On  December  10  the  subject  was  referred  to  the  Committee  of  Elections. 

570.  A  claimant  presenting  credentials  for  a  seat  occupied  by  a  Mem- 
ber already  sworn  in,  they  were  referred  to  a  committee  but  were  not  acted 
on. 

On  December  3,  1872,=  Mr.  Samuel  J.  Randall,  of  Pennsylvania,  presented 
credentials  of  Mr.  Aleck  Boarman  as  Representative-elect  from  the  Fourth  district 
of  Louisiana,  to  fill  a  vacancy  caused  by  the  death  of  Mr.  James  McCleary.  The 
credentials  being  in  regular  form,  and  there  being  no  objection,  Mr.  Boarman  was 
sworn  in. 

On  December  4  '  the  Speaker  annoimced  that  he  had  what  purported  to  be 
credentials  of  Mr.  Harry  Lott  for  the  seat.  The  paper  was  referred  to  the  Com- 
mittee of  Elections. 

On  December  19  ^  other  credentials  for  Mr.  Lott  were  similarly  referred. 

Mr.  Lott's  case  did  not  come  to  a  decision.^ 

571.  The  prima  facie  election  case  of  Samuel  Dibble,  of  South  Caro- 
lina, in  the  Forty-seventh  Congress. 

The  House  gave  prima  facie  effect  to  regular  credentials,  although  a 
contestant  claimed  the  seat  made  vacant  by  death  of  the  bearer's  predeces- 
sor. 

Eorm  of  credentials  given  to  a  Member-elect  chosen  to  fill  a  vacancy 
caused  by  death. 


'Third  session  Twenty-fifth  Congress,  Journal,  pp.  7,  46;  Globe,  p.  1. 
=  Third  session  Forty-second  Congress;  Globe,  p.  14. 
^Globe,  p.  26. 


*Globe,  p.  315. 
5  Globe,  p.  1646. 


I   571  CREDENTIALS    AXD    PRIMA    FACIE    TITLE.  741 

On  December  5,  ISSl,'  at  the  time  of  the  organization  of  the  House,  and  while 
the  Speaker  was  administering  the  oath  to  the  Members-elect,  Mr.  Samuel  Dibble,  of 
South  Carolina,  was  challenged  and  stood  aside.  After  the  unchallenged  Members 
had  taken  the  oath  ilr.  Dibble's  certificate  was  presented,  as  follows : 

The  State  of  Smith  Carolina,  by  His  Excellency  Johnson  Hagood,  the  governor  of  the  State  of  South  Carolina, 

to  the  honorable  the  House  of  Representatives  of  the  United  States  of  America,  Forty-seventh  Congress: 

■Whereas  a  vacancy  in  the  representation  from  the  State  of  South  Carolina  of  the  Second  Congres- 
sional district  thereof,  composed  of  the  counties  of  Charleston,  Clarendon,  and  Orangeburgh,  happened  by 
the  death,  on  April  26,  A.  D.  1881,  of  Michael  P.  O'Connor,  who,  at  the  general  election  held  November  2, 
A.D.  1880,  was  chosen  a  Member  of  the  said  House  of  Representatives  for  said  Congressional  district;  and 

Whereas,  in  accordance  with  the  Constitution  of  the  United  States,  I,  on  May  23,  A.  D.  1881,  issued 
a  writ  of  election  appointing  an  election  to  be  holden  on  June  9,  A.  D.  1881,  to  fill  such  vacancy;  and 

Whereas  the  returns  show  that  such  election  was  duly  holden,  and  that  at  said  election  Samuel 
Dibble  received  the  greatest  number  of  votes  given  at  said  election: 

Now,  therefore,  I  do  hereby  certify  that  the  said  Samuel  Dibble  has  been  duly  elected  a  Member  of 
the  House  of  Representatives  of  the  United  States  of  America,  Forty-seventh  Congress,  for  the  Second 
Congressional  district  of  the  State  of  South  Carolina,  composed  of  the  counties  of  Charleston,  Clarendon, 
and  Orangeburgh,  to  fill  the  vacancy  in  the  representation  from  said  State  of  South  Carolina  of  the 
Second  Congressional  district  thereof,  occasioned  by  the  death  of  said  Michael  P.  O'Connor. 

Given  under  my  hand  and  the  great  seal  of  the  State  of  South  Carolina,  in  Columbia,  this  twenty- 
second  day  of  June,  in  the  year  of  our  Lord  1881 ,  and  in  the  one  hundredth  and  fifth  year  of  the  sovereignty 
and  independence  of  the  United  States  of  America. 

[seal.]  Johnson  Hagood,  Governor. 

By  the  governor: 

R.  M.  Sims,  Secretary  of  State. 

Mr.  William  H.  Calkins,  of  Indiana,  after  stating  that  there  had  been  a  contest 
over  the  seat  of  Mr.  O'Connor,  of  which  as  a  court  the  House  were  bound  to  take 
notice,  and  which  contest  had  not  been  disposed  of,  raised  a  question  as  to  the  right 
of  Mr.  Dibble  to  be  sworn  in  on  his  prima  facie  case,  the  said  question  being  stated  in 
the  following  preamble  and  resolution: 

Whereas  on  the  2d  day  of  November,  1880,  in  conformity  to  law,  an  election  was  held  in  the  Second 
Congressional  district  of  the  State  of  South  Carolina  for  Representative  in  the  Forty -seventh  Congress  of 
the  United  States,  at  which  election  there  were  two  candidates,  namely,  Hon.  M.  P.  O'Connor  and  Hon. 
E.  W.  M.  Mackey,  voted  for;  that  as  a  result  of  said  election  a  certificate  was  issued  to  Hon.  M.  P. 
O'Coimor  by  the  secretary'  of  state,  bearing  the  seal  of  said  State,  and  which  is  now  on  file  with  the  clerk  of 
this  House;  and 

Whereas  Hon.  E.  W.  M.  Mackey,  in  conformity  with  law,  served  upon  Hon.  M.  P.  O'Connor  notice  of 
contest,  to  which  the  said  O'Connor  filed  his  answer;  and  in  pursuance  thereof  testimony  was  taken  and 
filed  with  the  Clerk  of  this  House,  which  still  remains  in  his  custody;  that  during  the  pendency  of  said 
contest,  and  before  this  House  could  determine  it,  on  the  26th  day  of  April,  1881,  Hon.  M.  P.  O'Connor 
died,  and  on  the  23d  day  of  May,  1881,  the  governor  of  the  State  of  South  Carolina  issued  his  writ  of  elec- 
tion to  fill  the  supposed  vacancy  caused  by  the  death  of  Hon.  M.  P.  O'Connor;  that  as  a  result  of  said 
special  election  the  governor  and  secretary  of  state  of  said  State  issued  to  Hon.  Samuel  Dibble  a  certificate 
of  election  to  fill  said  vacancy,  under  which  he  now  claims  a  seat  on  this  floor:  Now,  therefore. 

Be  it  resolved,  That  the  certificate  of  election  presented  by  the  Hon.  Samuel  Dibble,  together  with 
the  memorial  and  protest  and  all  other  papers  and  testimony  taken  in  the  case  of  the  contest  of  E.  W.  M. 
>Iackey  against  M.  P.  O'Connor  now  on  file  with  the  Clerk  of  this  House,  be,  and  the  same  hereby  are, 
referred  to  the  Committee  on  Elections,  when  appointed,  with  instructions  to  report  it  at  as  early  a  day 
as  practicable,  either  as  to  the  prima  facie  right  or  the  final  right  of  said  claimants  to  the  seat  as  the 
committee  shall  deem  proper,  and  that  neither  claimant  shall  be  sworn  in  till  the  committee  report. 

'  First  session  Forty-seventh  Congress,  Joiunal,  p.  12;  Record,  pp.  14, 15. 


742  PEECEDENTS   OF    THE   HOUSE    OF   REPRESENTATIVES.  §   •'^72 

After  debate,  the  House  voted,  without  division,  to  lay  the  preamble  and  resolu- 
tion on  the  table. 

Mr.  Dibble  thereupon  appeared  and  took  the  oath. 

572.  The  prima  facie  election  case  relating  to  Newton  and  Yell,  of 
Arkansas,  in  the  Twenty-ninth  Congress. 

The  House  seated  a  person  bearing  regular  credentials  on  ascertain- 
ing that  his  predecessor  in  the  same  Congress  had  accepted  a  military 
office. 

On  February  6,  1847,'  Thomas  W.  Newton  appeared  at  the  bar  of  the  House, 
presented  his  credentials  as  a  Representative  in  the  Twenty-ninth  Congress  from 
the  State  of  Arkansas,  in  place  of  Archibald  Yell,  and  asked  that  the  oath  to  support 
the  Constitution  of  the  United  States  might  be  administered  to  him  and  he  be 
permitted  to  take  his  seat  in  the  House. 

Mr.  George  W.  Jones,  of  Tennessee,  having  asked  if  there  was  any  evidence 
before  the  House  that  Mr.  Yell  had  resigned  his  seat,  and  none  being  produced, 
offered  this  resolution: 

Resolved,  That  Thomas  W.  Newton,  having  presented  credentials  of  his  election  as  a  Member  of 
this  House  from  the  State  of  Arkansas,  and  the  House  having  received  no  information  of  the  death, 
resignation,  or  disqualification  of  Archibald  Yell,  heretofore  elected  and  qualified  a  Member  of  the 
Twenty-ninth  Congress,  the  said  credentials  be  referred  to  the  Committee  of  Elections,  and  that  the 
said  committee  report  thereon  at  the  earliest  practicable  day. 

Mr.  William  P.  Thomasson,  of  Kentucky,  moved  the  following  amendment  in 
the  nature  of  a  substitute : 

That  Thomas  W.  Newton,  who  now  presents  his  credentials  of  election  as  a  Member  of  Congress 
from  the  State  of  Arkansas,  be  sworn  as  a  Member  and  take  his  seat;  and  that  the  credentials  of  hia 
election  be  referred  to  the  Committee  of  Elections. 

In  the  course  of  the  debate  it  was  shown  that  the  certificate  of  election  simply 
showed  that  Mr.  Newton  had  been  chosen  to  fill  the  unexpired  term  of  Mr.  Yell. 
It  also  appeared,  from  an  official  communication  to  the  House  from  the  War  Depart- 
ment, that  Archibald  Yell  had  received  a  commission  and  been  mustered  into  the 
service  of  the  United  States. 

The  amendment  proposed  by  Mr.  Thomasson  was  agreed  to,  and  the  resolution 
as  amended  was  also  agreed  to. 

573.  The  Senate  election  case  of  Shoup  and  McConnell,  from  Idaho, 
in  the  Fifty-first  Congress. 

There  being  a  question  as  to  the  vacancy  to  be  filled,  the  Senate 
examined  the  case  before  administering  the  oath  to  a  bearer  of  regular 
credentials. 

Credentials  signed  by  a  governor  certifying  to  his  own  election  as 
Senator  were  received  by  the  Senate  without  question. 

A  question  in  the  Senate  as  to  whether  or  not  credentials  should  set 
forth  at  length  the  proceedings  of  the  electing  legislature. 

On  December  29,  1890,^  the  Vice-President  laid  before  the  Senate  a  communi- 

'  Second  session  Twenty-ninth  Congress,  Journal,  pp.  305,  306;  Globe,  pp.  339-341. 
'  Second  session  Fifty-first  Congress,  Record,  pp.  843-848. 


§  574  CREDENTIALS   AND   PRIMA   FACIE   TITLE.  743 

cation  from  the  governor  of  Idaho,  transmitting  a  certified  copy  of  the  proceedings 
of  the  joint  session  of  the  legislature  of  Idaho  for  the  election  of  United  States 
Senators,  at  Boise  City,  Idaho,  December  18,  1890. 

Ordered,  That  it  lie  on  the  table. 

The  Vice-President  laid  before  the  Senate  the  credentials  of  George  L.  Shoup 
and  the  credentials  of  William  J.  McConnell,  elected  Senators  by  the  legislature  of 
the  State  of  Idaho ;  which  were  read. 

These  credentials  were  regular  in  form;  but  there  was  one  peculiarity.  The 
credentials  of  George  L.  Shoup  as  Senator  were  signed  by  "George  L.  Shoup,  gov- 
ernor." No  question  was  raised,  however,  as  to  the  right  of  a  governor  to  certify 
to  his  own  election  as  Senator.  Some  question  arose  as  to  the  failure  of  the  creden- 
tials to  set  forth  at  length  the  procedure  of  the  legislature  in  joint  convention;  but 
it  was  acknowledged  that  in  many  credentials  this  recitation  at  length  was  admitted. 
Moreover,  in  this  case  a  certified  transcript  had  been  sent  as  a  separate  paper. 

Mr.  Shoup  was  sworn  in  without  objection. 

Then  Mr.  Z.  B.  Vance,  of  North  Carolina,  moved  to  refer  the  credentials  to  the 
Committee  on  Privileges  and  Elections. 

The  debate  showed  that  the  State  of  Idaho  had  been  recently  admitted  to  the 
Senate,  and  that  three  Senators  had  been  elected,  one  to  take  the  vacancy  that 
seemed  inevitable  after  March  3,  1891,  under  the  Constitution  and  the  practice  of 
the  Senate  as  to  assignment  of  Senators  to  classes. 

Mr.  McConnell,  whose  credentials  had  been  presented  this  day,  had  been  chosen 
for  the  immediate  vacancy,  however,  and  it  was  urged  that  his  right  to  be  sworn  in, 
had  he  been  present,  was  perfect. 

On  the  other  hand,  it  was  argued  that  the  State  of  Idaho  could  not  assume  what 
action  the  Senate  would  take  as  to  its  classes.  Therefore  the  motion  to  refer  was 
justified. 

A  motion  by  Mr.  George  F.  Hoar,  of  Massachusetts,  that  the  motion  to  refer 
lie  on  the  table,  developed  yeas  22,  nays  15 — not  a  quorum. 

Later,  a  quorum  being  present,  Mr.  Hoar  withdrew  his  motion  and  the  creden- 
tials were  referred. 

On  January  5  '  Mr.  Hoar,  from  the  committee,  submitted  this  report: 

That  the  said  credentials  constitute  a  sufficient  certificate  of  the  executive  of  the  State  under  the 
seal  thereof,  properly  countersigned  by  the  secretary  of  said  State,  and  certifying  the  election  of  Mr. 
Shoup  and  Mr.  McConnell,  respectively,  as  Senators  from  that  State.  Mr.  Shoup  has  already  been 
admitted  to  take  the  oath  and  has  taken  his  seat. 

The  committee  therefore  are  of  the  opinion  that  Mr.  McConnell  should  likewise  be  admitted  to 
take  the  oath  as  Senator,  and  that  said  credentials  should  be  placed  on  file. 

The  credentials  were  accordingly  placed  on  file,  when  Mr.  McConnell  appeared,  and  the  oath 
prescribed  by  law  having  been  administered  to  him  by  the  Vice-President,  he  took  his  seat  in  the  Senate. 

574.  The  New  York  election  case  of  Noyes  v.  Rockwell  in  the  Fifty- 
second  Congress. 

The  Elections  Committee  having  ascertained  that  contestant  right- 
fiilly  was  entitled  to  prima  facie  title,  the  burden  of  proof  was  shifted  to 
sitting  Member. 

'  Record,  p.  906;  Senate  Report  No.  1904. 


744  PKECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §   574 

Decision  of  highest  court  of  a  State  on  construction  of  a  State  statute 
should  be  binding  on  the  House. 

A  State  court  decision  that  the  formal  returns  of  election  officers 
should  prevail  over  accompansdng  memoranda  on  sample  ballots  trans- 
mitted in  accordance  with  law. 

On  April  2,  1892,'  ilr.  Charies  T.  O'Ferrall,  of  Virginia,  from  the  Committee 
on  Elections,  presented  the  report  of  the  majority  of  the  committee^  in  the  New 
York  case  of  Noyes  v.  Rockwell.'  At  the  outset  the  committee  considered  a  ques- 
tion as  to  the  prima  facie  right,  although  sitting  Member  had  the  State  certificate 
and  had  taken  the  seat.     This  question  is  explained  in  the  report: 

The  election  statute  of  New  York  provides  that  immediately  after  the  closing  of  the  polls  the  in- 
spectors of  election  shall  count  the  ballots  and  publicly  proclaim  the  result  of  their  count  before  they 
adjoiim.  They  shall  also  make  three  written  statements  showing  the  result,  and  these  statements 
they  must  complete  and  sign  immediately  after  announcing  the  result. 

"The  policy  of  the  law  is  to  make  final  the  action  of  the  board  at  its  meeting  immediately  follow- 
ing the  closing  of  the  polls.     (34  N.  Y.  State  Rep.,  127.) 

"The  law  contemplates  that  the  duties  of  inspectors  shall  in  these  respects  be  as  promptly  per- 
formed as  possible;  for  this  purpose,  among  others,  that  the  result  may  be  determined  and  declared 
without  any  bias  arising  from  the  knowledge  of  its  effect  upon  the  aggregate  result  or  from  exposure 
to  subsequent  influences.     (46  Hun,  390.)" 

The  statute  also  requires  the  inspectors  of  election  to  attach  to  these  statements  already  mentioned 
sample  copies  of  the  various  ballots  cast  and  to  write  upon  each  the  number  received,  Mke  the  sample. 
One  copy  of  these  statements  the  inspectors  are  directed  to  hand  to  the  supervisor,  or  town  or  ward 
official,  who  is  ex  officio  a  member  of  the  county  board  of  canvassers;  to  file  another  with  the  county 
clerk  of  the  county,  who  is  ex  officio  secretary  of  the  county  board  aforesaid,  and  to  file  the  third  copy 
with  the  town  or  city  clerk,  as  a  local  record  of  the  election. 

When  the  county  board  of  canvassers  of  the  county  of  Chemung  convened  they  found  a  discrep- 
ancy between  the  statements  made  in  accordance  with  the  result  publicly  proclaimed,  completed, 
and  signed  on  the  night  of  the  election  and  the  writing  or  indorsements  on  the  sample  ballots  attached 
in  six  districts  of  four  wards  in  the  city  of  Elmira,  in  the  county  of  Chemung. 

The  statements  indicated  the  following  result:  Noyes,  488  votes;  Rockwell,  458  votes;  majority 
for  Noyes,  30  votes. 

The  writing  or  indorsements  on  the  sample  ballots  gave  Noyes  466  votes,  Rockwell  481;  majority 
for  Rockwell,  15  votes. 

A  discrepancy  between  the  statements  and  sample-ballots  indorsements,  it  will  be  observed,  of 
45  votes. 

The  manner  in  which  this  discrepancy  occurred  will  be  shown  hereafter  under  the  heading  of 
"Recount."  Suffice  it  to  say  here  that  the  board  of  county  canvassers  of  Chemung  County  discarded 
the  statements  completed  and  signed  on  the  night  of  the  election,  which  corresponded  with  the  publicly 
declared  result,  which  gave  Noyes  30  majority,  and  adopted  the  figtires  as  shown  by  the  indorsements 
on  the  sample  ballots  attached,  which  gave  Rockwell  15  majority,  and  certified  the  same  to  the  board 
of  State  canvassers. 

On  application  of  Mr.  Noyes,  Justice  Smith,  of  the  supreme  coiu-t,  issued  a 
peremptory  mandamus  directing  the  board  of  canvassers  of  Chemung  County  to 
recanvass  the  retiu^ns   and  base  the  new  canvass  on  the  face  of  the  retiurns  instead 

'First  session  Fifty-second  Congress,  House  Report  No.  968;  Rowell's  Digest,  p.  474;  Stofer's 
Digest,  p.  25;  Journal,  pp.  152,  154-156;  Record,  pp.  3421,  3448,  3489,  3536-3541,  Appendix,  pp.  234. 
244. 

2  The  minority  views  were  signed  by  Messrs.  James  E.  Cobb,  of  Alabama,  and  E.  P.  Gillespie,  of 
Pennsylvania. 

^  It  may  be  observed  that  the  sitting  Member  belonged  to  the  majority  party  in  the  House,  and 
the  Committee  on  Elections  proposed  to  unseat  him  and  seat  a  Member  of  the  minority  party. 


§  575  CREDENTIALS   AND   PRIMA   FACIE    TITLE.  745 

of  on  the  ballots.  This  mandamus  was  issued  December  2,  1890,  the  election  hav- 
ing been  held  on  the  4th  of  the  preceding  November.  An  appeal  was  had  to  a 
general  term  of  the  supreme  court,  and  on  February  3,  1891,  that  court  affirmed 
and  sustained  the  order  of  Judge  Smith. 

Thereupon  Mr.  Rockwell  appealed  to  the  court  of  appeals,  the  highest  judicial 
tribunal  in  the  State.  On  June  5,  1891,  the  court  of  appeals  affirmed  the  decision 
of  the  lower  court.  The  report  of  the  committee  says  in  regard  to  this  decision 
and  its  consequences : 

Justice  O'Brien,  of  this  court,  in  delivering  the  opinion  of  the  court,  concurred  in  by  the  other 
eight  justices,  except  Ruger,  chief  justice,  who  did  not  vote,  and  Earl,  who  dissented,  used  this 
language: 

"The  words  written  Into  the  paper  by  the  inspectors  must  be  deemed  to  express  the  actual  and 
correct  result  of  their  count.  They  are  precise  and  certain,  and  to  the  effect  that  a  certain  number  of 
votes  were  given  for  a  person  therein  named  for  a  designated  office.  Not  so  with  the  writing  on  the 
ballot.  That  imports  simply  that  a  certain  number  of  tickets  of  each  variety  were  voted,  from  which 
and  from  an  inspection  of  the  sample  ballots  themselves  the  actual  vote  for  any  given  candidate  may 
or  may  not  be  accurately  ascertained.  *  *  *  The  act  of  the  inspectors  in  stating  the  vote  in  the 
body  of  the  paper,  the  certificate  that  the  same  is  correct,  and  the  signature  of  each  of  them  to  the  cer- 
tificate, is,  so  far  as  the  county  canvassers  are  concerned,  fimdamental,  jurisdictional,  and  controlling, 
while  the  words  on  the  ballot  are  subordinate  and  incidental,  and  the  duty  of  the  inspectors  in  respect 
to  the  same  is  probably  directory  merely. ''     (Record,  181.) 

Pending  these  proceedings  in  the  courts,  but  after  the  decbion  of  the  supreme  court  in  special 
session,  to  wit,  on  the  5th  day  of  December,  1890,  the  State  board  of  canvassers  met,  counted  the  figures 
as  indorsed  on  the  sample  ballots,  and  not  as  shown  by  the  statements  of  the  officers  of  election,  and 
awarded  the  certificate  of  election  to  Rockwell,  and  under  and  by  virtue  of  it  he  now  holds  his  seat. 

Your  committee  are  of  the  opinion  that  the  decision  of  the  court  of  last  resort  of  a  State  upon  the 
construction  of  a  statute  of  that  State,  and  in  a  matter  before  them  involving  the  construction  of  a  stat- 
ute of  that  State,  should  be  binding  upon  them,  and  therefore  they  held  that  under  the  decision  of  the 
said  court  of  appeals,  affirming  the  lower  court,  Xoyes  was  prima  facie  elected  and  was  entitled  to  and 
ought  to  have  been  awarded  the  certificate  of  election,  and  that  the  burden  of  proof  was  shifted  from 
Noyes  to  Rockwell,  and  it  was  incumbent  upon  him  (Rockwell)  to  establish  his  title  to  the  seat  upon 
the  full  merits  of  the  case. 

The  minority  do  not  appear  to  have  dissented  from  this  conclusion,  and  both 
in  their  report  and  in  the  debate  the  differences  of  opinion  were  as  to  the  final  and 
not  the  prima  facie  right. 

575.   The  case  of  Noyes  v.  Rockwell,  continued. 

Discussion  of  validity  of  a  recount  after  the  time  when,  by  the  terms 
of  the  law,  the  ballots  should  have  been  destroyed. 

Registry  of  voters  being  required,  the  vote  of  a  person  not  registered  or 
on  the  registry  list  was  rejected  by  the  House. 

The  votes  of  persons  proven  to  have  been  corrupted  by  bribery  are 
rejected  by  the  House. 

A  ballot  accidentally  placed  in  the  wrong  box  should  be  counted. 

Errors  in  initials  or  spelling  of  a  candidate's  name  do  not  ordinarily 
justify  rejection  of  the  votes. 

As  to  the  final  right,  the  majority  consider — 

1.  The  effect  of  a  recount  of  the  ballots  in  the  six  districts  of  Ehnira,  saying: 

The  statute  of  the  State  of  New  York  does  not  provide  for  or  authorize  a  recount  of  ballots  in  any 
election,  but  in  terms  renders  a  recount  in  law  impossible  by  requiring  all  the  ballots  except  those 


746  PRECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §  575 

attached  as  sample  copies  to  be  destroyed  immediately  after  the  completion  of  the  count  by  the  inspect- 
ors; and  the  ballots  in  these  districts,  in  the  language  of  the  court  of  appeals,  were,  in  contemplation  of 
law,  destroyed.  They  had  no  legal  existence  after  the  board  of  inspectors  dissolved,  the  night  of  the 
election,  and  the  board  itself  was  functus  officio;  there  was  no  l^;al  custodian  nor  depository  of  the 
ballots;  they  were  worthless  as  e\-idence. 

But  the  ballots  were  not  in  fact  destroyed,  and  a  recount  in  whole  or  part  was 
afterwards  made  by  a  portion  of  the  election  officers  only,  and  a  gain  was  found 
for  sitting  Member.  But  the  majority  find  from  the  evidence  that  the  ballots  had 
not  been  safely  kept. 

There  was  no  safeguard  whatever  thrown  around  them;  they  were  in  the  custody  of  no  one  upon 
whom  any  responsibility  rested;  there  was  no  care  taken  of  them  with  a  \-iew  to  a  possible  recount; 
they  were  left  exposed  in  every  instance  so  that  they  could  have  been  despoiled  by  the  unscrupulous 
without  fear  of  punishment,  for  they  were  in  law  as  mere  worthless  paper.  Full  and  ample  opportunity 
was  given  to  tamper  with  them  and  to  change  them. 

Therefore,  even  if  a  recount  were  legal,  no  confidence  coiild  be  placed  in  this 
recount,  as  there  were  abundant  authorities  to  prove — 

To  recognize  this  recoimt  would  be  in  direct  violation  of  every  rule  and  precedent  and  convert  a 
serious  matter  into  a  most  ridiculous  biulesque.  It  would,  if  the  precedent  should  be  followed,  throw 
down  the  bars  in  every  close  contest,  lead  to  frauds  innumerable,  and  invite  attacks  without  number 
upon  the  official  returns  of  sworn  officers  of  the  law,  and  by  boards  composed  of  friends  of  each  of  the 
competing  candidates,  and  destroy  the  verity  of  official  returns. 

The  minority  in  their  report  ignore  this  recount,  and  in  the  debate  Mr.  Gobb 
decUned  to  lay  any  stress  on  it,  and  although  he  intimated  that  he  thought  it  more 
reliable  than  the  first  count,*  it  can  hardly  be  said  that  the  minority  antagonized 
this  position  of  the  majority. 

2.  As  to  an  imregistered  vote  the  majority  say: 

We  find  that  1  vote  was  cast  for  Noyes  by  a  party  (Lewis  Beach)  who  was  not  registered  and  whose 
name  was  not  upon  the  registry  list  of  voters  in  the  district  in  which  he  voted,  as  required  by  law. 
We  think  this  vote  should  be  deducted  from  Noyes. 

The  minority  concur  in  this. 

3.  As  to  bribed  voters: 

We  find  two  parties,  Sheridan  and  Green,  who  voted  for  Noyes,  were  each  paid  $2  to  vote  the 
Republican  ticket. 

These  votes  should  be  taken  from  Noyes. 

The  minority  concur  in  this,  and  would  add  one  other  to  the  number  rejected. 
Mr.  Nils  P.  Haugen,  of  Wisconsin,  who  concurred  generally  with  the  majority, 
dissented,  holding  that  nothing  in  the  evidence  showed  that  either  Sheridan  or 
Green  voted  for  Noyes  or  the  Republican  ticket. 

4.  As  to  a  ballot  in  the  wrong  box: 

It  is  claimed  that  Rockwell  lost  1  vote,  cast  by  Patrick  McDermott,  by  the  ballot  being  put  acci- 
dentally in  the  wrong  box  by  the  inspector  of  election  who  received  it.  , 

The  evidence  is  conflicting,  but  we  think  the  vote  should  be  added  to  Rockwell's  column. 

The  minority  concur  in  this. 

'  Appendix,  p.  245. 


§   576  CREDENTIALS   AND   PBIMA   FACIE    TITLE.  747 

6.  As  to  ballots  improperly  rejected: 

In  Chemung  County  there  were  3  ballots  cast  for  Hosea  Rockwell,  4  for  H.  H.  Rockwell,  1  for 
Hoeey  Roctwell,  and  1  for  H.  Rockwell,  making  9,  which  were  rejected  by  the  canvassing  board;  we 
think  they  should  be  counted  for  the  contestee. 

In  the  same  county  there  was  1  ballot  cast  for  H.  Noyes  and  1  for  Henry  T.  Nois,  and  in  Tomkins 
County  1  for  Henrj'  Noyes,  making  3  which  were  rejected  by  the  canvassing  board.  We  think  they 
should  be  counted  for  the  contestant. 

The  minority  concur  in  this. 

576.   The  case  of  Noyes  v.  Rockwell,  continued. 

Where  the  law  prescribes  a  penalty  for  putting  a  distingxiishing  mark 
on  a  ballot,  but  does  not  require  rejection,  should  the  ballot  be  rejected? 

One  of  a  series  of  ballots  with  similar  distinguishing  marks  being 
shown  to  be  corrupt,  the  House,  overruling  its  committee,  inferred  cor- 
ruption as  to  all. 

The  law  forbidding  a  voter  to  reenter  the  polling  booth,  may  one  who 
failed  in  attempting  to  vote,  return  to  effect  the  object? 

Instance  wherein  the  Elections  Committee  recommended  seating  of  a 
contestant  of  minority  party;  but  were  overruled  by  the  House. 

6.  The  real  turning  point  of  the  case,  as  appears  evident  from  the  debate,'  was 
as  to  an  alleged  conspiracy  to  bribe,  thus  set  forth  in  the  minority  views: 

But  the  chief  contention  in  this  case  is  in  regard  to  what  are  known  as  Doyle  ballots.  These  were 
sixteen  in  number,  and  were  Republican  pasters  containing  the  name  of  the  contestant  for  Congress. 

At  the  election  under  examination  Hon.  Robert  Earl  was  the  candidate  for  judge  of  the  court  of 
appeals.  His  name  was  on  all  the  printed  tickets  of  the  Democratic  and  Republican  parties,  and  was 
the  first  name  on  each  ticket. 

On  the  sixteen  tickets  above  mentioned  the  name  of  Robert  Earl  was  erased  and  the  name  of  Doyle 
was  substituted  in  this  manner:  On  one  ticket  was  the  name  A.  Doyle;  on  another  ticket  B.  Doyle;  on 
another,  C.  Doyle,  and  so  on  through  the  series.  No  two  tickets  contained  the  same  initial  letter,  except 
the  name  L.  Doyle,  which  appeared  on  one  ballot  at  two  separate  voting  places.  These  several  names, 
A.  Doyle,  B.  Doyle,  etc.,  were  all  written  in  pencil,  and  were  all  written,  as  the  evidence  clearly  shows, 
by  one  Duncan  McArthur.  They  were  cast  in  the  fourth  and  fifth  districts  of  Waterloo.  It  is  in  proof 
that  Duncan  McArthur  was  an  active  worker  for  the  contestant,  and  the  proof  tends  to  show  that  he 
was  operating  on  the  day  of  election  with  one  Andrew  Harmon  and  one  B.  H.  Mongin.  The  three  are 
shown  to  have  been  engaged  in  bribing  voters.  It  is  further  shown  by  the  evidence  of  one  man  who 
voted  a  Doyle  paster  that  he  was  bribed. 

It  is  contended  that  the  taint  of  fraud  can  not  attach  to  the  whole  Doyle  series  of  votes  without 
more  convincing  evidence  than  is  to  be  found  in  the  record. 

Let  it  be  remembered  that  fraud  can  rarely,  if  ever,  be  proved  by  direct  evidence,  and  that  the 
rule  is  that  whenever  a  sufficient  number  of  independent  circumstances  which  point  to  its  existence 
are  clearly  established,  a  prima  facie  case  of  its  existence  is  made,  and  that  if  this  case  is  not  met  by 
explanation  or  contradiction  it  becomes  conclusive. 

The  circumstances,  then,  which  are  established  in  this  contest  and  which  strongly  point  to  the 
guilt  of  the  whole  sixteen  voters  using  the  Doyle  ballots  are: 

(1)  The  Doyle  ballots  were  pasters  which  had  been  written  on.  This  is  contrary  to  law.  (See 
section  676,  Election  Code  of  New  York). 


'  Mr.  Cobb  in  debate  set  up  an  independent  line  of  argxunent,  which  he  did  not  mention  in  his 
report,  wherein  he  claimed  that  the  testimony  showed  the  election  of  sitting  Member  irrespective  of 
the  so-called  Doyle  ballots.  This  argument,  which  will  be  considered,  hardly  displaced  the  Doyle 
ballots  as  the  main  issue. 


748  PRECEDENTS    OF   THE   HOUSE   OF   EEPRESENTATIVES.  §   576 

(2)  They  were  so  marked  as  to  be  identified.  This  was  contrary  to  law,  and  such  marking  sub- 
jected the  persons  engaged  therein  to  punishment  on  conviction.     (Sec.  686,  ib.) 

(3)  The  ballots  were  prepared,  all  of  them,  by  Duncan  McArthur  before  they  were  given  to  the 
voters,  and  Duncan  McArthur  was  a  briber  of  voters. 

(4)  One  voter  at  least,  and,  as  we  believe,  two,  Ferris  and  Green,  were  bribed  to  cast  Doyle  ballots. 

(5)  The  name  Doyle  was  fictitious. 

These  facts  we  believe  to  be  clearly  proven. 

From  them  it  is  clear  that  McArthur  and  his  abettors  were  guUty  of  gross  fraud.  Did  the  sixteen 
voters  participate  in  the  fraud? 

If  not,  why  did  they  vote  for  a  fictitious  person  for  judge  of  the  court  of  appeals?  What  explan- 
ation can  be  given  for  the  use  of  a  series  of  fictitious  names — no  two  of  them  alike? 

How  is  it  that  these  ballots  were  so  marked  as  to  be  identified  easQy?  Was  it  a  coincidence  merely? 
If  so,  it  could  have  been  explained.  It  seems  to  us  that  these  circumstances  connect  the  whole  series 
of  Doyle  ballots  and  make  a  prima  facie  case  at  the  least.  Explanations  were  in  order.  It  was  imper- 
atively demanded  of  the  parties  implicated.     They  were  accessible;  they  were  not  called. 

The  minority  further  contended  that  the  ballots  might  be  excluded  if  the  marks 
were  put  on  for  ptirpose  of  identification,  since  the  law  of  New  York  forbade  the 
voter,  under  penalty  of  punishment,  to  put  on  his  ballot  a  mark  by  which  it  could 
be  identified.  "It  is  a  familiar  principle  of  law,"  says  the  minority,  "that  when  a 
person  does  an  act  for  the  doing  of  which  he  may  be  punished,  the  act  is  void  whether 
it  is  in  terms  declared  so  or  not." 

The  majority  of  the  committee  do  not  consider  the  evidence  strong  enough  to 
establish  the  fact  that  even  one  voter  was  bribed  to  throw  a  Doyle  ticket,  although 
the  testimony  of  Ollie  Ferris  might  raise  a  suspicion  as  to  himself.  Assuming  that 
Ferris's  testimony  did  show  that  he  was  bribed,  the  majority  do  not  admit  any 
significance  as  to  others: 

The  syllogism  is  this:  A  voted  a  Doyle  ballot  and  admits  he  was  bribed;  B,  C,  D,  and  others  voted 
Doyle  ballots;  therefore  they  were  bribed. 

Everything  must  be  presumed  against  innocence.  All  these  men  must  be  presumed  to  be  guilty 
because  one  man  who  voted  the  same  ballot  they  did  says  he  was  bribed,  and  the  curse  of  bribery  must 
rest  on  them. 

If  it  should  be  insisted  that  McArthur  and  Harmon  were  engaged  in  the  business  of  bribing  voters, 
and  that  this  one  man  (Ferris),  who  voted  one  of  the  Doyle  series  of  ballots,  was  bribed,  therefore  all 
that  voted  that  series  were  bribed,  why  not  carry  the  reasoning  further  and  say  that  McArthur  and 
Harmon  were  engaged  in  the  business  of  buying  votes,  and  that  two  men,  Sheridan  and  Green,  voted 
Republican  ballots  and  were  bribed;  therefore  all  that  voted  the  Republican  series  of  ballots  were 
bribed?    There  is  as  much  reason,  it  seems  to  us,  in  one  position  as  the  other. 

Suppose  it  was  ascertained  that  E  F  voted  one  of  these  sixteen  Doyle  ballots,  would  any  intelligent 
man  hold  that  he  could  be  indicted  and  put  upon  his  trial  for  bribery  upon  the  facts  developed  iu  this 
case?  Would  any  man  with  ordinary  powers  to  discriminate  between  right  and  wrong  hold  that  a 
grand  jury  could  find  an  indictment  against  E  F  for  bribery  upon  the  evidence  in  the  record  of  this 
case?  Would  he  even  hold  that  any  justice  of  the  peace  could  be  found  who  wotild  send  E  F  on  to 
answer  an  indictment,  on  probable  cause  to  charge  him  with  bribery,  under  the  facts  we  have  stated? 

We  have  reached  our  conclusion  in  regard  to  these  Doyle  ballots  from  the  testimony  in  the  record, 
and  not  upon  presumptions  or  suspicions  which  may  come  to  any  imaginative  mind;  but  if  we  were  to 
enter  the  realm  of  presumptions  we  would  prefer  to  presume  that  men  are  honest  until  the  contrary  ia 
proved;  that  they  are  innocent  of  crime  until  they  are  proved  to  be  guUty;  if  in  a  criminal  case,  to  the 
exclusion  of  every  reasonable  doubt;  if  in  a  civil  case,  at  least  by  the  preponderance  of  evidence. 

"  WTiere  the  facts  of  a  case  are  consistent  both  with  honesty  and  dishonesty  a  judicial  tribunal  will 
adopt  the  construction  in  favor  of  innocence."     (Lawson  on  Presumptive  Evidence,  438.) 

We  hold  that  there  is  nothing  to  impeach  these  sixteen  Doyle  ballots  except  the  one  cast  by  Ferris, 
and  as  to  that  we  are  in  doubt  whether  it  shovdd  be  excluded;  but  as  it  is  not  material  it  makes  no 
difference. 


§  576  CREDENTIALS   XSD   PRIMA   FACIE   TITLE.  749 

The  committee  cite  a  decision,  referred  to  as  the  Dutchess  Country  case,  rendered 
by  the  Nevr  York  court,  in  support  of  this  doctrine. 

In  debate  *  the  majority  combated  vigorously  the  proposition  laid  down  in 
the  minority  views  that  a  ballot  marked  by  the  voter  by  a  distinguishing  mark  was 
thereby  rendered  void,  Mr.  O'Ferrall  citing  a  decision  in  New  York  State  to  the 
effect  that  while  the  statute  forbade  the  voter  to  put  a  distinguishing  mark  on  it, 
the  law  did  not  go  to  the  extent  of  rendering  the  ballot  void  if  he  did. 

7.  A  question  also  arose  as  to  certain  other  ballots  described  in  the  report. 

In  this  connection  we  deem  it  proper  to  state  that  there  were  28  ballots  cast  for  Rockwell  in  the 
second  district  of  the  Fifth  Ward  of  Elmira,  upon  which  there  was  a  check  mark  on  one  corner  and  a 
figure  5  on  some  and  a  figure  8  on  others  in  the  corner  "diagonally  opposite"  the  comer  in  which  the 
check  mark  appeared.  It  was  claimed  by  Noyes  that  these  marked  ballots  were  open  to  as  much  sus- 
picion as  the  Doyle  ballots.  Several  witnesses  introduced  by  Noyes  to  testify  in  regard  to  them  declined 
to  answer  the  questions  propounded  under  the  advice  of  the  attorney  for  Rockwell,  upon  the  grotmd 
that  this  was  evidence  which  should  have  been  introduced  in  chief,  and  that  as  it  was  introduced  in 
the  time  for  testimony  in  rebuttal  it  was  not  admissible. 

A  motion  was  made  by  the  attorney  for  Rockwell  to  strike  out  this  evidence  upon  the  grounds 
stated,  but  the  committee  took  no  direct  action  upon  the  motion. 

The  minority  urged  that  no  effect  should  be  given  to  these  ballots,  because  evi- 
dence as  to  them  was  taken  in  rebuttal,  because  no  attempt  was  made  to  show  why 
the  marks  were  put  on  them,  and  because  no  reference  was  made  to  them  ia  the 
notice  of  contest. 

8.  As  a  part  of  his  argument  before  the  House,'  but  not  as  a  part  of  his  minority 
views,  Mr.  Cobb  urged  that  the  record  of  testimony  showed  the  election  of  sitting 
Member  independently  of  the  Doyle  ballots : 

(a)  Because  three  voters  who  had  left  the  polling  place  after  trying  in  vain  to 
mark  their  ballots  had  returned  and  been  denied  an  opportunity  to  try  again.  The 
law  provided  that  no  one  who  had  voted  should  be  permitted  to  reenter  the  booth; 
but  Mr.  Cobb  contended  that  this  did  not  apply  to  one  who  had  left  the  booth  ^vith- 
out  voting.  In  opposition  it  was  contended  that  by  leaving  the  booth  they  sur- 
rendered the  right  to  vote.  The  law  provided  that  the  voter  should  "vote  in  the 
manner  provided  by  law,  forthwith,  before  leaving  the  enclosed  space." 

(b)  Because  in  a  precinct  in  the  city  of  Elmira,  where  the  certificate  of  the  elec- 
tion ofBcers  differed  from  the  figures  on  the  ballot,  and  where  there  had  been  no 
recount,  it  was  in  evidence  that  the  figures  on  the  ballots  were  the  true  coimt, 
thereby  giving  sitting  Member  sufficient  gain  to  secure  his  election.  The  majority 
did  not  deem  the  evidence  strong  enough  or  the  circumstances  certain  enough  to 
justify  this  conclusion. 

The  report  was  debated  at  length  from  the  19th  to  the  22d  of  April,  1892.  On 
the  latter  day  a  resolution  proposed  by  the  minority,  declaring  contestant  not  elected, 
was  agreed  to  as  an  amendment — yeas  140,  nays  98.  Then  a  resolution  declaring 
sitting  Member  elected  was  similarly  adopted — yeas  128,  nays  106.  Then  the  propo- 
sition of  the  majority  as  amended  was  stated  to  the  House,  and  a  motion  to  recom- 
mit the  case,  with  directions  to  take  testimony  as  to  the  Doyle  ballots  and  the  28 
Rockwell  ballots  irregularly  marked,  was  made  and  decided  in  the  negative — yeas 

1  Appendix,  p.  238,  Remarks  of  Mr.  O'Ferrall. 
^Appendix,  p.  247. 


750  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  577 

110,  nays  124.  The  resolutions  of  the  majority  as  amended  were  then  agreed  to 
without  division. 

So  the  contention  of  the  majority  of  the  committee  was  defeated,  and  the  sitting 
Member  retained  the  seat. 

577.  The  Maryland  election  case  of  Mudd  v.  Compton  in  the  Fifty- 
first  Congress. 

The  acts  of  county  canvassing  oflElcers  being  impeached,  their  returns 
must  be  disregarded  and  the  precinct  returns  should  be  consulted  in 
awarding  prima  facie  title. 

A  county  canvassing  board  having  ministerial  duties  only  are  pre- 
sumed to  act  correctly,  but  this  presumption  may  be  rebutted  at  any  time 
by  reference  to  precinct  returns. 

Ballots  bearing  only  the  last  name  of  a  candidate,  or  incorrect  initials, 
should  be  counted  when  it  is  shown  that  no  other  person  of  the  name  is  a 
candidate. 

Under  the  old  ballot  laws  the  appearance  of  a  candidate's  name  twice 
on  the  ballot  did  not  prevent  counting  it  as  one  vote. 

It  was  held  under  the  old  ballot  laws  that  a  State  statute  as  to  form  of 
ballot  should  not  be  considered  mandatory  so  as  to  cause  rejection  of  a  vote 
wherein  the  intention  of  the  voter  is  manifest. 

A  question  as  to  how  far  the  House,  in  counting  votes,  is  bound  by 
the  requirements  of  the  State  law. 

It  was  held  under  the  old  ballot  laws  that  a  "  paster  "  which  covered 
the  designation  of  the  oflB.ce  should  not  work  rejection  of  the  vote,  although 
a  State  law  so  provided. 

On  February  27,  1890,*  Mr.  William  G.  Cooper,  of  Ohio,  submitted  the  report  of 
the  majority  of  the  Committee  on  Elections  in  the  Maryland  case  of  Mudd  v.  Compton. 

The  sitting  Member  had  been  returned  by  an  ofhcial  majority  of  29  votes,  which 
contestant  assailed  on  the  ground  of  irregularities  and  intimidation. 

The  examination  of  this  case  is  naturally  divided  into  three  branches: 

(1)  As  to  the  prima  facie  right. 

The  majority  report  quotes  from  the  law  of  Maryland  to  show  how  the  votes 
were  canvassed  and  the  returns  made  up.  The  canvassing  board  of  each  coimty 
made  two  certificates,  one  "to  be  delivered  to  the  clerk  of  the  county  court  for  the 
county  and  the  other  to  be  mailed  to  the  governor."  The  governor  then  issues  a 
certificate  to  the  person  who,  from  the  retiuns  so  sent  to  him,  appears  to  have  been 
elected.     The  report  then  says: 

According  to  the  law  of  Maryland,  the  duties  of  the  presiding  judges  when  assembled  at  the  county 
seat  are  purely  ministerial.  They  are  to  add  up  the  votes  of  the  precinct  returns  on  the  books  of  the  polls 
and  to  certify  the  results  of  this  addition  to  the  governor.  They  can  neither  throw  out  votes  certified  by 
the  precinct  judges  nor  return  votes  not  certified  by  the  precinct  judges.  It  is  presumed,  of  course,  that 
the  presiding  judges  will  do  their  work  accurately,  and  that  their  returns  to  the  governor  will  contain  a 
correct  summary  of  the  votes  in  their  county.  This  presumption  is,  however,  merely  a  prima  facie  one,  and 
can  be  rebutted  at  any  time  by  showing  that  these  returns  were,  in  fact,  not  a  correct  summary  of  the  pre- 

'  First  session  Fitty-fiist  Congress,  House  Report  No.  488;  Rowell,  p.  149. 


§   577  CBEDENTIALS   AND    PRIMA   FACIE    TITLE.  751 

cinct  returns;  and  when  this  is  done  the  returns  to  the  governor  must  be  disregarded  and  resort  had  to  the 
primary  evidence  of  the  result  of  the  election;  that  is,  to  the  precinct  returns  themselves. 

In  this  case  the  returns  forwarded  to  the  governor  footed  up  for  Barnes  Compton  16,000  votes; 
for  Ck)mpton,  1  vote;  for  Sydney  E.  Mudd,  15,819  votes;  for  S.  N.  Mudd,  1  vote.  The  contestant  denies 
the  accuracy  of  said  returns  to  the  governor,  and  files  duly  certified  copies  of  the  precinct  returns  from 
everj'  precinct  in  the  Congressional  district  (record,  pp.  712  to  779),  which  show  that  the  vote  in  the 
district  for  the  contestant  and  the  contestee  was  as  follows: 

For  Sydney  E.  Mudd 16,  279 

For  S.  N.  Mudd 1 

For  S.  E.  Mudd 1 

For  Mudd 1 

"One  ticket  upon  which  Sydney  E.  Mudd's  name  appeared  twice  and  Mudd's  name  was  not 
counted  in  the  above  returns  " 1 

Total 16,283 

For  Barnes  Compton 16, 280 

Plurality  for  Sydney  E.  Mudd 3 

Comparing  these  precinct  returns  with  the  returns  made  to  the  governor,  it  is  found: 

(1)  That  the  returns  to  the  governor  from  the  counties  of  Howard,  Anne  Arundel,  and  Baltimore, 
and  from  the  city  of  Baltimore,  were  accurate  summaries  of  the  precinct  returns  and  were  correct. 

(2)  That  in  the  third  district  of  St.  Marys  County  there  were  returned  by  the  precinct  judges  1  vote 
for  "S.  E.  Mudd,"  and  1  vote  for  "Mudd,"  but  the  presiding  judges  did  not  include  these  votes  in  their 
return  to  the  governor. 

(3)  That  the  returns  from  the  fifth  and  ninth  districts  of  Charles  County  were  not  included  in  their 
returns  to  the  governor,  because  at  the  time  the  presiding  judges  made  up  their  returns  the  returns  from 
these  precincts  were  sealed  up  in  the  boxes  which  the  presiding  judges  had  no  authority  to  open.'  These 
boxes  were  afterwards  opened  by  an  order  of  court,  and  certified  copies  of  the  returns  found  in  them  have 
been  filed,  which  show  that  the  contestant  received  in  these  districts  432  votes  and  the  contestee  280 
votes. 

(4)  That  the  face  of  the  precinct  returns  from  the  sixth  district  of  Charles  County  shows: 
"There  was  one  ticket  upon  which  Sydney  E.  Mudd's  name  appeared  twice  and  Mudd's  name  was 

not  counted  in  the  above  returns." 

(5)  That  in  Calvert  County  the  returns  to  the  governor  allow  the  contestant  1,138  votes,  whereas  the 
actual  vote  cast  and  counted  in  this  county,  and  shown  by  the  certified  copies  of  the  precinct  returns 
(record,  pp.  746  to  749),  was  1,166.  Mr.  Mudd  called  the  return  judges  of  every  precinct  in  the  county 
(record,  pp.  271-27.5),  and  proved  by  them  that  the  returns  then  on  file  in  the  clerk's  office  were  the  very 
returns  which  they  made  and  were  in  no  way  altered.  He  proved  by  the  editor  of  the  Democratic  paper 
in  the  county  town  that  on  the  day  the  returns  were  made  up  he  copied  them  for  his  paper  and  that  they 
gave  the  contestant  1,166  votes.  He  proved  by  the  clerk  of  the  court  that  immediately  upon  seeing  it 
stated  in  the  newspapers  that  the  return  to  the  governor  gave  the  contestant  only  1,138  he  wrote  to  the 
governor  stating  that  a  mistake  had  been  made  and  asking  permission  to  correct  it.  The  deputy  clerk 
of  the  court  who  made  up  the  returns  to  the  governor  swears  himself  that  these  returns  so  sent  on  by  him 
were  erroneous  and  that  those  in  the  clerk's  office  were  correct  (see  record,  pp.  271-275).  If  the  precinct 
returns  of  any  precinct  had  been  altered  the  contestee  could  have  offered  some  evidence  to  show  that 
such  alterations  had  taken  place,  but  he  did  not,  in  fact,  take  any  testimony  whatever  upon  the  subject. 
The  committee  believe  that  the  contestee  is  simply  trying  to  raise  a  technical  point  of  evidence  to  defeat 
the  contestant's  claim  to  28  votes,  which  no  one  can  seriously  doubt  the  contestant  received,  and  that  the 
contestant's  vote  in  Calvert  County  was  1,166. 

(6)  That  in  the  precinct  returns  from  Prince  George  County  (record,  pp.  762-772)  there  was  no 
mention  of  a  vote  for  "Compton,"  which  the  presiding  judges  in  their  return  to  the  governor  say  was 
cast  in  the  tenth  district  of  the  county,  and  consequently  the  presiding  judges  had  no  right  to  include 

'  These  returns  were  put  into  the  ballot  box  by  mistake;  when  once  sealed  the  box  might  not  be 
opened  legally  by  the  election  officers. 


752  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §   577 

it  in  their  return  to  the  governor.  The  contestant  has,  however,  attempted  to  show  that  he  was  entitled 
to  the  vote,  by  offering  in  evidence  a  certificate  of  the  clerk  of  the  court  of  the  county  (record,  p.  610), 
that  on  one  of  the  tally  lists  of  the  district  there  appears,  "one  ticket  for  Compton,'  not  counted  for 
Barnes  Compton;"  on  the  other  of  said  tally  sheets,  "one  ticket  for  Compton,  torn,  not  counted  for 
Barnes  Compton."  There  is  no  other  evidence  concerning  this  vote.  The  tally  lists  are  not  a  part  of 
the  certificate  or  statement  from  which  the  law  requires  the  presiding  judges  to  make  up  their  return; 
and  if  they  were,  their  contents  are  not  sufficiently  proved  by  a  certificate  of  the  clerk  that  such  and 
such  a  thing  appears  upon  them.  Public  officers  prove  public  records,  not  by  statements  as  to  what 
their  contents  are,  but  by  certified  copies  of  the  documents  themselves.  Moreover,  it  would  seem,  from 
statements  quoted  from  one  of  the  tally  lists  referred  to  that  the  judges  may  have  decided  that  the 
voter  intended  to  cancel  his  ticket  as  to  candidate  for  Congress  by  tearing  it. 

For  these  reasons  the  committee  does  not  think  it  clear  that  the  contestee  is  by  the  evidence  enti- 
tled to  this  vote,  but  thinking  it  likely  that  such  a  vote  may  have  been  cast  has  concluded  to  allow  it. 
Upon  the  face  of  the  returns  the  committee,  therefore,  finds  that  the  vote  stood: 

For  Sydney  E.  Mudd 16,  279 

For  S.  E.  Mudd 1 

For  S.  N.  Mudd 1 

For  Mudd 1 

One  ticket  on  which  Mudd's  name  appeared  twice,  not  counted  for  Mudd 1 

16,283 

For  Barnes  Compton 16,  280 

For  Compton 1 

16,  281 

Plurality  for  Sydney  E.  Mudd 2 

There  were  no  persons  l)y  the  name  of  Mudd  and  Compton  other  than  the  contestant  and  the  con- 
testee candidates  for  Congress  at  this  election;  and,  therefore,  under  the  well-established  rule  of  the 
House,  the  vote  for  "Compton,"  if  counted  at  all,  should  be  counted  for  the  contestee,  and  the  votes  for 
"S.  E.  Mudd,"  for  "Mudd,"  and  for  "  S.  N.  Mudd,"  for  the  contestant.  It  is  well  settled  by  the  authori- 
ties that  the  fact  that  the  same  candidate's  name  is  on  the  same  ticket  more  than  once  is  no  reason 
why  that  ticket  should  not  be  counted  as  one  vote  for  that  candidate.  It  would  therefore  follow  that 
the  contestant  is  entitled  to  the  one  vote  not  counted  for  him,  because  his  name  is  on  the  ticket  twice. 
The  contestee  has,  however,  offered  evidence  that  this  ticket  was  not  counted  for  the  contestant,  not 
because  the  name  was  on  the  ticket  twice,  but  because  the  paster  (upon  which  his  name  was  printed) 
was  pasted  on  the  regular  Republican  ticket  so  as  to  cover  up  the  designation  of  the  office  for  which 
he  was  a  candidate.  If  this  be  granted,  it  still  remains  true  that  whenever  the  intention  of  the  voter 
is  clear  and  unmistakable,  effect  should  be  given  to  it;  and  no  one  can  have  any  doubt  that  the 
voter  of  this  ticket — a  straight  Republican  ticket — intended  to  vote  for  Mr.  Mudd  for  the  only  office 
for  which  he  was  a  candidate.  No  provision  of  a  statute  regulating  the  form  of  ballots  will  be  held,  or 
was  ever  intended  to  be  held,  as  mandatory  in  contravention  of  such  a  plain  and  manifest  intent.  The 
committee  is  therefore  of  the  opinion  that  contestant  is  entitled  to  this  vote,  and  will  count  it. 

The  minority '  say  on  this  point : 

A  paster  was  pasted  over  the  words  "for  Congress."  The  testimony  of  the  judges,  Sasscer  and 
Cox,  clearly  shows  this  (record,  pp.  456-457).  Article  33,  section  65,  Statutes  of  Maryland  (record, 
p.  639),  required  the  ticket  should  be  thrown  out. 

In  the  debate  it  was  asserted  by  Mr.  John  F.  Lacey,  of  Iowa,  that  although 
there  might  be  a  law  of  the  State  of  Maryland,  yet  the  House  was  judge  of  the 
elections  of  its  own  Members,  and  the  House  had  always  held  that  in  such  a  case 
the  vote  should  be  counted.^  It  was  replied  by  Mr.  Moore  that  the  law  of  Mary- 
land was  mandatory  and  that  the  position  of  the  majority  was  unprecedented.* 

'  Minority  views  presented  by  Mr.  L.  W.  Moore,  of  Texas.      ^  Record,  p.  2394.      ^  Record,  p.  2408. 


^ 


§     578  CREDENTIALS   AND   PKIMA   FACIE   TITLE,  753 

578.  The  case  of  Mudd  v.  Compton,  continued. 

An  instance  wherein  an  Elections  Committee,  in  a  sustained  case, 
ascertained  prima  facie  title  after  the  sitting  Member  had  taken  the  seat. 

The  Elections  Committee  having  ascertained  that  prima  facie  title 
should  have  been  awarded  to  contestant,  the  burden  of  proof  was  shifted 
to  sitting  Member. 

The  majority  conclude  on  this  branch  of  the  case: 

The  face  of  the  returns,  then,  in  the  opinion  of  the  committee,  show  that  the  contestant  was 
entitled  to  16,283  votes  and  the  contestee  to  16,281  votes,  giving  the  contestant  a  plurality  of  2  votes. 
Such  being  the  case,  the  burden  of  showing  that  these  retiirns  (the  primary  evidence  of  the  result  of 
the  election)  were  not  correct  is  thrown  on  the  contestee. 

579.  The  case  of  Mudd  v.  Compton,  continued. 

Qualified  voters  being  denied  the  right  to  vote  because  other  persons 
had  voted  on  their  names,  the  House  counted  the  votes  for  the  candidate 
for  whom  they  were  offered  without  deducting  the  illegal  votes. 

The  House,  relying  somewhat  on  a  Federal  statute,  counted  ballots  of 
voters  whose  names  after  registration  were  omitted  from  the  poll  list, 
that  list  being  conclusive  on  the  election  officers. 

While  notice  of  contest  should  state  specifically  the  points  on  which 
testimony  is  adduced,  yet  the  committee  sometimes  waives  the  strict 
requirement  of  the  rule. 

Criticism  of  evidence  introduced  in  rebuttal. 

(2)  As  to  certain  disputed  votes,  questions  arose: 

(a)  Six  persons  offered  their  votes  for  contestant  and  were  refused  the  right 
to  vote  by  the  judges,  for  the  alleged  reason  that  in  each  case  some  one  else  had 
previously  voted  on  the  name.  The  majority  ruled  that  these  votes  should  be 
cast  for  contestant,  saying: 

It  is  bad  enough  that  a  person  who  has  no  right  to  vote  gets  his  vote  in;  it  would  be  worse  if  by 
getting  his  vote  in  he  kept  an  honest  man's  vote  out. 

The  minority  objected  to  this  ruling,  but  the  majority  defended  it  in  the  debate,' 
where  the  subject  was  examined  fully.  It  did  not  appear  that  there  was  any  evi- 
dence as  to  who  voted  wrongfully  on  the  names  or  for  whom  the  illegal  votes  were 
cast.  There  would  be  a  presumption,  of  course,  that  they  were  cast  for  the  can- 
didate for  whom  the  six  real  voters  would  not  have  voted.  But  the  majority  of 
the  committee  simply  contented  themselves  with  counting  the  six  legal  votes 
offered  and  rejected. 

(b)  An  important  class  of  disputed  votes  is  thus  referred  to  by  the  majority 
report : 

A  large  number  of  votes  on  both  sides  were  rejected  because  the  voters  who  had  duly  applied  for 
registration  and  been  registered  found  their  names  omitted  from  or  inaccurately  copied  on  the  poll 
books.  It  is  urged  by  the  contestee  that  the  law  of  Maryland  makes  the  poll  book  conclusive  evidence 
of  the  right  of  a  man  to  vote,  and  that  these  votes  can  not  be  counted.  The  committee  can  not  assent 
to  this  proposition. 

'  Record,  p.  2395. 
5994— VOL  1—07 48 


754  PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES.  §   579 

The  law  simply  lays  down  a  rule  of  evidence  for  the  judges  of  election,  and  is  intended  to  reduce 
to  a  minimum  their  judicial  functions.  Into  the  qualification  of  voters  they  can  not  inquire.  All 
they  have  the  right  to  pass  upon  is  the  question  whether  or  not  a  person  offering  to  vote  is  the  person 
whose  name  is  on  the  poll  book.  This  limitation  is  imposed  upon  them  because,  in  the  view  of  the 
Maryland  law,  a  polling  window  on  election  day  is  not  a  proper  place  to  investigate  questions  of  quali- 
fication. A  simple  rule  is  laid  down  for  the  guidance  of  the  judges,  and  any  injustice  which  may  be 
done  by  the  application  of  this  rule  can,  if  necessary,  be  corrected  by  the  tribunal  before  which  the 
contest  is  made.  The  class  of  cases  about  which  we  have  been  speaking,  together  with  another  class 
represented  by  a  vote  on  each  side  in  which  the  voter  was  improperly  refused  registration,  are  the  very 
sort  of  cases  to  provide  clearly  for  which  the  third  section  of  the  act  of  Congress  of  May  31,  1870,  was 
enacted,  which  section  reads  as  follows: 

"That  whenever,  by  or  under  the  authority  of  the  constitution  or  laws  of  any  State  or  the  laws  of 
any  Territory,  any  act  is,  or  shall  be,  required  to  be  done  by  any  citizen  as  a  prerequisite  to  qualify 
or  entitle  him  to  vote,  the  offer  of  any  such  citizen  to  perform  the  act  required  to  be  done  as  aforesaid 
shall,  if  it  fail  to  be  carried  into  execution  by  reason  of  the  wrongful  act  or  omission  of  the  person  or 
officer  charged  with  the  duty  of  receiving  or  permitting  such  performance  or  offer  to  perform  or  acting 
thereon,  be  deemed  and  held  as  a  performance  in  law  of  such  act,  and  the  person  so  offering  and  fail- 
ing as  aforesaid,  and  Ijeing  otherwise  qualified,  shall  be  entitled  to  vote  in  the  same  manner  and  to  the 
same  extent  as  if  he  had  performed  such  act." 

The  admission  of  such  votes  is  in  accord  with  the  unvarying  practice  of  Congress  and  the 
almost  uniform  decisions  of  the  courts,  and  the  committee  will  count  all  such  votes  properly  proved 
on  both  sides. 

The  minority  say : 

The  constitution  of  the  State  (article  1,  section  1)  prescribes  the  qualifications  of  all  voters.  Sec- 
tion 5  of  the  same  article  provides  that  the  general  assembly  shall  provide  for  a  general  registration  of  all 
persons  possessing  the  qualifications  prescribed  by  the  constitution  that  the  registration  shall  be  conclu- 
sive evidence  to  the  judges  of  the  right  of  the  person  to  vote,  and  that  no  person  shall  vote  whose  name 
does  not  so  appear. 

The  legislature,  in  accordance  with  these  provisions,  have  provided  for  registration,  and  since  the 
adoption  of  the  constitution  of  1864,  in  which  the  same  provisions  appear,  all  elections  have  been  held 
under  registration  laws. 

The  judges  of  election  are  required  to  take  an  oath  to  "permit  all  persons  to  vote  whose  names  shall 
appear  on  the  registry  or  list  of  voters  furnished  to  him  according  to  law,"  and  that  he  "will  not  permit 
any  one  to  vote  whose  name  shall  not  be  found  upon  said  registry  or  list  of  voters."  (Record,  pp.  6,  36, 
sec.  48.) 

The  contestant  in  his  brief  relies  upon  the  act  of  Congress  of  May  31,  1870.  This  act  was  declared 
unconstitutional  by  the  Supreme  Court.     (United  States  v.  Reese,  92  U.  S.  Rep.,  p.  214.) 

Over  this  point  much  discussion  occurred  in  the  House. ^  On  behalf  of  the 
majority  it  was  asserted  that  the  law  had  been  changed  since  the  decision  of  United 
States  V.  Reese,  and  that  the  constitutionality  of  the  law  quoted  in  behalf  of 
contestant  was  fully  sustained  by  the  decision  in  United  States  v.  Mumford  (16 
Federal  Reporter).     Also  the  case  of  the  United  States  v.  Siebold  was  quoted. 

(c)  A  question  as  to  pleading  is  disposed  of  as  follows  by  the  majority: 

The  contestee  has  offered  to  prove  a  number  of  votes  lost  l)y  him  because  of  inaccuracies  on  the 
poll  books,  not  otherwise  referred  to  in  his  answer  than  by  an  allegation  that  in  a  very  large  number  of 
other  election  districts  he  lost  votes  from  this  cause,  and  more  votes  from  such  cause  than  the  contestant. 

The  contestant  objects  to  the  admission  of  this  testimony  on  the  ground  that  this  general  allegation 
does  not,  in  the  language  of  the  statute  governing  contested  elections,  state  "specifically  the  other 
grounds  "  upon  which  the  sitting  Member  rests  the  validity  of  his  election ;  and  the  committee  is  inclined 
to  agree  with  the  contestant,  but  as  the  committee  in  this  case  has  no  doubt  that  the  contestee  was  really 

'  Record,  pp.  2396,  2409,  speeches  of  Messrs.  Lacey  and  Dalzell. 


§    580  CEEDENTIALS    AND    PEIMA    FACIE    TITLE.  755 

entitled  to  some  of  the  votes  of  this  class  which  he  has  proved,  the  contestee  will  be  allowed  the  votes 
he  has  proved  he  lost  from  inaccuracies  of  the  poll  books,  whether  the  loss  of  these  votes  was  or  was  not 
specifically  alleged.  The  committee,  however,  on  the  same  principle,  will  allow  the  contestant  the 
votes  he  proved  in  rebuttal  of  the  contestee's  allegation  in  paragraph  9  of  his  answer,  that  the  contestee 
lost  more  votes  than  the  contestant  because  of  inaccuracies  on  the  poll  books.  In  most  cases  the  con- 
testant proved  how  the  person,  whose  vote  he  claimed  to  have  lost  in  this  way,  would  have  voted  had 
his  vote  been  received,  by  the  testimony  of  the  voter  himself. 

The  minority  object,  saying: 

Not  only  did  he  not  claim  them  in  his  notice,  but  he  attempted  in  violation  of  every  principle  of 
law  to  offer  his  testimony  in  the  time  allowed  him  for  rebuttal  only. 

This  testimony  was  in  each  case  specifically  excepted  to.     (Pp.  493,  494,  556,  557.) 

The  attempt  to  make  this  claim  in  rebuttal  comes  directly  within  the  case  of  Lynch  v.  Vandiver 
(Mobley,  p.  659),  in  which  the  committee  say  that  "testimony  offered  in  rebuttal  which  seeks  to  establish 
facts  not  entered  into  in  the  direct  examination,  is  in  \'iolation  of  every  known  principle  of  the  laws  of 
e\'idence,  and  will  not  be  considered." 

The  contestee  had  no  opportunity  to  show  that  these  parties  had  not  tendered  their  votes,  or  any 
other  evidence  tending  to  deny  the  claim  made  by  contestant. 

580.    The  case  of  Mudd  v.  Compton,  continued. 

Votes  proven  by  merely  showing  the  party  aflQ.liation  of  the  voter  have 
been  counted  by  the  Elections  Committee. 

Discussion  of  the  degree  of  intimidation  justifying  the  House  in 
counting  votes  of  persons  prevented  from  reaching  the  ballot  box. 

The  presence  of  armed  and  threatening  persons  at  the  polls,  some 
personating  officers  of  the  law,  was  held  to  constitute  intimidation  justi- 
fying revision  of  the  returns. 

(d)  As  to  determining  how  certain  persons  voted: 

The  contestee,  in  a  much  larger  proportion  of  the  votes  he  proved,  showed  how  they  would  have 
voted  *  *  *  by  merely  proving  that  the  voter  was  or  had  been  a  Democrat.  The  contestant  objects 
to  votes  proved  in  this  last-mentioned  way  being  counted,  on  the  ground  that  as  he  received  a  great 
many  Democratic  votes  in  the  district,  there  is  no  certainty  that  these  voters  wanted  to  vote  for  contestee. 
The  committee,  however,  has  decided  to  allow  the  contestee  these  votes. 

(e)  The  majority  decide  to  recognize  the  validity  of  a  recount  in  certain 
precincts,  by  which  sitting  Member  gained  19  votes,  although  there  seemed  to  be 
suspicious  circumstances  connected  therewith. 

(3)  The  majority  of  the  committee  decided  as  follows  in  regard  to  charges  of 
intimidation: 

The  committee  finds  that  the  votes  of  the  first  precinct  of  the  third  district  of  Anne  Arundel  County 
should  be  thrown  out.  The  vote,  as  returned  in  this  precinct,  was  168  for  the  contestee  and  32  for  the 
contestant.  The  undisputed  facts  concerning  this  precinct  are  that  there  were  registered  therein 
475  persons,  252  of  whom  were  white  and  223  colored;  that  of  these  475  only  206  voted,  and  of  those  who 
voted  191  were  white  men,  and  15  were  colored;  that  when  the  polls  opened  4  white  men  voted,  then 
15  colored  men,  and  then  187  white  men.  The  contestant  has  examined  175  colored  voters  of  this 
district  who  did  not  vote;  of  these  175,  161  were  on  the  polling  ground;  many  of  these  walked  or  rode 
many  miles  to  the  polls,  and  some  who  were  temporarily  away  from  home  returned  from  Baltimore, 
Annapolis,  Steelton,  and  other  places  to  vote.  All  of  these  men  swear  that  they  wanted  to  vote  (and 
most  of  them  were  at  the  polls  with  their  tickets  in  their  hands  for  the  purpose  of  voting)  for  the  con- 
testant; 14  others  swear  that  they  started  from  their  homes  and  walked  a  greater  or  less  distance  toward 
the  polls  and  then  turned  back  in  consequence  of  what  they  heard  as  to  the  proceedings  at  the  polls. 

There  is  no  dispute  that  there  were  present  at  the  polling  place,  from  before  the  opening,  of  the 
polLs  at  8  o'clock  in  the  morning  until  late  in  the  afternoon,  a  number  of  persons  who  were  not  residents 


756  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    580 

of  the  precinct;  that  those  of  them  who  were  identified  were  residents  and  registered  voters  of  Baltimore 
City,  and  that  they  drove  down  from  Baltimore,  reaching  the  polls  before  any  of  the  voters,  and  drove 
back  in  the  late  afternoon;  that  those  men,  or  some  of  them,  wore  badges  with  the  words  "U.  S.  deputy 
marshal"  upon  them,  and  claimed  to  be  such;  that  this  claim  was  altogether  false;  that  these  men  wore 
armed  with  pistols,  which  at  certain  periods  of  the  day  they  were  firing  within  the  hearing  of  the  polling 
place;  that  there  were  a  number  of  guns  in  a  wagon  which  brought  them  from  Baltimore;  that  before 
the  polls  opened  they  placed  themselves  within  a  few  feet  of  the  window  at  which  the  citizens  were  to 
vote,  and  that  in  a  very  few  minutes  after  the  polls  opened  they  seized  and  dragged  from  the  line  two 
or  more  colored  voters  (among  them  a  man  of  some  70  years  of  age,  a  large  property  owner  and  tax  payer, 
a  resident  of  the  district  for  twenty-five  years,  and  a  universally  respected  citizen)  and  told  them  that 
they  could  not  vote.  The  person  just  referred  to  (who  from  age  and  standing  was  evidently  the  most 
influential  colored  man  present)  asked  if  the  colored  people  were  not  to  be  allowed  to  vote,  when  the 
crowd  from  Baltimore  answered,  "Not  a  damn  nigger  shall  vote  unless  he  votes  for  Cleveland."  The 
old  colored  leader  then  told  the  other  colored  men  not  to  make  a  fuss,  but  as  they  could  not  vote  to  go 
away  peaceably.  A  number  of  them  did,  but  the  larger  number  remained  about  the  polling  place  for 
some  time  longer  and  occasionally  one  of  them  would  attempt  to  reach  the  polling  place. 

In  every  such  instance  they  were  met  by  some  one  of  the  strangers  or  by  one  of  the  well-known 
Democratic  leaders  of  the  precinct  and  told  that  they  could  not  vote;  and  when  they  still  pressed  on, 
they  were  struck  at  and  compelled  to  fall  back.  A  number  of  colored  voters  still  remained  in  the 
neighborhood  of  the  polls,  and,  in  order  to  get  them  away,  the  leader  of  the  Baltimore  gang — a  man 
whom  the  witnesses  all  call  "Tip  Wells,"  but  whose  real  name  is  proved  to  be  John  H.  Wills — told  a 
man  named  Ed.  Pumphrey,  a  resident  of  the  neighborhood,  to  go  among  the  negroes,  tell  them  that 
there  was  a  gang  of  roughs  from  Baltimore  there,  that  they  had  guns,  and  that  more  were  coming  down 
from  Baltimore  in  the  next  train,  and  that  they  would  have  to  fight  these  armed  men  if  they  wanted 
to  vote.  Pumphrey  went  down  to  where  the  negroes  were,  moved  around  among  them,  telling  them 
what  Wells  directed  him  to  tell,  and  adding  that  he  was  a  deputy  sheriff,  that  he  could  not  protect  them, 
and  if  they  took  his  advice  they  would  go  home.  He  then  came  back  and  reported  to  those  who  sent 
him  what  he  had  done.  Fifty  or  more  of  the  colored  voters  testified  that  they  heard  Pumphrey  telling 
them  to  go  home;  that  there  was  a  wagon  load  of  roughs  there  with  guns,  and  that  more  were  coming,  etc. 

After  commenting  on  the  fact  that  the  leaders  in  the  intimidation  were  not 
called  to  rebut  the  charges,  the  majority  say: 

The  contestee  claims  that  if  this  were  all  so,  the  negroes  had  physical  force  enough  to  have  voted  if 
they  had  persisted  in  doing  so.  The  committee  holds  that  a  citizen  has  a  right  to  a  free  and  unmolested 
approach  to  the  ballot  box  and  is  not  bound  to  fight  his  way  to  a  polling  window,  especially  when  to  do 
BO  he  must  come  into  conflict  with  persons  who  claim  to  be  officers  of  the  law,  the  truthfulness  of  which 
claims  he  has  no  means  of  negativing,  and  that  a  candidate,  whose  supporters  have  done  all  in  their 
power  to  make  voters  believe  that  they  would  suffer  injury  if  they  attempted  to  vote,  can  not  be  heard 
to  say  that  the  intimidated  voters  should  not  have  believed  the  threats  made  to  them.  *  *  *  The 
contestant  proves  that  he  lost  at  least  175  votes  as  a  result  of  this  intimidation. 

The  minority,  after  examining  the  testimony,  concluded  that  the  disorder  was 
not  sufficient  to  have  intimidated  a  man  of  ordinary  firmness. 

As  a  result  of  their  reasoning  the  majority  found  a  plurality  of  154  votes  for  the 
contestant,  and  recommended  the  following: 

Resolved,  That  Barnes  Compton  was  not  elected  as  a  Representative  to  the  Fifty-first  Congress  from 
the  Fifth  district  of  Maryland  and  is  not  entitled  to  the  seat. 

Resolved,  That  Sydney  E.  Mudd  was  duly  elected  as  a  Representative  for  the  Fifth  Congressional 
district  of  Maryland  to  the  Fifty-first  Congress  and  is  entitled  to  his  seat  as  such. 

The  minority  dissented  from  this  conclusion  and  recommended : 

Resolved,  That  S.  E.  Mudd  was  not  elected  as  a  Representative  to  the  Fifty-first  Congress  from  the 
Fifth  Congressional  district  of  Maryland. 

Resolved,  That  Barnes  Compton  was  duly  elected  and  is  entitled  to  retain  his  seat. 


&   581  CREDENTIALS    AKD    PRIMA   FACIE    TITLE.  757 

The  report  was  debated  at  length  on  March  19  and  20,  1890,'  and  on  the  latter 
day  the  question  was  taken  on  a  motion  to  substitute  the  minority  for  the  majority 
resolutions.  This  motion  was  disagreed  to,  yeas  145,  nays  155.  Then  the  resolu- 
tions of  the  majority  were  agreed  to,  yeas  159,  nays  145.  Thereupon  Mr.  Mudd 
appeared  and  took  the  oath. 

581.  The  West  Virginia  election  case  of  Smith  v.  Jackson  in  the 
Fifty-first  Congress. 

A  board  of  county  canvassers,  legally  competent  to  recount,  may  make 
such  recount  even  after  it  has  certified  and  forwarded  the  result  of  the 
first  count. 

A  county  court  charged  by  law  with  the  duty  of  canvassing  precinct 
returns  may  correct  its  returns  by  a  supplemental  certificate,  which 
should  be  taken  into  account  by  the  governor  in  issuing  credentials. 

On  Januarj^  23,  1890,^  ilr.  John  Dalzell,  of  Pennsylvania,  presented  the  report 
of  the  majority  of  the  Committee  on  Elections  in  the  West  Virginia  case  of  Smith  v. 
Jackson. 

The  governor  had  issued  a  certificate  to  sitting  Member  on  finding  a  plurality  for 
him  of  3  votes.  Contestant  claimed  that  the  true  vote  as  shown  by  the  returns  of 
highest  authority  gave  to  himself  a  plurality  of  12  votes. 

Two  questions  therefore  arose :  One  as  to  the  prima  facie  right  and  another  as 
to  the  final  right. 

(1)  As  to  the  prima  facie  right.  Two  leading  questions  were  discussed  in  this 
branch  of  the  case. 

(a)  The  report  says: 

Under  the  laws  of  West  Virginia  (Code,  sec.  22,  ch.  3)  it  is  made  the  duty  of  the  commissioners  of 
the  county  courts  in  each  Congressional  district  to  transmit  to  the  governor  a  certificate  of  the  result 
of  the  election  within  their  respective  counties,  "and  in  the  said  certificate  shall  be  set  forth,  according 
to  the  truth,  the  full  name  of  every  person  voted  for,  and  in  words  at  length  the  number  of  votes  he 
received  for  any  office." 

The  commissioners  of  Ritchie  County  sent  two  certificates,  the  first  giving 
Smith  a  majority  of  567  votes,  and  the  second  giving  Smith  a  majority  of  570  votes, 
a  difference  of  3  votes  favorable  to  contestant.     The  report  says: 

The  second  certificate  correctly  represented  the  result  of  a  recount  of  the  votes,  made  at  the  instance 
of  the  contestee.  The  governor  accepted  the  first  and  rejected  the  second  certificate,  and  thus  took  away 
from  Smith  1  vote  and  added  to  Jackson  2  votes. 

The  law  of  West  Virginia  with  respect  to  a  count  and  recount  of  returns  is  as  follows  (Code,  sec.  21, 
ch.  3): 

"  The  commissioners  of  the  county  court  shall  convene  in  special  session  at  the  court-house  on  the 
fifth  day  (Sundays  excepted)  after  every  election  held  in  their  county,  or  in  any  district  thereof,  and 
the  officers  in  whose  custody  the  ballots,  poll  books,  and  certificates  have  been  placed  shall  lay  the 
same  before  them  for  examination.  They  may,  if  deemed  necessary,  require  the  attendance  of  any  of 
the  commissioners  or  canvassers,  or  other  officers  or  persons  present  at  the  election,  to  answer  questions 
under  oath  respecting  the  same,  and  may  make  such  other  orders  as  shall  seem  proper  to  procure  correct 
returns  and  ascertain  the  true  result  of  the  said  election  in  their  county.  They  may  adjourn  from  time 
to  time,  and  when  a  majority  of  the  commissioners  is  not  present  their  meeting  shall  stand  adjourned 

'Record,  pp.  2392,  2440-2449;  Journal,  pp.  364,  365. 

^ First  session  Fifty-first  Congress,  House  Report  No.  19;  Rowell,  p.  13;  Rowell's  Digest,  p.  436. 


758  PRECEDENTS   OF   THE    HOUSE    OF   REPKESENTATIVES.  §   582 

till  the  next  day,  and  so  from  day  to  day  tiU  a  quorum  be  present.  They  shall,  upon  the  demand  of  any 
candidate  voted  for  at  such  election,  open  and  examine  any  one  or  more  of  the  sealed  packages  of  ballots 
and  recount  the  same,  but  in  such  case  they  shall  seal  up  the  same  again,  etc." 

After  quoting  the  second  certificate  the  report  says: 

This  certificate  the  governor  ignored  altogether,  and  the  contestee  now  seeks  to  justify  his  action 
by  saying  that  upon  the  making  of  the  original  certificate  the  county  court  was  functus  officio,  powerless 
even  to  correct  an  error;  and  that  a  recount  can  be  had  only  when  the  demand  therefor  is  made  prior 
to  the  issue  of  a  certificate.  This  contention  is  directly  in  the  teeth  of  the  contestee's  own  action  in 
demanding  the  recount,  and  is  not  in  the  judgment  of  your  committee  tenable  on  any  ground. 

The  manifest  purpose  of  the  law  in  providing  for  a  recount  is  that  errors  may  be  corrected.  There 
can  be  no  recount  untU  there  has  been  a  perfected  count,  ^^'hether  a  recount  shall  be  necessary  can  not 
be  determined  tOl  the  first  count  is  finished.  No  provision  is  made  in  the  law  as  to  the  time  when  the 
recount  must  be  demanded.  There  is  no  statute  of  limitations  on  the  subject.  To  hold  that  a  recount 
must  be  demanded  on  the  day  of  the  original  count  leads  to  the  manifest  absurdity  of  requiring  the 
candidate  to  be  present,  in  person  or  by  proxy,  in  as  many  different  places  as  there  are  county  courts 
in  his  district  at  one  and  the  same  time.  In  the  district  in  question  there  are  twelve  counties.  If  the 
recount  was  lawful,  as  undoubtedly  it  was,  so  then  was  the  certificate  of  its  result,  and  the  governor 
exceeded  his  powers  in  accepting  the  first  and  ignoring  the  second  certificate  from  Ritchie  County. 

In  a  similar  way  the  governor  rejected  a  second  certificate  from  Calhoun, 
thereby  taking  2  votes  from  contestant.  This  second  certificate  was  made,  not  in 
response  to  a  demand  for  a  recount,  but  to  correct  an  error.  The  certificate  itself 
shows : 

At  a  regular  session  of  the  county  court  of  Calhoun  County,  held  at  the  court-house  of  said  county 
on  Monday,  the  7th  day  of  January,  1889,  on  motion  of  A.  J.  Barr,  it  is  ordered  by  this  court  that  the 
returns  of  the  election  held  in  this  county  on  the  6th  day  of  November,  1888,  as  certified  by  the  county 
court,  held  on  the  12th  day  of  November,  1888,  be  corrected,  it  appearing  to  the  court  that  there  is  a 
clerical  error  in  the  returns  as  certified,  to  wit:  That  the  record  of  the  result  of  said  election  for  a  Repre- 
sentative in  the  Congress  of  the  United  States  shows  that  Charles  B.  Smith  received  630  votes,  which 
should  have  been  C.  B.  Smith  received  632  votes. 

It  is  therefore  ordered  by  this  court  that  the  record  of  this  count  be  corrected  so  as  to  show  that 
C.  B.  Smith  receivedl,  etc. 

The  report  says  of  the  governor's  rejection  of  the  second  certificate: 

He  assigned  no  reason  for  his  action,  but  counsel  for  contestee  now  seek  to  justify  it  on  the  grounds 
hereinbefore  stated — that  upon  the  making  of  the  first  certificate  the  county  court  was  functus  officio, 
and  had  no  power  to  correct  an  error,  however  plain  and  palpable,  after  the  certificate  had  been  issued. 

It  has  been  held  that  where  the  judges  of  election  discover  a  mistake  upon  a  recount  of  the  ballots 
their  supplemental  return  is  entitled  to  be  received  (Archer  v.  Allen,  Thirty-fourth  Congress);  and  that 
errors,  whether  fraudulent  or  accidental,  may  be  corrected  at  any  time,  even  after  certificate  of  election 
issued  by  the  governor.  (Butler  v.  Lahman,  Thirty-seventh  Congress;  Morton  v.  Daily,  Thirty-seventh 
Congress.) 

It  is  believed  that  there  is  inherent  in  every  body  charged  with  the  ascertainment  of  the  popular 
will,  whether  its  functions  be  judicial  or  ministerial,  the  power  to  correct  an  error  when  discovered  and 
to  make  its  conclusions  express  the  true  will  of  the  people  as  disclosed  by  their  suffrages.  And  it  is 
especially  to  be  noted  that  there  is  no  suggestion  from  any  quarter  that  the  certificates  from  Ritchie  and 
Calhoun  counties,  ignored  by  the  governor,  did  not  accurately  show  the  exact  number  of  votes  legally 
cast  for  the  respective  candidates,  while  on  the  contrary  it  expressly  appears  that  they  did  so  show. 

582.   The  case  of  Smith  v.  Jackson,  continued. 

A  person  having  been  seated,  on  credentials  regular  in  form  but 
improperly  issued,  the  Elections  Committee,  in  a  sustained  case,  ascer- 
tained prima  facie  right  in  favor  of  contestant. 


§  582  CREDENTIALS   AND   PBIMA   FACIE   TITLE.  759 

The  Elections  Committee,  in  a  sustained  case,  shifted  the  burden  of 
proof  to  sitting  Member  on  ascertaining  that  contestant  had  been  entitled 
to  the  credentials. 

The  law  requiring  a  return  to  "  set  forth  in  words  at  length  "  the 
number  of  votes,  the  governor,  in  awarding  certificate  of  prima  facie 
right,  should  construe  an  obscure  word  as  a  word  in  full,  not  an  abbre- 
viation. 

In  ascertaining  prima  facie  title  the  governor  should  make  intelligible 
an  obscure  return  from  the  records  of  a  returning  board  when  said  board 
has  the  functions  of  a  court  of  record. 

(b)  The  remaining  question  arising  as  to  prima  facie  right  is  set  forth  in  the 
following  statement  made  by  the  governor  of  West  Virginia : 

The  commissioners  of  Pleasants  County  certify  as  to  J.  M.  Jackson's  vote  as  follows:  "J.  M.  Jackson 
received  eight  hundred  and  twe  votes."  The  words  and  letters  are  too  plain  for  any  mistake.  For  the 
reasons  heretofore  given  there  is  no  authority  to  go  behind  the  returns.  The  vote  certified  must  be 
counted  if  enough  appears  to  ascertain  the  meaning.  In  an  action  upon  a  note  it  was  held:  "There  was 
no  error  in  admitting  the  note  sued  on  in  evidence,  because  the  amount  thereof  is  written  four  hund 
and  two  and  50-100  dollars."     (Glenn  v.  Porter,  72  Ind.,  p.  525.) 

So  it  has  been  held  that  the  abbreviation  in  a  declaration,  "Damages  one  thous  dollars"  is  not 
error.     (1  W.  L.  J.,  Mich.,  395.) 

If  enough  appear  to  make  the  return  intelligible,  it  should  be  made  so. 

This  can  not  be  done  without  striking  out  one  letter  and  inserting  another,  or  by  supplying  the 
seemingly  omitted  letters.  Acting  upon  the  face  of  the  paper  the  latter  appears  more  in  consonance 
with  adjudged  cases.     The  least  number  would  give  to  said  Jackson  812  votes.     It  will  be  so  entered. 

As  to  this  the  report  holds: 

The  governor  knew — could  not  help  knowing — even  if  a  poor  penman  omitted  to  close  his  "  o  "  so  that 
the  word  looked  like  t-w-e,  instead  of  t-w-o,  that  the  word  intended  was  two.  Upon  gMieral  principles 
he  was  bound  to  presume  that  the  three  letters  expressed  the  whole  word,  but  he  was  especially  bound 
to  so  assume  in  this  case,  because  the  law,  of  which  he  pretended  to  be  so  tender,  required  that  "the 
certificate  shall  set  forth,  according  to  the  truth,  the  full  name  of  every  person  voted  for,  and  in  words  at 
length  the  number  of  votes  he  received  for  any  office." 

The  law,  therefore,  told  him  that  the  word  about  which  he  pretended  to  doubt  was  not  an  abbrevi- 
ation but  a  number  written  in  words  at  length.  He  gratuitously  assumed  the  violation  of  this  law  by 
the  county  court  making  the  certificate,  as  well  as  did  violence  to  the  commonest  kind  of  common  sense 
when  he  tortured  these  three  letters  into  the  word  "twelve." 

He  knew  furthermore  that  "twe"  is  not  now,  never  was,  and  probably  never  wLU  be  amongst  sane 
men  an  abbreviation  of  twelve,  or  of  twenty,  or  of  any  number  known  to  an  American.  And  he  knew 
again  that  the  letters  were  intended  to  express  a  number,  and  that  there  is  no  number  known  to  the 
English  language  written  with  three  letters,  the  first  of  which  is  "t"  and  the  second  "w"  except  the 
single  number  two. 

But  even  Lf  it  were  conceded  that  there  could  possibly  have  been  a  doubt  as  to  what  the  word  meant, 
then  it  was  a  patent  ambiguity,  which  any  law  student  could  have  told  the  governor  it  was  his  duty  to 
explain  by  evidence.  This  he  was  bound  to  do,  and  could  very  readily  have  done,  as  will  clearly  appear 
hereafter.  Had  it  been  impossible  for  him  to  do  so,  the  only  legal  alternative  remaining  was  to  strike 
out  the  word  altogether  as  insensible,  and  read  the  return  800. 

Neither  process  would  have  given  the  certificate  to  the  contestee.  The  governor  therefore  guessed 
enough  to  give  to  that  gentleman  3  of  a  majority. 

The  true  vote  Ln  Pleasants  County  for  Jackson  was  802,  and  not  812.  Nobody  now  claims,  nor  did 
anybody  ever  claim,  that  it  was  in  fact  anj'thing  else. 

Counsel  for  contestee,  however,  without  attempting  to  defend  a  trick  indefensible,  ingeniously 
argued  before  the  committee  that  the  governor  had  no  legal  standard  by  which  to  explain  the  so-called 


760  PEECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   582 

doubtful  word,  and  that  no  competent  legal  evidence  has  been  produced  by  the  contestant  to  show 
that  the  true  vote  in  Pleasants  County  was  other  than  as  counted  by  the  governor. 

The  argument  is  that  under  the  laws  of  West  Virginia  the  commissioners  of  the  county  court  do 
not  constitute  in  any  proper  sense  a  court  of  record,  but  are  merely  a  returning  board,  having  no  judicial 
functions,  except  when  making  a  recount,  and  no  authority  to  evidence  their  action  except  by  the  issue 
of  a  single  certificate,  which  is  to  be  sent  to  and  deposited  with  the  governor. 

Upon  the  faith  of  this  proposition  it  is  contended  that  the  only  legal  record  evidence  of  the  vote 
in  Pleasants  County,  as  ascertained  by  the  county  court,  is  the  certificate  sent  to  the  governor,  and  that 
the  certificates  procured  by  the  contestant  from  the  clerks  of  the  county  courts  and  offered  in  evidence, 
showing  the  results  of  the  elections  in  the  several  counties,  are  not  competent  evidence. 

These  certificates,  it  is  contended,  were  made  without  authority  of  law  and  at  the  instance  of  a 
court  having  no  right  to  make  a  record. 

The  report  next  discusses  the  case  of  Brazie  i'.  the  Gominissioners  of  Fayette 
Gounty  (25  W.  Va.,  213)  and  finds  that  it  does  not  sustain  the  contention  of  counsel 
for  sitting  Member. 

Aside  from  general  principles,  the  report  finds  from  West  Virginia  statutes  that 
the  county  court  is  more  than  a  mere  returning  board ;  for  it  is  intrusted  with  the 
duty  of  fixing  voting  places;  of  naming  election  commissioners.  Moreover,  to  it 
are  returned  certificates  from  the  district  canvassers,  the  ballots  cast,  and  one  set 
of  poll  books.  Its  clerk  is  by  law  the  custodian  of  these  records.  It  convenes  in 
special  session  to  pass  on  election  returns,  has  power  to  summon  witnessess,  admin- 
ister oaths,  and  "make  such  orders  as  shall  seem  proper  to  procure  correct  returns, 
and  ascertain  the  true  result"  of  the  election.  The  fact  that  this  court  meets  in 
"special  session"  indicates  to  the  committee  that  it  is  more  than  a  mere  returning 
board.     The  report  further  finds: 

Provision  is  expressly  made  by  section  46,  Acts  1881,  chapter  5,  for  a  complete  record  of  all  the 
proceedings  of  the  county  court,  both  those  which  relate  to  its  general  jurisdiction,  exercised  at  its 
ordinary  sessions,  and  those  which  relate  to  its  exceptional  jurisdiction,  exercised  at  its  special  sessions. 

But,  in  addition  to  the  record  thus  provided  for,  there  are  other  provisions  of  the  law  with  which 
the  position  assumed  by  contestee's  counsel  and  now  under  discussion  are  inconsistent. 

By  section  22  it  is  prescribed  that  when  an  election  is  held  in  a  county  or  district  for  any  or  all 
of  some  twenty-two  different  officers— State,  county,  and  Federal — "the  commissioners  of  the  county 
court,  or  a  majority  of  them,  *  *  *  shall  carefully  and  impartially  ascertain  the  result  of  the  elec- 
tion in  their  county,  and  in  each  district  thereof,  and  make  out  and  sign  as  many  certificates  thereof 
as  may  be  necessary.  *  *  *  The  said  commissioners  shall  sign  separate  certificates  of  the  result 
of  the  election  within  their  county  for  each  of  the  offices  specified  in  this  section  which  is  to  be  filled;" 
that  is,  separate  certificates  for  each  of  the  twenty  different  offices,  State,  county,  and  Federal. 

Section  23,  still  preser\'ing  the  plural  number  and  speaking  of  certificates,  makes  provision  for  the 
disposition  of  these  certificates.  As  to  certain  offices,  one  of  the  certificates  is  to  go  to  the  governor; 
as  to  certain  other  offices,  one  is  to  go  to  the  secretary  of  state;  as  to  certain  offices,  one  is  to  go  to  some 
designated  public  officer;  the  other  to  the  candidate  elected. 

In  all  cases,  with  respect  to  everj'  office,  it  is  the  duty  of  the  court  to  sign  separate  certificates. 
As,  of  the  separate  certificates  directed  to  be  made  in  the  case  of  a  candidate  for  Congress,  one  only 
is  to  go  to  the  governor,  and,  as  no  provision  is  made  for  the  giving  of  the  other  to  the  candidate  or  to 
any  public  officer,  it  necessarily  remains  with  the  clerk  of  the  court. 

By  section  5  of  chapter  130  (code  of  West  Virginia) — 

"A  copy  of  any  record  or  paper  in  the  clerk's  office  of  any  court,  or  in  the  office  of  the  secretary 
of  state,  treasurer,  or  auditor,  or  in  the  office  of  surveyor  of  lands  of  any  county  attested  by  the  oflScer 
in  whose  oflBce  the  same  is,  may  be  admitted  as  evidence  in  lieu  of  the  original." 

♦  *****» 

Your  committee  are  therefore  clearly  of  the  opinion  that,  under  the  laws  of  West  Virginia,  it  was 
competent  for  the  governor  and  it  was  his  duty  to  make  intelligible  if  unintelligible  the  certificate 


§   583  CREDENTIALS   AND   PRIMA    FACIE    TITLE.  761 

as  to  the  vote  in  Pleasant  County,  by  consulting  the  certificate  and  record  of  that  vete  on  file  in  the 
clerk's  office  of  that  county,  and  that  in  defavdt  of  his  having  done  so  it  is  competent  for  them  and 
is  their  duty  now  to  do  it. 

It  is  conceded  that  ever  since  the  passage  of  the  West  Virginia  act  of  1882,  which  we  have  been 
discussing,  it  has  been  the  custom  of  the  county  court  to  keep  on  file  a  duplicate  certificate  showing 
its  conclusions  with  respect  to  the  election  of  a  Representative  to  Congress. 

(2)  In  accordance  ■svith  their  reasoning  as  to  the  prima  facie  case  the  majority 
of  the  coDomittee  say: 

And  they  are  of  the  opinion  that,  on  the  face  of  the  returns,  the  contestant  was  elected  by  a  majority 
of  12,  and  was  entitled  to  the  governor's  certificate  of  election.  Such  being  the  case,  the  contestant 
is  now  to  be  treated  as  if  he  had  received  the  certificate,  and  the  onus  is  cast  on  the  contestee  to  show  that 
the  returns,  if  truly  made,  would  elect  him.     (Wallace  v.  McKinley.) 

The  minority  of  the  committee,  in  views  presented  by  Mr.  Charles  F.  Crisp, 
of  Georgia,  defend  the  action  of  the  governor  of  West  Virginia,  but  do  not  dissent 
from  the  propositions  of  law  laid  down  in  any  branch  of  the  case. 

583.    The  case  of  Smith  v.  Jackson,  continued. 

When  irregularity  of  a  jurat  works  rejection  of  a  poll  unless  canvass- 
ing' officers  are  satisfied  that  the  oath  was  taken,  the  counting  of  the  poll 
is  conclusive  offset  to  a  faulty  jurat. 

A  slight  technical  error  in  a  jurat,  omitting  that  which  may  be  made 
certain,  should  not  cause  rejection  of  a  poll,  even  when  the  law  makes 
rejection  the  penalty  of  improper  certification  of  the  oath. 

Failure  of  election  officers  to  include  in  their  returns  votes  for  a  cer- 
tain office  as  required  by  law,  when  said  votes  have  been  counted  and  tal- 
lied, does  not  justify  rejection  of  the  poll. 

As  to  the  final  right  to  the  seat,  two  classes  of  questions  arose,  first  as  to  the 
effect  of  certain  alleged  irregularities  in  the  conduct  of  the  election;  and  second  as 
to  the  qualifications  of  certain  voters. 

First,  as  to  the  alleged  irregularities. 

(a)  Sitting  Member  asked  that  the  poll  of  Ebenezer  precinct  be  rejected  because 
it  did  not  appear  that  the  commissioners  who  conducted  the  election  were  sworn. 
The  report  says: 

The  record  shows  that  on  the  poll  book  returned  to  the  county  clerk's  office  the  oath  appeared  at 
length  and  in  the  form  prescribed  by  law,  subscribed  by  each  and  all  the  commissioners,  but  the  jurat 
is  irregular  and  indefinite.     It  reads  as  follows: 

"Subscribed  and  sworn  to  before  me  as  one  of  the  commissioners,  L.  F.  Law,  this day  of 

November,  1888. 

"Peter  Conley." 

Both  Law  and  Conley  were  commissioners,  and  either  had  the  power  to  swear  aU  the  rest.  It  is 
very  clear,  even  from  the  imperfect  record,  that  all  took  the  oath  by  subscribing  to  it,  and  that  as  to  two 
at  least  the  certificate  is  conclusive.  Where  part  of  the  officers  are  sworn,  others  not,  the  election  is 
valid.  (Fuller  v.  Davison,  2  Bart.,  126.)  Two  things  are  to  be  noted  in  this  connection,  first,  that  sworn 
or  unsworn,  all  the  commissioners  were  de  facto  election  officers,  and,  second,  that  no  harm  resulted 
to  anyone,  either  the  public  or  an  individual  voter,  from  their  failure  to  be  regularly  sworn.  All  author- 
ities agree  that  the  acts  of  de  facto  officers  are  to  be  accepted  and  treated  as  valid  so  far  as  the  public 
and  the  candidates  are  concerned.  (Paine  on  Elections,  sec.  373,  and  cases  cited.)  It  is  a  well-settled 
principle  of  law,  and  a  very  ancient  one,  "that  the  act  of  an  officer  de  facto,  where  it  is  for  his  own  benefit, 
is  void  *  *  *  but  where  it  is  for  the  benefit  of  strangers,  or  the  public,  who  are  presumed  to  be 
ignorant  of  such  defect  of  title,  it  is  good."     (Cro  Eliz,  699.) 


762  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   583 

It  has  been  repeatedly  held  that  a  certificate  of  unsworn  officers  even  is  prima  facie,  and  the  burden 
is  on  the  contestant  to  show  that  the  errors  committed  affected  the  result  or  rendered  it  uncertain. 
(Taylor  v.  Taylor,  10  Min.,  107;  WTiipley  v.  McCune,  10  Cal.,  352.) 

It  is  contended  however,  that  this  principle  does  not  apply  in  this  case  because  the  law  of  West 
Virginia  provides: 

"The  said  oath  shall  appear  properly  certified  on  one  of  the  poll  books  of  every  election,  and  in 
no  case  shall  the  vote  taken  at  any  place  of  voting  be  counted  unless  said  oath  so  appears,  or  unless  it 
be  proved  to  the  satisfaction  of  the  commissioners  of  the  county  court,  convened  at  the  court-house,  as 
hereinafter  required,  that  the  oath  was  taken  before  said  commissioners,  canvassers,  and  clerks  entered 
upon  the  discharge  of  their  duties." 

But  the  contention  must  fail  and  the  argument  be  against  the  contestee  for  the  manifest  reason 
that  unless  the  oath  had  been  taken  the  votes  at  this  precinct  could  not  have  been  counted.  The  taking 
of  the  oath  was  to  be  made  to  appear  either  upon  the  poll  books  or  by  proof  to  the  satisfaction  of  the  county 
commissioners.  These  commissioners  had  power,  "if  deemed  necessary,  to  require  the  attendance  of 
any  of  the  commissioners  or  canvassers,  or  other  officers  or  persons  present  at  the  election,  to  answer 
questions  under  oath  respecting  the  same,  and  to  make  such  other  orders  as  shall  seem  proper  to  procure 
correct  returns  and  ascertain  the  true  result  of  the  said  election  in  their  county." 

The  commissioners  of  the  county  court  must  be  presumed  to  have  done  all  things  within  their 
power  necessary  to  be  done  in  the  performance  of  their  duty  in  accordance  with  law.  They  can  not  be 
presumed  to  have  done  anything  unlawful.  The  votes  could  not  have  been  lawfully  counted  unless  the 
election  officers  appear  to  have  been  sworn,  either  by  the  evidence  of  the  poll  book  or  by  other  evidence 
satisfactory  to  the  commissioners.  The  votes  were  counted,  and  if  it  be  true,  that  the  swearing  of  the 
officers  is  not  proven  by  the  poll  book,  it  must  have  been  otherwise  proven  to  the  satisfaction  of  the 
commissioners. 

No  reason,  therefore,  has  been  shown  why  your  committee  should  disfranchise  the  voters  of  this 
district. 

The  majority  also  discuss  two  other  precincts: 

The  objection  made  to  the  vote  of  the  Murphys  Mill  precinct  is  of  such  a  frivolous  character  as 
to  merit  but  little  discussion.  It  is,  that  the  oath  of  the  precinct  commissioner  does  not  appear  properly 
certified  on  the  poll  book.  It  was  not  properly  certified  because  Marion  J.  Bickle,  a  justice  of  the  peace, 
who  administered  it,  signed  the  jurat  "Marion  J.  Bickle,  in  and  for  Clay  district.  Wood  County,  W.Va.," 
omitting  the  words  "justice  of  the  peace"  after  his  name. 

He  was,  in  point  of  fact,  a  justice  of  the  peace,  as  the  evidence  shows.  The  less  comment  made 
on  this  objection  the  better,  one  would  think,  for  the  contestee. 

The  next  objection  is  like  unto  the  last,  and  relates  to  WadesvUle  precinct,  Wood  County.  The 
objection  here  again  relates  to  an  alleged  irregularity  in  the  jurat.  The  oath  was  administered  by 
T.  J.  Sands,  one  of  the  commissioners  of  election,  but  he  omitted  to  sign  with  his  official  title. 

That  the  oath  was  administered  by  him,  that  he  was  a  commissioner  and  by  law  authorized  to 
administer  it,  are  facts  not  capable  of  being  called  in  question. 

The  matter  does  not  seem  to  merit  discussion. 

(6)  The  sitting  Member  asked  for  the  rejection  of  Kentuck  precinct  on  the 
ground  that  no  vote  was  rettimed  on  the  poll  books  by  the  precinct  commissioners 
nor  any  certificate  in  the  case  of  the  candidates  for  Congress.  The  law  of  West 
Virginia,  after  providing  for  the  count  at  the  close  of  the  polls,  has  this  require- 
ment: 

The  contents  of  the  ballots  as  they  are  read  shall  be  entered  by  the  clerks  under  the  supervision 
of  the  commissioners  on  tally  papers  for  the  purpose  by  suitable  marks  made  opposite  to  or  under  the 
name  of  each  person  for  any  office  to  be  filled. 

As  soon  as  the  results  are  ascertained,  the  commissioners  or  a  majority  of  them  *  *  »  at  each 
place  of  voting  shall  make  out  and  sign  two  certificates  thereof  [according  to  a  prescribed  form]  and 
transmit  one  to  the  clerk  of  the  county  court.  They  shall  also  seal  up  the  ballots  and  send  them  with 
one  set  of  the  poll  books  to  the  said  clerk. 


§  584  CREDENTIALS  AND   PKIMA  FACIE   TITLE.  763 

The  report  says: 

A  reference  to  the  certificate  wiU  show  that  the  certificates  were  made  and  signed  by  the  com- 
missioners holding  the  election,  and  returned  to  the  clerks  of  the  county  and  circuit  court,  as  required 
by  law,  but  that  the  names  of  contestant  and  contestee  did  not  appear  in  said  certificate,  nor  the  office 
for  which  they  were  candidates  and  received  votes.  But  their  names  were  on  the  ballots  cast  at  said 
precinct  for  said  office,  and  the  ballots  were  counted  by  the  commissioners  of  election,  and  their  names 
were  written  down  by  them  on  the  tally  sheets  opposite  or  under  the  designation  of  the  office  for  which 
they  received  votes,  and  the  number  of  votes  which  each  received  was  designated  on  said  tally  sheets, 
to  wit,  152  for  contestant  and  72  for  contestee,  in  the  same  manner  as  was  done  with  respect  to  the  names 
of  all  other  candidates  voted  for  at  said  election,  and  the  tally  sheets  were  returned  with  the  certificates 
and  the  ballots  to  the  clerk  of  the  county  court.  The  aggregate  votes  appearing  thereby  to  have  been 
cast  for  contestant  and  contestee  were  one  less  than  the  highest  number  appearing  to  have  been  cast 
for  any  other  two  opposing  candidates.  When  these  papers  reached  the  commissioners  of  the  county 
court,  counsel  for  contestee  demanded  a  recount  of  the  votes  for  Jackson  County,  as  to  Representative 
in  Congress,  as  he  had  the  lawful  right  to  do.  Under  this  demand  the  commissioners  of  the  county 
court  recounted  all  the  ballots  cast  for  Representative  in  Congress  in  that  coimty,  and  upon  that  recount 
the  number  of  votes  appearing  to  have  been  cast  for  the  contestant  and  contestee  were  the  same  as 
appeared  upon  said  tally  sheets,  and  including  these  votes,  the  result  in  the  county  was,  for  contestant, 
2,272  votes,  and  for  contestee,  1,886  votes.     And  this  result  was  certified  to  the  governor. 

The  only  irregularity  here  seems  to  have  been  a  clerical  error,  in  the  failure  of  the  election  com- 
missioners to  insert  in  the  certificate  the  result  of  the  election  at  that  precinct  as  to  Representative  in 
Congress.  They  did  ascertain  the  result  and  wrote  it  correctly  on  the  tally  sheets,  and  when  the  county 
commissioners  counted  the  ballots  at  the  demand  of  contestee's  counsel,  they  obtained  the  same  result, 
and  the  ballots  were  there  and  inspected  by  the  commissioners,  and  presumably  by  the  contestee's 
attorney,  who  made  the  demand  for  recount. 

But  this  failure  of  the  commissioners  of  election  to  make  return  of  the  votes  at  this  precinct  could 
not  have  the  effect  to  disfranchise  the  persons  who  voted  there,  and  the  law  of  West  Virginia  especially 
provides  for  such  a  case.  In  declaring  the  powers  and  duties  of  the  county  commissioners  in  ascertain- 
ing and  declaring  the  result  of  the  election  in  their  respective  counties,  the  following  language  is  used: 

"They  may,  if  deemed  necessary,  require  the  attendance  of  any  of  the  commissioners  or  canvassers 
or  other  oSicers  or  persons  present  at  the  election,  to  answer  questions  under  oath  respecting  the  same, 
and  may  make  such  other  orders  as  shall  seem  proper  to  procure  correct  returns  and  ascertain  the  true 
result  of  the  said  election  in  their  county." 

The  presumption  as  well  as  the  proof  is  that  the  county  commissioners  ascertained,  by  the  exercise 
of  their  powers  of  examination,  the  true  result  of  the  election,  and  certified  accordingly.  There  is  no 
pretense  that  they  did  not. 

Counsel  for  contestee  say  that  he,  the  contestee,  made  no  demand  for  a  recount  of  the  vote  at  this 
precinct,  and  argue  that  the  fact  of  such  demand  should  appear  of  record.  There  is  no  law  requiring 
the  demand  to  be  made  matter  of  record.  There  is  no  record  of  demand  made  in  any  precinct,  though 
contestee  admits  having  made  such  demand  in  some.  There  is  affirmative  proof  (Record,  p.  724)  that 
demand  was  made  for  a  recount  in  this  precinct  by  contestee's  attorney,  and  neither  the  attorney  nor 
the  contestant  was  called  to  rebut  this  evidence. 

The  matter  does  not  seem  material  nor  to  merit  discussion,  since  there  is  no  pretense  that  the 
commissioners  in  the  exercise  of  their  legitimate  functions  did  not  ascertain  the  true  vote  in  this 
precinct;  no  pretense  that  it  was  not  truly  declared;  no  pretense  that  any  voter  suffered  anything  by 
the  alleged  irregularity;  in  fact,  nothing  to  take  this  case  out  of  the  ordinarj^  rule  of  law,  that  statutes 
directing  the  mode  of  proceeding  of  public  officers  are  directory  merely,  unless  there  is  something  in 
the  statute  itself  which  plainly  shows  a  different  intent. 

584.   The  case  of  Smith  v.  Jackson,  continued. 

No  fraud  being  shown  and  no  specific  fraudulent  act  being  alleged, 
the  House  declined  to  reject  a  poll  because  unsworn  persons  assisted  in 
the  count. 

The  holding  of  an  election  in  a  place  other  than  the  legal  place  does 


764  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  584 

not  cause  rejection  of  the  poll  when  evidence  shows  that  no  voter  was 
deprived  of  his  rights  thereby. 

A  mere  technical  violation  of  the  law  as  to  custody  of  ballot  box,  no 
injury  being  shown  to  anyone,  does  not  justify  rejection  of  the  poll. 

(c)  Sitting  Member  alleged  that  the  poll  of  Pine  Log  precinct  should  be  ex- 
cluded because  of  "misconduct  and  fraudulent  acts"  on  the  part  of  the  election 
ofHcers.  It  appeared  from  the  testimony  that  in  the  night  during  the  counting  of 
the  vote  one  of  the  three  commissioners  went  to  sleep,  while  another  sat  smoking, 
leaving  the  third  commissioner  to  do  the  counting,  assisted  by  the  son  of  the  sleeping 
commissioner  and  a  man  named  Davis.  Both  the  son  and  Davis  belonged  to 
sitting  Member's  party.  It  appeared  by  reference  that  Commissioner  Rorden,  who 
did  the  counting,  was  a  Republican,  while  the  commissioner  who  smoked  was 
McKown,  a  Democrat.     The  report  says: 

The  evidence  does  not  show  that  the  ballot  box  was  in  the  custody  of  any  one  of  the  commissioners 
so  as  to  require  it  to  be  sealed.  Even  if  it  was  out  of  the  custody  of  Dernberger,  from  the  fact  that  he 
was  asleep,  it  was  not  out  of  that  of  McKown,  who  was  present  in  the  room,  and  the  counting  proceeded 
under  his  observation,  and  his  place  was  filled  in  the  operation  of  counting  by  a  Democrat.  There  is 
not  the  slightest  evidence  tending  to  show  that  there  was  any  tampering  with  the  ballot  or  returns,  or 
any  fraud  of  any  character.  All  that  was  done  was  in  the  presence  of  at  least  two  of  the  commissioners 
who  were  awake. 

It  appears  from  the  evidence  of  Lemley  (pp.  724-725)  that  the  return  from  this  precinct  did  not 
show  any  votes  for  contestee,  but  139  votes  for  contestant,  a  mere  clerical  error  in  failing  to  write  into 
the  return  contestee's  vote,  but,  under  the  recount  which  was  demanded  by  contestee  the  votes  for  him 
at  this  precinct  were  counted  by  the  commissioners  of  the  county  court,  and  the  number  of  them,  93, 
included  in  their  return  to  the  governor. 

It  is  to  be  observed  that  no  allegation  of  any  specific  act  of  fraud  is  alleged.  Your  committee  are 
asked  to  presume  that  fraud  was  committed  because  it  might  have  been  committed,  and  this  in  the 
absence  of  any  pretense  that  a  single  legal  vote  was  excluded  from,  or  a  single  illegal  vote  was  included 
in,  the  result  announced. 

Your  committee  do  not  know  of  any  principle  of  law  that  would  justify  them  in  so  finding.  They 
understand  the  law  to  be  as  declared  in  Mann  v.  Cassidy  (1  Brewster,  Penna.,  60):  "An  allegation  of 
fraud  committed  by  election  officers  is  immaterial  unless  it  be  also  stated  that  the  result  has  been 
affected." 

(d)  Sitting  Member  charged  that  in  Boyer  precinct  the  voting  place  was  at 
Isaac  Branch's  schoolhouse,  one-half  to  three-quarters  of  a  mile  distant  from 
McGill's  post-office,  which  the  county  court  had  established  as  the  legal  voting 
place. 

The  report  says. 

The  evidence  tends  to  prove  the  above  statement,  but  it  is  not  claimed,  nor  does  the  evidence 
tend  to  show,  that  any  person  was  deceived  or  prevented  from  voting  thereby.  Two  witnesses  only  are 
examined  by  contestee  in  relation  to  this  precinct,  and  one  of  them  (Fowler,  pp.  408-409)  says  that  it  was 
his  understanding  from  the  time  he  knew  of  the  election  that  it  was  to  be  held  at  the  Isaacs  Branch 
schoolhouse,  and  that  every  voter  in  the  precinct  voted  at  said  voting  place  at  said  election  except 
one,  and  he  was  too  sick  to  go  to  the  polls.  The  other  witness  (Dunlap,  p.  410),  corroborates  Fowler 
generally,  and,  in  addition,  says  that  the  school  election  in  1887  was  held  at  the  same  place.  So  that 
contestee  by  his  own  witnesses  proves  that  no  voter  was  wronged  out  of  his  vote,  and  that  he  was  not 
injured  by  this  change  of  voting  places. 

This  case  calls  for  the  application  of  the  rule  which  protects  the  voter  against  disfranchisement 
from  the  default  of  a  public  officer  when  such  default  has  resulted  in  no  injury  to  anyone.  (Farrington 
V.  Turner,  53  Mich.,  27;  People  v.  Simonson,  5  N.  Y.,  22;  Steele  v.  Calhoun,  61  Miss.,  556.) 


§   585  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  765 

The  same  principle  was  applied  to  several  other  precincts  where  like  irregu- 
larities occurred. 

(e)  The  report  thus  states  another  objection: 

In  Walton  precinct,  Roane  County,  the  contestee  claims  that  the  ballot  box  was  in  the  custody  of 
one  of  the  commissioners  of  election  alone,  in  violation  of  law,  and  that  the  vote  at  this  precinct,  where 
contestant  had  131  plurality,  should  be  rejected  for  this  reason. 

The  section  of  the  law  relating  to  this  subject  is  as  follows  (Code,  ch.  3,  sec.  14): 
"The  ballot  box  shall  have  an  aperture  in  the  lid  or  top  thereof  to  receive  the  ballots  of  voters. 
While  the  polls  are  open  it  shall  be  kept  where  it  may  be  seen  by  the  voters,  and  after  the  poUs  are 
closed,  and  until  the  votes  are  counted  and  the  certificates  of  the  result  are  signed,  shall  remain  in  the 
immediate  custody  of  the  commissioner,  or  any  one  of  them,  with  the  consent  of  the  others.  But  it  shall 
not  be  opened  unless  two  of  them  at  least  be  present,  and  if  left  at  any  time  in  the  custody  of  one  of  the 
number,  shall  be  carefully  sealed  so  that  it  can  not  be  opened  or  any  ballot  taken  therefrom  or  entered 
therein  without  breaking  the  seal,  and  the  others  shall  write  their  names  across  the  place  or  places 
where  it  is  sealed." 

It  was  in  proof  that  at  the  dinner  hour  on  election  day  the  ballot  box  was 
sealed,  and  was  for  about  five  minutes  in  the  exclusive  custody  of  one  commissioner. 
During  the  counting,  while  they  were  resting,  a  Republican  commissioner,  Garvin, 
and  a  Republican  clerk,  Summers,  were  for  a  short  time  alone  with  the  box,  the 
others  having  stepped  out.     The  witness  Walker  said,  according  to  the  report: 

Walker  testifies  for  contestee  that  he  saw  nothing  in  the  conduct  of  Garvin  or  Summers  which  led 
him  to  suppose  that  there  had  been  any  tampering  with  the  ballot  box,  and  that  there  was  nothing  to 
indicate  that  there  had  been;  that  he  knew  Garvin  well,  and  did  not  believe  he  did  or  would  tamper 
with  the  ballot  box,  or  permit  it  to  be  done;  that  the  result  of  the  election  was  about  as  usual  at  that 
precinct,  and  nothing  in  it  to  indicate  that  there  was  any  tampering,  and  that  the  number  of  ballots 
tallied  with  the  number  of  names  on  the  poll  books.  There  is  a  total  absence  of  evidence  tending  to 
show  any  fraud  or  improper  practices  on  the  part  of  anyone  in  conducting  the  election. 

The  evidence  fails  to  show  that  the  box  was  "left  at  any  time  in  the  custody  of  one  of  the  number" 
in  contemplation  of  the  law.  While  they  were  at  dinner  it  was  as  much  in  the  custody  of  the  one  who 
did  not  have  manual  possession  as  it  was  in  his  who  did.  Besides,  at  that  time  it  was  sealed.  On  the 
other  occasion  it  was  not  left  in  Garvin's  custody  in  contemplation  of  law  or  in  fact.  The  others  stepped 
out  only  momentarily.  The  sealing  was  to  be  done  only  when  the  two  turned  it  over  to  the  third, 
thereby  expressly  charging  him  with  the  custody. 

Besides,  if  there  was  any  violation  of  law  it  was  only  technical,  and  did  not  tend  to  the  injury  or 
prejudice  of  the  contestee,  and  can  not  deprive  the  voters  of  the  right  of  having  their  votes  counted 
as  cast. 

585.   The  case  of  Smith  v.  Jackson,  continued. 

A  clear  preponderance  of  competent  evidence  is  required  to  overthrow 
the  prima  facie  legality  of  a  ballot  received  by  the  election  officers. 

Testimony  quoting  statements  of  the  voter  after  election  as  to  how  he 
voted  or  as  to  his  qualifications  is  inadmissible  to  prove  illegality  of  a 
ballot,  being  hearsay. 

In  absence  of  direct  proof  of  how  he  voted,  evidence  as  to  the  voter's 
party,  his  advocacy  of  candidates,  or  the  friends  who  sustained  his  right 
to  vote  is  admissible. 

One  who  has  knowingly  cast  an  illegal  vote  should  not  be  relied  on 
to  prove  how  he  voted;  but  it  is  otherwise  in  case  of  honest  mistake. 

The  minority  of  the  committee  did  not  dissent  from  the  above  conclusions  of 
law;  but  joined  issue  on  the  facts  (not  the  law)  involved  in  the  examination  of 


766  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  586 

the  second  branch  of  the  inquiry  as  to  final  right.  The  majority  thus  stated  the 
principles  of  law  by  which  it  would  be  governed  in  determining  the  qualifications 
of  voters : 

(a)  A  vote  accepted  by  the  commissioners  holding  the  election  is  prima  facie  legal.  Before  it 
can  be  throwB  out  for  illegality  it  must  be  satisfactorily  shown  by  the  evidence  to  have  been  cast  by 
one  not  legally  qualified  to  vote — that  is  to  say,  the  presumption  of  legality  must  be  overcome  by  a 
clear  preponderance  of  competent  evidence. 

By  competent  evidence  we  mean  such  evidence  as  would  be  admitted  on  the  trial  of  the  issue 
before  a  judicial  tribunal,  except  where  a  relaxation  of  the  rule  is  made  necessary  by  the  nature  of 
the  issue. 

(6)  No  provision  is  made  by  the  statutes  of  West  Virginia  to  ascertain  what  particular  ballot  any 
voter  has  deposited  after  it  has  been  once  placed  in  the  ballot  box.  Therefore  in  this  case  it  becomes 
necessary  to  ascertain  for  which  candidate  a  vote  was  given  by  other  means  than  the  ticket  itself. 

It  seems  to  have  been  taken  for  granted  by  both  parties  that  the  voters  themselves  could  not  be 
compelled  to  disclose  how  they  voted.  It  may  be  remarked  in  this  connection  that  one  who  would 
knowingly  cast  an  illegal  vote  ought  not  to  be  regarded  as  the  most  reliable  witness.  On  the  other 
hand,  when  he  has  been  honestly  mistaken,  we  can  see  no  reason  why  such  voter  ought  not  to  be  trusted 
as  a  witness. 

In  order,  then,  to  prevent  illegal  voting  with  impunity,  it  becomes  necessary  to  determine  what 
kind  of  testimony  shall  be  received  in  ascertaining  which  candidate  got  the  benefit  of  the  illegal  vote. 
The  committee  have  followed  the  rule  which  appears  to  them  to  be  the  most  reasonable,  as  well  as 
the  best  sustained  by  authority. 

In  the  absence  of  direct  proof,  evidence  showing  to  what  political  party  the  voter  belonged,  whose 
election  he  advocated,  whose  friends  maintained  his  right  to  vote,  and  kindred  testimony  has  been 
held  admissible.  Of  course  what  the  voter  said  at  the  time  of  voting  is  admissible  as  a  part  of  the 
res  gesta. 

But  what  a  voter  said  after  the  day  of  the  election,  either  as  to  his  qualifications,  or  how  he  voted,  or 
whether  he  voted,  the  committee  hold  to  be  inadmissible  in  the  absence  of  other  testimony  on  the 
point.  If  such  testimony  can  be  admitted  at  all,  which  we  do  not  concede,  it  certainly  ought  not  to 
be  received  when  the  statement  of  the  voter  is  made  after  the  legality  of  his  vote  has  been  called  in 
question.  To  admit  this  kind  of  testimony  is  to  place  it  in  the  power  of  one  not  entitled  to  vote  to 
have  his  illegal  vote  counted  twice  against  the  party  he  desires  to  defeat,  without  subjecting  himself 
to  cross-examination  and  without  even  the  formality  of  testifying  under  oath. 

Again,  one  legally  qualified  may,  by  statements  after  he  has  voted,  make  himself  out  to  be  dis- 
qualified without  incurring  any  penalty,  and  in  that  way  have  his  legal  vote  given  to  one  party  counted 
as  illegal  against  another  party.  One  who  has  not  voted  at  all  may  in  the  same  way  be  proved  to  have 
voted.  In  a  close  contest,  with  party  feeling  running  high — perhaps  party  control  involved — the 
admission  of  this  kind  of  testimony  would  be  doubly  dangerous.  It  has  nothing  to  commend  it  except 
a  class  of  decisions  whose  authority  has  been  weakened,  if  not  destroyed,  by  later  and  better  considered 
adjudications.  The  committee  reject  all  such  testimony  as  being  mere  hearsay  of  the  most  danger- 
ous kind  when  standing  alone.  When  the  only  evidence  of  how  a  man  voted,  or  whether  he  was  a  legal 
voter,  is  the  Tinswom  statement  of  the  voter  after  the  election,  we  have  let  the  vote  stand. 

586.   The  case  of  Smith  v.  Jackson,  continued. 

A  voter  capable  of  making  a  valid  v/^ill  or  contract  or  of  being  crimi- 
nally responsible  for  his  act,  may  not  be  disqualified  as  of  unsound  mind. 

Nonprofessional  evidence  that  a  voter  is  an  "  idiot  "  may  be  given 
weight  as  a  statement  of  fact  rather  than  of  opinion. 

Nonprofessional  testimony  as  to  a  voter's  "  unsound  mind  "  should  be 
accompanied  by  careful  definition  to  be  of  weight. 

A  voter  ordinarily  self-supporting  is  not  to  be  held  as  a  pauper 
because  of  receiving  public  aid  temporarily. 


§  587  CREDENTIALS   AND   PRIMA   FACIE   TITLE.  767 

(c)  In  regard  to  what  constitutes  a  person  of  unsound  mind,  we  have  adopted  the  rules  substan- 
tially as  laid  down  by  American  courts  and  text-book  writers,  and  hold  that  a  person  having  sufficient 
intelligence  to  make  a  valid  will,  or  to  bind  himself  by  ordinary  contracts,  or  to  be  criminally  respon- 
sible for  his  acts,  is  a  person  of  sound  mind.  One  whose  will  would  be  held  invalid  for  no  other  reason 
than  mental  incapacity  is  a  person  of  unsound  mind. 

In  the  record  we  find  the  oft-recurring  question,  "Was  the  voter,  in  your  opinion,  a  man  of  unsound 
mind?  "  put  to  a  nonprofessional  witness  without  any  attempt  to  define  what  was  meant  by  imsound- 
ness  of  mind.  To  the  answer  to  such  question,  unaccompanied  by  any  explanation  of  what  the  witness 
understood  by  the  term,  we  attach  very  little  weight. 

The  condition  of  the  voter,  his  acts  and  speech,  how  he  is  regarded  by  those  who  know  him,  as  to 
his  competency  to  contract,  judicial  determinations,  and  the  like  evidence  has  been  given  due  weight. 
The  term  "idiot"  is  so  well  understood  that  the  statement  of  a  witness  that  a  person  is  an  idiot  is  given 
more  weight,  as  being  the  statement  of  a  fact  within  the  knowledge  of  the  witness  and  not  a  mere  opinion. 

(d)  Upon  the  question  of  what  constitutes  a  pauper  there  is  some  disagreement  in  the  authorities, 
but  we  think  the  following  may  be  taken  as  a  fair  definition:  A  pauper  is  one  who  is  continuously  sup- 
ported, in  whole  or  in  part,  out  of  funds  provided  by  the  public  authorities  for  that  purpose.  One  who  has 
been  a  public  charge  and  afterwards  became  self-supporting  for  a  sufRcient  time  before  the  election  to 
show  that  his  ability  to  support  himself  is  not  a  mere  temporarj'  condition  may  legally  vote.  One  who, 
under  temporary  misfortune  or  sickness,  receives  public  aid,  but  is  ordinarily  self-supporting,  is  not  a 
pauper. 

587.  The  case  of  Smith  v.  Jackson,  continued. 

A  new  residence  may  not  be  established  by  intention  without  an  actual 
removal  to  the  new  place. 

Residence  may  not  be  retained  by  a  simple  statement  of  intention 
when  actual  residence  has  been  taken  up  elsewhere. 

Votes  of  persons  otherwise  qualified  and  cast  in  good  faith,  in  accord- 
ance with  previous  habit,  should  not  be  rejected  because  of  disputed 
boundary  of  precinct. 

(e)  The  law  which  determines  the  question  of  residence  is  so  well  settled  that 
it  does  not  need  a  restatement  by  the  committee;  the  difficulty  is  in  the  application 
of  the  law  to  the  evidence. 

Absence  from  the  place  claimed  as  a  residence,  for  temporary  purposes,  does  not  work  abandon- 
ment; but  in  this  case  some  of  the  witnesses  and  some  of  the  commissioners  of  election  seem  to  have  had 
the  view  that  a  voting  residence  might  be  retained  by  the  simple  statement  of  intention  to  retain  a  cer- 
tain place  as  a  voting  residence,  although  an  actual  residence  had  been  taken  up  elsewhere,  with  no 
fixed  intention  of  ever  again  actually  living  at  the  place  where  the  right  to  vote  is  claimed.  Others 
seem  to  think  that  they  can  establish  a  new  residence  by  intention  before  actually  and  in  fact  moving 
to  the  new  place. 

We  do  not  concur  in  these  views.  It  takes  both  act  and  intention  to  establish  a  residence,  and  an 
intention  to  retain  a  residence  which  has  been  left  must  be  an  intention  actually  to  return  to  it  and 
reside  in  it. 

(/)  Some  votes  in  this  record  are  questioned  on  account  of  disputed  or  doubtful  boundarj'  lines. 
The  committee  have  not  thought  it  their  duty  to  go  into  an  investigation  of  disputed  boundaries,  but 
have  counted  all  votes  as  legal  when  the  voters  were  otherwise  qualified  and  voted  in  good  faith  in  the 
district  where  they  believed  that  they  had  their  residence,  and  where  they  had  been  in  the  habit  of 
voting. 

588.  The  case  of  Smith  v.  Jackson,  continued. 

The  fact  that  laborers  are  employed  in  a  moving  gang  by  a  corpora- 
tion does  not  destroy  the  presumption  that  they  are  entitled  to  vote  at  the 
place  of  headquarters. 


768 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§   588 


A  vote  challenged  in  notice  of  contest  by  either  party  is  a  proper  sub- 
ject of  investigation. 

When  both  sides  have  without  objection  investigated  an  alleged 
illegal  vote,  failure  to  specify  it  in  notice  of  contest  may  not  be  urged. 

Admission  by  contestant  that  his  evidence  is  of  doubtful  sufficiency 
is  held  to  amount  to  waiver  of  the  allegation. 

(g)  In  the  examination  of  the  qualifications  of  individual  voters  the  majority 
found 

Fourteen  other  votes,  laborers  on  a  railroad,  are  attacked  on  the  ground  that  they  had  not  lived 
in  West  Virginia  for  a  year,  were  not  residents  of  the  district  where  they  voted,  and  were  employees  of 
a  corporation. 

As  to  some  of  them  it  clearly  appears  that  they  had  lived  in  the  State  a  sufficient  time  to  entitle 
them  to  vote.  As  to  none  of  them  is  it  shown  by  competent  testimony  that  they  had  not  been  so  resi- 
dent, and  the  presumption  is  in  their  favor. 

They  belonged  to  a  construction  gang  which  had  its  headquarters  where  they  voted;  to  this  point 
they  constantly  returned;  received  their  mail  there;  had  their  washing  done  there,  and  had  a  right  to 
fix  their  residence  there.  Their  employment  by  a  corporation  did  not  give  them  a  residence,  but  it 
did  not  prevent  them  from  acquiring  one.  Some  had  voted  there  a  year  before.  We  think  the  pre- 
sumption of  legality  is  in  no  way  overcome  by  the  evidence. 

The  report  also  disposes  of  two  questions  of  practice: 

(a)  Two  or  three  of  these  votes  contestee  insists  should  not  be  charged  against  him,  because  not 
named  in  contestant's  notice  of  contest. 

One  of  them,  Michael  Hobart,  was  challenged  by  contestee  in  his  reply.  The  vote  was  illegal 
and  cast  for  contestee.  The  committee  think  that  a  vote  challenged  in  the  notice  by  either  party  is 
a  proper  subject  of  investigation. 

Two  others  were  not  named  in  either  notice.  The  pleadings  in  this  case  are  more  specific  than 
the  practice  before  the  committee  requires.  As  a  general  rule,  parties  ought  to  be  bound  by  their  plead- 
ings, but  where  neither  party  has  been  taken  by  surprise,  and  both  have  entered  into  the  investigation, 
the  rule  should  be  relaxed  in  the  interest  of  justice. 

The  evidence  in  regard  to  these  voters  was  taken  a  month  before  contestee  commenced  examining 
his  witnesses,  the  witnesses  impeaching  the  votes  were  cross-examined  on  this  branch  of  their  testimony, 
and  the  contestee  should  be  held  to  have  waived  his  objections. 

(b)  In  a  final  summary  of  his  claims  contestant  has  conceded  that  he  has  failed  to  establish  his 
charges  with  reference  to  a  number  of  named  voters,  and  that  the  evidence  in  regard  to  others  places 
them  in  the  doubtful  list.  As  to  all  such  we  have  not  felt  it  our  duty  to  examine  the  evidence,  as  we 
take  the  admission  to  amount  to  a  waiver,  although  as  to  some  of  them  it  may  be  said  it  takes  all  the 
benefit  of  presumptions  to  hold  them  valid. 

As  a  result  of  their  investigations  of  the  alleged  illegal  votes,  the  majority 
reports  finds  an  actual  plurality  of  39  for  contestant,  and  recommends  the  following : 

Resolved,  That  James  M.  Jackson  was  not  elected  as  a  Representative  to  the  Fifty-first  Congress 
from  the  Fourth  Congressional  district  of  West  Virginia,  and  is  not  entitled  to  the  seat. 

Resolved,  That  Charles  B.  Smith  was  duly  elected  as  a  Representative  from  the  Fourth  Congres- 
sional district  of  West  Virginia  to  the  Fifty-first  Congress,  and  is  entitled  to  his  seat  as  such. 

The  minority,  after  an  examination  of  the  alleged  illegal  votes,  concluded  that 
there  was  a  majority  of  23  for  sitting  Member,  and  recommended  the  following: 

Resolved,  That  C.  B.  Smith  was  not  elected  a  Representative  in  Congress  from  the  Fourth  district 
of  West  Virginia,  and  is  not  entitled  to  a  seat  therein. 

Resolved,  That  James  M.  Jackson  was  duly  elected  a  Representative  in  Congress  from  the  Fourth 
district  of  West  Virginia,  and  is  entitled  to  retain  his  seat  therein. 


§   588  CREDENTIALS    AND    PRIMA    FACIE    TITLE.  769 

The  report  was  debated  at  length  on  January  31  and  Februarj-  1  and  3,  1890/ 
anti  on  the  latter  day  the  question  was  first  taken  on  substituting  the  first  resolu- 
tion of  the  minorit}-  for  the  first  resolution  of  the  majority,  and  it  was  decided  in 
the  negative — yeas,  135,  nays  165.  The  question  next  recurred  on  substituting 
the  second  resolution  of  the  minority  for  the  second  resolution  of  the  majority, 
and  was  decided  in  the  negative — yeas  137,  nays  164. 

The  question  recurring  on  the  adoption  of  the  resolutions  reported  by  the  majority, 
the  first  resolution  was  agreed  to — yeas  166,  nays  0;  and  the  second  by  yeas  166, 
nays  0.- 

ilr.  Smith  tlien  appeared  and  took  the  oath. 

'Record,  pp.  1001.  1010,  1025-1043:  Journal,  pp.  187-190. 

-  The  rulings  of  Mr.  Speaker  Reed  as  to  the  counting  of  a  quorum  was  made  in  connection  with 
the  consideration  of  this  case. 

5994— VOL  1—07 49 


Chapter  XIX* 

IRREGULAR  CREDENTIALS. 


1.  House  exercises  discretion  in  case  of  informality.     Sections  589-598.' 

2.  Impeached  by  evidence  in  their  own  terms.     Sections  599-611.- 


589.  The  House  has  declined  to  admit  on  prima  facie  shovTing  per- 
sons whose  elections  and  credentials  appeared  defective. 

The  House  has  declined  to  permit  the  oath  to  be  taken  by  persons 
whose  credentials  had  procured  their  enrollment  by  the  Clerk. 

On  December  7,  1863,^  at  the  organization  of  the  House,  during  the  administra- 
tion of  the  oath  to  the  Members,  the  names  of  A.  P.  Field,  Thomas  Cottman,  and 
Joshua  Baker,  of  Louisiana,  were  called. 

Mr.  Thaddeus  Stevens,  of  Pennsylvania,  objected  to  the  swearing  in  of  these 
Jtlembers,  on  the  ground  that  their  certificates  and  election  were  both  defective.* 

In  the  course  of  the  debate  Mr.  Stevens  said  that  where  it  was  believed  from  the 
face  of  the  documents  read  that  they  were  in  truth  no  credentials,  as  in  this  instance, 
where  the  papers  were  signed  by  a  man  whom  nobody  in  the  United  States  ever 
heard  of  as  governor,  and  vAih  his  private  seal  attached,  and  where,  as  he  was 
assured,  no  pretense  of  an  election  had  ever  been  held,  it  had  not  been  customary 
to  swear  in  members  until  it  had  been  determined  that  they  were  entitled  to  seats. 
A  large  amount  of  mileage  and  salaiy  was  involved. 

After  debate  the  motion  of  Mr.  Stevens  that  the  credentials  be  referred  to  the 
Committee  on  Elections,  and  that  the  administering  of  the  oath  be  postponed  until 
after  that  committee  should  have  reported,  was  put  to  the  House,  and  decided  in 
the  affirmative — yeas,  100;  nays,  71. 

590.  An  instance  wherein  the  House  gave  prima  facie  effect  to  papers 
not  in  form  of  credentials,  and  which  raised  a  technical  question  as  to  the 
election. — On  December  6,  1875,^  after  the  organization  of  the  House  by  the  elec- 
tion of  a  Speaker,  a  duly  authenticated  certificate  of  the  State  board  of  canvassers 

*  See  Volume  VI,  Chapter  CLXI. 

'  House  sometimes  enrolls  where  the  Clerk  may  not.     Section  328  of  this  volume. 
Oath  sometimes  administered  before  the  arrival  of  credentials.     Sections  162-168  of  this  voltmie. 
See  also  case  of  Gunter  v.  Wilshire  (sec.  37  of  this  volume)  and  Grafton  v.  Connor  (sec.  465);  also 
the  Senate  cases  of  Revels  (sec.  430)  and  Ames  (sec.  438). 

^  See  also  case  of  the  West  Virginia  Members  (sec.  522  of  this  volume)  and  the  Colorado  case  (sec.  523). 
^  First  session  Thirty-eighth  Congress,  Journal,  pp.  11,  12;  Globe,  pp.  7,  8. 

■*  Both  Field  and  Cottman  were  on  the  Clerk's  roll  and  responded  to  the  call,  and  voted  for  Speaker. 
See  also  the  case  of  Roberts  in  the  Fifty-sixth  Congress,  sections  474-480  of  this  volume. 
'  First  session  Forty-fourth  Congress,  Journal,  p.  13;  Record,  pp.  172,  173. 
770 


I   591  IRKEGULAR    CKEDENTIALS.  771 

of  New  York  was  presented  showing  the  election  of  Nelson  I.  Norton  from  the  Thirty- 
tliird  district.  This  certificate  showed  that  a  portion  of  the  votes  had  been  cast  for 
him  as  "Representative  in  Con^jress,"  and  a  portion  for  him  as  "Member  of  Con- 
gress." The  votes  cast  for  him  under  both  designations  exceeded  the  votes  for  his 
opponent. 

Mr.  Samuel  S.  Cox,  of  New  York,  stated  that  the  law  of  New  York  required 
votes  to  be  cast  for  "Representative  in  Congress,"  and  therefore  he  proposed  the 
reference  of  the  credentials  to  the  Committee  on  Elections. 

But  there  being  no  opposition,  Mr.  Norton  was  permitted  to  take  the  oath,  after 
which  the  credentials  were  referred. 

591.  A  memorial  alleging  that  credentials  were  not  in  accordance  with 
law  did  not  prevent  the  House  from  honoring  them  immediately. — On 
December  6,  1S75,'  at  the  organization  of  the  House,  during  the  swearing  in  of  the 
Members  elect,  Mr.  John  Goode,  jr.,  was  challenged  by  Mr.  James  A.  Garfield,  of 
Ohio,  and  stepped  aside  until  after  the  organization  had  been  perfected  bj-  the 
election  of  a  Speaker. 

Then  Mr.  Garfield  presented  a  memorial  from  one  J.  H.  Piatt,  jr.,  setting 
forth  particulars  in  which  he  alleged  that  the  certificate  of  Mr.  Goode  was  without 
authority  of  law. 

It  was  urged  on  the  other  hand  that  the  certificate  was  exactly  in  the  form  of 
the  certificates  on  which  the  other  Virginia  Members  had  been  seated,  and  was  in 
accordance  with  the  law  of  Virginia. 

The  House,  mthout  division,  voted  that  the  oath  be  administered  to  Mr.  Goode. 

592.  The  House  has  given  full  prima  facie  effect  to  credentials  signed 
by  a  military  officer  in  accordance  with  the  law  of  reconstruction. 

The  action  of  the  Clerk  in  enrolling  a  Member-elect  does  not  prevent 
the  House  from  questioning  the  prima  facie  force  of  the  credentials. 

On  March  4, 1871,^  while  the  Speaker  was  administering  the  oath  to  the  Members- 
elect  at  the  organization  of  the  House,  Mr.  Michael  C.  Kerr,  of  Indiana,  objected  to 
the  swearing  in  of  the  Mississippi  delegation,  on  the  ground  that  their  credentials  did 
not  constitute  in  a  just  and  legal  sense  prima  facie  evidence  of  title  to  seats  on  the 
floor.     One  of  the  credentials  was  read  as  follows : 

Headquarters  Fourth  Military  District, 

Department  op  Mississippi, 

Jackson,  Miss.,  January  1-f,  1S70. 
I  hereby  certify  that  at  an  election  held  in  the  State  of  Mississippi  on  the  30th  day  of  November  and 
1st  of  December,  1869,  for  the  ratification  of  the  constitution  of  said  State,  and  for  the  election  of  Members 
of  Congress,  the  said  constitution  was  ratified;  that  article  12,  section  25,  of  said  constitution  is  as  follows: 
"Representatives  in  Congress  to  fill  the  existing  vacancies  shall  be  elected  at  the  same  time  the 
constitution  is  submitted  to  the  electors  of  the  Sta,te  for  ratification  and  for  the  full  term  next  succeeding 
their  election,  and  thereafter  elections  for  Representatives  in  Congress  shall  be  held  biennially.  The 
first  election  shall  be  held  on  the  first  Tuesday  after  the  first  Monday  in  November  preceding  the  expira- 
tion of  said  full  term." 

'  First  session  Forty-fourth  Congress,  Journal,  p.  13;  Record,  p.  172. 

^  First  session  Forty-eecond  Congress,  Journal,  pp.  9,  10;  Globe,  pp.  9,  10. 


772  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    593 

And  that  at  said  election,  under  section  25,  articlo  12,  of  tlie  constitution,  Legrand  W.  Perce  was 
elected  a  Member  of  the  Forty-second  Congress  of  the  United  States  of  America,  from  the  Fifth  Con- 
gressional district  of  Mississippi. 

[l.  s.]  Adelbert  Ames, 

Brevet  Major-General  U.  S.  A.,  Commanding . 

Attest:  Eames  Lynch, 

Provisional  Secretary  of  State. 

On  these  credentials  the  Clerk  of  the  House  had  put  the  names  of  the  Mississippi 
Members  on  the  roll,  and  they  had  participated  in  the  election  of  Speaker. 

It  was  argued  by  Mr.  John  A.  Bingham,  of  Ohio,  that,  in  the  absence  of  any 
challenge  as  to  the  qualifications  of  the  Mississippi  Members,  they  should  be  admitted 
to  seats,  as  having  the  prima  facie  evidence  that  they  represented  the  people  of  Missis- 
sippi. Therefore  Mr.  Bingham  moved  that  the  credentials  of  the  Members-elect 
from  ilississippi  be  referred  to  the  Committee  of  Elections,  and  that  they  now  be 
sworn  in. 

This  motion  being  divided,  the  first  portion  was  put  and  agreed  to,  and  then  on 
the  second  portion,  "that  they  now  be  sworn  in,"  there  were  yeas  121,  nays  81. 
Accordingly  the  oath  was  administered.' 

593.  Credentials  being  defective,  but  no  doubt  existing  as  to  the  elec- 
tion, the  oath  was  administered  to  the  Member-elect  by  unanimous  con- 
sent.— On  December  5,  1904,-  the  following  credentials  were  laid  before  the  House: 

The  State  op  South  Carolina, 

By  the    Secretary  of  State, 
To  the  honorable  the  House  of  Representatives  of  the  United  States  of  America  in  the Congress: 

Whereas  in  pursuance  of  the  constitution  and  laws  of  the  State  of  South  Carolina,  and  the  Constitu- 
tion and  laws  of  the  United  States  of  America,  an  election  was  duly  holden  on  the  17th  day  of  May,  in  the 
year  of  our  Lord  1904,  in  the  said  State  of  South  Carolina,  in  the  Second  Congressional  district  thereof,  for 
Representative  of  the  said  State  of  South  Carolina,  from  the  said  Second  Congressional  district  thereof,  in 
the  House  of  Representatives  of  the  United  States  of  America,  in  the Congress;  and 

Whereas  upon  the  examination  of  the  returns  of  the  said  election,  and  by  the  determination  and 
declaration  of  the  board  of  State  canvassers  of  the  said  State,  filed  and  of  record  in  my  office,  it  appears 
that  T.  G.  Croft  was  duly  elected  at  the  said  election  by  the  highest  number  of  votes  Representative  of 
the  State  of  South  Carolina  from  the  said  Second  Congressional  district  thereof,  in  the  House  of  Repre- 
tentatives  of  the  United  States  of  America,  in  the Congress: 

Now,  therefore,  I,  the  secretary  of  state  of  the  said  State  of  South  Carolina,  by  virtue  of  the  power 
in  me  vested  by  the  acts  of  the  general  assembly  of  the  said  State  in  such  case  made  and  provided,  do 
hereby  certify  that  the  said  T.  G.  Croft,  at  the  election  aforesaid,  was  duly  elected  Representative  of  the 
State  of  South  Carolina  from  the  Second  Congressional  district  thereof,  in  the  House  of  Representatives 
of  the  United  States  of  America  in  the Congress. 

Given  under  my  hand  and  the  great  seal  of  the  State  of  South  Carolina,  in  Columbia,  this  28th  day 
of  May,  in  the  year  of  our  Lord  1904,  and  in  the  128th  year  of  the  Independence  of  the  United  States 
of  America. 

[seal.]  .1.  T.  Gantt, 

Secretary  of  State  of  South  Carolina. 

The  Speaker  said — 

The  Chair  desires  to  call  the  attention  of  the  gentleman  from  South  Carolina  [Mr.  Johnson],  and  also 
the  attention  of  the  House,  to  the  credentials  which  have  just  been  reported  at  the  Clerk's  desk.     It  seems 

'  The  election  of  which  General  Ames  gave  the  certificates,  was  held  in  pursuance  of  reconstruction 
legislation  of  Congress,  providing  for  such  action  on  the  part  of  the  military  authorities. 
^  Third  session  Fifty-eighth  Congress,  Record,  pp.  3,  4. 


I    594  IRREGULAR    CREDENTIALS.  773 

to  the  Chair  that,  taking  them  altogether,  the  presumption  is  that  Mr.  Croft  was  elected  a  Member  of  the 
present  Congress.  But  after  all  in  making  out  the  credentials  the  secretary  of  state  has  not  filled  the 
blanks  which  specify  the  number  of  the  Congress  to  which  Mr.  Croft  was  elected. 

Then,  on  motion  of  Mr.  Sereno  E.  Payne,  of  New  York,  and  by  iinammous 
consent,  the  oath  was  administered  to  Mr.  Croft. 

594.  A  Senator-elect  whose  credentials  were  not  in  regular  form 
was  seated,  the  irregular  portions  being   considered   as   surplusage. — On 

June  14,  1906,^  in  the  Senate,  Mr.  Chester  I.  Long,  of  Kansas,  presented  the  following 
credentials: 

Hon.  Ch.\rles  Warren  Fairbank.s, 

Vice-President  of  the  United  States  and  ex  officio  President 

of  the  Senate  of  the  United  States,  Washington,  D,  C: 

Know  ye  that  I,  E.  W.  Hoch,  governor  of  the  State  of  Kansas,  reposing  special  trust  and  confidence 
in  the  integrity,  patriotism,  and  abilities  of  Alfred  Washburn  Benson,  on  behalf  and  in  the  name  of 
the  State,  do  hereby  appoint  and  commission  him  a  Senator  in  the  Congress  of  the  United  States, 
from  the  State  of  Kansas,  to  fill  vacancy  caused  by  the  resignation  of  Hon.  Joseph  R.  Burton  until  the 
next  meeting  of  the  legislature  of  this  State,  and  until  a  successor  has  been  elected  and  qualified,  and 
empower  him  to  discharge  the  duties  of  said  office  according  to  law. 

In  testimony  whereof  I  have  hereunto  subscribed  my  name  and  caused  to  be  affixed  the  great  seal 
of  the  State. 

Done  at  Topeka,  Kans.,  this  11th  day  nf  June,  A.  D.  1906. 

E.  W.  Hoch,  Governor. 

By  the  governor: 

[seal.]  J.  R.  Burrow,  Secretary  of  State. 

Mr.  Julius  C.  Burrows,  of  iiichigan,  chairman  of  the  Committee  on  Privileges 
and  Elections,  said: 

Mr.  President,  it  will  be  observed  that  the  certificate  is  not  in  proper  form.  I  call  attention  to  the 
fact  that  by  it  the  governor  appoints  not  only  to  the  vacancy  until  the  next  meeting  of  the  legislature,  but 
until  the  legislature  shall  elect.  Under  that  certificate,  if  valid,  and  the  legislature  should  fail  to  elect, 
Mr.  Benson  might  hold  for  life.  But  the  certificate,  nevertheless,  I  think,  is  sufficient,  as  that  portion  of 
it  which  assumes  to  supply  the  vacancy  "  until  the  legislature  shall  elect "  can  be  regarded  as  surplusage. 

Mr.  Benson  then  appeared  and  took  the  oath. 

595.  A  Senator-elect  was  permitted  to  take  the  oath,  although  his 
credentials  were  irregular  in  minor  particiilars. — On  December  l'1,  1905/  in 
the  Senate,  John  M.  Gearin  appeared  with  credentials  as  follows: 

State  of  Oregon,  Executive  Department. 

Salem,  December  1.3,  1905. 

The  Governor  of  Oregon  to  John  M.  Gearin,  of  the  City  of  Portland,  State  of  Oregon: 

\\Tiereas  on  the  8th  day  of  December,  1905,  the  seat  of  the  Hon.  John  H.  Mitchell,  one  of  the 

Senators  of  the  United  States  from  the  State  of  Oregon,  became  vacant  by  reason  of  his  death;  and 

WTiereas  there  has  been  no  session  of  the  legislature  of  this  State  at  which  such  vacancy  could  be 

filled  by  the  election  of  a  Senator  to  succeed  the  said  John  H.  Mitchell;  and 

Whereas  it  is  of  vital  importance  to  the  interests  of  the  State  and  nation  that  such  vacancy  be  filled: 
Now,  therefore,  be  it  known  that,  reposing  special  trust  and  confidence  in  the  capacity,  integrity, 

and  fidelity  of  John  M.  Gearin,  a  citizen  of  the  State  of  Oregon,  I,  George  E.  Chamberlain,  governor  of 

the  State  of  Oregon,  do  in  the  name  and  by  the  authority  of  said  State,  by  these  presents  appoint 

'  First  session  Fifty-ninth  Congress,  Record,  p.  845.3. 
-First  session  Fifty-ninth  Congress,  Record,  pp.  667,  668. 


774  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    596 

and  commission  him,  the  said  John  M.  Gearin,  to  be  a  United  States  Senator  to  fill  the  place  made 
vacant  by  the  death  of  the  said  John  H.  Mitchell  and  to  occupy  the  same  until  a  successor  shall  be 
duly  elected. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  Stale  to  be  affixed,  at 
the  city  of  Salem,  on  this  13th  day  of  December,  1905. 

Geo.  E.  Chamberlain,  Governor. 

By  the  governor: 

[seal.]  F.  I.  Dunbar,  Secretary  of  State. 

The  credentials  having  been  read,  Mr.  JuUus  C.  Burrows,  of  Michigan,  said: 

I  would  suggest  to  the  Senator  that  the  certificate,  as  I  understood  from  its  reading  at  the  desk,  is 
defective,  in  that  it  provides  that  Mr.  Gearin  is  appointed  until  his  successor  is  elected.  The  governor 
has  no  power  to  make  such  an  appointment.  *  *  *  I  think  under  the  circumstances  I  should 
object  to  the  oath  of  office  being  administered  because  of  the  defect  in  the  certificate.  A  certificate 
appointing  a  person  a  Senator  until  his  successor  is  elected  seems  to  me  to  be  defective. 

Mr.  John  C.  Spooner,  of  Wisconsin,  said: 

I  am  very  clearly  of  the  opinion,  in  concurrence  with  the  Senator  from  Michigan,  that  the  last 
clause  of  this  commission,  "and  to  occupy  thesame  until  a  successor  shall  be  duly  elected,"  is  in  excess 
of  constitutional  authority.  It  is,  however,  mere  surplusage,  for  the  Constitution  provides  how  long  a 
Senator  appointed  by  the  governor  to  fill  a  vacancy  may  hold  the  appointment.  If  the  appointment  in 
itself  to  fill  a  vacancy  is  complete  and  in  accordance  with  the  constitutional  provision,  whatever  is  added 
going  to  the  duration  of  the  term  is  utterly  unnecessary,  and  if  in  violation  of  it  is  a  mere  matter  of 
surplusage,  not  going  to  the  validity,  it  seems  to  me,  of  the  appointment. 

We  have  had,  I  think,  a  similar  case  within  my  recollection.  There  was  a  vacancy — that  is  not  dis- 
puted— occasioned  by  the  death  of  Senator  Mitchell,  which  is  sought  in  this  amendment  to  be  filled.  It 
is  recited  that  the  vacancy  happened  in  a  vacation  while  the  legislature  was  not  in  session,  and  the  gov- 
ernor says: 

"  Now,  therefore,  be  it  known  that,  reposing  special  trust  and  confidence  in  the  capacity,  integrity, 
and  fidelity  of  John  M.  Gearin,  a  citizen  of  the  State  of  Oregon,  I,  George  E.  Chamberlain,  governor 
of  the  State  of  Oregon,  do,  in  the  name  and  by  the  authority  of  said  State,  by  these  presents  appoint 
and  commission  him,  the  said  John  M.  Gearin,  to  be  a  United  States  Senator  to  fill  the  place  made 
vacant  by  the  death  of  the  said  John  H.  Mitchell." 

If  the  last  clause,  following  that  I  have  just  read,  were  omitted,  that,  I  submit  to  the  Senator  from 
Michigan,  is  a  complete  and  valid  evidence  of  the  appointment  of  Mr.  Gearin  by  the  governor  of 
Oregon,  and  I  think  that  the  Senate  ought  to  disregard  entirely  the  unnecessary  and  now  altogether 
impotent  words  which  occur  at  the  end  of  the  commission.  I  make  that  suggestion  to  my  friend  from 
Michigan. 

Mr.  Burrows  replied: 

Mr.  President,  I  only  desired  to  call  the  attention  of  the  Senate  to  the  defect  in  the  certificate. 
Of  course  that  portion  of  the  certificate  which  declares  that  Mr.  Gearin  is  appointed  to  fill  the  vacancy 
until  his  successor  is  elected  may  be  regarded  as  surplusage,  if  the  certificate  in  other  particulars  clearly 
shows  that  the  executive  of  the  State  had  the  power  to  make  the  appointment. 

The  certificate  is  defective  in  another  particular.  The  governor  says  that  he  appoints  the  person 
named  to  "fill  the  vacancy."  He  has  no  power  to  do  that.  The  Constitution  provides  that  the  execu- 
tive of  the  State,  in  such  a  case  as  the  present,  "may  make  a  temporary  appointment  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  the  vacancy."  But  I  do  not  care  to  be  hypercritical 
about  it  at  all.     I  simply  call  the  attention  of  the  Senate  to  the  defects  in  the  certificate. 

There  being  no  further  objection,  Mr.  Gearin  was  permitted  to  take  the  oath. 

596.  The  credentials  of  a  Member-elect  indicating  that  he  had  been 
elected  before  the  resignation  of  his  predecessor  took  effect,  objection  was 
made  and  the  oath  was  not  administered  until  new  credentials  were  pro- 


§   596  IRREGULAK    CREDENTIALS.  775 

duced. — On  December  3.  1900,^  the  first  daj'  of  the  session,  the  following  creden- 
tials were  presented  to  the  House: 

The  State  of  Iowa,  ss: 

To  Hon.  Alexander  McDowell, 

Clerk  of  the  House  of  Representatives: 
This  is  to  certify  that  at  an  election  holden  on  Tuesday,  November  6,  A.  D.  1900,  the  following- 
named  persons  were  duly  elected  Representatives  in  Congress,  to  represent  the  Congressional  districts 
of  said  State  herein  set  forth,  to  fill  vacancies,  to  wit: 

Walter  I.  Smith,  of  Council  Bluffs,  in  the  county  of  Pottawattamie,  to  succeed  Smith  McPherson, 
resigned  on  the  6th  day  of  June,  A.  D.  1900. 

James  P.  Conner,  of  Denison,  in  the  county  of  Crawford,  to  succeed  Jonathan  P.  Dolliver,  resigned, 
to  take  effect  on  the  first  Monday  of  December.  A.  D.  1900. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  to  be  affixed  the  great  seal  of  the 
Sute  of  Iowa,  this  28th  day  of  November,  A.  D.  1900. 

Leslie  M.  Shaw. 
By  the  governor: 

G.  L.  DoBSON,  Secretary  of  State. 

Mr.  Joseph  W.  Bailey,  of  Texas,  raised  the  question  that  so  much  of  the  credential 
as  related  to  Mr.  Conner's  election  showed  that  the  election  was  held  before  the 
vacancy  actually  existed. 

The  Speaker  ^  said : 

This  objection  being  made,  Mr.  Conner  will  step  aside  until  the  other  gentlemen  whose  credentials 
have  been  read  are  sworn 

On  the  succeeding  day '  Mr.  William  P.  Hepburn,  of  Iowa,  having  called  the  case 
up,  Mr.  Bailey  said  that  he  would  not  object  to  the  swearing  in  of  Mr.  Conner  if  new 
and  proper  credentials  could  be  substituted  for  those  presented  the  preceding  day. 

Thereupon  the  following  was  presented 

United  States  of  America, 
St.^te  of  Iowa,  Executive  Department. 
To  Hon.  James  P.  Conner,  greeting: 

It  ip  hereby  certified  that  at  an  election  holden  on  the  6th  day  of  November,  1900,  you  were  elected 
to  the  office  of  Representative  in  Congress  from  the  Teni,h  Congressional  district  of  said  State  for  the 
residue  of  the  term  ending  the  3d  day  of  March,  1901. 

Given  at  the  seat  of  government  this  27th  day  of  November,  A.  D.  1900. 

[seal.]  Leslie  M.  Shaw. 

By  the  governor: 

G.  L.  DoBSON,  Secretary  of  State. 

Mr.  Bailey  called  attention  to  the  fact  that  the  credential  was  addressed  to  Mr. 
Conner  instead  of  to  an  official  of  the  House,  but  stated  that  he  would  not  object  to 
this  informality.     The  existence  of  the  vacancy  was  the  vital  point. 

Mr.  Hepburn  having  stated  that  Mr.  Dolliver,  as  soon  as  he  had  given  his  written 
resignation,  had  accepted  another  office,  that  of  Senator,  incompatible  with  that  of 
Representative,  Mr.  Bailey  declared  this  satisfactory  evidence  that  a  vacancy  existed 

'  Second  session  Fifty-sixth  Congress;  Journal,  p.  5;  Record,  p.  1-5. 
-David  B.  Henderson,  of  Iowa,  Speaker. 
'Journal,  p.  20;  Record,  p.  46. 


776 


PRECEDENTS   OF   THE   HOUSE    OF    KEPEESENTATIVES. 


§597 


for  which  the  governor  of  Iowa  could  issue  a  writ  of  election,  and  with  this  as  part  of 
the  record  had  no  further  objection. 

Mr.  Conner  was  thereupon  sworn. 

597.  The  New  York  election  case  of  Williamson  v.  Sickles  in  the 
Thirty-sixth  Congress. 

In  1859  the  Clerk  enrolled  a  Member-elect  who  had  no  regular  cer- 
tificate, but  who  presented  an  official  statement  from  the  State  authorities 
showing  his  election. 

A  question  as  to  what  constitutes  a  "  determination  of  the  result  "  of 
an  election  under  the  terms  of  the  law  of  1851  relating  to  notice  of  con- 
test. 

The  law  of  1851  regulating  the  conduct  of  contests  in  election  cases 
is  not  of  absolute  binding  force  on  the  House,  but  rather  a  wholesome  rule 
not  to  be  departed  from  except  for  cause. 

^Mien  the  House  of  Representatives  met  to  organize  on  December  5,  1859, 
the  name  of  Mr.  Daniel  E.  Sickles,  of  New  York,  was  among  the  names  of  the 
Members-elect  on  the  Clerk's  roll. 

Mr.  Sickles  did  not,  however,  have  a  regular  certificate  of  election.  The 
county  canvassers  had  returned  the  votes  in  Mr.  Sickles's  district,  as  well  as  in  two 
other  districts  as  cast  for  "Member  of  Congress."  It  appeared  that  the  ballots 
actually  cast  were  for  "Representatives  in  Congress."  The  board  of  State  can- 
vassers issued  a  statement '  of  the  votes  returned,  which  showed  the  election  of  Mr. 
Sickles,  and  declared: 

And  we  further  certify  that  inasmuch  as  said  office  was  not  legally  designated  in  the  returns  of  the 
county  canvassers  of  the  said  county  of  New  York  made  to  this  board,  we  can  not  certify  to  the  election 
of  any  person  to  the  office  of  Representative  in  Congress  in  the  said  respective  districts. 

Mr.  Sickles  presented,  in  lieu  of  regular  credentials,  a  certified  copy  of  this 
statement. 

Mr.  Sickles's  prima  facie  right  to  the  seat  was  not  challenged,  either  on  Decem- 
ber 5,  1859,-  when  the  House  assembled,  or  on  Februarv^  1,  1860,^  when  the  oath 
was  administered  to  the  Members-elect  by  the  Speaker. 

Mr.  Sickles's  final  right  to  the  seat  was  contested.  The  merits  of  this  contest 
do  not  appear,  since  on  Januarj^  31,  1861,*  the  Committee  on  Elections  simply 
reported  that  the  contestant  had  not  shown  sufficient  grounds  for  disturbing  the 
sitting  Member. 

But  an  important  preliminarj'  question  arose,  on  which  careful  reports  and  a 
well-considered  opinion  of  the  House  resulted. 

The  law  of  1851°  provided  that  the  contestant  should,  "within  thirty  days 
after  the  result  of  such  election  shall  have  been  determined  by  the  officer  or  board 
of  canvassers  authorized  by  law  to  determine  the  same,  give  notice  in  writing"  of 

'  First  session  Thirty-sixth  Congress,  House  Report  No.  80,  page  2.3. 

-Journal,  p.  4. 

^Journal,  p.  10.5. 

■•Second  session  Thirty-sixth  Congress,  Journal,  p.  250;  House  Report  No.  61. 

*9  Stat.  L.,  p.  508. 


§  597  IRREGULAR  CREDENTIALS.  777 

his  intention  to  contest.  The  contestant,  Mr.  Amor  J.  WiUiamson,  did  not  proceed 
under  this  law,  the  explanation  of  his  course  being  included  in  the  following  from 
the  report  of  the  committee: 

^Vllile  the  votes  were  before  the  State  canvassers,  and  before  their  action  became  known,  Mr. 
Williamson  made  preparations  to  contest  the  seat  in  the  mode  pointed  out  in  the  statute  of  1851.  He 
employed  counsel  for  that  purpose,  and  prepared,  in  part,  the  notice  of  contest  required  by  that  statute. 
But  when  those  canvassers  published  their  action  he  was  advised  by  his  counsel  that  there  had  been  no 
such  "determination  of  the  result  of  said  election"  as  is  contemplated  in  said  act,  and  that  until  such 
determination  was  made  he  could  not  under  said  law  serve  notice  upon  Mr.  Sickles  more  than  Mr. 
Sickles  upon  him,  for  both  were  equally  without  evidence  of  his  right  to  the  seat  from  the  constituted 
authorities  of  New  York,  and  that  he  could  not,  by  the  authority  of  said  act,  obtain  compulsory  process 
for  the  attendance  of  witnesses,  or  compel  them  to  attend  and  testify  under  the  pains  and  penalties  of 
perjurj'.  He  therefore  abandoned  further  proceedings  under  said  act,  and  appealed  to  the  House  at 
the  earliest  practicable  moment  after  the  organization  for  a  commission  to  take  testimony,  believing 
this  to  be  his  only  mode  of  obtaining  any  evidence  beyond  voluntary  testimony.  The  answer  of  Mr. 
Sickles  to  the  petition  and  to  this  application  to  take  testimony,  and  also  his  brief  in  its  support,  are 
appended  to  this  report,  as  is  the  brief  of  the  petitioner  in  reply  thereto. 

The  committee  do  not  consider  the  law  of  1851  as  of  absolute,  binding  force  upon  this  House,  for 
by  the  Constitution  "each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  members,"  and  no  previous  House  and  Senate  can  judge  for  them.  The  committee,  however,  con- 
sider that  act  as  a  wholesome  rule,  not  to  be  departed  from  except  for  cause.  But  the  conclusion  to 
which  they  have  arrived  upon  this  application  renders  it  unnecessary  for  them  to  settle  the  question 
whether  the  action  of  the  State  canvassers  was  such  a  "determination  of  the  result  of  said  election"  as 
is  contemplated  in  that  statute,  .«o  as  to  bring  the  case  within  its  provisions.  There  obviously  can  arise 
cases  not  within  the  provisions  of  that  act  in  which  the  parties  must  apply  to  the  House  itself  for  author- 
ity to  take  any  other  than  voluntary  testimony. 

The  majority  of  the  committee  therefore  reported  the  following  resolution: 

Resolved,  That  A.  J.  Williamson,  contesting  the  right  of  Hon.  D.  E.  Sickles  to  a  seat  in  this  House 
as  a  Representative  from  the  Third  district  of  the  State  of  New  York,  be,  and  he  is  hereby,  required 
to  serve  upon  the  said  Sickles,  within  ten  days  after  the  passage  of  this  resolution,  a  particular  statement 
of  the  grounds  of  said  contest,  and  that  the  said  Sickles  be,  and  he  is  hereby,  required  to  serv-e  upon 
the  said  Williamson  his  answer  thereto  in  twenty  days  thereafter;  and  that  both  parties  be  allowed  sixty 
days  next  after  the  service  of  said  answer  to  take  testimony  in  support  of  their  several  allegations  and 
denials  before  some  justice  of  the  supreme  court  of  the  State  of  New  York,  residing  in  the  city  of  New 
York,  but  in  all  other  respects  in  the  manner  prescribed  in  the  act  of  February  19,  1851. 

The  minority  of  the  committee  contended  that  the  contestant  might  have  pro- 
ceeded under  the  law  of  1851,  or  the  usages  of  parliamentary  assemblies,  and  that 
the  coxu-se  now  proposed  was  "illegal  and  unprecedented."  Therefore  they  opposed 
the  proposed  action  on  four  grounds: 

First.  That  the  committee  is  bound,  by  the  action  of  the  House  upon  the  subject- 
matter,  to  presume  that  the  sitting  Member  had  a  prima  facie  title  to  a  seat. 

Second.  That  Mr.  Williamson,  making  no  objection  by  way  of  protest  or  other- 
wise to  the  occupancy  of  the  seat  by  Mr.  Sickles,  or  to  his  bemg  sworn  in,  is  estopped 
from  maintaining  as  a  reason  for  not  giving  notice  of  contest  and  proceeding  witli 
the  case  in  obedience  to  the  law  of  1851,  that  the  sitting  Member  had  "no  prima 
facie  right  or  title  to  a  seat,"'  and  therefore  was  not  entitled  to  notice. 

Third.  That  having  entirely  failed  to  comply  with  the  law  of  Congress  prescrib- 
ing the  necessary  steps  to  be  taken  by  contestants,  the  petitioner  is,  by  his  own 
default,  without  remedv. 


778  PRECEDENTS   OF   THE   HOUSE    OF   EEPBESENTATIVES.  §   598 

Fourth.  That  it  is  not  competent  for  the  conxmittee  to  recommend  any  action 
to  the  House  which  involves  a  violation  of  the  law  of  1851,  because  as  a  law  of  Con- 
gress it  is  obligatory  alike  upon  the  House,  the  committee,  and  the  contestant;  that 
the  act  relating  exclusively  to  the  initiation  of  the  proceedings,  the  taking  of  testi- 
mony, and  the  preparation  of  the  case  for  the  decision  of  the  House,  does  not  infringe 
upon  the  constitutional  prerogative  of  the  House  to  judge  of  the  election,  return, 
and  qualifications  of  its  Members." 

On  March  20  and  21  '  the  report  was  debated  at  length  in  the  House,  the  history 
and  intent  of  the  law  of  1851  being  fully  considered.  The  fourth  ground  of  the 
minority  was  especially  combated  on  the  ground  that  the  constitutional  power  to 
judge  implied  also  the  right  to  investigate  when  and  how  the  House  should  please, 
untrammeled  by  law  of  a  former  Congress. 

The  resolution  proposed  by  the  majority  was  agreed  to — yeas  80,  nays  64. 

598.   The  case  of  Williamson  v.  Sickles,  continued. 

Form  of  resolution  providing  for  serving  notice  and  taking  testimony 
in  an  election  case  conducted  in  disregard  of  the  terms  of  the  law. 

The  House  by  resolution  may  delegate  the  appointment  of  a  commis- 
sioner to  take  testimony  in  an  election  case  and  may  prescribe  the  course 
of  procedure  of  said  commissioner. 

Instance  wherein  witnesses  in  a  contested  election  case  were  to  be 
summoned  by  subpoenas  issued  by  the  Speaker. 

On  May  17,  1860,^  Mr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee 
on  Elections,  reported  the  following  resolution,  which  was  agreed  to  without  divi- 
sion, although  one  Member  protested  that  it  was  a  violation  of  the  law  of  1851: 

Resolved,  That  the  judges  of  the  superior  court  of  the  State  of  New  York,  residing  in  the  city  of 
New  York,  be,  and  they  are  hereby,  authorized  and  requested  to  appoint  and  select  a  commissioner  of 
the  degree  of  counselor  at  law,  whose  duty  it  shall  be  to  take  the  testimony  in  the  matter  of  Amor  J. 
Williamson,  contesting  the  seat  now  held  by  Hon.  Daniel  E.  Sickles,  from  the  Third  Congressional  dis- 
trict of  the  State  of  New  York,  as  provided  and  directed  by  the  resolution  passed  by  the  House  of  Rep. 
resentatives  on  the  21st  of  March,  18G0.  It  shall  be  the  duty  of  the  said  commissioner  so  appointed  to 
enter  upon  his  duties  immediately  after  his  appointment,  and,  after  giving  five  days'  notice  to  the  parties 
to  this  contest,  to  proceed  from  day  to  day  with  the  examination  of  such  witnesses  aa  may  be  brought 
before  him  in  support  of  the  allegations  of  the  contestant  and  certain  allegations  of  the  sitting  Member 
until  the  case  is  closed;  provided  such  examination  does  not  extend  beyond  sixty  days  from  the  time 
of  commencing  the  taking  of  such  testimony.  It  shall  be  the  duty  of  the  commissioner  appointed  under 
this  resolution  to  provide  the  attorneys  of  the  parties  to  this  action  with  such  number  of  subpcenas, 
issued  by  the  Speaker  of  this  House,  as  they  may  require  for  the  witnesses  they  desire  to  call.  The 
said  commissioner  is  hereby  directed  to  take  up  the  case  from  the  point  which  it  had  reached  at  the 
time  it  was  brought  before  the  superior  court  on  the  16th  of  May,  18G0;  and  all  notices  given  on  either 
side  are  hereby  declared  good  without  further  action.  All  witnesses  must  be  sworn  by  some  officer 
authorized  by  the  laws  of  the  State  of  New  York  to  administer  oaths.  On  the  conclusion  of  the  case, 
it  shall  be  the  duty  of  the  commissioner  hereby  provided  for  to  transmit  a  correct  copy  of  the  evidence, 
pleadings,  etc.,  under  oath,  to  the  House  of  Representatives.  And  each  party  is  hereby  authorized  to 
take  the  testimony  of  any  witnesses  resident  in  the  State  of  New  Jersey,  before  any  judge  of  a  court  of 

'  First  session  Thirty-sixth  Congress,  Globe,  pp.  1255,  1278-1289;  Journal,  p.  563;  1  Bartlett,  p.  288; 
Rowell's  Digest,  p.  163. 

2  Journal,  p.  850;  Globe,  p.  2157. 


§   599  lEKEGULAR    CREDENTIALS.  779 

record  or  magistrate  authorized  to  take  depositions,  resident  in  the  State  of  New  Jersey;  and  said  judge 
or  magistrate  is  hereby  authorized  to  do  each  and  all  things  in  the  premises  which  the  commissioner 
hereinbefore  mentioned  is  by  this  resolution  authorized  to  do.  The  time  for  the  taking  of  testimony 
under  this  resolution  is  not  to  commence  till  the  day  of  the  adjournment  of  the  first  session  of  this  Con- 
gress, and  is  to  extend  sixty  days  thereafter,  with  the  exception  of  such  witnesses  not  resident  of,  or 
living  in,  or  being  about  to  leave,  the  State  of  New  York,  as  the  contestant  may  desire  to  subpoena  and 
examine  before  said  adjournment;  and  as  to  such  witnesses,  the  commissioner  or  judge  aforesaid,  or 
either  of  them,  is  hereby  authorized  in  manner  aforesaid  to  take  and  forward  their  depositions  at  any 
time  after  the  passage  of  this  resolution  and  before  the  expiration  of  said  sixty  days,  when  application 
shall  be  made  to  him  for  that  purpose  by  the  contestant. 

599.  The  Colorado  election  case  of  Hunt  and  Chilcott  in  the  Fortieth 
Congress. 

A  governor  having  issued  credentials  in  violation  of  law,  the  House 
honored  later  credentials  issued  by  his  successor. 

Credentials  issued  by  the  proper  officer,  but  defective  in  form  and 
impeached  by  evidence,  were  overthrown  by  later  credentials. 

Credentials  issued  in  violation  of  law  to  reverse  the  facts  of  the  can- 
vass of  votes  do  not  give  prima  facie  right,  although  issued  by  the  lawful 
officer. 

Credentials  should  show  on  their  face  specifically  that  they  are  given 
to  the  person  entitled  by  law  to  have  them. 

The  House  may  give  to  its  Elections  Committee  discretion  to  regu- 
late the  serving  of  notice  and  taking  of  testimony  in  an  election  case. 

Form  of  resolution  for  instituting  a  contest  to  determine  final  right 
after  a  determination  of  prima  facie  right. 

On  March  5,  1867,^  at  the  time  of  the  organization  of  the  House,  conflicting 
credentials  were  presented  from  the  Territory  of  Colorado,  and  the  House  referred 
them  to  the  Committee  on  Elections,  with  instructions  to  report  "at  an  early  day 
as  to  the  prima  facie  right  to  a  seat." 

On  March  14,  1867,  ilr.  Glenni  W.  Scofield,  of  Pennsylvania,  submitted  the 
report  of  the  majority  of  the  committee.^  The  report  gives  the  certificate  of  the 
governor  of  the  Territory,  as  follows: 

Executive  Department,  Colorado  Territory, 

Denver,  September  5,  1866. 
Sir:  This  is  to  certify  that  at  an  election  held  August  7, 1866,  in  accordance  with  the  laws  of  Congress 
and  of  the  Territory  of  Colorado,  for  Delegate  to  represent  said  Territory  in  the  Fortieth  Congress  of  the 
United  States,  you  were  duly  elected  such  Del^^te. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the  Territory  of  Colorado 
to  be  affixed.     Done  at  Denver,  this  5th  day  of  September,  A.  D.  1866. 

[seal.]  Alexander  Cummings, 


Attest: 

Hon.  A.  C.  Hunt, 

Denver,  Colorado  Territory. 


Governor  of  Colorado  Territory. 

Frank  Hall, 
Secretary  of  Colorado  Territory. 


'  First  session  Fortieth  Congress,  Journal,  p.  11;  Globe,  p.  8;  2  Bartlett,  p.  164;  Rowell's  Digest, 
p.  212. 

'  Report  No.  3.     The  views  of  the  minority  were  presented  by  Mr.  Michael  C.  Kerr,  of  Indiana. 


750  PRECEDENTS    OF    THE    HOUSE    OF   KEPEESENTATIVES.  §   599 

The  report  goes  on: 

The  election  laws  of  the  Territory  provide  that  "  the  secretary  of  the  Territory,  auditor,  treasurer, 
or  anv  two  of  them,  in  the  presence  of  the  governor,  shall  proceed  *  *  *  to  canvass  the  votes  given 
for  all  Territorial  officers,  and  the  governor  shall  give  a  certificate  of  election  to  the  person  having  the 
highest  number  of  votes  for  each  office." 

The  certificate  of  the  governor  in  favor  of  Mr.  Hunt  makes  no  allusion  to  this 
canvass,  nor  does  it  give  any  data  upon  which  the  conclusion  is  based.  This  omis- 
sion, although  noticeable,  would  not  of  itself  have  been  considered  by  a  majority 
of  the  committee  fatal  to  the  validity  of  the  certificate.  But  Mr.  Hunt  did  not  rest 
his  case  upon  that  paper  alone.  He  introduced  Governor  Cummings  in  its  support. 
The  governor  informed  the  committee  that  on  the  5th  day  of  September  a  canvass 
of  the  votes  cast  for  Delegate  was  had  in  his  presence  by  the  board  of  canvassers; 
that  two  of  said  board  found  that  a  majority  of  all  the  votes  had  been  cast  for  George 
M.  Chilcott,  and  that  one  of  said  board  dissented  from  this  conclusion,  and  that  he 
(the  governor),  considering  himself  one  of  the  board,  agreed  with  the  dissenting 
member,  making  a  tie,  whereupon  he  determined  the  election  himself,  and  made 
a  certificate  in  opposition  to  the  conclusion  of  two  members  of  the  board.  In  addi- 
tion to  the  governor's  statement,  among  the  papers  submitted  by  the  House  is  a 
report  of  the  board  of  canvassers,  signed  by  Frank  Hall,  secretary  of  the  Territory, 
and  Richard  E.  Whitsitt,  auditor  of  the  Territory,  and  addressed  to  the  governor,  in 
which  they  state  that  at  the  canvass  held  in  his  presence,  according  to  law,  they 
find  that  Mr.  Chilcott  had  3,529  votes  and  A.  C.  Hunt  had  3,421  votes,  by  which  it 
would  appear  that  'Mr.  Chilcott  was  elected  Delegate  by  108  majority.  The  certifi- 
cate of  the  governor  thus  appears  to  have  been  issued  in  violation  of  the  laws  of  the 
Territory,  in  order  to  reverse  the  facts  of  the  canvass.  Under  this  state  of  facts  the 
committee  do  not  feel  authorized  to  report  that  Mr.  Hunt  is  entitled  prima  facie 
to  a  seat  as  Delegate. 

The  certificate  of  election  presented  by  Mr.  Chilcott  is  based  upon  the  report 
of  the  board  of  canvassers,  and  is  signed  by  Frank  Hall,  acting  governor  of  the  Ter- 
ritory; but  it  bears  date  February  5,  1867,  five  months  subsequent  to  the  action 
of  Governor  Cummings  in  the  same  case.  The  committee  are  of  the  opinion,  as  held 
in  the  case  of  Todd  and  Jayne,  that  this  power,  having  been  once  exercised  by  the 
proper  officer,  can  not  be  again  exercised  by  his  successor,  and  that  therefore  Mr. 
Chilcott  was  not  entitled  prima  facie  to  a  seat  as  Delegate. 

The  majority  therefore  recommended  that  the  case  be  referred  to  the  Committee 
on  Elections,  with  instructions  to  ascertain  the  final  right  to  the  seat. 

The  minority,  in  their  views,  denied  outright  that  Governor  Cummings  made 
the  statement  attributed  to  him  in  the  majority  report,  and  say  that  the  committee 
could  not,  under  the  resolution  of  reference,  have  considered  parol  evidence.  The 
minority  argue  on  the  issue  presented: 

We  submit,  therefore,  that  the  prima  facie  title  is  in  A.  C.  Hunt.  The  certificate  held  by  liim 
is  executed  in  the  usual  form  by  the  only  officer  having  authority  to  issue  the  same,  and  is  attested 
by  the  proper  officer.  It  alleges  in  comprehensive  but  apt  and  proper  words  the  existence  of  every 
material  fact  necessary  to  sustain  such  a  certificate.  Its  language  does  not  admit  of  any  other  construc- 
tion without  a  tortuous  disregard  of  the  most  common  and  accepted  meaning  of  words  and  of  established 
rules  of  interpretation. 


§  599  IKREGULAE  CREDENTIALS.  781 

To  have  been  "duly  elected  "  "in  accordance  with  the  laws  of  Congress  and  of  the  Territory  of 
Colorado  "  certainly  excludes  the  conclusion  that  the  recipient  of  such  a  certificate  could  have  received 
less  than  "the  highest  number  of  votes."  It  is  alike  demanded  by  reason  and  authority  that  the  words 
used  shall  be  taken  in  their  most  common  and  recognized  acceptation,  and  that  every  fair  and  reasonable 
inference  shall  be  made  in  favor  of  the  prima  facie  sufficiency  of  the  paper,  and  even  if  the  terms  used 
were  ambiguous,  that  such  a  meaning  should  be  affixed  to  them  as  would  be  most  suitable  to  the  subject- 
matter  and  purpose  of  the  certificate.  Applying  these  rules  to  the  case  in  hand,  the  right  to  the  seat 
would  seem  to  be  very  clearly  in  Mr.  Hunt,  until  the  contest  shall  have  been  examined  on  its  merits. 

The  certificate  awarded  to  Mr.  Hunt  by  the  governor  in  this  case  is  almost  identical  in  form  with 
those  generally  given  by  governors  of  States  to  Representatives-elect  to  Congress  which  have  always 
been  holden  to  be  sufficient  prima  facie. 

It  can  not  with  legal  force  or  propriety  be  insisted  that  such  a  certificate,  when  executed  by  the 
governor  of  a  Territory,  should  contain  any  more  extensive  recitals  of  facts  than  when  executed  by  the 
governor  of  a  State.  In  either  case  its  substantial  and  reasonable  purpose  is  attained  if  it  states  that 
the  holder  of  it  is  duly  elected  according  to  law.  Such  a  certificate  constitutes  sufficient  evidence  of 
a  valid  election  prima  facie,  at  first  impression,  and  without  submitting  evidence  of  complete  title 
as  against  all  men. 

But  it  is  claimed  that  this  apparent  title  in  Hunt  is  overcome  by  the  certificate  or  paper  already 
referred  to.  which  was  executed  and  delivered  to  Mr.  Chilcott  five  months  afterwards  by  Frank  Hall, 
"secretary  and  acting  governor  of  the  Territory."  How  Mr.  Hall,  at  the  date  of  his  paper,  came  to  be 
acting  governor  does  not  appear.  WTiy  he.  five  months  before,  as  secretary,  attested  the  certificate 
and  proclamation  in  favor  of  Mr.  Hunt  is  entirely  unexplained.  The  value  of  the  paper  must  be  deter- 
mined by  mere  inspection  and  by  comparison  of  it  with  those  presented  by  Mr.  Hunt.  Thus  tested 
it  is  certainly  defective  as  evidence  of  title  in  anyone.  It  is  issued  five  months  after  the  first  and  is 
attested  by  no  one.  It  is  issued  by  the  same  officer  who  attested  the  first,  but  the  inconsistency  of 
his  connection  with  the  two  acts  is  not  explained.  It  is  executed  solely  by  a  person  or  officer  of  whose 
right  to  assume  the  character  of  "acting  governor  of  the  Territory"  this  House  can  not  take  judicial 
notice.  At  the  time  it  was  executed  the  authority  to  issue  a  certificate  of  election  had  been  formally 
exercised  by  the  rightful  governor  of  the  Territory.  That  authority  could  not  be  again  exercised  in 
reference  to  the  result  of  the  same  election  by  another  officer  who  might,  by  mere  accident,  become 
temporarily  entitled  to  act  as  governor.  If  any  facts  existed  or  came  to  the  knowledge  of  the  "acting 
governor"  after  the  execution  of  the  regular  certificate  by  the  governor,  they  may  constitute  valid 
ground  of  contest,  and  may  defeat  the  prima  facie  right  of  Mr.  Hunt  to  the  seat,  but  such  facts  can  not 
be  examined  on  a  mere  inquiry  as  to  prima  facie  title. 

On  March  20 '  the  report  was  debated  at  length  in  the  House.  It  was  explained 
in  this  debate  that  the  statement  of  Governor  Cummings  had  been  made  not  as 
evidence  of  a  witness,  but  as  an  admission  while  he  was  arguing  as  counsel,  but 
even  on  this  view  of  his  statement  there  was  not  entire  unanimity  on  the  part  of 
the  committee.  It  was  also  stated  in  debate  and  not  denied  that  among  the  papers 
referred  with  the  credentials  was  one  giving  the  official  returns  from  the  several 
counties,  which  sustained  tlie  report  of  the  canvassing  board  and  showed  the  election 
of  Mr.  Cliilcott  on  the  face  of  the  returns. 

In  support  of  the  argument  that  Mr.  Chilcott  had  the  prima  facie  right  to  the 
seat  it  was  urged  that  the  certificate  shoidd  show  that  the  governor  had  acted  in 
conformity  to  law  in  giving  it,  and  the  law  directed  the  governor  to  give  the  certifi- 
cate to  "the  person  having  the  highest  number  of  votes,"  as  found  by  the  board  of 
canvassers.  The  certificate  did  not  show  this.  Taken  together  with  the  admissions 
made  and  the  papers  filed  with  it,  it  was  evidently  not  evidence  of  prima  facie  right. 
If  Governor  Cummings  had  given  a  legal  and  valid  certificate  he  would  have 
exhausted  the  function  and  another  might  not  be  issued.     But  the  governor  did 

'Globe,  pp.  225-233;  Journal,  pp.  73,  74. 


782  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   600 

not  give  such  a  certificate,  and  so  the  acting  governor  at  a  later  date  might  issue 
a  certificate  that  would  entitle  Mr.  Ghilcott  to  the  seat  by  prima  facie  right. 

Therefore  it  was  moved  that  the  proposition  of  the  committee  be  amended 
so  as  to  seat  Mr.  Ghilcott  pending  examination  as  to  final  right.  This  amendment 
was  agreed  to — yeas  91,  nays  36.  The  substitute  of  the  minority  was  then  disa- 
greed to,  and  then  the  original  resolution  as  amended  was  agreed  to,  and  Mr.  Ghilcott 
was  sworn  in. 

So  it  was — 

Resolved,  That  the  papers  and  evidence  relating  to  the  right  of  A.  C.  Hunt  and  George  M.  Chilcott 
to  a  seat  in  the  Fortieth  Congress  as  a  Delegate  from  the  Territory  of  Colorado  be  referred  to  the  Committee 
of  Elections,  with  instructions  to  report  which,  if  either,  of  said  claimants  is  entitled  thereto;  and  that 
the  committee  have  power  to  require  the  service  of  such  notices  and  grant  such  time  for  taking  further 
evidence  as  they  may  deem  proper. 

and  that  pending  the  action  of  the  committee  and  the  House  thereon,  George  M. 
Ghilcott  be  sworn  in  as  the  sitting  Delegate  from  the  Territory  of  Golorado. 

Evidence  was  taken  in  the  case,'  but  no  report  was  made  on  the  merits.  On 
July  25,  1868,^  the  House  passed  a  resolution  reimbursing  contestant  for  his  expenses. 

600.  The  election  case  of  Whitmore  v.  Herndon,  from  Texas,  in  the 
Porty-second  Congress. 

A  question  arising  as  to  the  suflB.ciency  of  papers  purporting  to  be  cre- 
dentials, the  House  had  the  papers  examined  by  a  committee  before  per- 
mitting the  Member-elect  to  be  sworn. 

The  House  by  resolution  may  modify  the  law  as  to  the  times  and 
places  of  taking  the  testimony  in  contested  election  cases. 

On  December  4,  1871,^  after  the  roll  had  been  called  by  States  and  the  presence 
of  a  quorum  had  been  ascertained,  the  credentials  of  W.  S.  Herndon,  claiming  a 
seat  from  the  State  of  Texas,  were  presented,  and  referred  to  the  Committee  of 
Elections,  Mr.  Herndon  not  being  sworn  in. 

On  December  12,''  on  report  of  the  committee  that  he  was  entitled  to  the  seat 
on  the  strength  of  the  documents  presented,  the  House  ordered  Mr.  Herndon  to 
be  sworn  in,  and  he  accordingly  qualified. 

On  December  18,  1871,^^  Mr.  George  W.  McGrary,  of  Iowa,  submitted  from  the 
Gommittee  of  Elections  a  resolution,  which  was  agreed  to  in  the  following  amended 
form: 

Resolved,  That  the  sixty  days  which  the  law  allows  for  taking  testimony  in  the  contested  election 
case  of  G.  W.  Whitmore  v.  W.  S.  Herndon,  from  the  first  district  of  Texas,  shall  commence  on  the  1st 
day  of  January,  1872. 

Resolved,  That  either  party  to  said  contest  be  authorized  to  take  the  testimony  of  any  witnesses 
who  may  be  found  in  the  District  of  Columbia,  at  the  city  of  Washington,  before  any  officer  authorized 
by  law  to  take  depositions  therein,  within  sixty  days  after  the  passage  of  this  resolution,  upon  three 
days'  notice  to  the  opposing  party;  no  mileage  to  be  allowed  to  such  witnesses. 

'  See  Journal,  second  session  Fortieth  Congress,  p.  124. 
-Journal,  second  session,  p.  1186;  Globe,  pp.  1901,  4471. 

^Second  session  Forty-second  Congress,  Journal,  p.  8;  Globe,  p.  9.     The  questions  arising  as  to 
these  credentials  were  the  same  as  set  forth  in  the  case  of  W.  T.  Clark.     See  section  601  of  this  work. 
*  Journal,  p.  61;  Globe,  p.  70. 
•^Second  session  Forty-second  Congress,  Journal,  p.  89;  Globe,  p.  199. 


Ji 


§  601  IBBEGULAK  CREDENTLiLS.  783 

On  May  24,  1872/  Mr.  George  F.  Hoar,  of  Massachusetts,  from  the  Cominittee 
on  Elections,  submitted  this  resolution,  which  was  agreed  to  without  division: 

Resolved,  That  William  S.  Hemdon  is  entitled  to  retain  the  seat  he  now  holds  as  a  Member  from 
the  First  Congressional  district  of  Texas. 

601.  The  Texas  election  case  of  Giddings  v.  Clarke  in  the  Forty-second 
Congress. 

A  person  bearing  credentials  which,  on  their  face,  showed  that  the 
governor  issuing  them  was  doubtful  as  to  who  was  actually  elected,  was 
seated  by  the  House,  there  being  provisions  of  law  to  justify  the  gover- 
nor's act. 

Form  of  resolution  seating  a  person  on  prima  facie  showing  without 
prejudice  to  the  rights  of  a  contestant. 

On  December  4,  1871,^  after  the  roll  had  been  called  and  the  presence  of  a 
quorum  had  been  announced,  several  Members-elect,  whose  credentials  were  in 
regular  fomi,  were  sworn  in.  Then  Mr.  George  W.  McCrary,  of  Iowa,  presented 
the  credentials  of  Mr.  William  T.  Clark,  of  Texas,  which  he  stated  were  not  in  regular 
form,  and  wliich  were  as  follows: 

Governor's  Office,  Austin,  November  15,  1871. 

This  is  to  certify  that,  on  comparison  of  the  returns  of  votes  cast  at  an  election  held  in  the  Third 
Congressional  district  of  the  State  of  Texas,  on  the  3d,  4th,  5th,  and  6th  of  October,  A.  D.  1871,  provided 
for  by  a  joint  resolution  of  the  legislature  of  said  State  of  Texas,  approved  May  2,  1871,  I  find  that  the 
Hon.  W.  T.  Clarke  was  duly  elected  to  represent  the  said  Congressional  district  of  the  State  of  Texas  in 
the  Congress  of  the  United  States  for  the  term  commencing  on  the  4th  day  of  March,  A.  D.  1871,  and 
ending  on  March  3,  1873. 

In  giving  this  certificate  I  wish  to  call  attention  to  the  attached  certified  statement  of  the  vote  cast 
in  the  Third  district  as  returned,  with  grounds  for  rejecting  certain  returns.  This  is  explanatory  of  my 
reasons  for  giving  the  foregoing  certificate  of  election.  According  to  my  opinion,  the  numerous  irregu- 
larities and  instances  of  fraud  and  violence  dtiring  the  election  in  the  Third  district,  reported  and  proved 
to  my  satisfaction,  would  rather  warrant  a  new  election  than  the  giving  of  a  certificate  to  either  party. 
I  have  felt  constrained  by  my  interpretation  of  the  provisions  of  the  State  law  on  the  subject  of  elections 
to  reject  many  returns,  and  would  have  thought  it  more  just  to  regard  the  election  as  a  nullity,  yet  the 
act  of  Congress  of  May  31, 1870,'  section  22,  seems  to  require  that  I  should  give  a  certificate  of  election 
to  one  of  the  candidates. 

In  testimony  whereof  I  have  caused  the  great  seal  of  the  State  to  be  aflaxed,  at  the  city  of  Austin, 
the  date  heroin  first  above  written. 

[sE.^L.]  Edw.^rd  J.  Davis,  Governor. 

By  the  governor: 

J.  E.  Oldrioht. 

Acting  Secretary  oj  State. 

The  credentials  were  referred  to  the  Committee  of  Elections,  and  Mr.  Clarke 
was  not  sworn  in. 

On  December  18,  1871,^  Mr.  George  F.  Hoar,  of  Massachusetts,  submitted  the 

report  of  the  committee.     This  report  stated  the  conditions  of  the  law  as  follows: 

It  will  be  seen  that  the  laws  of  Texas,  under  which  the  election  for  Members  of  the  Forty-second 
Congress  was  held,  provide  that  the  judges  of  election  at  each  poll  or  voting  place  (sec.  .33)  shall  count 

■Journal,  p.  944;  Globe,  p.  3816. 

^Second  session  Forty-second  Congress,  Journal,  p.  8;  Globe,  p.  9. 

neStat.  L.,  pp.  145,  140. 

<  House  Report  No.  2;  Smith,  p.  6;  Rowell's  Digest,  p.  263. 


784  PRECEDENTS    OF   THE    HOUSE    OF   KEPEESENTATIVES.  §   601 

the  ballots,  make  a  list  of  the  names  of  persons  and  officers  voted  for,  the  number  of  votes  for  each,  the 
number  of  ballots  in  the  box,  the  number  of  ballots  rejected,  and  the  reasons  therefor.  All  this  is  to 
be  done  "immediately  after  the  close  of  the  polls."  This  statement  is  to  be  made  out  in  triplicate, 
signed  and  sworn  to,  one  copy  sent  by  mail  to  the  secretary  of  state,  another  copy  sent  to  the  governor, 
and  a  third  retained  liy  the  registrar. 

The  twenty-first  section  provides  that  if  there  be  any  disturbance,  intimidation,  or  corruption 
which  prevent  or  tend  to  prevent  a  free  and  peaceable  election,  the  judges  or  registrar  .shall  make  a 
Btatement,  under  oath,  thereof,  corroborated  by  the  oaths  of  three  citizens,  and  transmit  the  same  to 
the  governor.  Section  34  requires  the  secretary  of  state  to  make  a  table  containing  an  alphabetical 
list  of  the  counties,  with  columns  for  the  names  of  candidates  and  the  number  of  votes;  and  on  the 
sixteenth  day  after  the  close  of  the  election,  in  the  presence  of  the  governor  and  the  attorney-general, 
to  open  the  returns  and  enter  on  the  table  the  number  of  votes  given  for  the  candidates,  respectively, 
and  then  put  the  returns  back  in  the  envelope,  and  seal  and  file  them  away. 

The  returning  officers  are  to  compile  the  statements  first  from  all  places  where  there  has  been  a 
fair,  free,  and  peaceable  registration  and  election.  Then  if  there  has  been  received  any  statement 
from  any  judge  or  registrar  of  violence,  intimidation,  or  corruption,  as  above  stated,  they  are  to  see 
whether  these,  if  proved,  would  affect  the  result.  If  they  would  not,  they  are  to  proceed  to  canvass 
and  compile  the  returns  from  such  voting  place  as  if  no  such  statement  had  been  made.  If  they  would, 
the  returning  oflicers  are  to  examine  further  testimony,  with  power  to  send  for  persons  and  papers,  and, 
whenever  such  illegalities  are  shown  to  have  taken  place  at  any  voting  place  so  as  materially  to  affect 
the  result,  then  the  said  returning  officers  shall  not  canvass  or  compile  the  statement  of  the  votes  at  such 
poll  or  voting  place,  but  shall  exclude  it  from  their  returns.  The  secretary  may  also  employ  clerks 
to  compile  the  returns  for  a  length  of  time  not  to  exceed  twenty  days. 

The  foregoing  provisions  are  all  contained  in  a  statute  entitled  "An  act  to  provide  for  the  mode 
and  manner  of  conducting  elections,  making  returns,  and  for  the  protection  and  purity  of  the  ballot 
box."  They  do  not  make,  in  terms,  any  distinction  between  different  classes  of  officers  or  purport 
to  be  limited  in  their  application  to  State  officers  exclusively,  and  they  are  the  only  provisions  for 
forwarding  returns  to  the  secretary  of  state  or  for  any  canvass  or  compilation  which  shall  ascertain 
the  result.     But  section  23  provides  that — 

"As  soon  as  possible  after  the  expiration  of  the  time  of  taking  the  returns  of  the  election  for  Repre- 
sentatives in  Congress,  a  certificate  of  the  returns  of  the  election  for  such  Representatives  shall  be  entered 
on  record  by  the  secretary  of  state  and  signed  by  the  governor,  and  a  copy  thereof,  subscribed  by  said 
officers,  shall  be  delivered  to  the  person  so  elected  and  another  copy  transmitted  to  the  House  of 
Representatives  of  the  Congress  of  the  United  States." 

The  minority  claimed  that  this  paragraph  above  quoted  was  the  only  law  of 
Texas  relating  to  the  duties  and  power  of  the  governor  in  regard  to  election  returns 
for  Members  of  Congress,  and  that  the  provision  of  law  relating  to  rejection  of 
returns  by  returning  officers  in  case  of  violence,  intimidation,  corruption,  etc., 
applied  only  to  returns  of  election  of  State  officers.  On  this  question  of  fact  the 
case  to  a  considerable  extent  hinged.  The  majority  could  not  say  affirmatively 
that  the  governor  had  rejected  the  rettirns  referred  to  in  the  certificate  in  a  legal 
way  after  they^  had  been  duly  certified  up;  but  in  the  debate  a  communication 
from  the  secretary  of  state  of  Texas  was  presented,  showing  that  whatever  rejections 
were  made  were  in  strict  conformity  to  all  legal  requirements. 

The  majority  of  the  committee  find  Mr.  Clarke's  credentials  satisfactory: 

It  is  signed  by  the  governor  and  secretary,  declares  Mr.  Clarke  to  be  duly  elected,  states  that  it  is 
a  document  on  record  in  the  secretary's  office,  and  contains  the  tabulated  statement  of  returns  required 
by  law.  It  is  true  it  docs  not  state  that  the  attorney-general  was  present  when  tlie  local  returns  were 
opened,  and  it  is  not  required  to  state  this  by  the  law.  The  certificate  of  the  returns  is  all  that  is  to 
go  on  the  record.  It  is  true  also  that  it  shows  that  some  local  returns  are  rejected;  but  these  are  all 
rejected  for  reasons  which,  by  the  express  provisions  of  law,  it  was  made  the  duty  of  these  officers  to 


§  601  IRREGULAR    CREDENTIALS.  785 

weigh  and  act  upon,  except  in  the  case  of  Brazos  County,  which  does  not  affect  the  result.  It  is  true 
also  that  it  does  not  appear  that,  in  investigating  the  allegations  of  violence  and  intimidation,  the  State 
officers  proceeded  in  the  mode  pointed  out  by  the  law:  but  it  does  not  appear  that  they  did  not.  It  is 
not  necessary  that  they  should  record  or  certify  how  they  proceeded.  The  maxim  omnia  rite  acta  esse 
presumuntur  is  clearly  applicable  in  a  case  of  this  sort.  Few,  if  any,  of  the  credentials  of  the  Membere 
of  the  House  show  how  the  officers  who  certified  them  proceeded  under  the  State  laws  in  ascertaining 
the  fact  which  he  declares.  It  is  enough  for  a  prima  facie  case  if  the  certificate  came  from  the  proper 
officer  of  the  State,  and  clearly  shows  that  the  person  claiming  under  it  has  been  adjudged  to  be  duly 
elected  by  the  official  or  board  on  whom  the  law  of  the  State  has  imposed  the  duty  of  ascertaining  and 
declaring  the  result. 

We  therefore  recommend  the  adoption  of  the  following  resolution: 

Resolved,  That  \V.  T.  Clarke  has  the  prima  facie  right  to  a  seat  as  Representative  from  the  Third 
Congressional  district  of  the  State  of  Texas,  and  is  entitled  to  take  tlie  oath  of  office  as  a  Member  of 
this  House,  without  prejudice  to  the  right  of  any  person  claiming  to  have  been  elected  thereto  to  contest 
his  right  to  said  seat  upon  the  merits. 

The  minority  views,  presented  by  Mr.  E.  Y.  Rice,  of  Illinois,  thus  attacked 
the  credentials: 

Upon  inspection  it  also  appears  that  the  same  contains  qualifications  and  recitals  that  go  very 
far  to  lessen  its  character,  if  not  to  destroy  its  validity  altogether  as  prima  facie  evidence  of  title  to  a 
seat  in  this  House  by  W.  T.  Clarke. 

The  conclusion  reached  by  Governor  Davis,  as  appears  from  the  closing  lines  of  the  certificate 
in  question,  was  not  owing  so  much  to  the  fact  that  he  believed  Mr.  Clarke,  or  any  other  candidate, 
to  have  been  duly  and  legally  elected,  as  to  the  fact  that  he  was  impressed  with  the  belief  that  he  was 
compelled  by  the  twenty-second  section  of  the  act  of  Congress  of  May  3,  1870,  to  give  a  certificate  of 
election  to  one  of  the  candidates. 

This  certificate  also  refers  to  (and  we  hold  adopts  as  a  part  thereof)  a  certified  statement  of  the 
vote  cast  in  the  Third  district  of  the  State  of  Texas  for  Representative  in  the  Forty-second  Congress 
for  said  district.  A  copy  of  said  certificate  of  election,  certified  statement  of  the  votes  returned,  and 
■'remarks''  showing  the  rejection  of  votes  returned,  and  the  reasons  or  grounds  of  rejection,  is  herewith 
submitted  as  a  part  of  this  report. 

It  appears  by  the  vote  returned,  as  shown  by  the  certified  statement  referred  to  and  verified  by 
the  governor,  that  if  the  whole  number  of  votes  polled  for  W.  T.  Clarke  were  counted  for  him,  and  the 
whole  number  polled  for  D.  C.  Giddings  were  counted  for  him,  the  majority  for  Mr.  Giddings  would 
be  730  votes. 

Mr.  Giddings  insists  that  the  evidence  furnished  by  the  documents  or  certificates  referred  to  the 
committee  shows  that  he  was  in  fact  duly  elected,  and  that  he  is  entitled  to  take  his  seat  as  a  Member 
of  this  House  for  the  Third  district  of  the  State  of  Texas.  If  the  votes  are  to  be  counted  for  the  respective 
candidates  as  they  were  returned  to  the  secretarj'  of  state  by  the  boards  of  election  or  registrars,  then 
Mr.  Giddings  is  clearly  entitled  to  the  seat  for  said  district.  But  if,  on  the  contrary,  the  governor  of 
the  State  of  Texas,  after  the  votes  for  Member  of  Congress  for  said  district  were  returned  to  him,  had 
lawful  power  and  authority  to  reject  all  the  votes  which  he  states  he  did  reject,  then  Mr.  Clarke  is  entitled 
to  be  admitted  to  his  srat.  if  there  was  in  fact  a  lawful  and  valid  election  held  in  said  Third  district  of 
the  State  of  Texas  at  the  time  stated  in  said  certificate. 

This  brings  us  to  the  question,  What  is  the  legal  effect  of  a  certificate  stating  that  the  party  to 
whom  it  is  given  was  duly  elected  to  an  office,  where  the  certificate  recites  or  adopts  by  reference 
a  state  of  facts  which  shows  that  the  holder  was  not  elected?  Clearly  the  facts  must  stand,  and  the  con- 
clusions which  the  facts  contradict  must  fall.  If  the  facts  show,  as  we  think  they  do,  that  Mr.  Giddings 
was  elected,  the  statement  that  Mr.  Clarke  was  duly  elected  can  not  be  accepted.  The  question  arises 
as  to  the  extent  of  the  authority  and  power  of  the  governor  to  reject  the  returns  of  the  election  as  made 
to  him  or  the  secretary  of  state.  This  is  to  be  ascertained  liy  an  examination  of  the  election  law  of 
the  State  of  Texas.  Upon  a  careful  examination  of  the  same  we  fail  to  find,  according  to  our  views  of 
correct  interpretation,  any  such  power. 
5994— VOL  1—07 50 


786  PEECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  602 

The  report  was  debated  at  length  on  January  10,  1872,'  and  on  that  day  the 
question  was  taken  on  an  amendment  proposing  to  recommit  the  report,  with  instruc- 
tion to  report  on  the  merits  of  the  case.  This  amendment  was  disagreed  to — yeas 
81,  nays  101. 

The  resolution  of  the  majority  was  then  agreed  to — yeas  102,  nays  78. 

Thereupon  Mr.  Clarke  appeared  and  took  the  oath. 

602.   The  case  of  Giddings  v.  Clarke,  continued. 

The  House  by  resolution  sometimes  fixes  the  time  of  taking  testi- 
mony, specifies  the  kind  of  testimony  to  be  taken,  and  the  places  where  it 
may  be  taken. 

The  sitting  Member  should  be  allowed  additional  time  to  take  testi- 
mony only  when  the  clearest  evidence  and  strongest  reasons  justify  the 
concession. 

In  asking  for  extension  of  time  to  take  testimony  in  an  election  case, 
affidavits  should  state  facts  showing  that  with  proper  diligence  it  has 
been  impossible  to  take  the  testimony. 

Affidavits  filed  with  a  request  for  time  to  take  additional  testimony 
in  an  election  case  must  state  the  names  of  the  witnesses  and  the  par- 
ticular facts  to  be  proven  by  them. 

On  January  12  ^  Mr.  George  W.  McCrary,  of  Iowa,  reported  from  the  Committee 
on  Elections,  and  the  House  agreed  to  the  following: 

Resolved,  That  in  the  contested  election  case  of  Giddings  v.  Clarke,  from  the  Third  Congressional 
district  of  Texas,  the  sixty  days  allowed  by  law  in  which  to  take  testimony  shall  commence  on  the  1st 
day  of  February  next  and  shall  close  sixty  days  thereafter.  That  the  testimony  shall  be  confined  to 
the  issues  presented  liy  the  pleadings,  and  may  be  taken  before  any  officer  authorized  by  law  to  take 
depositions  in  the  State  of  Texas.  Either  party  may  take  testimony  in  the  District  of  Columbia,  before 
any  officer  authorized,  giving  the  opposite  party  or  his  attorney  three  days'  notice  of  time  and  place: 
Provided,  No  mileage  shall  be  paid  any  such  witnesses. 

On  May  7,  1872,'  Mr.  McCrary,  from  the  committee,  presented  the  report  in  the 
case  of  Giddings  i'.  Clarke.  Before  proceeding  to  the  merits  a  preliminary  question 
was  disposed  of.     Under  the  above-\vritten  order,  the  report  says: 

The  contestant  proceeded  with  diligence  to  take  testimony  within  the  time  thus  fixed,  but  the 
sitting  Member  has  failed  to  take  any  testimony  in  the  manner  provided  by  law,  and  the  order  of  the 
House  to  sustain  the  allegations  of  the  answer  or  to  rebut  those  of  the  notice.  The  time  for  taking  testi- 
mony having  expired  on  the  1st  day  of  April,  the  sitting  Member,  on  the  24th  of  April,  came  before  your 
committee  with  a  motion  for  an  extension  of  time  in  which  to  take  testimony  on  his  behalf.  This  motion 
was  based  upon  the  affidavits  of  the  sitting  Member  and  numerous  other  persons.  These  affidavits  state 
in  substance  and  in  general  terms  that  a  combination  was  formed  among  the  friends  of  contestant  to 
indict  the  officers  of  election  in  the  several  counties  upon  charges  of  a  violation  of  the  election  laws,  and 
thus  to  inaugurate  a  system  of  persecution  against  the  sitting  Member's  friends  and  witnesses  and  deter 
the  latter  from  testifying. 

They  also  state  that,  in  pursuance  of  this  combination,  indictments  were  found  against  the  governor 
and  secretary  of  the  State  of  Texas,  and  against  some  of  the  election  officers  and  others  in  the  counties 
of  Hill,  Navarro,  Grimes,  Harris,  and  Washington.     It  is  averred  that  the  finding  of  these  indictments 


'  Journal,  p.  135;  Globe,  pp.  340-.349 
^Journal,  n.  145;  Globe,  vv.  375,  376. 


'  Journal,  p.  135;  Globe,  pp.  340-349. 
^Journal,  p.  145;  Globe,  pp.  375,  376. 
'House  Report  No.  65;   Smith,  p.  91;  Rowell's  Digest,  p.  279. 


§  603  IKKEGULAE  CKEDENTIALS.  787 

produced  such  a  feeling  of  alarm  and  danger  in  the  district  that  it  was  impossible  to  take  testimony  on 
behalf  of  the  sitting  Member,  but  no  overt  act  of  violence  is  mentioned.  The  only  specific  fact  given  is 
the  finding  of  the  indictments  aforesaid.  The  affidavits  are  exceedingly  general  in  their  terms,  and, 
instead  of  stating  facts,  deal  largely  in  the  opinions  or  conclusions  of  the  affiants. 

After  hearing  arguments  of  counsel  and  carefully  considering  the  question,  your  committee  came 
unanimously  to  the  conclusion  that  no  further  time  ought  to  be  granted  to  the  sitting  Member  for  taking 
testimony,  and  as  this  decision  is  important  in  its  bearing  upon  this  case  and  as  a  precedent  for  future 
cases,  some  of  the  principal  reasons  for  it  will  now  be  stated. 

The  first  reason  given  was  that,  as  the  one  asking  the  extension  was  the  sitting 
Member,  to  grant  it  would  be  practically  to  decide  the  case  in  his  favor,  since  it 
would  continue  him  in  the  enjoyments  and  emolimients  of  the  office  for  the  greater 
portion  of  the  term.     The  report  says : 

It  does  not  follow  from  these  considerations  that  a  sitting  Member  can  in  no  case  be  allowed  an 
extension  after  the  time  allowed  by  law  for  taking  testimony  expires,  but  your  committee  think  it  does 
follow  that  no  such  extension  should  ever  be  granted  to  a  sitting  Member  unless  it  clearly  appears  that 
by  the  exercise  of  great  diligence  he  has  been  unable  to  procure  his  testimony,  and  that  he  is  able,  if  an 
extension  be  granted,  to  obtain  such  material  evidence  as  will  establish  his  right  to  the  seat,  or  that  by 
reason  of  the  fault  or  misconduct  of  the  contestant  he  has  been  unable  to  prepare  his  case. 

The  other  reasons  related  to  the  sufficiency  of  sitting  Member's  affidavits  in 
support  of  his  request.  They  did  not  state  facts  from  which  it  could  reasonably 
be  inferred  that  the  sitting  Member  had  been  unable  with  proper  diligence  to  take 
testimony;  and  furthermore: 

The  affidavits  relied  upon  are  fatally  defective  in  this,  that  they  do  net  state  the  names  of  the 
witnesses  whose  testimony  is  wanted  nor  the  particular  facts  which  can  bo  proven  by  their  testimony. 

603.   The  case  of  Giddings  v.  Clarke,  continued. 

An  election  officer  who  was  removed  but  not  notified  of  the  fact,  and 
whose  successor  failed  to  qualify,  was  a  de  facto  officer,  and  returns  signed 
by  him  were  not  properly  rejected. 

There  being  testimony  showing  the  vote  of  a  precinct,  it  is  not 
material  whether  or  not  the  returns  are  properly  certified. 

Where  a  statute  fixes  a  penalty  for  marking  a  ballot  and  does  not 
require  its  rejection,  the  ballot  should  not  be  rejected. 

As  to  the  case  on  its  merits  the  report  discusses  several  featiu^es  of  the  contest: 

1.  As  to  a  question  of  rejecting  certain  returns  because  the  polls  had  been 
presided  over  by  one  not  legally  an  election  officer,  the  report  says : 

The  vote  of  this  county  was  rejected  because,  as  stated  in  the  governor's  certificate,  "no  official 
returns  were  received."  It  is  manifest,  however,  that  something  in  the  character  of  returns  must  have 
been  received,  because  the  number  of  votes  cast  for  each  candidate  is  stated  in  the  certificate.  Wherein 
the  returns  were,  in  the  judgment  of  the  board,  fatally  defective,  does  not  appear  from  the  certificate. 
It  does  appear,  however,  from  the  evidence,  that  John  A.  Biffle,  who  was  registrar  of  Bosque  County, 
and  who  conducted  the  registration,  was  removed  shortly  prior  to  the  election,  and  one  Thomas  Ford 
appointed  in  his  place;  but  that  the  former  was  not  notified  of  his  removal,  and  continued  to  act,  while 
the  latter  failed  to  qualify,  and  made  no  attempt  to  discharge  the  duties  of  the  office.  It  seems  probable 
that  the  only  objection  to  the  returns  was,  that  they  were  certified  by  Biffle,  and  not  by  Ford.  If  so, 
the  defect  was  not  fatal,  because  the  former  was  certainly  acting  as  registrar  under  color  of  authority, 
and  was  at  least  an  officer  de  facto,  whose  official  acts  affecting  third  parties  and  the  public  must  be 
held  valid.  But,  however  this  may  be,  the  proof  shows  that  the  election  was  legally  held,  and  that 
contestant  received  457  votes,  and  the  sitting  Member  77  votes.  If  the  return  was  uncertified,  it  is 
competent  to  show  by  other  evidence  what  the  vote  was. 


788  PRECEDENTS    OF   THE    HOUSE    OF    REPRESENTATIVES.  §   604 

After  quoting  what  had  been  said  in  the  report  in  the  case  of  McKenzie  v. 
Braxton,  the  report  continues: 

In  relation  to  Bosque  County,  we  have  the  uncontradicted  testimony  of  the  officers  who  conducted 
the  election,  showing  what  the  result  in  fact  was;  and  it  is  therefore  not  material  to  determine  whether 
the  returns  were  properly  and  regularly  certified  or  not.     The  vote  of  this  county  must  be  received. 

2.  As  to  certain  distinguishing  marks  on  ballots  the  report  says: 

The  vote  of  this  county  was  rejected  by  the  board,  and  the  reasons  for  its  rejection  are  thus  stated 
in  the  certificate: 

"Rejected. — The  tickets  were  marked  with  numbers,  contrary  to  provisions  of  section  10,  chapter 
78,  General  Laws,  fall  session  twelfth  legislature,  1870,  thereby  operating  as  a  scrutiny  upon  the  votes 
and  a  restraint  upon  the  freedom  of  voters.  Further,  that  49  persons  of  foreign  birth  had  been  per- 
mitted to  register  and  vote  without  legal  proof  of  naturalization." 

By  reference  to  the  statute  here  referred  to  it  will  be  seen  that  it  is  made  a  misdemeanor  for  any 
judge  of  election  to  place  any  number  or  mark  upon  the  ticket  of  any  voter;  but  it  is  not  declared  that 
the  vote  of  a  legally  qualified  voter  shall  be  rejected  because  his  ballot  is  marked  by  the  judges.  We 
should  not  be  inclined  to  put  a  construction  upon  this  statute  which  would  enable  an  officer  of  election 
to  destroy  the  effect  of  a  ballot  cast  in  good  faith  by  a  legal  voter,  by  placing  a  number  or  mark  upon  it. 
A  ballot  may  be  thus  marked  or  numbered  without  the  knowledge  or  consent  of  the  voter,  and  it  would 
be  manifestly  unjust  that  he  should  in  this  way  be  deprived  of  his  vote. 

We  think  it  plain  that  inasmuch  as  the  statute  affixes  a  penalty  for  marking  a  ballot  and  does  not 
expressly  declare  that  a  marked  ballot  shall  be  thrown  out,  the  board  erred  in  rejecting  the  vote  of  this 
county  upon  this  grovmd. 

On  this  point  also  the  report  in  the  case  of  McKenzie  v.  Braxton  is  cited. 

604.    The  case  of  Giddings  v.  Clarke,  continued. 

Although  excitement  and  alarm  prevailed  in  a  county  with  the  pres- 
ence of  an  armed  force  in  the  neighborhood  of  the  polls,  the  committee  did 
not  recommend  the  rejection  or  correction  of  the  vote. 

Instance  wherein  the  person  seated  on  prima  facie  showing  was 
unseated  on  examination  of  final  right. 

Instance  wherein  the  House  seated  a  contestant  belonging  to  the 
minority  party,  unseating  a  Member  of  the  majority. 

3.  As  to  alleged  intimidation,  for  which  the  vote  of  Limestone  County  had  been 
rejected  by  the  State  officials,  the  report,  while  not  dwelling  with  care  on  this  point, 
says: 

We  are  satisfied,  however,  that  a  large  part  of  the  vote  of  Limestone  County  was  not  cast.  The 
colored  voters  generally  failed  to  vote,  so  that  only  28  votes  were  cast  for  Clarke  to  1,153  for  Giddings. 
That  a  state  of  excitement  and  fear  existed  in  this  county  about  the  time  of  the  election  is  clear.  A 
collision  occurred  between  some  colored  policemen  and  certain  white  men,  which  resulted  in  the  death 
of  one  of  the  latter  and  the  wounding  of  one  of  the  former.  This  produced  great  excitement,  and  was 
followed  by  a  general  uprising  and  arming  of  botli  whites  and  blacks.  On  the  day  of  election  the  town 
where  the  election  was  held  was  occupied  by  an  armed  force  under  command  of  one  Captain  Richardson. 
Pickets  were  stationed  on  all  the  roads  leading  into  town,  and  persons  coming  in  to  vote  were  obliged  to 
obtain  a  pass  from  the  military  authorities.  Although  the  witnesses  say  that  all  voters  were  permitted 
to  come  and  go  in  peace,  and  that  the  freedmen  were  urged  to  vote,  yet  it  is  clear  that  they  abstained 
from  doing  so  for  reasons  which  most  men  would  consider  good  and  sufficient. 

4.  In  Washington  County  questions  arose  as  to  the  use  of  two  ballot  boxes,  but 
they  did  not  require  to  be  settled,  since  a  decision  either  to  reject  or  retain  the  votes 
of  the  two  boxes  would  be  fatal  to  the  case  of  sitting  Member. 


§  605  IKREGULAB   CREDENTIALS.  789 

On  the  whole,  as  a  result  of  their  reasoning,  the  committee  found  that  contestant 
was  elected,  and  reported  resolutions  unseating  sitting  Member  and  seating  con- 
testant. 

The  report  was  debated  on  May  13,'  when  the  resolutions  were  agreed  to  without 
division. 

Mr.  Giddings  thereupon  appeared  and  took  the  oath.- 

605.  The  Arkansas  election  case  of  Boles  v.  Edwards  in  the  Forty-sec- 
ond Congress. 

Credentials  bearing  on  their  face  evidence  that  they  were  not  issued 
in  accordance  with  the  requirements  of  law,  the  Clerk  declined  to  enroll 
the  bearer. 

The  House  sometimes  gives  prima  facie  effect  to  credentials  which 
are  so  far  impeached  on  their  face  that  the  Clerk  does  not  feel  authorized, 
under  the  law  governing  his  action,  to  enroll  the  bearer. 

On  March  4,  1871,^  at  the  organization  of  the  House,  the  Clerk'  did  not  put  on 
the  roll  of  Members-elect  any  name  for  the  Tliird  district  of  Arkansas,  as  the  certifi- 
cate bore  upon  its  face  evidence  that  it  was  not  issued  mthin  the  time  prescribed 
by  law  and  as  there  was  serious  doubt  whether  the  officer  who  executed  it  had  at 
that  time  the  right  to  do  so. 

On  March  7 '  the  House  agreed  to  this  resolution : 

Resolved,  That  the  papers  and  credentials  of  Hon.  John  Edwards  and  the  certified  papers  and 
returns  presented  to  the  House  of  Representatives  by  Hon.  Thomas  Boles,  each  claiming  to  be  elected 
to  the  Forty-second  Congress  from  the  Third  district  of  Arkansas,  be  referred  to  the  Committee  of  Elec- 
tions to  be  hereafter  appointed,  with  instructions  to  report  to  the  House  which,  if  either,  of  said  claim- 
ants is  entitled  to  a  seat  in  the  House  of  Representatives  from  the  said  Third  district  of  Arkansas. 

On  March  22 "  Mr.  Luke  P.  Poland,  of  Vermont,  from  the  Committee  of  Elec- 
tions, submitted  the  following  resolution,  which  was  agreed  to : 

Resolved,  That  John  Edwards,  holding  a  regular  certificate  of  election  as  the  Representative  from 
the  Third  Congressional  district  of  Arkansas,  is  entitled  to  be  sworn  in  as  the  sitting  Member  from  said 
district,  subject  to  the  determination  of  the  contest  made  against  his  right  thereto  by  Thomas  Boles. 

606.  The  case  of  Boles  v.  Edwards,  continued. 

Parties  should  be  held  to  a  rigid  rule  of  diligence  under  the  law  for 
taking  testimony  in  election  cases,  and  no  extension  of  time  sho\ild  be 
granted  where  this  rule  is  violated. 

Both  parties  to  an  election  contest  may  take  their  testimony  at  the 
same  time  before  different  officers. 

'  Journal,  p.  852;  Globe,  pp.  3384,  3385. 

-  It  may  be  noticed  that  Mr.  Clark,  who  was  unseated,  was  a  member  of  the  majority  party  in  the 
House,  whUe  Mr.  Giddings,  who  was  seated,  was  a  member  of  the  party  in  the  minority. 
'First  session  Forty-second  Congress,  Journal,  p.  7;  Globe,  p.  6. 
*  Edward  McPherson,  of  Pennsylvania,  Clerk. 
^Journal,  p.  1.5;  Globe,  p.  10. 
"Journal,  p.  100:  Globe,  p.  229. 


790  PKECEDBKTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  607 

On  December  20,  1871,'  Mr.  G.  W.  Hazelton,  of  Wisconsin,  presented  a  report 
from  the  Committee  of  Elections,  in  response  to  a  request  from  Mr.  Edwards,  the 
sitting  Member,  that  the  time  for  taking  testimony  be  extended : 

At  the  organization  of  the  Forty-second  Congress  the  name  of  neither  of  the  parties  to  this  contest 
was  entered  by  the  Clerk  on  the  rolls  of  the  House,  and  the  question  which  of  the  parties  was  entitled 
prima  facie  to  theseat  came  before  the  committee  at  the  first  session  of  the  present  Congress  in  April  last. 

After  argument  and  consideration  of  the  question  the  committee  resolved  in  favor  of  the  respond- 
ent, and,  their  report  lieing  adopted  by  the  House,  the  said  respondent  was  thereupon,  and  on  the  21st 
day  of  March,  sworn  in  and  took  his  seat. 

On  the  17th  day  of  April  thereafter  the  answer  of  respondent  to  the  notice  of  contest  was  served 
on  contestant.  The  law  of  1851,  section  22,  provides  that  the  testimony  taken  by  the  parties,  or  either 
of  them,  shall  bo  confined  to  the  proof  or  disproof  of  the  facts  alleged  or  denied  in  the  notice  and  answer, 
and  that  the  same  shall  be  taken  within  sixty  days  from  the  time  of  service  of  the  answer,  unless  the 
House  shall,  in  its  discretion,  allow  supplementary  evidence  to  be  taken  after  the  expiration  of  said 
sixty  days. 

The  respondent  introduced  a  resolution  in  the  House  on  the  5th  day  of  April  last,  thirteen  days 
before  his  answer  was  served  and  before  he  could  well  have  known  that  the  time  allowed  by  law  for 
taking  testimony  would  be  insufficient,  asking  that  such  time  be  extended  sixty  days  beyond  the  limit 
fixed  by  law.  This  resolution  was  referred  to  the  committee,  but  no  action  was  taken  on  it.  The  appli- 
cation is  now  made  by  the  respondent,  which,  if  granted,  extends  the  time  of  taking  testimony  sixty 
days  from  the  adoption  of  the  resolution  by  the  House. 

In  his  affidavit,  upon  which  he  predicates  the  application,  the  respondent  alleges  "that  the  con- 
testant occupied  the  whole  of  the  time  allowed  by  law  for  taking  testimony  and  that  he  was  compelled, 
in  looking  after  his  own  interest  in  the  case,  to  attend  the  taking  of  said  testimony  of  the  contestant  and 
has  had  no  time  or  opportunity  to  take  any  testimony  in  his  own  behalf,"  and  on  this  ground  alone  he 
rests  his  application. 

The  affidavits  of  the  contestant  and  of  Joseph  Brooks  and  James  L.  Hodges,  per  contra,  show  that 
the  respondent  was  not  present  during  the  taking  of  contestant's  testimony  liut  once,  and  then  only  for 
a  few  minutes. 

The  law,  moreover,  is  well  settled  that  both  of  the  parties  may  proceed  with  the  taking  of  their 
testimony  at  the  same  time,  before  different  officers. 

Up  to  this  time  the  sitting  Member  has  not  taken  any  testimony  whatever,  nor  does  it  appear  that 
he  has  taken  a  single  step  in  that  direction.  It  is  difficult  to  see  upon  what  ground  the  House  can  grant 
the  respondent's  application  made  under  these  circumstances. 

To  say  nothing  of  the  terms  of  the  law  already  quoted  touching  the  extending  of  the  time  fixed  to 
allow  supplementary  evidence,  which  clearly  relates  to  cases  in  which  the  applicant  has  taken  some 
evidence — that  is  to  say,  has  made  some  use  of  the  time  given  him — the  policy  of  the  House  has  been 
adverse  to  granting  extensions.  Procrastination  in  these  cases  diminishes  the  object  of  the  investiga- 
tion and  cheapens  the  value  of  the  final  decision.  The  law  is  intended  to  furnish  ample  opportunity 
for  taking  testimony.  Parties  should  be  held  to  a  rigid  rule  of  diligence  under  it,  and  no  extension  ought 
to  be  allowed  where  there  is  reason  to  believe  that,  had  the  applicant  brought  himself  within  such  rule, 
there  would  have  been  no  occasion  for  the  application. 

The  case  of  Vallandigham  v.  Campbell,  in  the  Thirty-fifth  Congress,  and  the  case  of  Carrigan  v. 
Thayer,  in  the  Thirty-eighth  Congress,  are  referred  to  in  support  of  the  action  of  the  committee  in  this 
case. 

607.   The  case  of  Boles  v.  Edwards,  continued. 

Instance  wherein  the  House  referred  to  an  elections  committee  con- 
sidering a  particular  case  a  report  of  a  joint  committee  incidentally  refer- 
ring to  said  case. 

'House  Report  No.  3,  second  session  Forty-second  Congress;  Smith,  p.  18;  Rowell's  Digest,  p.  264. 


§   608  IRREGXJLAE    CREDENTIALS.  791 

A  joint  committee  having  taken  testimony  whicli  incidentally  related 
to  the  right  of  a  Member  to  his  seat,  the  same  was  reported  to  the  House. 

On  January  9,  1S72,'  Mr.  Luke  P.  Poland,  of  Vermont,  from  the  Joint  Select 
Committee  on  the  Insurrectionary  States,  submitted  a  report,  in  the  course  of  which 
was  given  the  testimony  of  one  Edward  Wlieeler,  who  thus  explained  the  indictment 
of  Governor  Clayton,  of  Arkansas,  bj'  a  grand  jury: 

It  was  claimed  that  Governor  Clayton  had  violated  certain  sections  of  the  enforcement  act  in  giving 
the  certificate  of  election  to  General  Edwards,  when  the  returns,  as  exhibited  to  us  by  the  secretary  of 
state,  showed  that  Judge  Boles  had  been  elected.  General  Edwards  presented  a  copy  of  his  certificate  of 
election,  and  of  the  proclamation  of  the  governor,  stating  that,  according  to  the  returns  on  file  in  the  office 
of  the  secretary'  of  state,  General  Edwards  had  been  elected.  But  the  returns,  as  exhibited  to  us,  showed 
that  Judge  Boles  was  elected  by  some  2,130  votes,  I  think  it  was,  on  the  full  vote,  counting  the  votes  at 
both  polls.  There  were  allegations  of  fraud  on  both  sides.  But  giving  the  governor  the  benefit  of 
every  doubt,  the  least  majority  for  Judge  Boles,  that  we  could  figure  out,  was  some  800  or  900;  I  forget 
the  exact  figures.  That  was  according  to  the  returns  shown  to  us,  and  upon  that  showing  the  indictment 
was  found. 

The  committee  therefore  reported  the  following: 

The  testimony  of  these  witnesses  tends  to  impeach  the  official  character  and  conduct  of  a  Member 
of  the  United  States  Senate  from  the  State  of  Arkansas,  and  also  to  affect  the  right  of  a  Member  of  the 
House  of  Representatives  from  that  State  to  retain  his  seat  in  the  House.  Other  evidence  of  the  same 
character  was  offered,  and  one  of  the  gentlemen  affected  by  this  testimony  claimed  the  right  to  bring 
witnesses  before  the  committee  to  contradict  or  explain  the  same.  The  committee,  however,  upon 
consideration,  decided  that  the  subject-matter  to  which  said  testimony  related  did  not  come  within  the 
limits  of  the*  investigation  they  were  directed  to  make,  and  therefore  declined  to  prosecute  the  inquiry 
any  further,  dischai^ing  a  witness  who  had  been  subpoenaed  and  was  then  awaiting  an  examination. 

The  joint  select  committee,  pursuing  what  they  deemed  to  be  the  proper  parliamentary  course,  at 
a  meeting  on  December  21,  1871,  adopted  the  following  resolution: 

"  Resolved,  That  the  committee  report  the  testimony  taken  before  the  committee,  affecting  Senator 
Clayton  and  Mr.  Edwards,  a  Representative  from  Arkansas,  to  the  Senate  and  House  of  Representatives, 
with  a  recommendation  that  each  House  take  such  action  as  it  may  deem  proper." 

Agreeably  to  this  resolution  of  said  joint  select  committee,  the  undersigned,  the  chairman  on  the 
part  of  the  Senate,  and  the  chairman  on  the  part  of  the  House  of  Representatives,  beg  leave  to  submit 
the  testimony  hereto  annexed,  of  Edward  Wheeler  and  William  G.  Whipple,  both  of  the  State  of  Arkansas, 
said  Wheeler  and  Whipple  having  been  the  only  witnesses  from  that  State  who  were  examined  by  the 
committee,  to  the  Senate  and  House  of  Representatives  respectively,  for  such  action  as  each  House 
may  deem  advisable. 

This  report  was  at  once  referred  to  the  Committee  of  Elections.^ 

608.    The  case  of  Boles  v.  Edwards,  continued. 

The  Elections  Committee  declined  to  consider  as  evidence  certain  ofB.- 
cial  documents  of  a  State  submitted  without  authority  from  the  House 
and  not  decisions  in  a  proceeding  between  the  parties  to  the  pending  con- 
test. 

In  an  election  case  the  decision  of  a  State  supreme  court  in  a  cause  to 
which  the  contestants  were  not  parties  was  not  received  as  evidence. 

An  opinion  of  an  Elections  Committee  that  the  House  may  not  dele- 
gate to  another  tribunal  its  constitutional  duty  of  judg^ing  the  elections 
of  its  own  Members. 

'  House  Report  No.  5;  Smith,  p.  26.  2  Journal,  p.  127;  Globe,  p.  321. 


792 


PEECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATTVES. 


§   608 


On  January'  19/  a  resolution  was  presented  proposing  to  allow  sitting  Member 
five  days  in  wliicli  to  introduce  as  evidence  the  official  proceedings  of  the  legislature, 
supreme  court,  and  executive  of  the  State  of  Arkansas.  This  resolution  was  antag- 
onized by  the  members  of  the  Elections  Committee,  who  urged  that  sitting  Member 
was  entitled  to  no  extension,  and  that  the  evidence  would  not  be  pertinent  if  pre- 
sented. An  amendment  declaring  that  the  sitting  Member  was  not  entitled  to 
further  time  was  agreed  to — yeas  129,  nays,  46.  The  resolution  as  amended  was 
then  agreed  to. 

On  January  30,  1872,^  Mr.  Hazleton  presented  the  report  of  the  committee  on 
the  merits  of  the  case. 

No  evidence  whatever  is  presented  by  the  respondent  as  to  any  irregularities  or  pretended 
irregularities  outside  of  Pulaski  County;  nor  were  any  allegations  of  such  irregularities  made  by 
respondent  in  his  oral  argument  before  committee. 

The  respondent  did,  however,  present  to  the  committee  and  read  in  evidence,  for  what  they  might 
be  deemed  worth,  as  bearing  upon  the  result  of  the  vote  in  Pulaski  County,  a  report  of  a  "joint"  select 
committee  appointed  by  the  senate  and  house  of  representatives  of  Arkansas  to  investigate  election 
frauds  in  Pulaski  County;  and  a  decision  of  the  supreme  court  of  Arkansas  in  a  proceeding  on  the  part 
of  Howard  et  al.  v.  McDiarmid,  county  clerk  of  Pulaski  County,  "praying  for  a  mandamus  against  said 
McDiarmid  to  compel  him  to  certify  certain  election  returns  to  the  secretary  of  state." 

It  seems  hardly  necessary  to  say  that  neither  of  these  documents  were  regarded  as  evidence  by  the 
committee,  or  entitled  to  consideration  in  disposing  of  the  case. 

The  legislative  report  is  in  no  sense  a  judicial  determination.  It  would  not  be  recognized  as 
evidence  even  in  any  court  of  justice.  It  is  simply  the  views  of  certain  members  of  the  legislature  of 
Arkansas  upon  the  question  submitted  to  them  by  the  legislature. 

But  even  if  it  were  entitled  to  rank  as  a  judicial  determination,  it  could  not  be  evidence  in  this 
case — 

First.  Because  it  is  not  a  decision  in  a  proceeding  between  these  parties.  They  had  no  hand  in 
creating  the  committee,  and  can  not  be  affected  by  its  acts;  and 

Second.  The  House  being  made  by  the  Constitution  the  judge  of  the  election  returns  and  quali- 
fications of  its  Members,  can  not  delegate  its  authority  to  some  other  tribunal,  and  discharge  by  proxy 
a  solemn  duty  which  the  Constitution  imposes  on  the  House. 

For  like  reasons  the  decision  of  the  supreme  court  of  Arkansas  can  not  be  regarded  as  evidence. 

The  ca.se  is,  therefore,  left  to  stand  on  the  proofs  submitted  V>y  the  contestant. 

Outside  of  Pulaski  County  the  contestant  has  a  majority  of  2  over  the  respondent. 

In  Pulaski  County  the  majority  for  contestant  is  2,151,  making  a  total  majority  for  contestant  in  the 
district  of  2,153. 

It  may  not  be  improper  to  remark  that  upon  the  theory  of  the  respondent,  that  the  documents 
above  mentioned  are  evidence,  and  giving  him  the  full  benefit  of  them  as  testimony,  the  result  is  not 
changed. 

It  makes  no  difference  whatever  to  the  sitting  Member  whether  the  committee  take  one  view  or 
another  of  the  "evidence"  submitted  by  him.  The  contestant  was  elected  and  is  entitled  to  the  scat 
in  this  House  as  the  Member  from  the  Third  district  of  the  State  of  Arkansas  in  the  Forty-second  Congress. 

The  committee  have  instructed  the  undersigned  to  further  say  that  the  testimony  taken  before  the 
joint  committee  to  investigate  the  affairs  of  the  South,  and  referred  to  this  committee  on  the  9th  day  of 
the  present  month,  has  been  examined,  and  that  in  the  judgment  of  the  committee  it  contains  nothing 
reflecting  on  the  character  of  any  Member  of  the  House;  and  the  committee  ask  to  be  discharged  from  the 
further  consideration  of  such  testimony. 

The  committee  ask  the  adoption  of  the  following  resolution: 

Resolved,  That  Thomas  Boles  is  entitled  to  the  seat  in  the  Forty-second  Congress  as  Representative 
from  the  Third  district  of  the  State  of  Arkansas  now  occupied  by  John  Edwards. 

'  Joui-nal,  p.  186;  Globe,  pp.  471-476. 
2  House  Report  No.  10;  Smith,  p.  58. 


§  6U9  IBKEGTJLAB   CKEDENTL\LS.  793 

On  February  9 '  the  House  considered  the  report,  and  after  debate,  which  con- 
sisted principally  of  a  speech  by  sitting  Member,  the  resolution  reported  by  the 
committee  was  agreed  to  unanimously. 

Mr.  Boles  was  thereupon  sworn  in.^ 

609.  The  Indiana  election  case  of  Shanks  v.  Neff  in  the  Forty-third 
Congress. 

Credentials  which,  on  their  face,  implied  that  the  one  having  prima 
facie  right  did  not  have  the  final  right  were  not  honored  either  by  the 
Clerk  or  the  House. 

On  December  1,  1873,'  at  the  organization  of  the  House,  the  Clerk  announced 
that  the  paper  issued  by  the  governor  of  Indiana  for  the  Ninth  district  could  not  be 
accepted  as  a  credential  within  the  meaning  of  the  law,  and  therefore  that  neither 
of  the  claimants  was  enrolled. 

On  the  same  day  the  paper  of  the  governor  was  read  in  the  House.*  It  was  in 
due  form,  certified  by  the  secretary"  of  state  under  seal,  and  set  forth  that  the 
official  returns  of  the  several  counties  showed  that  John  E.  Xeff  had  14  votes  more 
in  the  district  than  John  P.  C.  Shanks,  and  continued: 

"  Now,  if,  in  the  judgment  of  the  House  of  Representatives  of  the  United  States, 
the  said  certificates  of  election  of  the  said  clerks"  of  the  several  counties  "shall  be 
conclusive  evidence  of  the  facts  herein  stated,  so  as  to  preclude  either  the  secretary 
of  state  or  the  governor  of  Indiana  from  making  inquiry  into  the  truth  thereof, 
then,  and  in  that  case,  I  desire  that  this  instrument  shall  be  considered  and  taken 
to  be  a  certificate  of  the  election  of  the  said  John  E.  Neff." 

The  paper  then  goes  on  to  state  that  if  the  said  certificate  should  not  be  conclu- 
sive evidence  so  as  to  preclude  the  inquiry,  then  "I  desire  that  this  instrument  shall 
be  considered  or  taken  to  be  the  certificate  of  the  election  of  the  said  John  P.  C. 
Shanks  to  the  said  office,  I  being  satisfied  that  the  said"  Shanks  in  point  of  fact 
received  a  majority  of  the  votes. 

The  evidence  on  which  he  based  this  he  stated  to  be  "  an  affidavit  of  the  inspect- 
ors, judges,  and  clerks  of  the  election  *  *  *  Jn  and  for  the  townsliip  of  Wabash 
*  *  *  that  fortj^-seven  ballots  were  voted  at  said  precinct  at  said  election 
which,  after  having  been  received  and  placed  in  the  ballot  box,  upon  the  counting 
out  of  the  votes  were  rejected  and  not  counted  in  the  returns  of  said  election  for 
the  reason  that  said  ballots  were  headed  on  the  top  of  the  face  thereof  mth  the 
words  'Republican  ticket,'"  and  that  these  tickets  contained  votes  for  Mr.  Shanks. 
The  governor  further  expresses  the  opinion  that  the  rejection  was  illegal. 

Mr.  George  W.  McCrary,  of  Iowa,  proposed  this  resolution: 

Resolved,  That  the  credentials  and  papers  on  file  in  the  Clerk's  office  concerning  the  election  of  a 
Representative  in  this  House  from  the  Ninth  Congressional  district  of  Indiana  be  referred  to  the  Com- 
mittee of  Elections,  when  appointed,  with  instructions  to  report  at  an  early  day. 

'Journal,  p.  314;  Globe,  pp.  934-938. 

'  Both  contestant  and  sitting  Member  lielonged  to  the  majority  party  in  the  House. 

'  First  session  Forty-third  Congress,  Record,  p.  5. 

*  Record,  p.  9. 


794  PRECEDENTS   OF   THE   HOUSE   OF   REPKESENTATIVES.  §  610 

It  was  urged  that  the  name  of  Mr.  Neff  should  be  placed  on  the  roll  as  having 
the  prima  facie  right  to  the  seat,  but  the  House  by  a  vote  of  yeas  176,  nays  69, 
agreed  to  the  resolution  presented  by  Mr.  McCrary.' 

On  December  3  ^  testimony  in  the  case  was  referred  to  the  committee. 

On  December  8  ^  Mr.  H.  Boardman  Smith,  of  New  York,  reported  the  following     ■ 
resolution :  "■ 

Resolved,  That  John  P.  C.  Shanks  is  entitled  to  a  seat  in  this  House  as  a  Representative  in  the 
Forty-third  Congress  from  the  Ninth  Congressional  district  of  Indiana. 

Mr.  Snaith  stated  that  there  had  never  been  any  serious  question  except  as  to 
the  prima  facie  right.  The  resolution  of  the  House  referred  the  case  on  the  merits, 
and  that  case  was  clear  to  the  committee. 

The  resolution  was  then  agreed  to  without  division. 

Mr.  Shanks  then  appeared  and  took  the  oath. 

610.  An  instance  wherein  the  House  questioned  credentials  borne  by 
a  Delegate-elect  who  himself  had  signed  them  as  governor. — On  December 
11,  1865,^  Mr.  James  M.  Ashley,  of  Ohio,  presented  the  petition  of  Charles  D. 
Poston,  asking  to  be  admitted  as  Delegate  from  Arizona,  which  was  referred  to 
the  Committee  of  Elections. 

On  January  17,  1866,^  Mr.  James  G.  Blaine,  of  Maine,  presented  the  credentials 
of  John  N.  Goodwin  as  Delegate  from  Arizona.  Mr.  Goodwin  does  not  appear  on 
the  roll  with  the  other  Delegates  at  the  time  of  the  organization  of  the  House.  It 
appears  from  the  statement  of  Mr.  Blaine  that  at  first  Mr.  Goodwin  had  presented 
credentials  signed  "by  the  governor  of  the  Territory  having  himself  the  liighest 
number  of  votes  in  the  election."  There  being  evidently  same  question,  Mr.  Good- 
•mn  presented  credentials  signed  by  the  secretary  of  the  Territory  as  acting  gov- 
ernor.    On  these  credentials  Mr.  Goodwin  was  sworn  in. 

On  July  9 "  the  Committee  on  Elections  was  discharged  from  consideration  of 
the  case,  no  notice  of  contest  or  testimony  having  been  filed  before  the  committee. 

611.  In  the  Senate,  where  credentials  have  on  their  face  raised  a 
question  as  to  the  constitutionality  of  the  appointment,  the  bearer  has 
not  been  seated  on  prima  facie  showing. — On  March  4,  1825,'  at  the  special 
session  of  the  Senate,  the  credentials  of  Mr.  James  Lanman,  of  Connecticut,  were 
presented.  This  certificate  was  issued  on  February  8,  1825,  and  proposed  to  com- 
mission Mr.  Lanman  from  March  3,  1825,  to  the  next  meeting  of  the  legislature  of 
Connecticut.  This  was  a  case  where  the  governor  had  appointed  for  a  vacancy  to 
occur  in  the  future.     The  Senate  decided  not  to  admit  ilr.  Lanman  on  his  creden- 

'  Journal,  p.  14;  Record,  p.  9. 

-Journal,  p.  42. 

'Journal,  p.  83;  Record,  p.  97. 

*  First  session  Thirty-ninth  Congress,  Journal,  p.  39. 

5  Journal,  p.  155;  Globe,  pp.  275,  276. 

'*  Journal,  p.  977;  Globe,  p.  3683. 

'  Second  session  Eighteenth  Congress,  Contested  Election  Cases  in  Congress  from  1789  to  1834,  page 


§  610  IKEEGULAR    CREDENTIALS.  795 

tials.     The  report  in  this  case  contains  a  citation  of  former  decisions  in  similar 
cases.' 

'  In  the  Senate,  where  the  credentials  have  on  their  face  indicated  the  existence  of  a  question  as  to 
the  constitutionality  of  the  appointment  of  a  Senator,  the  Senate  has  referred  the  credentials  and  not 
allowed  the  bearer  to  take  the  oath.  See  cases  of  Kensey  Johns,  of  Delaware;  Lee  Mantle,  of  Montana; 
Asahel  C.  Beckwith,  of  Wyoming;  John  B.  Allen,  of  Washington;  Henry  W.  Corbett,  of  Oregon;  Andrew 
T.Wood,  of  Kentucky;  John  A.  Henderson,  of  Florida;  Matthew  S.  Quay,  of  Pennsylvania;  and  Martin 
Maginnis,  of  Montana.  (See  Senate  Election  Cases,  special  session  Fifty-eighth  Congre.ss,  Senate 
Document  No.  11,  pp.  1,  52,  83,  89,  104.  107,  and  143.) 


Chapter  XX. 
CONFLICTING  CREDENTIALS. 


1.  Decisioas  of  the  House  as  to  prima  facie  title.     Sections  612-627.' 

2.  Principles  dednced  from  Senate  decisions.     Sections  628-633. 


612.  The  House  has  held  that  credentials  regular  in  form  and  issued 
by  the  proper  officers  should  not  be  impeached  by  a  certificate  issued  later 
by  the  successors  of  said  officers. — On  October  15,  1877,-  at  the  organization  of 
the  House,  while  the  Members-elect  who  had  been  called  on  the  roll  of  the  Clerk 
were  being  sworn  in,  Mr.  Joseph  H.  Rainey,  of  South  Carolina,  was  challenged  and 
stood  aside.  On  the  succeeding  day  Mr.  Samuel  S.  Cox,  of  New  York,  offered  the 
following: 

Resolved,  That  the  question  of  prima  facie  as  well  as  the  final  right  of  J.  S.  Richardson  and  Joseph  H. 
Rainey,  contestants,  respectively,  claiming  a  seat  in  this  House  from  the  First  district  of  South  Caro- 
lina, be  referred  to  the  Committee  of  Elections,  hereafter  to  be  appointed;  and  until  such  committee 
shall  have  reported  in  the  premises  and  the  House  have  decided  said  question  neither  of  said  contestants 
shall  be  admitted  to  a  seat. 

It  appeared  from  the  debate,  that  Mr.  Rainey  presented  a  certificate  from  the 
secretary  of  state  of  South  Carolina,  who,  under  the  law  of  the  State,  had  the  func- 
tion of  making  out  the  certificate,  regular  in  form  and  on  the  strength  of  which  the 
Clerk  had  placed  his  name  on  the  roll.  But  Mr.  Cox  presented  a  certificate  from  a 
subsequent  secretary  of  state  impeaching  the  credentials,  especially  upon  the  ground 
that  the  board  of  canvassers  had  certified  the  returns  in  contravention  of  an  order 
of  the  supreme  court  of  the  State  and  also  on  the  ground  that  there  had  been  intimi- 
dation in  the  election.  Governor  Hampton,  of  South  CaroUna,  while  admitting 
that  he  could  not  with  propriety  express  an  official  opinion,  gave  a  personal  indorse- 
ment to  the  impeachment  forwarded  by  the  secretary  of  state. 

It  was  argued  in  behalf  of  Mr.  Rainey  that  he  had  the  prima  facie  right  to  the 
seat  and  should  be  seated  in  accordance  with  the  practice  of  the  House  in  such 
cases.     On  the  other  hand,  it  was  urged  that  the  cases  of  Dailey  and  Morton  in 

'  See  also  the  case  of  Wimpy  and  Christy.     Section  459  of  this  volume. 
^  First  session  Forty-fifth  Congress,  Journal,  p.  15;  Record,  pp.  60-64. 
796 


I 


§   613  CONFLICTING   CREDENTIALS.  797 

1862,  of  Hoge  and  Reed  in  1869,  and  Buttz  in  the  preceding  Congress,  afforded 
precedents  for  sending  the  case  to  the  Committee  of  Elections. 

Finally  Mr.  Eugene  Hale,  of  Maine,  proposed  the  follo^ving  substitute: 

Resolved,  That  Joseph  H.  Rainey  be  now  sworn  in  as  a  Representative  in  Con- 
gress from  the  First  district  of  the  State  of  North  Carolina. 

This  substitute  was  agreed  to — ayes  175,  noes  108. 

The  resolution  as  amended  was  then  agreed  to  and  the  oath  was  administered 
to  Mr.  Rainey. 

613.  The  Shiel  v.  Thayer  case,  from  Oregon,  in  the  Thirty-seventh 
Congress. 

Of  two  claimants,  each  having  credentials  in  apparently  due  form, 
the  House  directed  the  administration  of  the  oath  to  the  one  whom  the 
Clerk  had  enrolled. 

On  July  4,  1861,'  during  the  swearing  in  of  Members  at  the  organization  of  the 
House,  Mr.  John  A.  McClemand,  of  Illinois,  submitted  the  following: 

Resolved,  That  the  question  of  prima  facie  as  well  as  the  final  right  of  George  K.  Shiel  and  A.  J. 
Thayer,  contestants,  respectively,  claiming  a  seat  in  this  House  from  the  State  of  Oregon,  be  referred  to 
the  Committee  on  Elections,  hereafter  to  be  appointed,  and  that  until  said  committee  shall  have  reported 
in  the  premises  and  the  House  decided  said  question  neither  of  said  contestants  shall  be  admitted  to  a 

seat. 

In  the  course  of  the  debate  it  appeared  that  under  the  constitution  of  Oregon 
the  election  for  Members  of  Congress  was  held  in  June,  1860,  and  that  in  that  elec- 
tion Mr.  Shiel  was  elected  and  the  proper  certificate  was  issued  to  him.  At  the 
Presidential  election  of  November,  1860,  although  there  was  no  law  authorizing  an 
election  of  Congressmen  at  that  time,  persons  in  Oregon  voluntarily  opened  polls 
at  certain  places  and  votes  were  cast  for  Mr.  Thayer,  and  Mr.  Thayer  appears  to 
have  received  a  certificate  of  election  in  due  form.  It  also  appears  that  on  this  cer- 
tificate Mr.  Thayer's  name  was  placed  on  the  Clerk's  roll. 

The  House,  without  division,  laid  the  resolution  on  the  table  and  the  oath  was 
administered  to  Mr.  Thayer. 

614.  The  Clerk  having  honored  credentials  from  a  de  facto  governor, 
the  House  confirmed  the  prima  facie  title,  although  there  was  a  conflict- 
ing certificate  from  an  alleged  de  jure  governor. — On  December  6,  1875,'  dur- 
ing the  swearing  in  of  Members-elect,  Mr.  Fernando  Wood,  of  New  York,  when  the 
State  of  Louisiana  was  reached,  challenged  the  right  of  Mr.  Frank  Morey,  of  that 
State,  to  take  the  oath.  Mr.  Morey's  name  had  been  placed  on  the  roll  by  the  Clerk, 
and  he  had  participated  in  the  election  of  Speaker.  But  there  was  a  question  as 
to  the  governorship  of  Louisiana,  and  Mr.  Morey  held  a  credential  signed  by  Wil- 
liam Pitt  Kellogg,  who  had  been  recognized  by  the  House  as  governor  of  Louisiana, 
while  another  credential,  signed  by  John  McEnery  as  governor,  had  been  presented 
in  behalf  of  Mr.  William  B.  Spencer. 

'  First  session  Thirty-seventh  Congress,  Joiirnal,  p.  14;  Globe,  pp.  9,  10. 
-First  session  Forty-fourth  Congress,  Journal,  pp.  11-13:  Record,  pp.  1G8-171. 


798  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   615 

The  Glerk  *  of  the  House,  wliile  placing  Mr.  Morey  on  the  roll,  had  brought  the 
other  credential  to  the  attention  of  the  House. 

Mr.  Wood  presented  a  preamble  reciting  the  facts  in  regard  to  the  two  cre- 
dentials and  a  resolution,  which,  after  being  modified  at  the  suggestion  of  Mr. 
L.  Q.  C.  Lamar,  of  Mississippi,  was  as  follows: 

Resolved,  That  the  credentials  of  Frank  Morey  from  the  Fifth  district  of  Louisiana  be  referred  to 
the  Committee  on  Elections,  with  instructions  to  report  as  soon  as  possible  on  his  prima  facie  right  to  a 
seat  on  the  floor. 

It  was  urged  that  the  fact  that  the  Clerk  had  brought  the  two  credentials  to 
the  attention  of  the  House  made  it  a  case  where  the  proper  course  would  be  to 
refer  both  credentials  to  the  committee  to  determine  the  prima  facie  right.  On 
the  other  hand,  it  was  contended  that  Governor  Kellogg  was  indisputably  the  gov- 
ernor de  facto,  and  that  this  was  sufficient  to  seat  the  Member,  leaving  the  question 
of  the  de  jure  governorship  to  be  settled  by  the  committee  which  shoidd  examine 
into  the  contest. 

The  resolution  of  Mr.  Wood  was  disagreed  to,  and  then,  on  motion  of  Mr. 
James  G.  Blaine,  of  Maine, 

Ordered,  That  the  oath  of  office  be  now  administered  to  Mr.  Morey. 

615.  The  Nebraska  election  case  of  Morton  v.  Daily  in  the  Thirty- 
seventh  Congress. 

There  being  two  conflicting  credentials,  the  second  intended  to  revoke 
the  first,  the  House  declined  to  reverse  the  action  of  the  Clerk  in  enroll- 
ing the  bearer  of  the  second  credentials. 

A  refusal  of  the  House  to  strike  a  Member-elect's  name  from  the 
Clerk's  roll  and  a  decision  to  administer  the  oath  to  him  was  held  to  be 
a  final  decision  of  prima  facie  right. 

The  House  having  passed  on  the  prima  facie  right  declined,  pending 
decision  as  to  final  right,  to  reconsider  the  action,  although  examination 
had  shown  the  credentials  to  be  irregular. 

On  July  4,  1861,"  at  the  organization  of  the  House,  a  question  arose  on  a  con- 
test over  the  seat  of  the  Delegate  from  Nebraska.  On  motion  of  Mr.  William  A. 
Richardson,  of  Illinois,  the  question  of  administering  the  oath  to  Mr.  Samuel  G. 
Daily,  who  was  on  the  roll  of  the  Clerk  as  Delegate  from  the  Territory,  was  deferred 
until  after  the  organization  of  the  House  should  be  completed. 

On  July  5,  the  question  coming  up,  Mr.  Richardson  moved  that  the  name  of 
Mr.  Daily  be  stricken  from  the  Clerk's  roll  and  that  the  name  of  Mr.  J.  Sterling 
Morton  be  substituted. 

The  debate  showed  that  in  this  case  the  governor  of  Nebraska  had  issued  two 
certificates,  the  first  to  Mr.  Morton  and  the  second,  intended  to  revoke  the  first,  to 
Mr.  Daily,  the  change  being  in  consequence  of  a  recount  of  the  votes. 

Mr.  Richardson's  motion  was  decided  in  the  negative,  57  yeas  and  75  nays, 
and  then  it  was  voted  to  administer  the  oath  to  Mr.  Daily. 

'Edward  McPherson,  of  Pennsylvania,  Clerk. 

-First  session  Thirty-seventh  Congress,  Journal,  p.  14;  Globe,  p.  13. 


§   616  CONFLICTIKG    CREDENTIALS.  799 

On  July  25,  1861/  the  House  discussed  a  proposition  to  determine  who  should 
be  the  sitting  Delegate  from  Nebraska  pending  the  decision  as  to  the  final  right  to 
the  seat.  At  the  first  of  the  session  the  House  had  admitted  Samuel  G.  Daily  to 
the  seat  on  prima  facie  right.  Mr.  J.  Sterling  Morton  petitioned  that  he  be  declared 
the  sitting  Member,  but  the  Committee  on  Elections  reported  that  the  House  had 
decided  the  prima  facie  question,  and  the  House  by  laying  the  subject  on  the  table 
virtually  sustained  the  report. 

On  April  14,  1862,^  the  Committee  on  Elections  reported  in  the  case  of  Morton 
V.  Daily,  from  the  Territory  of  Nebraska. 

At  the  outset  the  question  as  to  the  final  right  to  the  seat  was  complicated  by 
a  question  as  to  prima  facie  right.  In  accordance  with  the  findings  of  the  board 
of  canvassers  the  governor  had  originallj'  issued  the  certificate  of  election  to  Mr. 
Morton.  But  seven  months  after  Mr.  Morton's  certificate  was  issued,  nearly  two 
months  after  the  term  of  office  of  Delegate  had  commenced,  but  before  the  session 
of  the  Congress  had  begun,  the  governor,  without  concurrence  of  the  board  of 
canvassers,  and  without  publicity,  had  issued  another  certificate  to  Mr.  Daily.  It 
appeared  that  the  seal  of  the  new  certificate  was  irregidar,  also. 

The  House  at  the  beginning  of  the  Congress  had  seated  Mr.  Daily  by  virtue  of 
this  certificate,  and  the  majority  of  the  committee  say: 

But  the  committee  were  of  opinion  that  they  had,  in  this  hearing,  nothing  to  do  with  the  certifi- 
cates; that  the  House  had  considered  these  certificates  in  deciding  who  should  be  the  sitting  Delegate 
pending  the  contest,  and  that  nothing  was  left  to  the  committee  at  this  hearing  but  to  go  behind  all 
certificates  and  ascertain  who  had  a  majority  of  the  legal  votes. 

The  minority  of  the  committee  contended  that  the  second  certificate  was  not 
only  irregular  but  a  forgery,  basing  their  contention  on  an  ex  parte  affidavit  which 
had  not  been  admitted  by  the  committee  as  testimony.  In  the  debate  on  May  6 
and  7,  1862,^  this  contention  was  discussed  at  length,  the  minority  m-ging  that 
such  irregularities  and  alleged  fraud  at  the  outset  should  taint  the  title  of  the 
sitting  Delegate  thi-oughout.  The  majority  of  the  committee,  while  admitting  in 
the  debate  that  Mr.  Daily's  certificate  was  irregular,  though  not  fraudulent,  main- 
tained their  contention  that  the  House  had  already  passed  on  the  prima  facie  case, 
and  that  it  should  not  be  considered  in  determining  the  final  right. 

616.   The  case  of  Morton  v.  Daily,  continued. 

A  reservation  being  excluded  by  law  from  the  limits  of  a  Territory, 
the  votes  of  persons  residing  thereon  and  not  within  the  precinct  as 
required  by  law  were  rejected  by  the  committee. 

The  law  requiring  the  voter  to  reside  in  the  precinct,  the  votes  of  such 
as  did  not  were  rejected  by  the  committee. 

Because  a  county  was  not  legally  organized  and  the  election  was  not 
held  on  the  legal  day  and  nonresidents  voted,  the  entire  vote  of  the 
county  was  rejected  by  the  committee. 

'  House  Keport  No.  3,  first  session  Thirty-seventh  Congress;  Journal,  p.  144;  Globe,  p.  265. 
-House   Report  No.   69,   second  session  Thirty-seventh  Congress;  1   Bartlett,   p.   402;  Rowell's 
Digest,  p.  178. 

'  Globe,  pp.  1973,  1995. 


800  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   617 

More  illegal  votes  appearing  than  the  total  number  cast  for  one  can- 
didate, the  excess  were  deducted  by  the  committee  from  the  other  candi- 
date, in  the  absence  of  identifying  evidence. 

On  the  question  of  the  final  right  the  committee  examined  allegations  and 
answers  relating  to  several  kinds  of  fraud  and  irregularity: 

(a)  In  the  northern  precinct  of  L'eau-qui-court  County  there  were  cast  122 
fraudulent  votes,  in  the  opinion  of  the  committee.  Both  by  the  United  States 
census  and  by  witnesses  this  seemed  proved  to  the  satisfaction  of  the  committee, 
and  these  votes,  all  of  which  were  for  the  contestant,  were  rejected.  The  con- 
testant did  not  produce  the  testimony  of  witnesses  from  the  place  itself  to  show 
that  the  votes  were  legal,  but  attempted  to  shake  the  credibility  of  witnesses 
for  sitting  Member.  The  minority  of  the  committee  concluded  that  the  witnesses 
of  the  sitting  Member  were  successfully  impeached,  especially  as  one  of  them  made 
oath  against  liis  own  record  as  an  election  officer,  made  imder  oath. 

(b)  In  Monroe  precinct  the  committee  deducted  18  votes  for  contestant  and 
3  for  sitting  Member  because  they  were  nonresidents  or  inliabitants  of  an  Indian 
reservation,  which  by  the  law  was  excluded  from  the  limits  of  the  Territory,  and 
was,  moreover,  not  within  the  limits  of  the  voting  precinct,  although  the  law  of  the 
Territory  required  the  voter  to  be  a  resident  of  the  precinct. 

(c)  The  poll  of  Buffalo  County,  39  votes  for  the  contestant,  was  rejected  by 
the  committee  because  the  county  was  not  legally  organized.  Moreover,  the  poll 
was  held  open  on  the  day  succeeding  the  appointed  day,  and  several  votes  appeared 
to  be  cast  by  nonresidents. 

{d)  The  sitting  Delegate  objected  to  the  vote  of  Rulu  precinct  on  the  groimd 
that  certain  voters  were  not  residents  of  the  precinct,  as  required  by  law.  The 
committee  sustained  this  objection,  saying: 

While  the  committee  have  been  at  all  times  disposed,  so  far  as  they  can,  consistently  with  the 
provisions  of  law,  to  give  effect  to  the  will  of  the  voter,  expressed  in  good  faith,  they  do  not  see  how 
they  can  count  the  vote  of  a  nonresident  of  a  precinct  any  more  than  they  could  a  nonresident  of  the 
county  or  Territory.  The  provision  of  law  that  a  man  must  vote  in  the  precinct  where  he  resides  seems 
to  the  committee  to  be  a  wise  one  to  prevent  double  voting,  and  they  know  of  no  way  to  enforce  that 
wise  provision  except  to  insist  upon  its  observance. 

It  appears  that  24  nonresident  whites  and  5  half-breed  Indians  voted  at  this  precinct,  but  it  is 
uncertain  for  whom  they  all  voted;  but  as  Mr.  Daily  received  but  9  votes  in  all  at  this  precinct,  20  of 
them  at  least  must  have  voted  for  Mr.  Morton.  The  committee  therefore  reject  that  number  from  the 
count  of  Mr.  Morton. 

(e)  The  contestant  objected  to  the  poll  of  Falls  City,  alleging  frauds.  The 
majority  of  the  committee  felt  that  the  evidence  did  not  sustain  this  charge. 

617.   The  case  of  Morton  v.  Daily,  continued. 

No  legal  notice  of  election  at  a  certain  precinct  being  given,  the 
poll  was  rejected  by  the  committee  although  the  day  of  election  was 
fixed  by  law. 

The  returns  of  a  county,  stating  the  actual  aggregate  vote  for  each 
candidate,  were  not  rejected  by  the  committee  for  defect  in  form. 


§   618  CONFLICTING    CBEDENTIALS.  801 

(/)  In  the  Grand  Island  precinct  of  Pawnee  County  it  appeared  from  the  cross- 
examination  of  one  of  Mr.  Daily's  (sitting  Delegate)  watnesses — 

that  no  legal  notice  of  this  election  was  given  at  that  precinct,  although  the  vote  seems  to  have  been 
fairly  cast;  yet  the  committee  deem  the  notice  prescribed  by  law  essential,  and  do  not  feel  at  liberty 
to  say,  in  the  absence  of  such  notice,  that  all  persons  had  an  opportunity  to  vote.  The  committee  are 
aware  that  the  time  of  this  election  was  fixed  by  law,  and  that  all  are  presumed  to  know  the  law;  but 
in  a  new  country  like  this,  in  precincts  newly  opened  and  counties  sparsely  settled,  they  deem  actual 
notice  a  safer  rule,  and  therefore  reject  the  29  votes  cast  for  Mr.  Daily  at  the  precinct  of  Grand  Island, 
in  Hall  County. 

(g)  In  certain  counties  the  contestant  objected  to  the  form  of  the  returns,  and 
the  minority  of  the  committee  contended  in  support  of  this  objection.  The  majority 
held,  however — 

Mr.  Morton  claimed  that  the  votes  in  the  counties  of  Clay,  Dodge,  Cass,  Hall,  Johnston,  Lancaster, 
Nemaha,  Pawnee,  and  Washington,  although  counted  by  the  board  of  canvassers,  should  all  be  rejected 
for  defect  in  the  form  of  return.  It  was  not  claimed  by  Mr.  Morton  that  these  returns  were  false  in 
fact,  but  that  the  law  required  that  "abstracts"  of  the  vote  of  each  county  should  be  returned  to  the 
board  of  territorial  canvassers,  when  in  truth  the  return  from  each  of  the  above-named  counties  was 
the  aggregate  of  the  vote  for  each  of  the  respective  candidates  for  office  in  that  county.  Admitting 
that  Mr.  Morton  has  made  the  true  distinction,  and  that  an  aggregate  of  the  votes  thus  cast  for  each 
candidate  in  any  given  county  is  not  an  abstract  of  such  votes,  is  it  the  duty  of  the  committee  to  reject 
the  votes  thus  returned  for  that  reason?  If  there  had  been  no  return  at  all  of  the  votes  cast  in  these 
counties,  it  would  have  been  plainly  the  duty  of  the  committee  to  have  ascertained  by  other  testimony, 
if  possible,  the  actual  vote  cast  in  these  counties.  Now,  as  it  is  not  denied  that  the  returns  from  these 
counties  state  the  actual  aggregate  vote  cast  in  those  counties,  the  committee  take  them  as  evidence  of 
such  votes,  and  count  the  votes  so  returned  and  counted  by  the  Territorial  canvassers. 

618.    The  case  of  Morton  v.  Daily,  continued. 

It  not  being  shown  that  the  law  required  a  record  of  the  qualifi- 
cation of  an  election  oflB.cer,  the  committee  declined  to  assume  from 
absence  of  the  record  that  he  was  not  qualified. 

An  afladavit  taken  without  notice  to  opposing  candidate  and  before 
the  result  had  been  determined  was  rejected  as  evidence. 

The  report  of  an  election  committee  being  laid  on  the  table,  the  sit- 
ting Member  retains  the  seat. 

(h)  Contestant  objected  to  certain  votes  in  Pawnee  County  because — 

in  the  fourth  precinct,  in  said  county,  where  said  Daily  received  13  votes,  and  this  respondent  7  votes, 
there  was  no  legally  constituted  election  board;  those  acting  as  judges  were  neither  sworn  nor  qualified, 
as  required  by  law;  therefore  the  votes  of  said  precinct  ought  to  be  rejected. 

The  committee  say: 

The  only  evidence  in  support  of  this  allegation  is  that  of  Newcomb  (p.  157),  from  which  it  appeare 
that  while  the  county  commissioners  appointed  three  persons  to  serve  as  judges  of  election  in  each  of 
the  two  precincts  of  Wyoming  and  Otoe,  the  returns  from  each  of  those  precincts  were  signed  by  only 
one  of  the  persons  thus  appointed,  with  two  other  persons  associated  with  him  in  each  case,  and  that 
there  is  no  record  on  file  in  the  clerk's  office  of  the  appointment  of  these  two  persons  at  each  precinct 
to  act  as  judges  of  the  election.  The  committee  understand  the  law  of  Nebraska  to  authorize  the  appoint- 
ment and  qualification  of  persons  to  act  as  judges  of  election  in  the  absence  of  those  regularly  appointed 
beforehand  by  the  county  commissioners.  Mr.  Morton  does  not  show  that  these  men  thus  acting  were 
not  duly  qualified.  He  only  shows  that  there  is  no  record  of  such  qualification  in  the  county  clerk's 
office,  nor  has  he  shown  that  the  law  requires  any  record  thereof  to  be  kept  there.  In  the  absence 
5994— VOL  1—07 51 


802  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   619 

of  any  certificate  of  such  qualification,  it  is  always  a  matter  of  proof  by  parole  whether  such  judges 
■were  qualified  or  not.  The  committee  do  not  assume  that  they  were  not  qualified.  The  only  evidence 
offered  by  Mr.  Morton  in  support  of  his  nineteenth  allegation  was  a  joint  afiidavit  (p.  113  of  the  testimony), 
signed  by  three  persons,  Johnson,  Wagner,  and  Barnard,  and  sworn  to  on  the  day  of  the  election,  without 
notice  to  Mr.  Daily,  and  before  the  votes  were  canvassed,  or  any  notice  of  contest  whatever.  The  com- 
mittee for  this  reason  rejected  this  testimony. 

(i)  Contestant  also  alleged  that  Pawnee  County  was  not  organized  according 
to  law,  but  failed  to  satisfy  the  committee  of  this  in  face  of  the  fact  that  the  legis- 
lature in  1857-58  had  recognized  it  as  a  county  by  making  it  a  representative  district. 

The  above  are  the  essential  issues  involved  in  the  contest,  the  committee 
finding  in  conclusion  a  majority  of  150  for  the  sitting  Delegate.  On  May  6  and  7' 
the  report  was  debated  at  length.  On  the  latter  day  the  whole  subject  was  laid  on 
the  table,  yeas  64,  nays  38,^  thus  leaving  the  sitting  Delegate  in  possession  of  the 
seat. 

619.  The  election  case  of  Jayne  and  Todd,  from  Dakota,  in  the  Thirty- 
eighth  Congress. 

In  view  of  the  existence  of  conflicting  credentials,  the  House  declined 
to  administer  the  oath  to  a  person  enrolled  by  the  Clerk  as  a  Delegate. 

Credentials  in  due  form  issued  by  an  oflicer  intrusted  by  law  with 
that  function  were  held  to  establish  prima  facie  right  against  the  certifi- 
cate of  another  oflB.cer  showing  the  actual  state  of  the  vote. 

A  governor  empowered  by  law  to  issue  credentials  may  certify  to  his 
own  election  to  the  House. 

No  law  requiring  the  seal  of  the  Territory  to  be  aflixed  to  credentials 
of  the  Delegate,  the  absence  of  the  seal  did  not  invalidate  the  credentials. 

On  December  7,  1863,'  at  the  organization,  during  the  swearing  in  of  Members 
and  Delegates,  Mr.  J.  B.  S.  Todd,  who  was  on  the  Clerk's  roll  as  Delegate  from 
Dakota,  was  called. 

Mr.  Owen  Lovejoy,  of  Illinois,  demanded  the  reading  of  the  credentials  of 
Mr.  Todd  and  at  the  same  time  presented  the  credentials  of  Mr.  William  Jayne, 
claiming  a  seat  as  Delegate  from  the  same  Territory. 

Mr.  Lovejoy  then  moved  that  the  credentials  of  Mr.  Todd  be  referred  to  the 
Committee  on  Elections.  This  motion  was  agreed  to,  and  the  oath  was  not  admin- 
istered to  Mr.  Todd.  Mr.  Todd  had  a  credential  from  John  Hutchinson,  secretary 
and  acting  governor,  which  merely  stated  the  facts  to  show  that  Mr.  Todd  had  more 
votes  than  his  opponent,  William  Jayne.  There  was  also  a  certificate  from  John 
Hutchinson,  as  secretary,  that  he  had  not  issued  a  certificate  of  election  to  any- 
one, and  also  a  certified  copy  of  a  proclamation  wherein  John  Hutchinson,  secretary 
and  acting  governor,  declared  that  William  Jayne  received  the  majority  of  the 
votes,  and  finally  a  certificate  wherein  William  Jayne,  as  governor,  certified  that 
William  Jayne  (himself)  had  been  elected  Delegate. 

'  Globe,  pp.  1973,  1995. 

=  Journal,  p.  653;  Globe,  pp.  2009,  2010. 

^  First  session  Thirty-eighth  Congress,  Journal,  p.  13;  Globe,  p.  8. 


i 


§  619  CONFLICTING   CKEDENTIALS.  803 

The  Committee  on  Elections  reported  on  January  13,  1864.*  The  committee 
first  describe  the  credentials.     Those  of  Mr.  Jayne  consisted  of: 

First.  A  proclamation  by  John  Hutchinson,  "secretary  and  acting  governor 
of  the  Territory  of  Dakota,"  dated  November  29,  1862,  bearing  the  seal  of  the 
Territory,  "that  at  a  general  election  held  on  the  1st  day  of  September,  1862, 
in  said  Territory,  William  Jayne  received  a  majority  of  the  votes  cast  for  Delegate 
to  Congress,  and  was  therefore  duly  elected  Delegate  to  the  Thirty-eighth  Congress 
of  the  United  States." 

Second.  A  certificate,  signed  by  himself,  "William  Jayne,  governor  of  Dakota 
Territory,"  dated  January  5,  1863,  and  sealed  with  the  seal  of  the  Territorj',  cer- 
tifying the  same  facts  set  out  in  the  proclamation  of  date  November  29,  1862,  signed 
by  John  Hutchinson,  secretary  and  acting  governor. 

Mr.  JajTie  was  absent  from  the  Territory  at  the  time  the  proclamation  was 
issued,  but  returned  before  the  issuing  of  the  certificate. 

The  credentials  of  Mr.  Todd  were : 

First.  A  certificate,  signed  by  "John  Hutchinson,  secretary  and  acting  gov- 
ernor," dated  August  15,  1863,  and  sealed  with  the  seal  of  the  Territory — 

that  according  to  the  canvass  made  by  the  Territorial  canvassers,  on  the  24th  day  of  October,  1862,  of  the 
votes  for  Delegate  to  Congress,  William  Jayne  had  a  majority  over  J.  B.  L.  Todd  of  16  votes;  and  that 
subsequent  to  said  canvass  returns  were  made  to  this  office,  in  due  form,  of  votes  from  Pembina  district, 
as  follows:  For  J.  B.  L.  Todd,  125;  for  William  Jayne,  19,  which  said  votes  were  not  included  in  the 
canvass  made  by  the  Territorial  canvassers,  but  are  now  on  file  in  this  office. 

Second.  Another  certificate,  signed  "John  Hutchinson,  secretary,"  dated  Sep- 
tember 26,  1863,  with  the  seal  afiixed,  certifv^ing — 

that  I  have  not  issued  a  certificate  of  election  to  any  person  as  Delegate  to  Congress  from  this  Territory, 
that  there  is  no  record  in  this  office  of  any  having  been  issued  by  any  person,  and  that  I  have  no  official 
knowledge  of  the  Territorial  seal  having  been  affixed  to  any  such  certificate. 

The  committee,   in  their  investigation,   confined  themselves  entirely  to   the 
prima  facie  case,  giving  no  attention  to  the  question  of  final  right. 
The  report  makes  the  following  statement  of  fact : 

The  election  of  Delegate  was  held,  according  to  law,  on  the  1st  day  of  September,  1862.  The  laws 
of  Dakota  make  it  the  duty  of  the  secretary  of  the  Territorj',  if  the  returns  from  any  county  have  not  been 
received  at  his  office  within  forty  days  after  an  election,  to  send  a  special  messenger  therefor.  No  mes- 
senger was  sent  to  any  county  in  this  case.  It  is  made  the  duty  of  the  secretary,  the  chief  justice,  and 
the  governor  "  to  proceed  within  fifty  days  after  the  election,  and  sooner,  if  all  the  votes  be  received,  to 
canvass  the  votes  given  for  Delegate  to  Congress,  and  other  Territorial  officers,  and  the  governor  shall  grant 
a  certificate  of  election  to  the  person  having  the  highest  number  of  votes,  and  shall  also  issue  a  procla- 
mation declaring  the  election  of  such  person.  If  either  of  the  persons  mentioned  in  this  section  as  can- 
vassers be  a  candidate  for  Delegate  to  Congress,  such  person  shall  take  no  part  in  the  canvass  of  said 
votes."  By  the  organic  act,  in  the  absence  of  the  governor  from  the  Territory,  the  secretary  shall  be 
acting  governor. 

On  the  24th  of  October,  18G2,  the  fifty  days  for  the  returns  to  be  made  having  expired,  the  chief 
justice  and  secretary  of  the  Territory,  in  the  absence  of  the  governor,  Mr.  Jayne,  who  was  one  of  the 
candidates,  proceeded  to  canvass  the  votes  for  Delegate,  and  on  the  29th  of  October  the  secretary  of  the 
Territory,  as  acting  governor,  the  governor  being  still  absent  from  the  Territory,  made  proclamation  of 
the  result,  viz,  that  "William  Jayne  received  a  majority  of  the  votes  cast  for  Delegate  to  Congress,  and 

'  House  Report  No.  1. 


804  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   620 

■was  therefore  duly  elected  Delegate  to  the  Thirty-eighth  Congress  of  the  United  States."  A  certified 
copy  of  this  proclamation,  under  the  hand  of  said  secretarj',  acting  governor,  sealed  with  the  seal  of  the 
Territory,  Mr.  Jayne  presents  as  his  credentials. 

The  law  of  the  Territory  also  requires  a  certificate  of  the  same  facts  to  be  issued  by  the  governor  to 
the  person  so  declared  elected.  Mr.  Jayne  having  returned  to  the  Territory  before  this  certificate  was 
issued,  all  authority  of  the  secretary,  as  governor,  ceased  at  once;  and  if  the  certificate  was  to  be  issued 
at  all,  it  must  be  issued  by  Mr.  Jayne  himself,  he  alone  being  governor.  He  accordingly,  on  the  5th  of 
January,  186.3,  certified  to  the  facts  found  by  the  canvassers  and  proclaimed  by  the  acting  governor  in 
his  absence.     This  certificate  is  also  presented  here,  along  with  the  proclamation  of  the  acting  governor. 

The  committee  go  on  to  show  that  here  the  official  comiection  of  the  board  of 
canvassers  ceased  and  that  the  secretary  had  no  authority  nine  months  after  the 
canvass  had  been  made  and  the  result  announced  to  issue  the  certificate  to  Mr. 
Todd.  The  statement  of  the  secretary  that  he  had  issued  to  no  one  a  certificate  of 
election  and  had  not  affixed  the  seal  of  the  Territory  to  any  certfficate  was  of  no 
effect,  as  the  law  did  not  authorize  him  to  do  cither. 

The  committee  "fixid  that  the  credentials  of  ilr.  Jayne  are  in  strict  conformity 
to  the  laws  of  the  United  States  and  the  Territory  declaring  him,  under  the  seal  of 
the  Territory  and  the  signature  of  both  the  acting  and  actual  governor  of  the  Terri- 
tor\-,  to  be  duly  elected  Delegate  to  the  Thirty-eighth  Congress."  Mr.  Todd  presented 
no  such  paper.  Mr.  Jayne  had  also  presented  a  later  certificate  signed  by  the 
present  governor. 

The  committee  therefore  recommended  the  adoption  of  the  following: 

Resolved,  That  William  Jayne,  having  presented  a  certificate  in  due  form  of  law  of  his  election  as 
Delegate  from  the  Territory  of  Dakota  to  the  Thirty-eighth  Congress,  is  entitled  to  take  the  oath  of  office 
and  occupy  a  seat  in  this  House  as  such  Delegate  without  prejudice  to  the  right  of  J.  B.  S.  Todd,  claiming 
to  be  duly  elected  thereto,  to  prosecute  his  contest  therefor  according  to  the  rules  and  usages  of  this 
House. 

On  January  15'  the  report  was  discussed  in  the  House.  It  was  urged  that 
the  certificate  was  irregular  because  issued  by  Governor  JajTie  to  himself  without 
the  document  being  sealed  by  the  secretary.  On  the  other  hand,  it  was  argued 
that  the  governor  might  certify  to  his  own  election  and  that  no  law  required  the  seal. 

The  question  was  taken  first  on  an  amendment  declaring  that  neither  claimant 
should  be  admitted  to  a  seat  until  the  final  right  should  be  determined.  This  was 
decided  in  the  negative — yeas  66,  nays  78.  The  resolution  reported  hy  the  committee 
was  then  agreed  to.^ 

J^Ir.  Jayne  thereupon  appeared  and  took  the  oath. 

620.  The  South  Carolina  election  cases  of  Hoge  and  Reed  and  Wallace 
V.  Simpson  in  the  Forty -first  Congress. 

In  case  of  conflicting  credentials,  one  intended  to  revoke  the  other,  the 
Clerk  enrolled  neither  claimant. 

In  1869  the  House  ordered  that  in  all  election  contests  wherein  either 
claimant  should  be  unable  to  take  the  oath  of  loyalty,  the  investigation 
of  claimant's  rights  should  cease  pending  order  of  the  House. 

'  Globe,  pp.  234-238.  -Journal,  p.  148;  Globe,  p.  238. 


§  620  CONFLICTING   CREDENTIALS.  805 

After  careful  reconsideration  of  the  principles  of  a  former  action,  the 
House  declined  to  honor  credentials  doubtful  as  to  legal  form  and  intended 
to  revoke  credentials  correct  in  form. 

Discussion  of  the  right  of  certifying  oflicers  to  revoke  credentials 
already  issued  and  issue  others. 

On  March  4,  1869/  when  the  House  was  organized,  the  roll  of  the  Clerk  was 
found  not  to  include  the  names  of  Representatives  from  the  Third  and  Fourth  dis- 
tricts of  South  Carolina. 

On  March  9^  the  House  agreed  to  the  following  resolution: 

Resolved,  That  the  cases  of  the  claimants  to  seats  in  the  Forty-first  Congress  from  the  Third  and 
Fourth  Congressional  districts  of  South  Carolina,  with  all  papers  relating  to  the  same,  be  referred  to  the 
Committee  of  Elections,  when  appointed,  with  instructions  to  report  as  soon  as  practicable  which  of 
the  claimants,  if  either,  are  entitled  to  seats. 

On  March  22,  1869,'  the  House  agreed  to  the  following: 

Resolved,  That  in  aH  contested-election  cases  referred  to  the  Committee  of  Elections  in  which  it 
shall  be  alleged  by  a  party  to  the  case,  or  a  Member  of  the  House,  that  either  claimant  is  unable  to  take 
the  oath  prescribed  in  the  act  approved  July  2,  1862,  entitled  "An  act  to  prescribe  an  oath  of  office,  and 
for  other  purposes,"  it  shall  be  the  duty  of  the  committee  to  ascertain  whether  such  disability  exists- 
and  if  such  disability  shall  be  found  to  exist  the  committee  shall  so  report  to  the  House,  and  shall  not 
further  consider  the  claim  of  the  person  so  disqualified  without  the  further  order  of  the  House;  and  no 
compensation  will  be  allowed  by  the  House  to  any  claimant  who  shall  have  been  ineligible  to  the  office 
of  Representative  to  Congress  at  the  time  of  the  election,  and  whose  disability  shall  not  have  been 
removed  by  act  of  Congress, 

In  accordance  with  this  resolution,  the  conunittee  reported^  that  J.  P.  Reed, 
one  of  the  claimants  for  the  seat  from  the  Third  district,  was  unable  to  take  the 
oath.     This  disposed  of  his  claim  to  the  seat. 

But  a  question  arose  as  to  the  prima  facie  right,  and  on  April  2,  after  the  report 
as  to  Mr.  Reed's  qualification  had  been  presented,  the  committee  reported  on  the 
prima  facie  right.^  It  appeared  that  there  were  two  certificates,  thus  described 
and  discussed  by  the  majority  of  the  committee: " 

One  of  these  certificates  was  signed  by  three  persons  styling  themselves  canvassers  for  said  State, 
and  certifies  that  J.  P.  Reed  was  duly  elected  by  a  majority  of  votes  in  said  Third  district. 

The  other  certificate  was  signed  by  four  persons  styling  themselves  canvassers  for  the  State  (three 
of  the  persons  signing  this  being  the  same  who  signed  the  first-named  certificate),  and  certifies  that 
S,  L.  Hoge  was  duly  elected  by  a  majority  of  the  legal  votes  in  said  Third  district. 

The  phraseology  of  these  certificates  is  somewhat  different.  In  the  certificate  given  to  Reed,  it  is 
certified  that  he  is  duly  elected  by  a  majority  of  votes,  while  in  the  other  it  is  certified  that  S.  L.  Hoge 
is  duly  elected  by  a  majority  of  the  legal  votes  of  said  district.  It  is  evident,  as  will  presently  appear, 
that  it  was  the  intention  of  the  canvassers  to  supersede,  by  the  certificate  given  to  Hoge,  the  one  they 
had  already  given  to  Reed,  and  this  accounts,  no  doubt,  for  the  difference  in  the  language  used. 

'  First  session  Forty-first  Congress,  Journal,  p.  5. 
^Journal,  p.  22. 
^Journal,  p.  91. 
*  House  Report  No.  3. 

=  House  Report  No.  6;  2  Bartlett,  p,  540;  Rowell's  Digest,  p.  233. 

^  Report  submitted  by  Mr.  John  Cessna,  of  Pennsylvania.     The  minority  views  were  signed  by 
Messrs.  Albert  G.  Burr,  of  Illinois,  and  Samuel  J.  Randall,  of  Pennsylvaina. 


806  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  620 

It  appears,  also,  that  one  of  the  canvassers  (J.  L.  Neagle)  who  signed  the  certificate  of  Reed,  with- 
drew his  signature  to  said  certificate  in  the  following  language : 

''I  therefore  desire  that  the  aforesaid  certificate  be  considered  as  though  my  name  was  not  attached 

and  this  same  certificate  to  have  all  the  force  of  a  certificate  of  the  election  of  Hon.  S.  L.  Hoge  in  full 

force  and  effect. 

"J.  L.  Neagle, 

"  Comptroller-General,  South  Carolina." 

This  withdrawal  leaves  but  two  signatures  to  the  certificate  of  Reed.  This,  according  to  the 
Statutes  at  Large  of  the  State  of  South  Carolina  (vide,  sec.  35),  invalidates  the  certificate,  three  can- 
vassers being  required  to  make  a  valid  certificate.  The  question  then  arises.  Can  the  canvassers,  after 
having  given  one  certificate,  withdraw  their  action  and  give  another  to  a  different  party?  This  ques- 
tion was  decided  in  the  case  of  Morton  v.  Daily.     (Bartlett's  Contested  Election  Cases,  p.  403.) 

We  think,  also,  that  this  decision  can  be  sustained  upon  principle.  The  question  is  entirely 
within  the  control  of  the  State  canvassers  or  the  governor  of  the  State  (as  the  case  may  be  under  the 
law)  until  the  roll  of  the  House  is  made  up  by  the  Clerk.  There  is  no  vested  right,  under  a  certificate, 
that  would  prevent  the  canvassers  from  rectifying  any  error  or  mistake  that  may  have  occurred  in  their 
deliberations  or  action,  until  the  holder  of  the  same  has  been  awarded  his  seat  by  the  Clerk  of  the 
House. 

This  principle  is  illustrated  in  the  case  of  an  attorney  in  fact;  in  which  case,  it  is  not  doubted,  the 
principal  can  withdraw  or  annul  the  power  granted  at  any  time  before  its  purpose  is  executed. 

Conceding,  as  a  majority  of  the  committee  do,  the  right  of  these  canvassers  to  reverse  their  first 
action  in  the  premises  and  give  a  second  certificate  to  Mr.  S.  L.  Hoge,  we  do  not  think  it  necessary  to 
examine  the  mass  of  testimony  which  seems  to  have  been  taken,  upon  due  notice  to  the  opposite  party, 
but  we  append  to  this  report  the  reasons  given  by  the  Slate  canvassers  for  their  action  in  this  case. 
(Vide  Appendix,  marked  C.) 

The  committee  therefore  recommend  the  following  resolution: 

Resolved,  That,  upon  the  papers  referred  to  the  Committee  of  Elections  in  the  contested  case  of 
S.  L.  Hoge  1).  J.  P.  Reed  from  the  Third  Congressional  district  of  South  Carolina,  S.  L.  Hoge  is  prima 
facie  entitled  to  a  seat  in  the  House  as  the  Representative  of  said  district,  subject  to  the  future  action  of 
the  House  as  to  the  merits  of  the  case. 

The  minority  of  the  committee  dissented,  saying  at  the  outset: 

although  we  may  not  consider  his  papers  in  support  of  his  own  claim  until  he  shall  have  been  relieved 
of  disabilities,  we  may  and  must  consider  his  papers  in  order  to  determine  whether  the  papers  relied 
upon  by  his  competitor  show  upon  the  face  superior  title  to  the  seat  in  dispute. 

The  minority  quote  the  law  of  the  State  constituting  the  board  of  canvassers, 
of  which  the  following  is  a  part : 

XXXVII.  The  board  when  thus  formed  shall,  upon  the  certified  copies  of  the  statements  made  by 
the  boards  of  canvassers,  proceed  to  make  a  statement  of  the  whole  number  of  votes  given  at  such  election 
for  the  various  ofiices  and  each  of  them  voted  for,  distinguishing  the  several  counties  in  which  they 
were  given.  They  shall  certify  such  statements  to  be  correct  and  subscribe  the  same  with  their  proper 
names. 

XXXVIII.  Upon  such  statements  they  shall  then  proceed  to  determine  and  declare  what  persons 
have  been,  by  the  greatest  number  of  votes,  duly  elected  to  such  offices,  or  either  of  them. 

The  minority  present  the  statement  of  votes  made  up  by  the  canvassers  in 
accordance  with  the  law,  which  gave  J.  P.  Reed  11,774  votes  and  S.  L.  Hoge  8,766 
votes.  To  Mr.  Eeed  also  was  issued  the  certificate  as  to  the  determination  reached 
by  the  board  as  to  "what  persons  have  been,  by  the  greatest  number  of  votes,  duly 
elected  to  such  offices."  This  declaration  was  duly  signed  by  all  the  State  can- 
vassers. To  Mr.  Reed  also  was  issued  the  certificate  of  the  governor  under  the  seal 
of  the  State,  commissioning  him  as  Representative. 


§   620  CONFLICTING   CREDENTIALS.  807 

As  to  the  claim  of  Mr.  Hoge,  the  minority  say: 

The  only  papers  in  support  of  his  prima  facie  claim  are,  first,  a  certificate  by  the  board  of  State 
canvassers,  purporting  to  have  been  executed  on  the  same  day  as  that  held  by  Mr.  Reed;  and  second, 
a  separate  "statement  of  the  board  of  State  canvassers  of  South  Carolina  in  the  case  of  the  election  of 
J.  P.  Reed."  Let  us  consider  the  certificate  first.  It  differs  from  that  held  by  Mr.  Reed  only  in  three 
particulars  and  need  not  therefore  be  set  out  here,  except  so  far  as  the  difference  is  to  be  considered. 
Reed's  certificate  declares  him  to  "have  been  duly  elected  by  a  majority  of  votes."  Hoge's  declares 
him  to  "have  received  a  majority  of  legal  votes."  The  next  point  of  difference  is  that  Hoge's  paper 
bears  the  signature  of  Daniel  H.  Chamberlain,  attorney-general,  in  addition  to  the  names  of  State  can- 
vassers signing  Reed's;  and  last,  the  paper  presented  by  Hoge  bears  to  the  left  of  the  official  signatures 
of  the  canvassers  the  words  "Robert  K.  Scott,  governor  of  South  Carolina." 

Before  considering  the  "statement"  let  us  refer  to  each  of  these  points  of  difference  in  the  certifi- 
cates. The  requirement  of  the  law  of  South  Carolina  (sec.  38)  upon  the  canvassers  is,  "shall  determine 
and  declare  what  persons  have  been,  by  the  greatest  number  of  votes,  duly  elected."  Reed's  paper 
says,  "have  been  duly  elected  by  a  majority  of  votes."  Hoge's  says,  "have  received  a  majority  of  legal 
votes."  In  \-iew  of  the  requirements  of  this  section.  Reed's  paper  is  a  strict  compliance  with  the  statute; 
Hoge's  a  departure  from  the  text  and  lack  of  compliance  with  its  terms.  As  to  the  next  point  of  differ- 
ence in  the  fact  that  the  attorney-general  signs  Hoge's  paper  and  not  Reed's,  either  paper  is  in  that 
regard  a  compliance  with  the  law  (sec.  35),  for  by  it  any  three  of  the  canvassers  constitute  a  board.  And 
last,  as  to  the  name  of  Governor  Scott  appearing  on  the  left  of  Hoge's  paper,  as  no  section  of  the  law 
requires  him  to  execute  or  attest  such  a  paper,  it  is  of  no  effect  on  the  one,  nor  is  its  lack  in  any  degree 
significant  in  the  other.  These  are  all  the  differences  on  the  faces  of  the  papers  so  far.  Hoge  presents 
no  commission  by  the  governor,  which  Reed  does.  Hoge  shows  no  published  certificate  of  the  result  in 
his  favor,  as  required  by  section  43,  while  Reed  shows  strict  compliance  with  that  section. 

The  minority  go  on  to  cite  facts  which  they  declare  prove  that  Hoge's  certificate 
of  election  was  made  long  subsequent  to  the  day  appearing  on  its  face  as  the  true 
date,  and  thus  was  impeached. 

The  minority  also  show  that  the  "statement"  of  the  canvassers  (a  document 
declaring  widespread  intimidation  in  the  district  whereby  enough  voters  to  have 
elected  Mr.  Hoge  were  deterred  from  voting)  in  its  opening  sentence  admitted  that 
the  canvassers  had  "felt  compelled  to  declare  upon  prima  facie  evidence"  that  J.  P. 
Reed  had  been  elected. 

Laying  stress  on  the  fact  that  the  "statement"  bore  no  date,  the  minority  say: 

But,  in  addition,  even  if  a  public  officer  or  a  board  of  officers  may  annul  an  official  act  and,  by 
subsequent  determination,  move  in  a  different  direction,  there  must  of  course  be  a  period  of  time,  or  a 
point  in  the  series  of  acta  dependent  upon  each  other,  beyond  which  no  such  discretionary  power  could 
be  exercised.  As  to  time,  let  it  be  remembered  they  commenced  their  work  as  a  board  as  early  as 
December  1,  for  that  is  the  date  of  their  first  official  paper.  How  long,  then,  may  they  continue  to 
act;  or,  in  other  words,  what  is  their  official  term?     Section  40  says: 

"The  board  shall  have  the  power  to  adjourn  from  day  to  day,  for  a  term  not  exceeding  five  days." 

Then,  measured  by  time,  all  their  official  acts  must  be  performed  within  the  term  of  five  days. 

But  as  to  power,  regardless  of  time,  we  deem  the  true  rule  to  be  that  when  an  official  act  is  in  itself 

completed,  and  other  subsequent  official  acts  of  the  same  or  other  officer  have  been  based  upon  such 

completed  act,  it  may  not  be  retracted. 

Therefore  the  minority  hold  that  as  the  affair  has  proceeded  as  far  as  the  issue 
of  a  certificate  by  the  governor,  it  was  too  late  for  the  board  to  recant. 
The  minority  conclude : 

But  this  statement  of  the  canvassers  not  only  does  not  assert  prima  facie  right  in  Hoge,  but 
expressly  states  that  he  received  a  minority  of  the  votes,  for  in  it  they  base  Hoge's  ultimate  right  on 


808  PRECEDENTS   OF   THE   HOUSE    OF    REPRESENTATIVES.  §   620 

Reed's  ineli" ibility.     They  do  not  reverse  the  final  decision  as  to  the  prima  facie  case,  but  admit  and 
affirm  it,  declaring,  however,  their  view  of  final  rights  or  merits  as  follows: 

"The  board  of  State  canvassers,  while  not  deeming  themselves  competent  to  give  final  judgment 
upon  the  question  herein  involved,  do  submit  that  if  such  disqualification  in  fact  exists,  then  the 
election  of  the  said  Reed  is  wholly  illegal  and  void;  and  that  in  consequence  thereof,  S.  L.  Hoge,  who 
received  the  next  highest  number  of  votes,  is  lawfully  entitled  to  the  seat  as  Representative  of  the 
Third  Congressional  district  aforesaid." 

S.  L.  Hoge,  they  say,  "received  the  next  highest  number  of  votes."  Next  to  whom?  J.  P.  Reed; 
and  "if  Reed  is  disqualified,  then  his  election  is  illegal  and  void;"  and,  in  their  judgment,  as  a  result 
"in  consequence  thereof,  S.  L.  Hoge,  who  received  the  next  highest  number  of  votes,"  ought  to  be 
admitted.  Suppose  Reed  were  not  disqualified?  Then  his  election  would  not  be  illegal  and  void, 
and  Hoge  would  have  no  claim,  prima  facie  or  otherwise,  to  a  seat  here.  Now,  if  the  House  is  ready 
to  adopt  this  theory,  that  the  disqualification  of  Reed  elects  Hoge  by  a  majority  vote,  so  let  it  be.  In 
so  doing  it  will  reverse  its  own  decision  in  the  preceding  Congresses,  admit  its  error  in  the  case  of  Brown 

and ,  from  Kentucky,  in  the  last  Congress,  place  majorities  in  control  of  minorities, '  and  in  advance 

sanction  party  intrigue  and  official  misconduct  in  suppressing  the  popular  will. 

For  reasons  imperfectly  given  above  we  dissent  from  the  majority  and  offer  as  a  substitute  for 
their  resolution  the  following: 

Resolved,  That  J.  P.  Reed  is  not  entitled,  under  resolution  of  March,  1869,  to  a  seat  from  the  Third 
district  of  South  Carolina,  by  reason  of  ineligibility,  and  that  S.  L.  Hoge  is  not  entitled  to  such  seat, 
because  he  was  not  "by  the  greatest  number  of  votes  duly  elected"  by  the  people  of  that  district. 

On  April  8,^  after  little  debate,  the  rules  were  suspended  and  the  resolution 
of  the  majority  was  agreed  to — yeas  101,  nays  39. 

Mr.  Hoge  thereupon  took  the  oath. 

The  same  state  of  facts  shown  in  the  above  case  was  also  developed  in  the 
case  from  the  Fourth  district  of  South  Carolina,  Wallace  v.  Simpson.^  The  report, 
submitted  by  Mr.  Samuel  S.  Burdett,  of  Missouri,  discussed  the  principle  involved 
at  greater  length  than  in  the  case  of  Hoge  v.  Reed.     The  report  says: 

The  possession  of  a  certificate  of  election  does  not  give,  create,  or  add  to  the  right  of  representing 
a  constituency.  It  is  merely  evidence  of  a  fact;  it  does  not  make  the  fact.  If,  in  fact,  false  in  its 
recitals,  as  one  and  all  of  its  signers  declare  the  Simpson  certificate  to  be,  it  can  not  create  by  such  a 
false  recital  a  state  of  case  which  exists  only  in  recitals.  The  anticipated  objections,  that  the  board  of 
canvassers,  exercising  ministerial  functions  only,  could  have  no  right  to  do  any  act  save  to  count  the 
returns  laid  before  them  and  certify  that  count  without  question,  is  sufficiently  answered  by  the  case 
of  Butler  v.  Lehman  (Contested  Cases  in  Congress,  p.  353),  and  in  the  case  of  Morton  v.  Daily,  page  403, 
in  both  of  which  cases  the  certifying  officer  did  go  behind  the  returns  furnished  him  and  declared  a 
different  result  from  that  appearing  on  the  face  of  the  returns,  and  in  both  cases  the  House  sustained 
the  action  of  the  officer.  The  last-cited  case  is  also  clearly  decisive  of  the  question  of  the  right  of  certi- 
fying officers  to  reverse  their  action,  even  after  the  fact  accomplished.  In  that  case  the  governor  of 
Nebraska  had  issued  his  certificate  to  Morton,  and,  after  the  lapse  of  considerable  time,  on  the  discovery 
of  apparent  fraud,  revoked  it  and  gave  a  second  to  Daily,  and  the  House  sustained  his  action  by  seating 
Daily. 

Nor  is  such  action  to  be  looked  on  as  exceptional,  or  dependent  on  the  particular  circumstances 
of  cited  cases.     On  the  contrary,  the  principle  on  which  this  action  is  based  is  in  itself  most  wise,  nec- 

'  This  is  the  wording  as  printed  in  the  report.  The  language  is  susceptible  of  two  meanings;  but 
the  intention  was  evidently  to  express  the  idea  that  majorities  would  be  placed  under  the  control  of 
minorities. 

2  Journal,  pp.  194,  195;  Globe,  p.  631. 

3 House  Report  No.  7;  2  Bartlett,  p.  552;  Rowell's  Digest,  p.  235. 


§  621  CONFLICTING   CREDENTIALS.  809 

essary,  and  salutary,  and  the  reason  is  well  expressed  in  the  views  of  the  committee  in  the  case  of  Val- 
landigham  r.  Campbell  (Contested  Election  Cases,  p.  230\  in  the  following  language: 

"Neither  the  committee  nor  the  House  is  bound  by  these  rules  (the  usual  rules  and  principles 
of  evidence 'i  in  their  letter  and  strictness,  but  should  proceed  upon  more  liberal  principles  in  the  inves- 
tigation of  truth.'' — Et  seq.,  and  cases  cited  to  page  231. 

The  objection  that  justice,  clearly  demanded  by  every  possible  consideration  of  fair  dealing,  shall 
not  be  done,  or  shall  be  delayed,  because  of  the  omission,  or  technical  error,  or  hasty  and  mistaken 
action  of  some  intermediate  official  personage,  or  because  the  just  end  to  be  reached  leads  across  the 
line  of  "nisi  prius"  practice,  or  precedent,  can  not  stand.  That  equity  might  be  done,  and  done  in 
spite  of  the  strict  rules  of  law,  courts  of  chancery  were  established,  that  through  them  righteous  con- 
clusions might  be  reached  for  the  conclusions'  sake.  By  the  Constitution,  in  all  matters  pertaining  to 
the  election,  returns,  and  qualifications  of  its  Members,  the  House  is  made  "'a  law  unto  itself,"  and  has 
no  other  rule  forced  upon  it  for  the  determination  of  these  questions  than  the  sanction  of  the  oath  of  its 
Members,  and  that  due  regard  for  the  rights  of  constituencies  which  the  representatives  of  constitu- 
encies, from  the  nature  of  their  own  duties  and  relations,  must  have  and  feel.  Not  that  the  technical 
rules  of  the  law  applicable  to  evidence  and  weight  of  evidence,  the  duties  of  officers,  etc.,  may  not  be 
called  in  to  aid  in  the  proper  investigation  of  a  case,  but  that  when  called  in  they  shall  not  be  r^arded 
as  greater  than  the  rights  to  be  affected  by  their  application. 

The  case  of  Wallace  v.  Simpson  on  this  prima  facie  question  was  debated  fully 
on  January  25,'  at  the  next  session  of  Congress.  Mr.  Samuel  J.  Randall,  of  Penn- 
sylvania, alleged  that  the  secretary  of  state  of  South  Carolina  was  ready  to  appear 
and  testify  that  the  certificates  to  Hoge  and  Wallace  had  been  issued  informally 
at  a  date  later  than  the  five  days'  limit.  It  was  replied  that  even  if  this  were  so 
the  official  certificate  of  the  secretary  of  state  to  the  direct  contrary  was  on  file. 
The  report  was  fully  considered  in  other  aspects.  The  majority  had  proposed  a 
resolution  declaring  Mr.  Wallace  prima  facie  entitled  to  the  seat. 

Mr.  Randall  moved  as  a  substitute  therefor  the  following: 

That  W.  D.  Simpson  is  not  entitled,  under  resolution  of  March,  1869,  to  a  seat  from  the  Fourth  dis- 
trict of  South  Carolina,  by  reason  of  ineligibility;  and  that  A.  S.  Wallace  is  not  entitled  to  such  seal 
because  he  was  not  "by  the  greatest  number  of  votes  duly  elected  "  by  the  people  of  that  district. 

This  substitute  amendment  was  agreed  to,  yeas  102,  nays  73.^ 

The  question  recurring  on  the  proposition  of  the  majority  as  amended  bj'  the 
substitute,  Mr.  Rantlall  expressed  the  desire  to  modify  his  substitute  so  that  it 
would  bear  only  upon  the  prima  facie  case.  He  said  that  his  proposition  as  adopted 
went  further  than  he  had  intended. 

Objection  being  made  to  the  modification,  a  motion  to  lay  the  whole  proposition 
on  the  table  was  then  agreed  to  without  division. 

Then  a  resolution  was  agreed  to — ayes  63,  noes  46 — referring  the  claims  of  both 
Messrs.  Simpson  and  Wallace  to  a  committee  to  be  examined  as  to  the  merits  of  the 
case. 

621.   The  election  cases  of  Hoge,  Reed,  and  others,  continued. 

Form  of  resolution  authorizing  notice  of  contest  and  taking  of  testi- 
mony in  case  of  a  claimant  whose  opponent  had  been  eliminated  by 
reason  of  disqualifications. 


'  Second  session  Forty-first  Congress,  Globe,  pp.  742-752. 
2  Journal,  pp.  201-204. 


810  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  621 

The  candidate  having  the  largest  number  of  votes  being  notoriously- 
disqualified,  the  House  declined  to  seat  the  candidate  having  the  next 
highest  number  of  votes. 

On  January  28,  1870,'  the  committee  reported  that  Mr.  Simpson  was  unable  to 
take  the  oath  required  by  the  act  of  July  2,  1862,  and  the  House  discharged  the 
committee  from  consideration  of  the  case  so  far  as  it  related  to  Mr.  Simpson. 

On  February  10 '  the  House,  on  report  from  the  Conmaittee  on  Elections,  agreed 
to  the  following  resolution : 

Resolved,  That  in  the  case  of  A.  S.  Wallace  i).  W.  D.  Simpson,  the  time  for  taking  testimony  be 
extended  for  forty  days  from  and  after  the  passage  of  this  resolution.  Notice  shall  be  given  by  either 
party  wishing  to  take  testimony,  to  the  opposite  party,  according  to  law,  ten  days  before  commencing  the 
same.  Either  party  may  examine  witnesses  before  any  judge,  notary  public,  or  other  officer  authorized 
to  take  depositions  under  the  laws  of  the  United  States  or  of  the  State  of  South  Carolina,  at  the  city 
of  Columbia.  Testimony  taken  by  said  Wallace  shall  be  confined  to  evidence  tending  to  establish  his 
claim  to  the  seat;  and  testimony  taken  by  said  Simpson  shall  be  confined  to  evidence  relating  to  said 
claim  of  said  Wallace. 

On  May  18,  1870,'  the  committee  having  the  case  in  charge — Messrs.  John 
Cessna,  of  Pennsylvania;  Eugene  Hale,  of  Maine;  and  Samuel  J.  Randall,  of  Penn- 
sylvania— submitted  the  report  on  the  merits  of  the  case.  As  presented  in  this 
report  the  case  divides  itself  naturally  into  three  branches. 

1.  The  question  arose  as  to  whether  or  not,  the  candidate  having  a  majority 
on  the  face  of  the  returns  being  disqualified,  the  candidate  being  returned  with  the 
next  highest  vote  should  be  seated.  Mr.  Cessna  submitted  in  the  report  an  argument 
that  the  minority  candidate  should  be  seated ;  but  it  was  expressly  stated  in  the 
debate  *  that  neither  Mr.  Hale  nor  Mr.  Randall  concurred  in  this  view.  Also,  Mr. 
Henry  L.  Dawes,  of  Massachusetts,  protested  against  including  this  as  one  of  the 
grounds,  and  Mr.  Halbert  E.  Paine,  of  Wisconsin,  chairman  of  the  Committee  on 
Elections  concurred  in  this  view.  Mr.  Albert  G.  Burr,  of  Illinois,  submitted  an 
elaborate  argument  to  show  that  Mr.  Cessna's  view  was  not  sustained  even  by 
English  precedents." 

Mr.  Cessna,  in  his  report,  admitted  that  there  was  no  precedent  in  American 
history,  but  contended  that  the  case  was  unique  and  that  English  precedents  would 
justify  the  view  for  which  he  contended.  He  contended  that  as  a  question  of  pubUc 
policy  his  view  was  abundantly  justified,  since  in  this  case  the  disqualification  was 
well  known  and  the  electors  by  their  act  fell  under  the  English  rule  of  "willful 
obstinacy  and  misconduct."     Mr.  Cessna  says: 

Was  Mr.  Simpson,  who  claims  to  have  received  a  majority  of  the  votes  in  this  district,  ineligible 
at  the  time  he  was  voted  for;  and  did  those  who  cast  their  votes  for  him  know  the  fact?  The  third 
section  of  the  fourteenth  amendment  to  the  Constitution  of  the  United  States  provides  that  "no  person 
shall  be  a  Senator  or  Representative  in  Congress,  or  elector  of  President  and  Vice-President,  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or  under  any  State,  who,  having  previously  taken 
an  oath  as  a  Member  of  Congress  or  as  an  officer  of  the  United  States,  or  as  a  member  of  any  State  legis- 

'  Globe,  p.  854;  Journal,  p.  223,  House  Report  No.  17. 
^Journal,  p.  295. 

'House Report  No.  71;  2  Bartlett,  p.  731;  Rowell's  Digest,  p.  244. 
*  Globe,  pp.  3863-3866. 


§   622  CONFLICTING    CREDENTIALS.  811 

lature,  or  as  an  executive  or  judicial  officer  of  any  State,  to  support  the  Constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion  against  the  same,  or  given  aid  and  comfort  to  the 
enemies  thereof."  Mr.  Simpson  admits,  in  his  answer  to  the  notice  of  contestant,  that  he  "was  a  mem- 
ber of  the  general  assembly  of  South  Carolina  in  the  years  1858,  1859,  and  1860;  that  he  took  the  oath 
as  such  to  support  the  Constitution  of  the  United  States;  that  he  voted  for  the  call  of  the  convention 
which  passed  the  ordinance  of  secession;  that  he  entered  the  Confederate  army  and  served  as  major  and 
lieutenant-colonel  until  the  close  of  the  year  1863,  when  he  was  elected  to  the  Confederate  congress, 
and  that  he  continued  a  member  of  said  congress  until  the  close  of  the  war;  that  he  has  engaged  in  open 
war  against  the  United  States,  and  as  a  member  of  the  confederate  Congress  he  did  all  he  could  in  an 
honorable  way  to  advance  the  cause  in  which  he  was  engaged." 

The  electors  in  this  district  were,  therefore,  thoroughly  informed  of  the  ineligibility  of  Mr.  Simpson 
at  the  time  they  voted  for  him.  It  is  perfectly  clear  that  they  had  actual  notice  of  his  ineligibility. 
But  even  without  the  actual  notice  to  individual  voters,  they  are  equally  bound,  under  a  state  of  facts 
such  as  here  presented.  They  are  presumed  to  have  known  of  the  disqualifying  article  of  the  Consti- 
tution of  the  United  States.  They  are  presumed  to  have  known  that  he  had  been  a  member  of  the  gen- 
eral assembly  of  South  Carolina.  They  are  presumed  to  have  known  that  he  took  an  oath  to  support 
the  Constitution  of  the  United  States  as  said  member.  They  are  presumed  to  have  known  that  he  was 
a  member  of  the  Confederate  congress.  These  are  presumptions  of  law,  and  charge  these  electors  with 
constructive  notice. 

"WTien  the  ineligibility  of  a  candidate  arises  from  his  holding  or  having  held  a  public  office,  the 
people  within  the  jurisdiction  of  such  office  are  held  in  law  to  know,  and  are  chargeable  with  notice  of 
such  ineligibility."     (Vide  Grant  on  Corporations,  p.  109.) 

In  this  instance  there  was  actual  as  well  as  constructive  notice  of  the  disqualification  of  Mr.  Simp- 
son. All  the  witnesses  that  have  been  examined  state  that  it  was  well  known  throughout  the  district, 
and  the  prominence  of  Mr.  Simpson  renders  it  very  certain  that  this  was  the  case.  This  case  is  distin- 
guishable from  the  case  of  Smith  v.  John  Young  Brown,  in  the  Fortieth  Congress,  from  the  fact  that  in 
that  case  the  disqualification  was  doubtful,  and  there  was  no  evidence  that  the  electors  knew  of  the 
disqualification.  He  had  not  served  in  the  Confederate  army;  he  had  held  no  office  under  the  consti- 
tution of  the  Confederacy  that  could  charge  those  who  voted  for  him  with  constructive  notice;  neither 
were  the  acts  of  disloyalty  alleged  against  him  of  a  character  so  notorious  as  to  raise  a  presumption  of 
knowledge  upon  the  part  of  the  electors  of  the  district. 

It  is  conceded  that  in  cases  heretofore  decided  by  the  House  the  doctrine  here  maintained  has  not 
prevailed;  but  it  is  confidently  believed  that  in  none  of  them  was  the  notoriety  of  ineligibility  raised, 
considered,  or  decided. 

622.   The  election  case  of  Hoge,  Reed,  and  others,  continued. 

Six  of  the  nine  counties  of  a  district  being  terrorized,  the  committee, 
in  a  sustained  report,  held  that  the  three  peaceful  counties,  casting  less 
than  half  the  returned  vote,  should  determine  the  result. 

A  question  as  to  whether  an  estimate  of  persons  kept  from  the  polls 
by  a  conspiracy  to  intimidate  should  have  weight  in  determining  the 
result. 

When  the  House  votes  to  admit  a  Member  and  the  motion  to  recon- 
sider is  disposed  of,  the  right  to  be  sworn  is  complete  and  not  to  be  de- 
ferred, even  by  a  motion  to  adjourn. 

An  elections  committee  having  reported  as  to  one  feature  of  a  contest, 
the  House  discharged  the  committee  from  further  consideration  of  that 
portion  of  the  case. 

(2)  The  registered  vote  of  the  entire  district  was  33,147,  of  which  23,905  votes 
were  cast.  The  official  returns  gave  14,098  votes  to  Simpson  and  9,807  to  Wallace. 
The  committee  present  testimony  showing  widespread  and  systematic  terrorism  in 


812  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   622 

six  of  the  nine  counties.  Out  of  the  total  district  vote  of  23,905  the  six  counties 
returned  14,553,  divided  as  follows:  Simpson  9,933,  Wallace  4,620.  The  three 
peaceful  comities  returned  a  total  of  9,352,  divided  as  follows:  Simpson  4,165,  Wal- 
lace 5,187. 

The  committee  show  by  the  vote  in  prior  elections  that  some  cause  produced 
the  phenomenon  of  a  surprising  reduction  in  the  vote  of  the  party  to  which  Mr. 
Wallace  belonged. 

The  committee  say: 

But  your  committee  is  satisfied  that  the  elections  held  in  these  six  counties  were  mere  farces,  and 
are  entitled  to  no  consideration  as  the  expressed  will  of  the  people;  that  under  no  precedent  or  any 
principle  of  law  or  justice  could  these  elections  be  considered  valid.  In  the  case  of  Harrison  v.  Davis 
(Contested  Election  Cases,  vol.  2),  which  is  probably  the  leading  case  upon  the  question,  it  is  ruled 
"that  if  so  many  individuals  were  excluded  by  violence  and  intimidations  as  woidd,  if  allowed  to  vote, 
have  given  the  contestant  the  majority,  this  would  have  been  in  law  decisive  of  the  case."  This  doc- 
trine is  conceded  in  the  minority  report  in  the  recent  case  of  Hunt  v.  Sheldon.  But  if  we  had  no  prece- 
dent, the  committee  would  not  hesitate  to  decide  that  where  there  was  such  violence  and  bloodshed  as 
would  intimidate  men  of  ordinary  firmness,  and  where  a  sufficient  number  of  voters  to  have  changed 
the  result  were  kept  from  the  polls  by  reason  of  this  intimidation,  it  would  be  as  fatal  to  the  poll  as  if 
the  election  board  had  been  controlled  by  intimidations.  In  the  recent  cases  acted  on  by  the  House, 
from  Louisiana,  it  was  contended  that  there  was  no  violence  used  at  the  polls,  and  therefore  there  was 
no  actual  obstruction  to  a  fair  election.  In  this  instance,  according  to  the  evidence,  there  was  a  con- 
spiracy to  prevent  a  free  election.  Mr.  Simpson  and  his  friends  had  organized  secret  political  clubs  in 
all  of  those  counties,  with  the  avowed  design  of  preventing  Republicans  from  voting.  They  had  pro- 
cured an  abundant  supply  of  firearms,  and  were  ready  to  make  any  use  of  them  that  the  success  of  their 
purpose  required.  Their  murders  and  threats  before  the  election  had  so  far  done  their  work  that  their 
appearance  at  the  polls  fully  armed  and  equipped  was  sufficient  to  intimidate  Republican  voters,  both 
white  and  black,  who  had  so  recently  witnessed  the  outrages  practiced  by  these  desperate  men.  At 
most  of  the  polls  there  was  violence  used  just  in  proportion  to  the  firmness  and  determination  mani- 
fested by  the  Republican  voters.  In  counties  where  there  were  but  few  white  Republicans  the  Ku-Klux, 
by  traversing  the  counties  for  several  nights  before  the  election,  beating  the  freedmen,  shooting  into 
their  houses,  and  leaving  coffins  at  their  doors,  so  completely  terrified  them  that  it  required  but  little 
effort  on  the  day  of  election  to  drive  them  from  the  polls. 

Did  this  violence  and  intimidation  deter  a  sufficient  number  of  voters  from  voting  who,  if  they 
had  voted,  would  have  elected  the  contestant?  We  are  clearly  of  opinion  that  it  did.  We  think,  too, 
that  by  the  evidence  it  is  fully  established  that  a  fair  election  in  these  six  counties  would  have  largely 
increased  the  majority  for  Mr.  Wallace  in  the  district. 

The  committee  further  say,  in  view  of  the  fact  that  the  three  peaceful  counties 
cast  only  9,352  out  of  the  23,905  votes  returned  in  the  district: 

It  is  sometimes  urged  that  in  cases  where  a  fair  election  has  been  prevented  by  fraud  and  violence 
only  in  a  part  of  a  district  the  whole  election  should  be  set  aside  and  a  new  one  ordered.  When  a  por- 
tion of  the  people  of  any  district,  in  a  peaceable  and  orderly  manner,  and  in  strict  compliance  with 
all  tlie  forms  of  law,  manifest  their  will  at  the  Ijallot  box,  we  can  see  no  good  reason  why  that  will  should 
be  disregarded  on  the  ground  that  there  were  other  people  in  the  district  who  did  not  choose  to  obey 
the  law,  nor  submit  to  its  requirements.  It  will  be  conceded  that  if  30,000  of  the  voters  of  this  district 
had  decided  to  stay  at  home  on  the  election  day,  and  the  other  3,000  had  gone  to  the  polls  and  voted, 
their  choice  would  have  been  the  legal  choice  of  the  whole  district.  And  it  would  have  made  no 
difference  whether  the  entire  3,000  persons  wlio  voted  lived  in  one  county  or  in  two  counties,  or  in  the 
whole  nine  counties  of  the  district.  We  can  see  no  difference  Isetween  such  a  case  and  the  one  now 
being  considered. 


§   623  CONFLICTING    CREDENTIALS.  813 

No  minority  views  were  presented.     Mr.  Randall  said  in  debate: 

I  here  express  my  dissent  from  the  conclusions  of  the  majority  of  the  committee,  while,  at  the 
same  time,  I  am  free  to  say  that  this  is  the  strongest  case  of  intimidation  which,  so  far  as  my  knowledge 
extends,  has  been  presented  to  this  Congress.' 

(3)  In  the  report  it  was  further  contended  that  in  the  six  counties  a  large  num- 
ber of  persons  who  would  have  supported  ilr.  Wallace  wore  kept  from  the  polls 
by  intimidation,  and  that  this  class  would  have  aggregated  in  the  six  counties  a 
total  of  5,700  votes,  enough  to  have  elected  Mr.  Wallace  mthout  rejecting  the 
entire  returns  of  those  counties. 

In  the  debate  Mr.  Henry  L.  Dawes,  of  Massachusetts,  said  he  understood  by 
this  class  to  be  meant  only — 

that  persons  who  have  come  up  to  the  polls  and  were  ready  to  vote,  who  they  can  detei-mine  by  evi- 
dence had  a  right  to  vote,  were  excluded.  Upon  that  consideration  *  *  *  i  should  not  find  any 
fault;  but  on  the  broad  phraseology  of  the  report  it  is  in  opposition  to  the  uniform  decisions  of  this 
House,  coming  down  from  the  Michigan  case  nearly  thirty  years  ago. 

Mr.  Dawes  hoped  therefore  that  this  feature  of  the  case  would  be  eliminated 
and  not  made  a  precedent. 

The  resolution  declaring  Mr.  Wallace  "duly  elected"  and  entitled  to  the  seat 
was  agreed  to  without  division;^  but  tliis  hardly  shows  the  actual  feeling  of  the 
House,  since  the  vote  was  taken  very  soon  after  the  reading  of  the  Journal  when 
the  House  was  thin.  The  debate  occurred  after  this  vote,  and  dissatisfaction 
was  expressed  with  the  action,  and  a  protest  was  made  against  swearing  in  Mr. 
Wallace. 

But  the  Speaker  *  held:  = 

When  the  House  has  voted  to  admit  a  Member,  the  record  of  the  legislative  action  is  not  complete 
until  a  motion  to  reconsider  has  been  made  and  that  motion  laid  on  the  table.  When  the  action  of 
the  House  has  thus  been  consummated,  the  right  of  the  Member  to  be  sworn  in  is  complete,  and  it  is  a 
right  which  the  Chair  is  compelled  to  insist  upon  against  any  motion  whatever.  Under  such  circum- 
stances the  Chair  would  not  entertain  even  a  motion  to  adjourn. 

Mr.  Wallace  was  sworn  in. 

623.  The  Louisiana  election  cases  of  Sheridan  v.  Pinchback  and  Law- 
rence V.  Sypher  in  the  Forty-third  Congress. 

There  being  conflicting  credentials,  issued  by  different  occupants  of 
the  gubernatorial  chair,  the  Clerk  enrolled  neither  claimant. 

Credentials  regular  in  form,  and  issued  in  accordance  with  law,  were 
honored  by  the  House,  although  it  appeared  that  the  governor  issuing 
them  might  be  merely  a  de  facto  oflB.cer. 

Although  apparently  satisfied  as  to  prima  facie  right,  the  House  did 
not  seat  an  indifferent  claimant  who  had  also  filed  credentials  as  a  Sen- 
ator-elect. 


■  Globe,  p.  3863. 

-Globe,  p.  3864. 

'Journal,  p.  864;  Globe,  pp.  3862,  3863. 

'James  G.  Blaine,  of  Maine,  Speaker. 

» Globe,  p.  3863. 


814  PRECEDENTS    OP    THE    HOUSE    OF    REPRESENTATIVES.  §   623 

The  House  declined  to  honor  credentials  regular  in  form,  but  issued  in 
disregard  of  a  State  law  requiring  them  to  be  issued  after  and  not  before 
the  canvassing  officers  had  made  returns. 

In  determining  prima  facie  right  the  House  may  take  cognizance  of 
public  statutes,  proclamations  made  by  public  officials  under  the  law,  and 
matters  of  history. 

A  pending  single  resolution  providing  for  seating  several  claimants, 
the  Speaker  ruled  that  the  vote  might  be  taken  separately  as  to  each 
claimant. 

A  division  being  demanded  on  a  resolution  for  seating  several  claim- 
ants, the  oath  may  be  administered  to  each  as  soon  as  his  case  is  decided. 

On  December  1,  1873/  at  the  organization  of  the  House,  the  Clerk  announced 
that  from  the  State  of  Louisiana  there  were  unchallenged  certificates  only  from  the 
Third  and  Fifth  districts,  therefore  he  had  enrolled  only  the  members-elect  from 
those  districts. 

On  December  2,-  after  the  House  had  organized,  Mr.  Benjamin  F.  Butler,  of 
Massachusetts,  submitted  the  following: 

Resolved,  That  J.  H.  Sypher,  of  the  First  district,  L.  A.  Sheldon,  of  the  Second  district  of  Louisi- 
ana, and  P.  B.  S.  Pinchback,  a  Representative  at  largo  of  the  same  State,  having  the  prima  facie  evi- 
dence of  right  to  seats  in  this  House,  be  admitted  to  take  the  oath  of  office,  respectively. 

The  credentials  in  all  these  cases  involved  substantially  the  same  question. 
The  election  had  been  held  on  the  first  Tuesday  of  November,  1872.  The  law  of 
Louisiana  provided  that  the  returning  officers  of  election  should  make  their  returns 
within  ten  days,  and  that  "as  soon  as  possible  after  the  expiration  of  the  time  of 
making  the  returns"  a  certificate  of  the  returns  should  be  "entered  on  record  by  the 
secretary  of  state  and  signed  by  the  governor,"  and  copies  be  given  to  the  Members- 
elect  and  also  transmitted  to  the  Clerk  of  the  House  of  Representatives. 

A  certificate  from  the  secretary  of  state  of  Louisiana  (presented  by  the  Clerk 
of  the  House  with  the  credentials  on  the  day  of  organization),  showed  that  no  record 
of  the  election  was  entered  mitil  the  16th  of  December,  and  that  the  record  was 
officially  promulgated  on  the  17  th  of  December. 

But  before  the  entry  of  this  record  the  governor  of  Louisiana  had  given  cer- 
tificates like  the  following: 

State  of  Louisiana,  Executive  Department, 

New  Orleans,  December  4,  1872. 

This  is  to  certify  that  at  a  general  election  held  in  this  State  on  the  4th  day  of  November,  A.  D. 
1872,  George  A.  Sheridan  received  64,016  votes,  and  P.  B.  S.  Pinchback  received  54,402  votes. 

1  therefore  hereby  declare  George  A.  Sheridan  duly  elected  to  represent  the  State  of  Louisiana  as 
Congressman  at  large  in  the  Forty-third  Congress  of  the  United  States. 

Given  under  my  hand  and  the  seal  of  the  State  this  4th  day  of  December,  A.  D.  1872,  and  of  the 

independence  of  the  United  States  the  ninety-seventh. 

H.  C.  Warmoth, 

Governor  of  Louisiana. 
Jack  Warton, 

Secretary  of  State. 

'  First  session  Forty-third  Congress,  Record,  p.  5. 
'  Record,  pp.  19-28,  34;  Journal,  pp.  17,  19,  39. 


I  623  CONFLICTING   CREDENTIALS.  815 

On  December  8,  after  the  above  certificate  had  been  issued  but  before  the 
record  of  the  election  was  entered,  a  legislature  met,  impeached  Governor  Warmoth 
and  on  December  9  suspended  him,  Lieutenant-Governor  Pinchback  becoming 
acting  governor. 

After  this  event,  the  following  certificate  was  issued: 

State  of  Louisiana,  Executive  Department, 

New  Orleans,  December  SO,  1872. 
Be  it  known  that,  at  an  election  begun  and  held  on  the  4th  day  of  November,  A.  D.  1872,  for 
Member  of  Congress,  Pinckney  B.  S.  Pinchback  received  68,947  votes,  and  George  A.  Sheridan  received 
58,700  votes. 

Now,  therefore,  I,  P.  B.  S.  Pinchback,  acting  governor  of  the  State  of  Louisiana,  do  hereby  certify 
that  Pinckney  B.  S.  Pinchback  received  a  majority  of  the  votes  cast  at  said  election,  is  duly  and  law- 
fully elected  to  represent  the  State  at  large.  State  of  Louisiana,  in  the  Forty-third  Congress  of  the  United 
States. 

Given  under  my  hand  and  the  seal  of  State  this  30th  day  of  December,  A.  D.  1872,  and  of  the 
independence  of  the  United  States  the  ninety-seventh. 

P.  B.  S.  Pinchback. 
By  the  acting  governor: 

E.  B.  Mentz,  Assistant  Secretary  of  State. 

Mr.  Butler  admitted  the  priority  of  the  Warmoth  certificates  and  its  correct- 
ness in  form,  but  insisted  that  it  was  impeached  by  the  record  as  presented.  The 
Pinchback  certificate  he  maintained  was  also  correct  in  form,  and  against  it  no 
record  evidence  could  be  produced.^ 

In  opposition  to  this  view  it  was  argued '  that  the  Warmoth  certificate  was 
prior  in  time,  that  it  was  regular  on  its  face,  and  in  the  identical  form  used  in  the 
preceding  Congress.  If  it  was  proposed  to  go  outside  this  piece  of  paper,  then  it 
should  be  noticed  that  Pinchback's  title  to  the  position  of  lieutenant-governor  was 
questioned;  that  the  impeachment  of  Warmoth  was  charged  to  be  illegal;  that  the 
returns  were  in  dispute,  several  returning  boards  claiming  authority;  that  there 
had  been  two  legislatures  and  two  State  governments,  etc . 

In  support  of  the  Pinchback  credentials  it  was  urged  that  questions  as  to  the 
authority  of  the  lieutenant-governor,  governor  de  facto,  and  as  to  the  returns  and 
returning  boards,  belonged  to  the  merits  of  the  case  and  not  to  the  prima  facie  case; 
but  as  part  of  the  prima  facie  case  the  House  had  the  right  to  take  cognizance  of 
public  statutes,  proclamations  made  by  public  ofiicials  imder  the  law,  and  of  matters 
of  history. 

The  resolution  proposed  by  Mr.  Butler  coming  to  a  vote,  the  Speaker  ^  held  that 
the  case  of  each  person  mentioned  therein  might  be  put  separately. 

Thereupon  the  question  was  taken  on  the  proposition  to  admit  Mr.  J.  H.  Sypher 
to  a  seat,  and  it  was  agreed  to,  yeas  167,  nays  98. 

Also  the  proposition  to  admit  Mr.  Sheldon  was  agreed  to. 

The  question  recurring  on  the  proposition  to  admit  Mr.  Pinchback,  Mr.  Butler, 
as  a  question  of  privilege,  presented  Messrs.  Sypher  and  Sheldon  to  be  sworn  in. 

'  Record,  p.  20. 

^  Especially  by  Mr.  Clarkson  N.  Potter,  of  New  York;  Record,  p.  25. 

^  James  G.  Blaine,  of  Maine,  Speaker. 


81(3 


PRECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES. 


§624 


The  Speaker  said: 

The  Chair  feels  it  to  be  his  duty  at  once  to  administer  the  oath  to  the  two  Members  whose  prima 
facie  right  to  their  seats  has  just  been  declared.  They  are  just  as  much  entitled  to  vote  on  any  question 
before  the  House  as  any  other  Member  on  the  floor. 

On  December  3  the  question  recurred  on  admitting  Mr.  Pinchback  to  a  scat, 
when,  on  motion  of  Mr.  Butler,  that  portion  of  the  proposition  was  laid  on  the  table. 
It  appeared  that  Mr.  Pinchback  did  not  wish  a  decision,  perhaps  because  he  had  also 
presented  credentials  as  a  Senator-elect. 

On  December  3'  the  credentials  of  Messrs.  Pinchback,  Sheridan,  Lawrence,  and 
Davidson,  all  claimants  to  seats  from  Louisiana,  were  referred  to  the  Committee  on 
Elections  with  instructions  to  report  as  early  as  might  be. 

624.    The  election  cases  of  Sheridan,  Sypher,  and  others,  continued. 

In  a  case  where  neither  claimant  was  seated  on  prima  facie  showing 
the  House  investigated  and  determined  the  contest,  although  one  claimant 
defaulted  in  answering  notice  of  contest. 

Although  a  State  returning  board  had  been  declared  the  legal  one  by 
the  State  supreme  court,  the  House  disregarded  its  canvass,  the  fact  being 
notorious  that  it  never  had  possession  of  the  returns. 

In  determining  final  right  to  a  seat  the  House  has  considered  as  evi- 
dence testimony  embodied  in  a  Senate  report  of  the  preceding  Congress 
relating  generally  to  the  election  in  question. 

The  House  has  authorized  a  contestant  to  take  ex  parte  evidence  in 
case  an  indifferent  opponent  should  neglect  to  answer  notice  of  contest. 

The  House,  in  case  there  shall  be  necessity,  authorizes  a  contestant 
to  serve  an  amended  notice  of  contest. 

On  May  19,  1874,^  Mr.  H.  Boardman  Smith,  of  New  York,  presented  the  report 
of  the  majority  of  the  committee  in  the  case  of  Sheridan  v.  Pinchback. 

The  report  presents  an  additional  certificate  issued  to  Mr.  Pinchback  by  "Wm. 
P.  Kellogg,  governor  of  Louisiana,"  under  date  of  March  11,  1874,  and  intended  to 
set  at  rest  doubts  that  had  ' '  arisen  as  to  the  validity  of  the  credentials  of  Hon.  P.  B.  S. 
Pinchback."  This  certificate  declared  Mr.  Pinchback  "duly  elected  by  a  majority 
of  the  votes  cast." 

The  two  certificates  constituted  the  whole  of  Mr.  Pinchback's  case  as  presented 
to  the  committee,  excepting  a  report  and  an  affidavit  presented  in  rebuttal,  and  not 
objected  to  by  Mr.  Sheridan. 

Mr.  Sheridan  in  seasonable  time  served  on  Mr.  Pinchback  a  notice  of  contest,  as 
follows: 

New  Orleans,  La.,  December  30,  1873. 
Hon.  P.  B.  S.  Pinchback: 

I  hereby  notify  you  that  I  shall  contest  your  claim  or  right  to  a  seat  as  Congressman  at  large  from  the 
State  of  Louisiana  to  the  Forty-third  Congress  for  the  following  reasons: 

First.  The  board  which  declared  you  elected  was  not  a  legal  board. 

Second.  It  was  not  in  possession  of  the  returns  of  the  election  of  November,  1872,  and  could  not, 
therefore,  legally  declare  you  elected. 


'Journal,  p.  42;  Record,  p.  49. 

*  House  Report  No.  597;  Smith,  p.  196. 


§  624  COKFLICTING   CEEDENTIALS.  817 

Third.  The  lawful  returns  of  the  election  of  November,  1872,  show  my  election  as  Congressman  at 
large  by  a  majority  of  more  than  10,000  votes. 

Very  respectfully,  Geo.  A.  Sheridan. 

To  this  notice  Mr.  Pinchback  made  no  answer. 

The  only  testimony  presented  by  Mr.  Sheridan  consisted  of  certain  testimony 
taken  by  the  Committee  on  Privileges  and  Elections  of  the  United  States  Senate. 
A  question  arose  as  to  the  competency  of  this  evidence.  The  majority  of  the  Com- 
mittee say: 

This  volume,  which  Mr.  Sheridan  offers  in  evidence,  is  Senate  Report  No.  457,  third  session  Forty- 
second  Congress. 

Neither  Mr.  Pinchback  nor  Mr.  Sheridan  was  directly  a  party  to  the  controversy  which  was  pend- 
ing in  the  Senate  and  in  which  this  investigation  was  had.  Nor  was  the  question  as  to  which  of  them 
had  been  elected  Representative  at  large  from  the  State  of  Louisiana  directly  or  indirectly  before  the 
Senate  committee. 

Your  committee  receive  the  President's  message  to  the  last  Congress  on  Louisiana  affairs,  and  the 
report  and  accompanying  exhibits  of  the  chief  superv'isors  of  elections  in  that  State;  they  also  receive  this 
volume  of  testimony  taken  by  the  Senate  committee,  "  for  consideration  of  the  nature  and  degree"  of  the 
evidence  it  contains  and  '  of  the  subject-matter  to  which  the  evidence  is  to  be  applied,"  or,  in  the  phrase 
of  courts,  "for  what  it  is  worth." 

There  is  not  a  precinct  or  parish  return  in  the  entire  volume,  nor  is  there  parol  testimony  of  the 
vote  which  either  claimant  received.  Your  committee  are  satisfied,  however,  that  it  comprises  correct 
copies  of  the  returns  made  by  the  returning  boards  known  as  the  Lynch  and  Foreman  boards. 

In  support  of  this  decision  the  committee  cite  sections  111,  143,  210,  742,  745, 
747-749  of  Cushing's  Law  and  Practice  of  Legislative  Assembhes. 

The  minority  views,  presented  by  Mr.  L.  Q.  C.  Lamar,  of  Mississippi,  concurs 
that  this  was  admissible  testimony: 

The  volume  from  which  we  have  quoted  was  admitted  and  considered  by  the  committee  as  evi- 
dence relating  to  the  rights  of  the  parties  in  this  contest.  It  is  a  public  document,  containing  a  record 
of  facts  and  testimony  obtained  in  a  proceeding  ordered  by  the  Senate,  in  which  Mr.  Pinchback  was 
in  effect  a  party,  as  his  seat  in  the  Senate  depended  upon  the  result.  We  consider  it  not  only  as  admis- 
sible evidence,  but  abundantly  sufBcient  to  determine  the  rights  of  the  parties  to  this  contest. 

As  applicable  to  this  question,  we  cite  the  following  authorities: 

Mr.  Greenleaf,  in  his  work  on  Evidence,  volume  1,  section  491,  speaking  of  the  admissibility  and 
effect  of  public  ducuments  as  instruments  of  evidence,  says: 

"To  render  such  documents,  when  properly  authenticated,  admissible  as  evidence,  their  contents 
must  be  pertinent  to  the  issue;  it  is  also  necessary  that  the  document  be  made  by  the  person  whose 
duty  it  was  to  make  it,  and  that  the  matter  it  contains  be  such  as  belonged  to  his  province,  or  cases 
within  his  cognizance  and  observation.  Documents  having  these  requisites  are  in  general  admissible 
to  prove,  either  prima  facie  or  conclusively,  the  facts  they  recite." 

"Public  Statutes,"  "Public  Proclamations,"  "Legislative  Resolutions,"  "Journals  of  either 
House,"  "Diplomatic  Correspondence,"  "  Official  Gazette"  are  mentioned  by  this  author  as  documents 
admissible  as  evidence  of  the  facts  which  they  recite,  even  in  courts  cf  justice;  liut  a  broad  distinction 
exists,  as  is  well  recognized  by  the  writers  upon  public  law,  between  the  evidence  admissible  before 
judicial  tribunals  and  that  on  which  legislative  bodies  act. 

The  minority  further  quote  from  Lewis's  Methods  and  Reasonings  in  Politics, 
especially  wherein  it  is  stated  that  "the  process  of  ascertaining  facts  for  legislative 
purposes  is  not,  in  general,  so  formal,  or  subject  to  such  strict  rules  of  evidence  as 
the  procedure  of  executive  departments,  whether  administrative  or  judicial,"  etc. 
5994— VOL  1—07 52 


818  PBECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES,  §  624 

The  debate  in  the  House  '  explained  more  fully  than  the  report  the  facts  out 
of  which  the  controversy  arose.  The  election  law  of  1870,  under  which  the  election 
in  question  was  held,  provided  that  the  returns  from  the  several  counties  should 
be  canvassed  by  the  State  returning  board. 

Before  the  returns  of  the  election  in  question  (that  of  1872)  had  been  canvassed 
there  arose  factional  differences  which  caused  a  split  in  the  returning  board,  one 
portion  of  the  board  acting  by  itself  and  being  called  the  Wharton  board.  The 
other  portion  of  the  board  was  called  the  Lynch  board.  The  L3mch  board  was 
sustained  by  the  supreme  court  of  the  State  as  the  legal  board. 

There  having  been  intervention  by  the  Federal  court  (Judge  Durell)  in  support 
of  the  Lynch  board.  Governor  Warmouth,  on  November  20  (after  the  election  had 
been  held  on  the  first  Tuesday  of  the  month),  signed  a  new  election  law  passed  in 
the  spring  of  the  year  and  until  then  not  approved.  He  did  this  "to  escape  the 
clutch  of  Judge  Durell."  Lender  this  new  law  he  appointed  a  returning  board 
called  the  De  Feriet  board. 

Later,  on  December  1 1 ,  the  McEnery  senate  (one  of  the  rival  legislative  bodies) 
appointed  a  returning  board  called  the  Foreman  board. 

Thus  there  were  four  returning  boards,  two  of  them  created  under  an  election 
law  not  in  force  when  the  election  was  held. 

The  supreme  court  of  the  State  had  sustained  the  Lynch  board,  and  the  chair- 
man of  the  Committee  on  Elections  insisted  strongly  in  debate  that  the  construction 
given  V)y  a  local  court  should  be  conclusive  on  the  House. 

The  minority  views  give  an  explanation  of  the  situation  as  follows: 

We  repeat  that  it  is  proven  that  the  election  was  held  in  strict  conformity  with  these  provisions, 
and  that  the  governor  came  into  the  lawful  possession  of  all  the  ofBcial  returns  of  that  election.  At 
this  point  the  contest  arose  over  the  question  as  to  who  constituted  the  legal  returning  board  of  the 
State — the  one  called  the  Lynch  board,  or  the  other,  the  Warmoth  board.  Pending  that  contest,  the 
governor,  on  the  20th  of  November,  1872,  approved  an  act  passed  at  the  preceding  session  of  the  legis- 
lature of  the  State,  repealing  the  act  under  which  the  two  rival  boards  were  contesting  for  the  returns, 
and  providing  "that  five  persons,  to  be  elected  by  the  senate  from  all  political  parties,  shall  be  the 
returning  officers,"  etc.     On  the  same  day  he  issued  a  proclamation  calling  a  session  of  the  legislature. 

This  last-named  statute  abolished  the  existing  board,  and  therefore  makes  it  unnecessary  here 
to  discuss  which  of  the  two  was  the  legal  one. 

Under  the  authority  vested  in  him  by  the  constitution  of  Louisiana  to  fill  vacancies  during  the 
vacation  of  the  legislature,  the  governor  proceeded  to  fill  the  board  provided  for  by  the  act  approved 
November  20,  1872,  appointing  De  Feriet  and  others,  known  as  the  "De  Feriet  board."  On  the  4th 
of  December  the  governor  submitted  the  official  returns  (of  which  he  had  retained  the  custody).  That 
board,  on  the  4th  of  December,  made  the  compilation  and  canvass,  declaring  McEnery  and  the  candi- 
dates on  the  same  ticket  elected  by  9,000  majority,  and  declaring,  also,  who  had  been  elected  members 
of  the  legislature;  which  result  was  proclaimed  by  the  governor  and  certified  to  by  the  secretary  of  state, 
in  pursuance  of  the  election  law  of  Louisiana. 

In  consequence  of  the  seizure  of  the  State  capitol  of  Louisiana  by  a  Federal  marshal  and  United 
States  soldiers,  in  obedience  to  an  order  of  a  Federal  district  judge,  the  members  and  senators  returned 
by  the  De  Feriet  board  met  at  the  city  hall  in  New  Orleans,  and  on  the  9th  day  of  December  organized 
as  a  legislature,  and  was  so  recognized  by  the  governor.  On  the  llth  of  December  the  senate  elected 
a  board  of  returning  officers,  known  as  the  Foreman  board.  To  this  board  the  ofBcial  returns  were 
delivered  by  the  secretary  of  the  De  Feriet  board.     This  board  immediately  proceeded  to  the  canvass 

'  See  speech  of  Mr.  Smith,  chairman  of  Elections  Committee,  Appendix  of  Record,  p.  422. 


§  624  CONFLICTING   CREDENTIALS.  819 

and  compnation  of  these  official  returns,  and  made  an  official  report  of  the  result  in  due  form,  as  required 
by  law.  These  compiled  returns  were  submitted  to  the  Senate  Committee  on  Privileges  and  Elections 
during  their  investigation  into  the  facts  of  the  election  now  under  consideration.  The  original  returns 
were  also  before  that  committee,  and  unimpeached  by  the  parties  contesting  the  results,  except  a  state- 
ment by  John  Ray  that  in  four  parishes  the  names  of  the  commissioners  were  forged,  which  fact,  if  it 
be  a  fact,  was  admitted  not  to  have  changed  the  result. 

With  the  state  of  facts  as  thus  set  forth,  the  next  questions  arising  relate  to 
the  cases  of  the  two  claimants. 

(1)  As  to  the  claim  of  Mr.  Pinchback.  The  majority  of  the  committee  state 
first  that  to  Mr.  Sheridan's  notice  of  contest  no  answer  was  made  by  Mr.  Pinchback, 
and  continues: 

Is  Mr.  Pinchback  shown  entitled  upon  the  merits  to  this  seat? 

Your  committee  think  not.  Mr.  Pinchback's  original  certificate,  it  was  conceded,  and  Governor 
Kellogg's  supplemental  certificate,  it  is  to  be  assumed,  were  issued  upon  the  pretended  canvass  by  the 
returning  board  known  as  the  "Lynch  board."  Assuming  that  the  Lynch  board  was  the  legal  returning 
board,  and  waiving  the  consideration  of  the  effect  of  Mr.  Pinchback's  default  in  making  no  response 
to  Mr.  Sheridan's  notice  of  contest,  your  committee  are  of  opinion  that  the  fact  that  the  Lynch 
board  never  had  possession  of  the  election  returns,  and  therefore  never  canvassed  them,  has  become  a 
part  of  the  political  history  of  the  countrj'.  They  hold  this  fact  to  be  so  notorious  that  the  House  ought 
to  take  legislative  notice  of  it  in  this  contest,  and  may  take  like  notice  of  it  for  the  purpose  fif  any  appro- 
priate legislation.  They  report,  therefore,  that  upon  the  case  as  presented  to  your  committee  Mr. 
Pinchback  is  not  shown  to  be  entitled  to  a  seat  in  this  House. 

The  minority  said  in  this  connection: 

According  to  the  sworn  admissions  of  a  majority  of  the  men  composing  this  pretended  board  it  is 
shown  that  it  was  never  in  possession  of  the  lawful  returns  of  the  election. 

Mr.  Webster,  in  Luther  v.  Borden  (7  How.  S.  C.  Rep.,  p.  30),  states  briefly  the  principles  of 
American  politics; 

"Suffrage  is  a  delegation  of  political  power  to  some  individual.  Hence  the  right  must  be  guarded 
and  protected  against  force  and  fraud.  Another  principle  is  that  the  qualification  which  entitles  a 
man  to  vote  must  be  prescribed  by  previous  law  directing  how  it  is  to  be  exercised;  and  also  that  the 
results  must  be  certified  to  some  central  power,  so  that  the  vote  may  tell.  We  know  of  no  other 
principle." 

To  validate  an  election  there  must  be  votes  legally  deposited  by  legal  voters,  and  legally  counted, 
and  the  result  legally  declared. 

In  Louisiana  there  were  election  laws — there  was  an  election  legally  held.  But  in  the  certification 
of  Mr.  Pinchback  there  was  no  count  of  votes  by  any  authority  whatever.  The  legality  of  the  Lynch 
board  is  a  secondary  question,  so  long  as  the  fact  exists  that  they  were  entirely  without  returns.  A 
court  legally  constituted  can  not  act  without  a  case,  without  parties,  without  pleading,  without  evidence. 

The  Lynch  board  have  simply  appointed  a  Congressman;  not  determined  who  had  been  legally 
chosen. 

The  committee  having  unanimously  reached  the  conclusion  that  Mr.  Pinchback  has  not  been  shown 
to  be  elected,  the  question  arises,  was  his  competitor,  G.  A.  Sheridan,  elected? 

Mr.  Sheridan  presents  a  certificate  of  his  election,  in  due  form,  signed  by  Governor  Warmoth,  and 
dated  December  4,  1872.  Though  Governor  Warmoth  was  undoubtedly  governor  of  Louisiana  at  the 
time,  and  the  legal  custodian  of  the  returns,  it  was  admitted  in  the  argument  before  the  committee 
that  the  returns  had  not  been  counted.  This  makes  it  necessary  to  go  behind  the  certificate  of  the 
governor  and  inquire  into  the  merits  of  the  case  as  affected  by  the  law  and  the  facts. 

(2)  As  to  the  claim  of  Mr.  vSheridan. 

Mr.  Sheridan  conceded  that  when  his  certificate  was  issued  on  December  4  the 
Congressional  vote  had  not  been  canvassed  by  any  board  whatever.     The  only 


820  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  624 

board  which  returned  Mr.  Sheridan  as  elected  was  the  Foreman  board,  appointed 
after  the  election  by  the  McEnery  Senate  under  a  law  enacted  after  the  election. 
The  majority  of  the  committee  thus  speak  of  the  Foreman  board: 

The  return  by  the  Foreman  board  of  the  Congressional  vote  was  separate  from  the  returns  of  the 
vote  for  other  officers. 

The  inquiry  of  the  Senate  committee  was  directed  wholly  to  the  other  returns. 

There  is  no  proof,  and  there  is  no  presumption,  that  the  correctness  of  this  return  was  verified  by 
comparison  with  the  parish  returns. 

It  is  uncontroverted  that,  in  violation  of  the  law  of  Louisiana,  which  requires  them  to  be  opened 
in  presence  of  the  returning  board,  they  were  privately  opened  by  Governor  Warmoth,  or  by  clerks  in 
his  office. 

Their  whereabouts  since  that  time  have  not  been  often  known.  It  is  safe  to  say  they  have  not 
been  in  the  custody  of  the  law.  Some  of  the  returns  produced  before  the  Senate  committee  were 
forgeries:  p.  1095. 

What  credit  they  would  be  entitled  to  it'  in  evidence  need  not  be  discussed,  as  not  one  of  them 
was  before  the  committee. 

The  majority  furthermore  proceed  on  questions  of  fact  to  impeach  the  returns 
of  the  Foreman  board. 

The  minority,  after  quoting  the  return  of  the  Foreman  board,  say : 

We  see  no  sufficient  groimd  for  rejecting  this  conclusion.  The  original  returns  are  proved  to  have 
been  received  by  the  governor,  proved  to  have  been  turned  over,  partially  canvassed  and  compiled, 
by  the  De  Feriet  board,  and  proved  to  have  been  turned  over  from  them,  unaltered,  to  the  Foreman 
board,  which  completed  the  canvass  and  compilation,  and  proved  and  admitted  to  have  been  placed 
in  the  possession  of  the  committee,  and  no  intimation  has  ever  been  hazarded  that  the  official  state- 
ment, of  which  the  above  is  a  copy,  is  not  correct. 

Following  out  this  conclusion,  the  minority  reported  resolutions  that  Mr. 
Sheridan  was  entitled  to  the  seat. 

The  majority  did  not  concur  in  tliis  view,  and  concluded  their  report  as  follows: 

Your  committee  are  now  assuming  that  the  Foreman  board  was  the  legal  returning  board;  that 
McEnery,  so  far  as  the  legal  returns  show,  is  the  de  jvu-e  governor  of  Louisiana,  and  the  McEnery  legis- 
lature the  lawful  legislature  of  that  State.  They  give  to  the  documents  and  proof,  challenging  the 
returns  from  these  parishes,  the  same  consideration,  and  no  other,  which  they  would  be  compelled  to 
give  them  if  the  McEnery  government  were  in  office  and  the  legality  of  the  Foreman  board  unquestioned. 
They  consider  the  partisan  source  from  which  this  proof  comes  and  withhold  from  it  their  implicit 
credence.  They  do  not  say  that  the  crimes  charged  by  it  against  the  McEnery  party  are  graver  or 
better  proven  than  the  crimes  charged  against  the  Kellogg  party.  They  perform,  in  their  judgment,  a 
duty  imposed  upon  them  by  the  order  referring  this  case  in  reporting  that  these  papers  give  ample 
warning  to  the  House  that  the  seating  of  Mr.  Sheridan,  without  further  evidence,  may  possibly  cover, 
and  in  part  consummate,  a  conspiracy  against  the  liberties  of  the  people  of  Louisiana,  which  was  a 
most  stupendous  crime.  They  do  not  feel  at  liberty  to  report,  upon  the  evidence  before  them,  that 
this  seat  is  vacant.  The  registration,  election,  and  returns  were  fair  and  honest,  as  they  believe,  in 
some,  if  not  in  a  majority,  of  the  parishes  of  the  State.  That  the  political  friends  of  Mr.  Pinchback 
have  not  before  this  availed  themselves  of  the  opportunity  which  this  contest  between  candidates  on 
the  respective  State  tickets  offered,  with  process  for  witnesses  and  papers,  to  prove  to  the  country  that 
they  carried  this  election,  most  seriously  challenges  the  confidence  and  patience  of  the  public.  It  is 
but  just  to  say,  however,  that  the  expectation  that  Mr.  Pinchback  would  be  seated  in  the  Senate  is, 
perhaps,  the  reason  that  such  an  effort  has  not  been  made. 

If  this  case  be  remanded  for  further  proof  and  be  fully  developed,  the  result,  there  is  reason  to 
believe,  will  either  demonstrate  that  the  Kellogg  government  is  rightfully  in  power  or  will  furnish 
the  proof  that  it  is  a  usurpation. 


&  625  CONFLICTING   CREDENTIALS.  821 

Your  committee  recommend  the  adoption  of  the  accompanying  resolutions: 

Resolved,  That  the  evidence  in  this  case  is  not  sufficient  to  establish  the  right  of  either  P.  B.  S. 
Pinchback  or  George  A.  Sheridan  to  a  seat  in  this  House  as  a  Representative  at  large  from  the  State  of 

Louisiana. 

Resolved,  That  Mr.  Sheridan  have  leave  to  amend  his  notice  of  contest,  if  he  shall  so  elect,  serving 
upon  Mr.  Pinchback  his  amended  notice  within  twenty  days  hereafter;  that  Mr.  Pinchback  have  lib- 
ertv  to  answer  such  amended  notice  within  forty  days  hereafter,  and  that  upon  the  service  of  such  answer 
the  evidence  of  the  respective  parties  be  taken  under  the  existing  laws  of  Congress  in  such  case  made 
and  provided;  and  that  in  case  of  default  of  an  answer  to  such  amended  notice,  Mr.  Sheridan  be  at 
liberty  to  take  testimony  ex  parte;  and  in  case  of  default  to  serve  an  amended  notice  of  contest,  Mr. 
Pinchback  may  serve  a  notice  of  contest,  as  provided  by  law,  within  forty  days  hereafter,  and  take 
testimony  in  like  manner. 

On  June  8  '  the  report  was  debated,  and  on  June  9 '  a  vote  was  taken,  first, 
on  an  amendment  declaring  Mr.  Pinchback  entitled  prima  facie  to  the  seat,  and 
the  amendment  was  disagreed  to  without  division.  Then  the  resolution  reported 
by  the  minority  of  the  committee  declaring  Mr.  Sheridan  duly  elected  was  disa- 
greed to — yeas  72,  nays  145. 

Then  the  resolutions  reported  by  the  majority  were  agreed  to  without  division. 

625.    The  cases  of  Sheridan,  Sypher,  and  others,  continued. 

The  original  primary  returns  being  inaccessible  because  of  the 
contention  of  rival  returning  boards,  the  House  gave  credit  to  secondary 
evidence  as  to  what  they  showed. 

Ex  parte  proof,  while  not  admitted  as  competent  proof  of  the  facts 
therein  recited,  was  given  weight  as  raising  a  suspicion  of  frauds  justify- 
ing an  investigation. 

On  February  24,  1875,='  Mr.  Horace  H.  Harrison,  of  Tennessee,  submitted  the 
report  of  the  majority  of  the  committee.  Speaking  of  the  resolution  under  which 
they  acted,  the  report  says  that  the  contestee,  Mr.  Pinchback,  had  shown  a  marked 
indifference  to  the  contest,  and  had  not  attempted  to  strengthen  his  original  claim 
that  the  LjTich  board  was  the  valid  returning  board.  Such  testimony  as  he  had 
taken  was  confined  to  an  attempt  to  show  fraud  sufficient  in  the  election  to  overturn 
the  claim  of  contestant.  The  report  goes  on  to  argue  that  the  Congressional  ques- 
tion was  not  in  its  real  substance  complicated  with  the  controversies  over  the  State 
government,  that  the  Congressmen  were  elected  under  Federal  supervision  and  at 
regularly  conducted  polls.     The  report  says: 

An  election  for  Congress  for  the  State  at  large  was  held  under  the  forms  of  law  and  at  the  time 
required  by  law.  The  returns  of  the  election  were  made  to  the  governor,  who,  under  the  law  of  that 
State,  was  the  proper  officer  to  whom  the  returns  were  to  be  made.  The  election,  so  far  as  tliat  of  select- 
ing Representatives  in  Congress  was  concerned,  was  conducted,  as  the  proof  shows,  in  the  presence  and 
under  the  supervision  of  supervisors  appointed  under  the  act  of  Congress.  These  returns  of  the  election, 
in  the  hands  or  in  custody  of  the  governor,  were  placed  in  the  possession  of  a  returning  board,  and  in 
the  unfortunate  conflict  which  took  place  as  to  who  constituted  the  legal  returning  boards  authorized 
by  law  to  canvass  the  returns  and  promulgate  the  result  they  passed  into  the  hands  of  several  different 
returning  boards,  and  are  now  said  to  be  in  the  possession  of  John  McEnery,  claiming  to  be  governor 
of  Louisiana.     If  there  had  been  no  contest  as  to  what  returning  board  should  have  canvassed  the 


'  Record,  p.  4694. 

Journal,  pp.  1139,  1141;  Record,  pp.  4733^734. 

'Second  session  Forty-third  Congress,  House  Report  No,  263;  Smith,  p.  322;  Rowell's  Digest,  p.  293. 


822  PEECEDENTS   OF   THE   HOUSE   OF   REPKESENTATIVES.  §   625 

returns  and  decided  the  result,  and  the  returns  were  before  the  committee,  these  returns  would  con- 
stitute the  best,  the  highest  evidence  of  what  these  returns  show,  and  of  the  fact  of  who  was  elected. 
These  returns,  however,  not  being  before  the  committee,  and  the  contestant  in  this  case  having  used 
all  due  diligence  to  have  them  produced,  and  failing,  we  think  he  is  entitled  to  secondary  evidence 
of  what  these  returns  show. 

There  can  be  no  doubt  that  the  original  returns  of  the  election  of  1872  were  in  possession  of  and 
canvassed  by  the  board  known  as  "the  Forman  board." 

Assuming  that  the  original  "primary  returns"  made  to  the  governor  from  all  the  parishes  of  the 
State  but  two  were  received  by  him,  opened  by  him  in  the  presence  of  the  Wharton  board,  delivered 
by  him  to  the  De  Ferriet  board,  and  transmitted  to  the  Forman  board  just  as  they  had  been  received 
(and  these  facts  the  additional  proof  shows),  we  are  to  look  to  what  these  returns  show.  They  show 
that  contestant  Sheridan  received  65,016  votes  and  contestee  Pinchback  54,402  votes. 

As  to  the  correctness  of  this  tabulation  we  have  the  sworn  testimony  of  Mitchell,  Forman,  and 
Thomas,  a  majority  of  the  board;  and,  in  addition  to  this,  the  admission  of  the  contestee  (p.  3  of  addi- 
tional testimony)  that  it  is  a  compilation  of  the  returns  before  the  Forman  board  is  conclusive. 

They  show  a  majority  of  10,614  for  contestant.  The  contestee,  however,  objects  to  this  compila- 
tion of  the  Forman  board,  first,  because  six  parishes  were  omitted  in  the  compilation,  and,  secondly, 
because  of  alleged  frauds  in  connection  with  the  election  throughout  the  State,  including  frauds  in 
the  city  of  New  Orleans. 

While  Mr.  Pinchback  offers  no  evidence  to  show  that  the  six  parishes  were  illegally  excluded 
from  the  count,  stiU  if  they  were  illegally  excluded  it  could  not  affect  the  result. 

As  to  the  contention  that  the  election  was  rendered  of  no  avail  by  reason  of 
fraud,  the  majority  conclude  that  the  proof  does  not  sustain  it.     The  report  says: 

The  affidavits  of  these  parties,  taken  ex  parte,  were  filed  by  contestee  before  the  adoption  of  the 
resolution  by  the  House  at  last  session,  and  with  the  design  of  impeaching  the  correctness  of  the  action 
of  the  Forman  board.  They  were  not  received  by  the  committee  as  competent  or  conclusive  proof 
of  the  facts  therein  recited  or  the  statements  therein  made,  but  only  as  raising  a  suspicion  of  fraud,  and 
suggesting  the  propriety  of  an  investigation     *    *    *     before  a  final  determination. 

The  minority  say  in  their  views,  submitted  by  Mr.  Smith,  of  New  York: 

We  would  not  consider  their  ex  parte  affidavits  for  the  benefit  of  Mr.  Pinchback.  He  should  have 
examined  the  witnesses  upon  the  stand.  The  committee  said  of  this  evidence  in  their  former  report: 
"  It  is  of  such  a  character,  in  the  judgment  of  your  committee,  as  to  demand  a  most  thorough  investigation 
of  its  truth  or  falsity  before  Mr.  Sheridan  is  seated;"  and  that  "these  papers  give  ample  warning  to  the 
House  that  the  seating  of  Mr.  Sheridan,  without  further  evidence,  may  possibly  cover,  and  in  part  con- 
summate, a  conspiracy  against  the  liberties  of  the  people  of  Louisiana,  which  was  a  most  stupendous 
crime." 

While  the  committee  would  not  consider  ex  parte  testimony  for  the  purpose  of  seating  Mr.  Pinch- 
back, they  can  not  shut  their  eyes  to  it,  and  to  the  1,100  manuscript  pages  of  official  reports  on  file  with 
the  Clerk,  the  President's  message,  and  the  Senate  testimony,  for  the  purpose  of  seating  Mr.  Sheridan, 
especially  after  the  action  of  the  House  in  remanding  this  case,  that  this  matter  might  be  cleared  up. 

On  the  question  of  the  alleged  frauds  the  committee  divided.  The  majority 
concluded : 

The  Congressional  vote,  under  the  supervision  of  United  States  supervisors,  was  at  least  counted 
fairly. 

The  committee  have  decided  unanimously  that  the  contestee,  Pinchback,  was  not  elected.  The 
report  of  the  majority  of  the  committee  at  the  last  session,  prepared  by  the  chairman  of  the  committee, 
on  the  point  as  to  the  election  being  a  fair  one,  is  as  follows: 

"They  do  not  feel  at  liberty  to  report,  upon  the  evidence  before  them,  that  this  seat  is  vacant.  The 
registration,  election,  and  returns  were  fair  and  honest,  as  they  believe,  in  some,  if  not  in  a  majority,  of 
the  parishes  of  the  State." 


§  626  CONFLICTING   CKEDENTI.U.S.  823 

There  is  certainly  nothing  in  the  additional  testimony  taken  in  this  case  showing  that  the  seat  is  or 
should  be  vacant,  and  nothing  additional  challenging  the  fairness  of  the  election. 
We  therefore  recommend  the  adoption  of  the  following  resolutions: 

1.  Resolved,  That  P.  B.  S.  Pinchback  was  not  elected  a  Member  of  Congress  from  the  State  of 
Louisiana  from  the  State  at  large  in  the  Forty-third  Congress. 

2.  Resolved,  That  George  A.  Sheridan  was  duly  elected  a  Member  of  Congress  (,for  the  State  at  large) 
from  the  State  of  Louisiana  in  the  Forty-third  Congress  and  is  entitled  to  his  seat. 

The  minority  recommended  a  resolution  declaring  the  seat  vacant. 

On  March  3 '  the  first  resolution  of  the  majority  was  agreed  to  without  division 
or  debate.  The  second  resolution,  to  seat  Mr.  Sheridan,  was  agreed  to — ayes  121, 
noes  29. 

Mr.  Sheridan  was  then  sworn  in.  ^ 

626.    The  cases  of  Sheridan,  Sypher,  and  others,  continued. 

Forms  of  resolution  for  instituting  a  contest  after  expiration  of  the 
time  fixed  by  law. 

The  abolition  of  certain  polling  places  whereby  it  was  rendered  im- 
possible for  many  voters  to  cast  their  ballots  was  held  not  to  justify  the 
addition  of  votes  to  the  returns  of  the  candidate  injured  thereby. 

On  December  8,  1873,'  the  following  resolution,  reported  from  the  Committee 
on  Elections,  was  agreed  to : 

Resolved,  That  Effingham  Lawrence  and  E.  C.  Davidson,  from  the  First  and  Fourth  Congressional 
districts  of  Louisiana,  respectively,  be  permitted  to  serve  upon  J.  Hale  Sypher  and  George  L.  Smith, 
who  are  sitting  Members  of  the  same  districts,  respectively,  notices  of  contest  within  twenty  days  from 
the  passage  of  this  resolution,  and  that  the  said  sitting  Members  be  permitted  to  answer  the  same  within 
twenty  days  after  the  service  thereof. 

Resolved,  That  the  time  for  the  taking  of  testimony  in  each  of  said  contested  election  cases  is  hereby 
;xtended  for  ninety  days  from  the  time  the  answer  is  allowed  to  be  filed  to  the  notice  of  contest. 

Also,  on  January  13,  1874,*  the  following  was  agreed  to: 

Resolved,  That  J.  Hale  Sypher,  the  sitting  Member  from,  etc.,  *  *  *  be,  and  he  is  hereby, 
permitted  to  file  his  answer  to  the  notice  of  contest  served  on  him  by,  etc.,  *  *  *  within  the  time 
allowed  by  the  resolution  of  the  House  for  answer;  and  that  such  filing  shall  be  deemed  a  full  compliance 
with  the  law  governing  such  matters:  a  copy  of  said  answer  to  be  forwarded  by  the  Clerk  at  once  to  the 
contestant  by  mail. 

On  February  27,  1875,^  Mr.  James  B.  Robinson,  of  Ohio,  submitted  the  report 
of  the  majority  of  the  committee.  The  facts  as  to  credentials  and  returns  in  this 
case  were  the  same  as  in  that  of  Sheridan  v.  Pinchback,  and  the  report  is  predicated 
on  the  result  of  the  canvass  by  the  Forman  board.  The  report  finds  on  the  face  of 
the  corrected  returns  a  majority  of  1,947  votes  for  Mr.  Lawrence,  the  contestant. 
The  sitting  Member  contended  that  frauds  sufficient  were  shown  to  overcome  this 
majority.     As  to  this  question  of  fraud,  two  questions  appear: 

(1)  The  question  of  abolition  of  polling  places  for  fraudulent  purposes. 

'Journal,  pp.  636,  637;  Record,  p.  2232. 

^Mr.  Pinchback  was  also  seeking  a  seat  in  the  Senate  at  the  same  time. 
'Journal,  p.  83. 
*  Journal,  p.  231. 

'  Second  session  Forty-third  Congress,  House  Report  No.  269;  Smith,  p.  340;  Rowell's  Digest, 
p.  300. 


824  PBECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  626 

The  majority  say: 

The  principal  ground  on  which  the  claim  is  based  is  the  fact  that  in  Plaquemines  Parish  the  first, 
second,  and  third  ward  voting  places  were  abolished  for  that  election,  by  means  of  which  a  large  Repub- 
lican voting  population  was  left  in  the  upper  part  of  that  parish  from  25  to  35  mUes  from  the  nearest 
polls.  The  committee  characterize  the  abolition  of  these  voting  places  as  an  outrage,  for  which  there 
should  be  some  relief.  They,  however,  find  that  Mr.  Lawrence  was  not  a  party  to  this  wrong,  and,  so 
far  as  he  was  able,  he  caused  restitution  by  tendering  to  all  voters,  irrespective  of  party,  the  free  use  of 
his  steamboat,  which  went  down  from  Orleans  and  stopped  at  the  several  landings  and  took  voters  to  the 
polls  down  the  river. 

The  committee  are  unable  to  estimate  the  number  who  failed  on  that  account  to  vote,  but  think, 
from  the  evidence,  that  it  could  not  have  exceeded  about  350  votes  altogether.  The  Republican  vote 
in  that  parish  was  1,040  in  1872.  In  1874  it  was  1,417,  or  377  increase.  As  that  parish  was  quiet,  the 
probability  is  the  vote  of  1874  would  be  a  fair  test,  but  the  vote  for  Lawrence  was  also  increased  several 
hundred  over  1872. 

The  committee,  however,  are  not  able  to  find  any  principle  of  law  on  which  votes  could  be  added 
for  that  parish,  even  granting  votes  were  lost  to  Mr.  Sypher  by  reason  of  the  failure  to  establish  proper 
voting  places,  unless  the  provisions  of  the  enforcement  act  were  strictly  followed,  which  no  one  claims 
was  done. 

The  minority  views,  presented  by  Mr.  Gerry  W.  Hazelton,  of  Wisconsin,  say: 

As  an  illustration  in  point,  the  parish  of  Plaquemines,  in  the  south  part  of  the  district,  is  about  130 
miles  in  length,  and  has  always,  since  1868,  polled  a  large  majority  of  Republican  votes.  The  bulk  of 
the  colored  population  is  in  the  north  portion  of  the  parish.  In  order  to  prevent  the  colored  voters 
from  participating  in  the  election,  the  Democratic  managers,  immediately  prior  to  the  election,  changed 
the  polling  places  of  the  parish  and  took  up  or  discontinued  those  in  the  portion  of  the  parish  where 
the  colored  voters  resided,  so  that  on  the  west  side  of  the  river  no  polling  place  was  established  for  47 
miles  from  the  north  boundary  of  the  parish,  and  on  the  east  side  for  38  miles.  A  more  high  handed 
and  flagrant  attempt  to  prevent  the  colored  voters,  who  were  known  to  be  Republicans,  from  partici- 
pating in  the  election,  can  not  be  conceived.  It  was  a  wicked  and  shameless  scheme  on  the  part  of  the 
contestant's  friends  to  defeat  rather  than  to  secure  a  fair  election.  It  was  a  base  prostitution  of  the  powers 
emanatin"  from  the  executive,  wielded  by  or  under  the  dictation  of  Democratic  leaders,  to  consummate 
a  dishonest  and  dishonorable  purpose.  Under  the  law  of  Louisiana  the  registrar,  who  is  appointed  and 
may  be  removed  by  the  governor  of  the  State,  fixes  the  polling  places  in  his  parish,  and  may  determine 
their  number  and  location  according  to  his  own  wishes  or  interests,  without  consulting  the  convenience 
of  the  voters  at  all. 

This  power  was  exercised  in  the  parish  of  Plaquemines  in  such  manner  as  to  require  colored  voters 
to  go  as  far  as  from  Alexandria  and  Washington  to  Baltimore  to  vote;  and  to  emphasize  the  outrage  the 
arrangements  were  consummated  so  clandestinely  that  the  mass  of  colored  voters  knew  nothing  of  the 
discontinuance  of  the  polling  places  theretofore  established  until  the  very  day  of  the  election. 

(2)  As  to  other  points  in  the  district  there  was  a  large  amoimt  of  evidence  of 
fraud,  but  the  majority  of  the  committee  did  not  conceive  it  sufficiently  shown  to 
be  sufficient  to  overcome  Mr.  Ijawrence's  returned  majority.  Therefore  they 
reported  the  following: 

Resolved,  That  J.  Hale  Sypher  was  not  elected  a  Member  of  the  Forty-third  Congress  from  the  First 
district  of  Louisiana. 

Resolved,  That  Effingham  Lawrence  was  duly  elected  a  Member  of  the  Forty-third  Congress  for  the 
First  district  of  Louisiana,  and  he  is  entitled  to  his  seat. 

The  minority  say: 

Taking  this  evidence  to  be  substantially  true,  we  submit  that  it  shows  this  so-called  election  to 
have  been  merely  a  wicked  conspiracy  to  prevent  an  election;  for  there  is  no  just  sense  in  which  that 
which  is  alleged  to  have  transpired  in  this  district  in  1872  can  be  called  an  election. 


&  627  CONFLICTING   CREDENTIALS.  825 

The  undersigned  can  not  consent  to  enter  upon  the  task  of  framing  devices  and  spelling  out 
methods  for  affirming  the  right  of  a  party  to  a  seat  in  the  House  of  Representatives  from  the  materials 
here  supplied.  We  can  not  do  it  without  making  ourselves  parties  to  these  frauds,  and  encouraging 
their  repetition. 

The  testimony  shows  gross  irregularities  on  the  part  of  the  partisans  of  the  contestee,  which  we  are 
as  far  from  indorsing  as  those  on  the  other  side.  They  do  not  seem  to  have  been  so  general  and  systematic, 
and  it  may  be  claimed  for  them,  perhaps,  that  they  were  resorted  to  for  the  purpose  of  counteracting  the 
schemes  and  machinations  of  the  contestant's  friends,  in  whose  hands  all  the  machinery  of  the  election 
was  placed. 

We  are  not  disposed,  in  the  light  of  all  the  evidence,  to  weigh  one  claim  against  the  other.  We 
think  both  are  so  tainted,  so  mixed  with  fraud,  and  so  involved  in  uncertainty,  that  it  is  safer  and  better 
to  refuse  to  affirm  either. 

The  precedents  heretofore  established  authorize  this  decision,  and  we  think  the  case  amply  justifies 
us  in  adopting  it. 

We  therefore  recommend  the  adoption  of  the  following  resolution: 

Resolved.  That  neither  Effingham  Lawrence  nor  J.  Hale  Sypher  has  shown  himself  entitled  to  a 
seat  in  the  Forty-third  Congress. 

On  March  3/  the  report  was  debated  briefly  in  the  Hoiise,  and  then  the  question 
was  taken  on  the  proposition  of  the  minority  declaring  the  seat  vacant.  This  was 
disagreed  to — yeas  86,  naj-s  144. 

The  first  resolution  of  the  majority  was  adopted  without  division,  and  then  the 
second  resolution  was  agreed  to — yeas  135,  nays  86. 

Mr.  Lawrence  then  appeared  and  took  the  oath. 

627.  The  Rhode  Island  election  case  of  Asher  Bobbins,  in  the  Senate, 
in  the  Twenty-third  Congress. 

Confl.icting  credentials,  each  regular  in  form,  being  presented  in  the 
Senate  at  different  times,  those  first  issued  and  first  presented  were  hon- 
ored after  the  circumstances  had  been  examined. 

On  December  2,  1833,^  at  the  opening  of  the  session  of  the  Senate,  a  question 
was  raised  as  to  the  swearing  in  of  ilr.  Asher  Robbins,  from  the  State  of  Rhode 
Island. 

On  Januarv'  19,  1833,  in  the  time  and  manner  fixed  for  the  choice  of  an  United 
States  Senator,  the  legislature  of  Rhode  Island  had  chosen  Mr.  Robbins.  And  on 
January  28  the  governor  had  issued  his  certificate  in  due  form  to  Mr.  Robbins.  On 
February  4,  1833,  this  certificate  was  presented  in  the  United  States  Senate,  read 
and  entered  on  the  Journal. 

But  in  October,  1833,  before  Mr.  Robbins  had  qualified  and  taken  the  seat,  the 
Rhode  Island  legislature,  meeting  in  a  new  session,  adopted  a  declaration  or  act  that 
the  election  of  Mr.  Robbins  was  "null  and  void  and  of  no  effect,"  and  the  office 
vacated.  Thereupon,  on  November  1,  1833,  the  legislature  elected  Elisha  R.  Potter, 
and  on  the  5th  of  the  month  the  governor  (not  the  same  incumbent  who  had  issued 
the  certificate  to  Mr.  Robbins)  issued  his  certificate  to  Mr.  Potter. 

These  two  certificates  came  before  the  Senate  on  December  2,  and  a  question 
arose  as  to  the  prima  facie  right  to  the  seat. 

'  Journal,  p.  637-639;  Record,  pp.  2234-2235. 

'  First  session  Twenty-third  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  877. 


826  PBECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  627 

It  was  urged  that  neither  should  be  sworn  in  until  the  final  right  to  the  seat  was 
decided.  But  on  the  other  hand,  the  argument  was  made  that  the  State  was  entitled 
to  the  representation. 

In  behalf  of  Mr.  Robbins  it  was  lu-ged  that  had  the  Senate  been  convened  any- 
time between  March  4  and  October,  he  would  have  been  indisputably  entitled  to  the 
seat.  In  electing  him  the  State  exercised  her  function  of  choosing  a  Senator,  and 
might  not  again  exercise  it  until  the  constitutional  period  should  come  again. 

Mr.  George  Poindexter,  of  Mississippi,  moved  that  Mr.  Robbins  do  take  the 
customary  oath. 

Mr.  William  R.  King,  of  Alabama,  favored  the  reference  of  the  question  to  the 
Committee  on  Elections,  to  determine  which  should  be  sworn. 

Mr.  Henry  Clay,  of  Kentucky,  argued  that  the  State  was  entitled  to  immediate 
representation,  and  that,  as  Mr.  Robbins  appeared  to  have  been  regularly  elected 
and  certified,  and  bore  credentials  issued  prior  to  the  credentials  of  Mr.  Potter,  he 
should  have  the  seat  on  prima  facie  right. 

Mr.  Thomas  H.  Benton,  of  Missouri,  declared  that  he  had  little  regard  for  prec- 
edents; he  considered  them  the  bane  of  this  country  and  England.  The  Senate 
should  have  more  information  before  acting,  and  he  moved  reference  of  the  ques- 
tion to  a  select  committee. 

After  somewhat  extended  debate,  this  motion  was  disagreed  to;  ayes  15,  noes  19. 

Then  Mr.  Poindexter's  motion  was  agreed  to,  and  Mr.  Robbins  took  the  oath. 

The  report  of  the  select  committee  appointed  to  investigate  the  case  on  its 
merits,  reported  the  following  state  of  facts,  which  appear  to  have  been  imder- 
stood  to  some  extent,  at  least,  when  the  debate  was  held  on  the  prima  facie  right: 

The  select  committee  to  which  was  referred  the  credentials  of  Asher  Robbins,  chosen  a  Senator  in 
Congress  from  the  State  of  Rhode  Island  for  the  term  of  six  years,  to  commence  on  the  4th  day  of  March, 
1833;  and  also  the  proceedings  of  the  legislature  of  said  State,  convened  on  the  last  Monday  of  October, 
1833,  declaring  the  election  of  the  said  Asher  Robbins  void,  who  thereupon  proceeded  to  elect  Elisha 
R.  Potter  a  Senator  in  Congress  for  six  years,  to  commence  on  the  4th  day  of  March,  1833,  instead  of  said 
Asher  Robbins,  whose  election  to  fill  said  office  had  been  declared  void  as  aforesaid,  have  had  the  whole 
subject  so  referred  to  them  under  their  serious  and  attentive  consideration,  and  submit  the  following 
report: 

That  it  appears  by  the  credentials  of  Asher  Robbins  and  the  proceedings  of  the  general  assembly 
of  the  State  of  Rhode  Island  hereto  appended,  and  marked  "A,"  that  the  senate  and  house  of  repre- 
sentatives of  said  State,  then  sitting  in  the  city  of  Providence,  met  in  grand  committee  in  conformity 
to  the  usage  of  the  legislature  in  such  cases,  for  the  purpose  of  choosing  a  Senator  to  represent  said 
State  in  the  Congress  of  the  United  States:  and  that,  on  counting  the  ballots,  it  appeared  that  Mr.  Rob- 
bins was  elected  by  a  majority  of  four  votes,  who  was  thereupon  declared  to  be  duly  elected  a  Senator 
to  represent  said  State  in  the  Congress  of  the  United  States  for  six  years  from  and  after  the  4th  day  of 
March  then  next  following;  that,  having  performed  the  duty  for  which  the  two  houses  had  met,  the 
grand  committee  was  dissolved,  and  the  members  of  each  house  repaired  to  their  respective  chambers. 
It  further  appears  to  your  committee  that  on  the  28th  day  of  the  same  month  of  January  Ilis  Excellency 
Lemuel  H.  Arnold,  governor  of  the  State  of  Rhode  Island,  by  commission  in  due  form,  bearing  his  signa- 
ture, under  the  great  seal  of  the  State,  did  proclaim  and  make  known  the  election  of  the  said  Asher  Rob- 
bins as  aforesaid,  and  caused  the  said  commission,  signed  and  sealed  as  aforesaid,  to  be  delivered  to  the 
said  Asher  Robbins,  which  was  presented  to  the  Senate  of  the  United  States  in  open  session  on  the  4th 
day  of  February,  1833,  and  on  motion  read  and  entered  on  the  journals  of  the  Senate.  By  virtue  of  the 
force  and  effect  of  the  aforesaid  commission,  the  said  Asher  Robbins,  Senator-elect  from  the  State  of 
Rhode  Island,  appeared  in  the  Senate  Chamber  on  the  2d  day  of  December,  1833,  was  duly  sworn  to 
support  the  Constitution  of  the  United  States,  and  took  his  seat  as  a  member  of  the  Senate. 


§  628  CONFLICTING   CREDENTIALS.  827 

It  further  appears  to  your  committee  that  at  a  subsequent  session  of  the  general  assembly  of  Rhode 
Island,  begun  and  held  at  the  town  of  South  Kingston  in  said  State,  on  the  last  Monday  of  October, 
1833,  certain  proceedings  were  had  relative  to  the  election  of  the  said  Asher  Robbins  as  above  men- 
tioned, which  resulted  in  the  adoption  of  a  declaration  or  act  of  the  said  general  assembly,  by  which  the 
election  of  Mr.  Robbins  is  declared  to  be  "null  and  void  and  of  no  effect,"  and  the  office  vacated. 
Whereupon,  at  the  same  session  of  the  general  assembly  the  two  houses  met  in  grand  committee  on  the 
Ist  day  of  November,  1833,  and  proceeded  to  elect  a  Senator  to  represent  the  State  of  Rhode  Island  in 
the  Congress  of  the  United  States  for  the  term  of  six  years,  commencing  on  the  4th  day  of  March  pre- 
ceding, to  supply  the  vacancy  created,  or  supposed  to  be  created,  by  the  act  declaring  the  election  of 
Mr.  Robbins  null  and  void;  and  the  majority  appearing  to  be  in  favor  of  Elisha  R.  Potter,  the  said 
Potter  was  thereupon  declared  to  bo  duly  elected  a  Senator  in  Congress  from  the  said  State  for  the  term 
aforesaid,  when  the  grand  committee  was  dissolved  and  the  members  repaired  to  their  respective  cham- 
bers. That  on  the  5th  day  of  the  same  month  of  November  His  Excellency  John  Brown  Francis,  gov- 
ernor of  the  State  of  Rhode  Island,  by  commission  in  due  form,  bearing  his  signature,  under  the  great 
seal  of  the  State,  did  proclaim  and  make  known  the  election  of  the  said  Elisha  R.  Potter  as  afore?aid, 
and  cause  the  said  commission,  signed  and  sealed  as  aforesaid,  to  be  delivered  to  the  said  Elisha  R. 
Potter,  which  was  presented  to  the  Senate  on  the  2d  day  of  December  last,  and  on  the  5th  day  of  the 
same  month  referred  to  this  committee. 

The  case  was  considered  fully  on  its  merits,  and  after  an  examination  of  the 
status  of  the  legislatures  of  Rhode  Island,  the  Senate,  b}'  a  vote  of  yeas  27,  nays  16, 
agreed  to  the  follomng: 

"Resolved,  That  Asher  Robbins,  being  duly  and  constitutionally  chosen  a  Senator  in  Congress 
from  the  State  of  Rhode  Island,  is  entitled  to  his  seat  in  the  Senate."  ' 

628.  The  Senate  election  case  of  Corbin  v.  Butler,  from  Soutli  Caro- 
lina, in  the  Forty-fifth  Congress. 

Before  its  committee  had  reported  on  conflicting  credentials,  the  Sen- 
ate took  one  set  of  credentials  from  the  committee  and  seated  a  claimant 
whose  prima  facie  and  final  right  and  personal  conduct  were  assailed. 

On  Februan^  13,  1877,-  in  the  Senate,  Mr.  John  J.  Patterson,  of  South  CaroHna, 
presented  the  credentials  of  David  T.  Corbin  as  Senator  from  South  Carolina  for 
the  term  of  six  years  commencing  March  4,  1877.  On  March  2^  Mr.  Matt  W.  Ran- 
som, of  North  Carolina,  presented  the  credentials  of  M.  C.  Butler,  certified  by 
Wade  Hampton,  as  governor  of  South  Carohna,  to  have  been  elected  for  the  term 
commencing  March  4,  1877. 

On  March  7,  1877,^  on  motion  of  Mr.  Patterson,  the  credentials  of  Messrs. 
Corbin  and  Butler  were  referred  to  the  Committee  on  Privileges  and  Elections. 

On  November  20,^  at  the  regular  session,  Mr.  Allen  G.  Thurman,  of  Ohio,  sub- 
mitted for  consideration: 

Resolved,  That  the  Committee  on  Priv-ileges  and  Elections  be  discharged  from  the  further  consid- 
eration of  the  credentials  of  M.  C.  Butler,  of  South  Carolina. 

This  resolution  was  debated  at  length  on  November  21,  22,  and  26.  Most  of 
this  debate  was  as  to  the  expediency  of  discharging  the  committee,  and  as  to  the 

'Senate  Election  Cases,  Senate  Doc.  No.  11,  special  session  Fifty-eighth  Congress. 

-  Second  session  Forty-fourth  Congress,  Record,  p.  1507. 

3  Record,  p.  2069. 

♦Special  session  of  the  Senate,  Forty-fifth  Congress,  Record,  pp.  23,  24. 

'First  session  Forty-fifth  Congress,  Record,  p.  556. 


828  PRECEDENTS    OF    THE    HOUSE    OF    KEPEESENTATIVES.  §   628 

reasons  why  a  report  had  not  been  made  on  this  case.  It  appeared  that  the  Louisi- 
ana case  was  before  the  committee  and  was  receiving  prior  consideration.  It  was 
urged '  on  behalf  of  the  committee  that  there  was  in  this  case  a  question  which  of 
two  rival  South  Carolina  legislatures  was  entitled  to  recognition,  and  that  time 
must  be  given  the  committee  to  make  the  proper  examination.  On  the  other 
hand,  it  was  argued  ^  that  the  briefs  of  the  contestants  substantially  furnished  all 
the  facts  needed  by  the  Senate  to  decide  the  case  without  action  by  the  committee. 
On  November  26,^  Mr.  George  F.  Edmunds,  of  Vermont,  called  attention  to  a 
charge  that  the  Senator  from  South  Carolina,  Mr.  Patterson,  had  been  coerced  by 
threats  that  he  would  be  confined  in  the  penitentiary  of  South  Carolina,  to  cooperate 
Avith  those  desiring  to  seat  Mr.  Butler.  Mr.  Edmunds  thereupon  proposed  this 
amendment : 

By  striking  out  all  after  the  word  "resolved"  and  in  lieu  thereof  inserting: 

"That  the  Committee  on  Privileges  and  Elections  be,  and  hereby  is,  instructed  to  inquire  forth- 
with, and  report  as  soon  as  may  be,  whether  any  threats,  promises,  or  arrangements  respecting  existing 
or  contemplated  accusations  or  criminal  prosecutions  against  any  Senator,  or  any  other  corrupt  or  other- 
wise unlawful  means  or  influences  have  been  in  any  manner  used  or  put  in  operation,  directly  or  indi- 
rectly, by  M.  C.  Butler,  one  of  the  claimants  to  a  seat  in  the  Senate  from  the  State  of  South  Carolina, 
or  by  any  other  Senator  or  other  person,  for  the  purpose  of  influencing  the  vote  of  any  Senator  on  the 
question  of  discharging  said  committee  from  the  consideration  of  said  M.  C.  Butler's  credentials  or  on 
the  other  question  at  the  present  session  of  the  Senate;  and  that  said  committee  have  power  to  send  for 
persons  and  papers,  and  to  sit  during  the  sittings  of  the  Senate." 

After  debate,  this  resolution  was  decided  in  the  negative,  yeas  27,  nays  30. 

On  this  day  also  there  was  debate  as  to  the  merits  of  the  case,  and  the  facts 
relied  on  by  the  two  contestants  were  put  quite  fully  before  the  Senate,  especially 
as  to  the  alleged  intimidation  of  voters  in  two  counties,  which  had  resulted  in  the 
exclusion  of  the  representatives  of  those  counties  from  one  of  the  rival  legislatures. 

Mr.  Samuel  J.  R.  McMillan,  of  Minnesota,  urged  *  that  the  Senate  did  not  know 
at  this  time  whether  or  not  there  were  any  issues  of  fact  not  settled  between  the 
parties  to  the  contest.  Therefore  he  moved  to  strike  out  of  the  pending  resolution 
all  after  the  word  "resolved"  and  insert — 

That  the  Committee  on  Privileges  and  Elections  be  instructed  to  examine  and  report  what  ques- 
tions of  fact,  if  any,  in  the  Corbin-Butler  case  are  not  settled  by  the  admissions  of  the  claimants  to  the 
seat  now  vacant  from  the  State  of  South  Carolina. 

This  amendment  was  debated  somewhat,  and  while  it  was  pending  the  brief 
of  Mr.  Corbin,  giving  a  view  of  the  issues  in  the  case,  was  read.  The  amendment  was 
disagreed  to,  yeas  24,  nays,  28. 

Next  there  was  debate  which  involved  the  so-called  "Plamburgh  massacre," 
and  certain  testimony  was  read  tending  to  show  the  active  participation  of  one  of  the 
contestants  (Mr.  Butler)  in  that  affair,  and  it  was  claimed  that  the  so-called 
"massacre"  was  one  of  the  means  by  which  Mr.  Butler  secured  the  title  to  the  seat 
which  he  now  presented  to  the  attention  of  the  Senate.  It  was  urged  in  behalf  of  Mr. 
Butler  that  the  testimony  relied  on  to  prove  Mr.  Butler's  participation  in  the  Ham- 
burgh affair  was  ex  parte  and  unreliable,  and  that  its  presentation  in  this  case  was 

1  Record,  p.  572.  ^  Record,  pp.  645-648. 

2  Record,  p.  576.  "  Record,  pp.  653-662. 


§  629  CONFLICTING   CREDENTIALS.  829 

unjust.  It  was  argued,  on  the  other  hand,  by  Mr.  Roscoe  Conkling,  of  New  York, 
that  this  testimony  tencHng  to  raise  a  question  as  to  whether  Mr.  Butler  had  not 
actually  participated  in  bringing  about  the  alleged  terrorism  by  which  his  election 
was  apparently  secured,  and  showed  that  a  committee  ought  to  pass  on  this  question 
of  fact  before  the  Senate  should  act. 

The  debate  '  on  this  point  was  interspersed  with  dilatory  proceecUngs  incident 
to  a  session  wliich  lasted  all  night  and  consumed  twenty-eight  consecutive  hours. 
The  resolution  to  discharge  the  conmiittee  was  finally  agreed  to,'  yeas  29,  nays  27. 

The  credentials  of  Mr.  Butler  were  then  before  the  Senate,  which  adjourned  at 
this  point. 

On  November  28  ^  the  Senate  proceeded  to  the  consideration  of  a  resolution  to 
seat  William  P.  Kellogg  as  Senator  from  Louisiana. 

Mr.  Thurman  moved  to  substitute  therefor: 

That  M.  C.  Butler  be  now  sworn  in  as  a  Senator  from  the  State  of  South  Carolina. 

Tliis  amendment  was  rejected,  yeas  30,  nays  31. 

On  November  30,^  after  the  Senate  had  determined  to  admit  to  a  seat  Mr. 
William  Pitt  Kellogg,  of  Louisiana,  Mr.  Thurman  moved  that  M.  C.  Butler,  of 
South  Carohna,  be  sworn  in  as  a  Senator  from  that  State.  This  motion  was  agreed 
to,  yeas  29,  nays  28. 

Thereupon  the  oath  was  administered  to  both  Mr.  Kellogg  and  Mr.  Butler. 
The  votes  on  the  two  cases  were  taken  after  an  agreement  by  unanimous  consent 
that  the  one  should  follow  the  other. 

629.    Tlie  case  of  Corbin  v.  Butler,  continued. 

Instance  of  a  contest  inaugurated  in  the  Senate  by  petition,  and  form 
of  petition. 

The  majority  of  the  Senate  committee  contended  that  the  doctrine  of 
res  adjudicata  did  not  apply  to  a  decision  incident  to  the  credentials  and 
made  without  full  and  formal  examination  of  the  merits. 

At  the  next  session  of  Congress,  on  December  13,  1877,^  Mr.  Angus  Cameron, 
of  Wisconsin,  presented  the  following  petition,  which  later  was  referred  to  the 
Committee  on  Pri\aleges  and  Elections: 

To  the  honorable  Senate  of  the  United  States: 

Your  petitioner,  Da\dd  T.  Corbin,  of  the  State  of  South  Carolina,  shows  to  your  honorable  body 
that  he  was,  on  the  12th  day  of  December,  A.  D.  1876,  duly  and  lawfully  elected  by  the  legislature  of 
the  State  of  South  Carolina  to  the  office  of  United  States  Senator  from  that  State  for  the  term  of  six  years 
commencing  the  4th  day  of  March,  A.  D.  1877. 

That  in  said  election  all  the  provisions  of  the  Constitution  and  laws  of  the  United  States  were 
complied  with,  and  your  petitioner  was  regularly  and  duly  declared  elected  by  the  legislature  of  said 
State,  and  duly  commissioned  accordingly  by  the  governor  of  said  State. 

And  your  petitioner  further  shows  that  his  credentials  were  presented  to  your  honorable  body 
before  the  close  of  the  last  regular  session,  and  at  the  commencement  of  the  extra  session  in  March  last 
said  credentials,  together  with  the  credentials  of  M.  C.  Butler  (who  claimed  to  have  been  elected  also 
Senator  from  South  Carolina),  were  referred  to  the  Committee  on  Privileges  and  Elections  of  your  hon- 
orable body. 


'  Record,  pp.  663-712.  *  Record,  pp.  797,  798. 

'  Record,  p.  712.  *  Second  session  Forty-fifth  Congress,  Record,  p.  1G6. 

'  Record,  p.  730. 


830  PEECEDENTS   OF   THE   HOUSE   OF   KEPKESENTATIVES.  §  629 

And  your  petitioner  shows,  on  information  and  belief,  that  his  said  credentials  have,  since  said 
reference  of  them  to  said  committee,  remained  in  the  possession  of  said  committee,  and  that  no  action 
has  been  taken  thereon,  either  by  said  committee  or  the  Senate. 

And  your  petitioner  now  prays  that  your  honorable  body  will,  in  justice  to  your  petitioner,  and  in 
justice  to  the  legislature  of  the  State  of  South  Carolina  that  elected  and  the  governor  that  commissioned 
him,  inquire  into,  hear,  and  determine  on  their  merits  the  claim  and  right  of  your  petitioner  to  a  seat  in 
your  honorable  body  as  Senator  from  the  State  of  South  Carolina. 

All  of  which  is  respectfully  submitted. 

David  T.  Corbin. 

On  February  4,  1879/  Mr.  Cameron  presented  the  report  of  the  cominittee, 
which  was  concurred  in  by  Messrs.  Bainbridge  Wadleigh,  of  New  Hampshire;  John 
H.  Mitchell,  of  Oregon;  S.  J.  R.  McMillan,  of  Minnesota;  George  F.  Hoar,  of  Massachu- 
setts, and  John  J.  Ingalls,  of  Kansas. 

Several  questions  are  discussed  in  this  report. 

(1 )  As  to  the  doctrine  of  res  adjudicata  as  applied  to  the  case,  the  report  says : 

On  the  26th  day  of  March,  1878,  this  petition  was  referred  to  this  committee.  At  the  very  outset 
of  the  committee's  examination  of  Mr.  Corbin's  claim  they  were  met  with  a  plea  to  their  jurisdiction, 
submitted  by  the  counsel  of  Mr.  M.  C.  Butler,  as  follows: 

"The  sitting  Member  respectfully  submits  that  the  Committee  on  Privileges  and  Elections  can  not 
entertain  jurisdiction  of  the  contestant's  claim  to  the  seat  of  a  Senator  from  the  State  of  South  Carolina 
in  the  Congress  of  the  United  States.  He  bases  his  denial  of  the  right  of  the  committee  to  take  jurisdic- 
tion of  the  case  upon  the  following  grounds: 

"1.  In  the  adjudication  of  a  contested  election  case,  under  that  clause  of  the  Constitution  which 
makes  each  House  'the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  Members,'  the  Senate 
acts  as  a  judicial  tribunal.  And  the  general  principle  that  every  question  in  issue  settled  by  the  final 
judgment  of  a  judicial  tribunal  becomes  res  adjudicata  as  between  the  parties  thereto  applies  to  judg- 
ments of  the  Senate  in  contested  election  cases. 

"2.  The  contestant's  petition,  referred  to  the  committee  March  26,  1878,  suggests  no  question 
which  was  not  adjudicated  by  the  Senate  in  the  determination  of  this  cause  at  the  first  session  of  the 
Forty-fifth  Congress ;  nor  was  any  question  involved  in  the  contestant's  case  as  presented  to  the  committee 
or  to  the  Senate  at  that  session  which  was  not  adjudicated  in  that  determination. 

"3.  Inasmuch  as  the  Senate  has  no  set  forms  for  its  judicial  decisions,  the  nature  and  scope  of  an 
adjudication  will  be  determined,  not  by  the  mere  form  of  the  judgment,  but  by  the  whole  record  of 
the  case. 

"4.  When  the  Senate  adjudicates  a  contested  election  case  upon  its  merits  the  jurisdiction  of  the 
committee  over  the  case  ipso  facto  terminates,  whatever  formalities  may  or  may  not  attend  the  termina- 
tion of  such  jiu-isdiction. 

"5.  Judicial  tribunals  of  last  resort  will  not  rehear  a  cause  after  final  judgment,  on  the  application 
of  a  party,  but  only  on  a  motion  to  reconsider  made  by  a  member  of  the  tribunal  who  concurred  in  the 
decision;  nor  even  in  such  a  case  after  the  expiration  of  the  term  at  which  the  judgment  is  rendered. 
And  this  principle  applies  to  decisions  made  by  the  Senate  in  contested  election  cases." 

An  elaborate  discussion  of  the  proposition  stated  in  this  plea  to  the  jurisdiction  is  not  necessary, 
as  while  expressing  no  opinion  on  their  general  soundness,  the  committee  overruled  the  plea  on  the 
ground  that  the  same  is  not  supported  by  the  facts  in  the  case.  The  claim  or  right  of  Mr.  Corbin  to  a 
scat  in  the  Senate  as  Senator  from  the  State  of  South  Carolina  is  not  res  adjudicata,  because  in  point 
of  fact  it  has  not  been  passed  upon  and  adjudicated  by  the  Senate. 

To  ascertain  what  has  and  what  has  not  been  determined  in  any  given  case,  reference  must  be 
had  to  the  record  of  the  proceedings  taken  therein. 

If  the  record  shows  the  controversy  between  the  parties  determined  upon  a  consideration  of  the 
merits,  then  that  determination  binds  the  parties  and  their  privies,  and  precludes  further  inquiry. 

'  Senate  Report  No.  707. 


^1 


§  629  CONFLICTING   CKEDENTIALS.  831 

The  facts  above  stated,  from  the  records  of  the  Senate  in  regard  to  Mr.  Corbin's  case,  show  that 
his  credentials  were  referred  to  this  committee  of  the  Senate,  and  that  no  action  of  the  Senate  has  been 
had  to  withdraw  them  from  the  committee.  And  the  fact  is  that  the  credentials  have  been  with  the 
committee  to  the  present  time  by  the  direct  action  of  the  Senate.  No  case  has  in  any  form  been  made 
up  between  Mr.  Corbin  and  Mr.  Butler  and  submitted  to  the  Senate  to  be  passed  upon,  and  no  case, 
as  between  tliem,  has  been  passed  upon  by  the  Senate. 

Mr.  Thurman's  resolution,  that  the  Committee  on  Privileges  and  Elections  be  discharged  from 
the  further  consideration  of  the  credentials  of  M.  C.  Butler,  of  South  Carolina,  meant  precisely  what  it 
said.  Its  language  is  too  clear  to  be  misunderstood.  It  indicates  a  mere  purpose  on  the  part  of  the 
mover  to  dispense  with  the  further  service  of  the  Committee  on  Privileges  and  Elections  in  the  considera- 
tion of  Mr.  Butler's  credentials. 

After  reviewing  the  circumstance.s  of  the  discharge  of  the  committee  the  report 
proceeds : 

But  whatever  individual  Senators  said  in  the  course  of  the  discussion,  the  action  of  the  Senate 
is  to  be  looked  to  finally  to  ascertain  what  was  determined.  When  the  resolution  was  adopted  its  effect 
was  simply  to  bring  before  the  Senate  the  credentials  of  M.  C.  Butler.  It  did  not  bring  before  the 
Senate  the  credentials  of  D.  T.  Corbin. 

After  Mr.  Butler's  credentials  were  thus  brought  before  the  Senate  a  motion  was  made  that  he 
be  sworn  in  as  Senator  from  South  Carolina,  and  without  debate  the  vote  was  taken  and  the  motion 
adopted.  Mr.  Butler  was  then  sworn  in.  Swearing  in  a  Senator  on  his  credentials  has  always  been 
regarded  as  admitting  him  to  his  seat  on  the  prima  facie  case  made  by  those  credentials.  There  is 
no  instance  in  the  historj'  of  the  Senate  where  a  member  has  been  so  sworn  in  and  allowed  to  take  his 
seat  as  Senator  that  such  admission  has  been  held  to  preclude  investigation  into  the  merits  of  his  title. 
On  the  other  hand,  the  precedents  are  exactly  the  reverse.  The  cases  of  James  Shields,  of  Illinois; 
James  Harlan,  of  Iowa;  Bright  and  Fitch,  of  Indiana,  and  of  Mallorj',  of  Florida,  reported  in  Bartlett's 
Contested  Election  Cases  in  Congress,  at  pages  606,  621,  629,  and  608,  are  examples  of  this  rule. 

But  the  principle  of  res  adjudicata  can  only  apply  where  parties  to  the  controversy  have  been 
before  the  court  or  body  having  jurisdiction  thereof  and  have  been  heard  upon  the  merits  of  their 
respective  claims  and  a  decision  has  been  rendered  thereon. 

In  the  present  case  Mr.  Corbin  has  never  been  a  party  before  the  Senate  to  any  controversy  with 
Mr.  Butler  respecting  his  rights  to  a  seat  as  Senator.  The  Senate,  by  its  action,  has  not  permitted 
him  to  be  a  party  to  any  such  controversy,  and  the  merits  of  his  case  have  never  been  passed  upon  by 
the  Senate.     Therefore,  the  doctrine  of  res  adjudicata  has  no  application  to  the  case. 

The  minority  views,  signed  by  Messrs.  A.  S.  Merrimon,  of  North  Carolina, 
EU  Saulsbury,  of  Delaware,  and  Benj.  H.  Hill,  of  Georgia,  lay  stress  on  the  theory 
that  the  case  should  be  adjudged  res  adjudicata: 

In  considering  this  petition  the  facts  which  have  been  presented  to  this  committee  axe  precisely 
the  same  which  were  presented  on  the  former  consideration  of  this  case.  Not  a  new  fact  has  been  pre- 
sented, nor  offered  to  be  presented,  and  not  an  old  fact  has  been  withdrawn  or  modified,  nor  offered 
to  be  withdrawn  or  modified.  The  arguments  now  made  have  been  made  from  the  same  statements 
and  briefs  filed  on  the  former  hearing,  and  not  a  new  question  of  law  has  been  presented,  except  the  issue 
of  res  adjudicata.  No  charge  of  fraud  has  been  made  against  the  former  decision.  No  allegation  that 
testimony  was  before  excluded  which  ought  to  have  been  admitted,  or  that  testimony  was  admitted 
which  ought  to  have  been  excluded;  no  request  by  either  party  to  produce  testimony  has  been  denied, 
and  no  pretense  that  testimony  then  offered  and  excluded  can  now  be  produced.  The  jurisdiction 
is  the  same;  the  parties  are  the  same;  the  subject-matter  of  contest  is  the  same;  the  facts  are  the  same, 
and  the  questions  of  law  are  the  same.  The  petition  now  before  us  is  a  mere,  sheer,  naked  proposition 
that  the  Senate  at  a  subsequent  session  shall  revote  on  the  identical  questions,  facts,  and  issues  on 
which  the  Senate  voted  and  decided  at  a  former  session. 

Without  going  into  a  tedious  and  unnecessary  review  of  the  authorities  and  cases  to  be  found  in 
the  books,  we  deem  it  sufficient  to  say  that  no  demand  like  that  contained  in  the  petition  of  Mr.  Corbin 
was  ever  granted  by  this  Senate,  nor,  as  we  believe,  by  any  legislative  body. 


832  PRECEDENTS   OF   THE   HOUSE    OF    REPRESENTATIVES.  §  630 

In  the  case  of  Bright  and  Fitch,  in  the  Thirty-fifth  Congress,  the  parties  to  the  rehearing  asked 
were  new  and  different,  and  had  not  before  been  heard,  and  the  rehearing  itself  was  asked  in  a  memorial 
from  the  legislature  of  the  State  of  Indiana.  But  because  "all  the  facts  and  questions  of  law  involved 
were  as  fully  known  and  presented  to  the  Senate"  on  the  former  hearing  as  they  were  then  presented 
in  the  memorial  of  the  legislature  asking  a  rehearing,  it  was  held  that  the  judgment  first  rendered  by 
the  Senate  "was  final,  and  precluded  further  inquiry  into  the  subject." 

If,  on  the  former  hearing,  Mr.  Corbin  had  been  denied  the  pri\'ilege  of  introducing  material  facts 
which  he  offered  to  produce;  if  he  presented  material  facts  now  which  were  then  unknown;  if  all  the 
facts  and  questions  of  law  now  known  and  presented  were  not  then  as  fully  known  and  presented,  the 
undersigned  will  not  undertake  to  say  his  petition  for  a  rehearing  ought  not  in  justice  and  right  to  be 
gravely  heard  and  considered  on  the  merits.  But  as  Mr.  Corbin  himself  has  suggested  no  new  facts 
or  questions  of  law,  and  as  we  well  know  that  all  the  facts  and  questions  of  law  now  known  and  presented 
were  then  quite  as  well  known  and  presented  both  to  the  committee  and  the  Senate,  we  can  not  regard 
his  petition  for  another  vote  as  entitled  to  further  consideration. 

630.   The  case  of  Corbin  v.  Butler,  continued. 

Elaborate  discussion  by  Senate  committee  of  effect  of  the  constitu- 
tional provision  that  ''  a  majority  of  each  House  shall  constitute  a  quo- 
rum." 

Discussion  by  a  Senate  committee  of  the  effect  in  an  election  case  of 
a  decision  of  a  State  court  construing  a  provision  of  the  State  constitution. 

(2)  As  to  the  merits  of  the  case,  the  main  question  involved  was  as  to  what 
constituted  a  quorum  of  the  State  house  of  representatives.  The  majority  report 
thus  reviews  the  case: 

A  general  election  was  held  in  that  State  November  7,  1876,  for  State  and  county  officers,  and 
for  members  of  the  house  of  representatives  of  the  State  legislature,  and  for  a  part  of  the  members  of 
the  State  senate. 

The  returns  of  this  election  were  made,  first,  by  the  several  boards  of  precinct  managers — each 
board  consisting  of  three  members — to  the  commissioners  of  election  for  their  respective  counties, 
called  in  this  connection  boards  of  "county  canvassers;"  second,  by  the  several  lioards  of  county 
canvassers  to  the  board  of  State  canvassers  at  Columbia,  the  capital  of  the  State;  and,  third,  by  the 
board  of  State  canvassers,  who  finally  acted  upon  the  returns  and  determined  and  declared  the  results. 

The  board  of  State  canvassers,  on  November  22,  1876,  completed  their  canvass  of  this  election  and 
returned  as  duly  elected  16  State  senators  and  116  members  of  the  house  of  representatives. 

Subsequently,  and  pre\'ious  to  November  28,  1876,  the  day  of  the  meeting  of  the  legislature, 
the  secretary  of  state  delivered  the  official  certificate  of  his  election  to  each  person  declared  elected 
by  the  board  of  State  canvassers. 

On  the  28th  day  of  November,  1876,  the  newly  elected  senators,  with  those  holding  over  from 
the  former  election,  met  and  organized  as  the  senate,  in  the  senate  chamber  in  the  statehouse.  The 
legality  of  the  senate  as  a  legislative  body  and  the  regularity  of  its  organization  are  not  now  and  never 
have  been  questioned. 

On  the  same  day  59  of  the  persons  declared  elected  by  the  board  of  State  canvassers  met  in  the  hall 
of  the  house  of  representatives  in  the  statehouse  and  organized  as  the  house  of  representatives,  the  other 
57  members,  holding  certificates  of  election  from  the  board  of  State  canvassers,  refusing  to  meet  with 
them.  These  57  members  met  in  a  private  hall  in  the  city  of  Columbia,  and  pretended  to  organize  as  a 
house  of  representatives  by  the  election  of  William  H.  Wallace  as  speaker.  The  59  members  at  the 
statehouse  elected  E.  W.  M.  Mackey  speaker. 

The  two  bodies  organized  at  the  statehouse  recognized  each  other,  respectively,  as  the  senate  and 
house  of  representatives  of  the  State  by  the  interchange  of  oflacial  communications  pertaining  to  legisla- 
tive business.  They  also  officially  recognized  Governor  Chamberlain  as  the  governor  of  the  State,  and 
were  officially  recognized  by  him  as  the  senate  and  house  of  representatives,  together  constitiiting  the 
legislature  of  the  State. 

On  November  29,  1876,  5  persons  who  contested  the  election  of  the  persons  declared  elected  by  the 


§  630  CONFLICTING   CREDENTIALS.  833 

board  of  State  canvassers  as  representatives  of  Barnwell  County  were  declared  by  this  house  of  representa- 
tives at  the  statehouse  to  be  entitled  to  stats,  and  were  admitted  and  sworn  in  as  members. 

On  December  2,  1876,  5  persons  who  in  like  manner  contested  the  election  of  the  persons  declared 
elected  by  the  board  of  State  canvassers  as  representatives  of  Abbeville  County  were  declared  by  this 
house  to  be  entitled  to  seats,  and  were  admitted  and  sworn  in  as  members. 

On  December  5,  1876,  4  other  persons,  contestants  for  seats  from  Aiken  County,  were  in  like  manner 
admitted  and  sworn  in  as  members. 

The  members  thus  admitted,  with  the  original  membership  of  59,  make  the  whole  number  of 
members  of  this  house  of  representatives  (commonly  known  as  the  Mackey  house)  73. 

On  December  2,  1876,  this  house  of  representatives  considered  the  matter  of  the  election  for 
members  of  the  house  of  representatives  in  Edgefield  and  Laurens  counties,  and  declared  that  no  valid 
election  was  held  in  those  counties  on  the  7th  of  November,  1876. 

On  the  12th  day  of  December,  1876,  being  the  second  Tuesday  after  the  said  28th  day  of  November, 
1876,  the  two  bodies  above  described  proceeded,  in  the  manner  prescribed  by  the  statutes  of  the  United 
States  (U.  S.  Rev.  Stat.,  Tit.  II,  ch.  1,  p.  3),  to  elect  a  Senator  in  Congress. 

D.  T.  Corbin  received  a  majority  of  all  the  votes  cast  in  both  bodies  on  December  12, 1876. 

On  the  following  day,  December  13,  1876,  the  two  bodies  convened  in  joint  assembly  at  12  o'clock 
meridian,  the  journal  of  each  house  was  read,  and,  it  appearing  that  D.  T.  Corbin  had  received  a  majority 
of  all  the  votes  in  each  house,  he  was  declared  duly  elected  Senator. 

Mr.  Corbin's  credentials  were  signed  on  December  13,  1876,  by  Governor  Chamberlain,  who  was, 
until  December  14, 1876,  the  unquestioned  governor  of  the  State,  General  Hampton  not  claiming  to  hold 
the  office  until  after  his  inauguration  on  December  14, 1876. 

Upon  this  general  statement  of  facts  arises  the  question,  Was  the  election  of  Mr.  Corbin  valid,  and  is 
he  now  entitled  to  a  seat  in  this  body  as  a  Senator  from  the  State  of  South  Carolina? 

It  has  already  been  stated  that  no  question  has  ever  been  made  as  to  the  complete  validity,  as  a 
legislative  body  and  a  constituent  house  of  the  general  assembly,  of  the  senate  which  sat  in  the  statehouse 
and  cooperated  with  the  house  oi  representatives,  in  which  Mr.  Corbin  received  a  majority  of  votes.  No 
other  body  claimed  to  be  the  senate. 

This  senate  never  in  any  manner  recognized  the  existence,  as  a  legislative  body,  of  the  other 
assemblage  which  assumed  to  be  the  house  of  representatives  (commonly  known  as  the  \\'allace  house), 
and  which  met  in  a  private  hall  in  Columbia. 

The  action  of  this  senate,  therefore,  so  far  as  it  enters  into  the  title  of  Mr.  Corbin,  need  not  be 
further  discussed.     It  was  valid. 

The  part  performed  by  the  house  of  representatives  which  sat  in  the  statehouse  in  the  election  of 
Mr.  Corbin  presents  the  most  important  question  which  arises  in  this  case. 

The  validity  of  this  body  is  called  in  question.  It  is  claimed,  in  denial  of  Mr.  Corbin's  title,  that 
this  body  was  never  a  valid  legislative  body  under  the  constitution  and  laws  of  South  Carolina;  that  it 
never  had  a  quorum  of  lawfully  elected  members;  that  all  its  acts  were  null  and  void. 

The  facts  upon  which  this  question  must  be  decided  are  these: 

The  constitution  of  the  State,  Article  II,  section  4,  provides  as  follows: 

"  The  house  of  representatives  shall  consist  of  124  members,  to  be  apportioned  among  the  several 
counties  according  to  the  number  of  inhabitants  in  each." 

Article  II,  section  14,  is  as  follows: 

"Each  house  shall  judge  of  the  election  returns  and  qualifications  of  its  own  members;  and  a 
majority  of  each  house  shall  constitute  a  quorum  to  do  business." 

At  the  election  of  November  7,  1876,  124  persons  were  to  be  voted  for  as  members  of  the  house  of 
representatives.  Of  this  number,  constituting  a  full  house,  the  board  of  State  canvassers  declared  that 
only  116  were  duly  elected,  and  the  secretary  of  state  issued  certificates  of  election  to  only  116,  the 
canvassers  at  the  same  time  placing  upon  the  records  a  declaration  of  their  inability,  by  reason  of 
unla\\-ful  influences  and  practices  in  the  election,  to  determine  that  any  persons  had  been  duly  elected 
as  representatives  for  the  counties  of  Edgefield  and  Laurens. 

Of  the  116  persons  thus  declared  elected  by  the  board  of  State  canvassers,  and  holding  certificates 
of  election  from  the  secretary  of  state,  59  took  part  in  the  organization  of  the  house  of  representatives  in 
the  statehouse  on  November  28,  1876,   being  a  majority  of  all  the  members  declared  elected  by  the  board 
of  State  canvassers  and  holding  certificates  of  election  from  the  secretary  of  state. 
5994— VOL  1—07 53 


834  PBECEDENTS   OF   THE   HOUSE   OF   BEPKESENTATIVES.  §  630 

Was  the  body  thus  composed  and  organized  the  legal  house  of  representatives  of  the  State? 

Attention  has  been  called  to  the  fact  that  after  the  organization  of  the  house  of  representatives 
which  elected  Mr.  Corbin  certain  of  those  who  took  part  in  that  organization  withdrew  and  acted  with 
another  assemblage  calling  itself  the  house  of  representatives,  thereby  reducing  the  number  of  can- 
vassing board  members  sitting  in  the  Mackey  house  from  59  to  53,  of  whom  only  44  voted  for  Mr.  Corbin. 

There  is  no  force  in  these  suggestions,  because  the  fact  is  that  the  number  of  members  who  acted 
with  the  Mackey  house  was  never  reduced  below  59.  It  is  true  that  a  few  of  those  who  formed  part  of 
the  original  59  canvassing  board  members  of  the  Mackey  house  left  their  seats  in  the  statehouse  and 
joined  the  Wallace  house;  but  before  a  single  such  person  had  left  the  Mackey  house  had,  upon  contests 
duly  made,  admitted  other  members  in  number  more  than  equal  to  those  who  afterward  left. 

If,  therefore,  the  original  house  of  59  members  was  a  lawful  house  on  the  day  of  its  organization, 
it  was  a  lawful  house  at  all  times  thereafter  till  its  final  adjournment  December  22,  1876.  If  it  was  a 
lawful  house  for  any  purpose  it  was  a  lawful  house  for  the  purpose  of  deciding  contested  elections  of  its 
own  members  and  for  admitting  those  whom  it  might  adjudge  to  be  lawfully  elected. 

The  statement  that  out  of  the  original  59  who  organized  the  Mackey  house  only  44  voted  for  Mr. 
Corbin  has  no  significance.  At  the  time  of  his  election  the  inquiry  was  not  how  many  canvassing  board 
members  voted  for  Mr.  Corbin,  but  how  many  lawful  members  voted  for  him.  If  the  house  was  lawfully 
organized  on  November  28,  then  the  members  admitted  on  the  29th,  and  subsequently,  were  lawful 
members,  entitled  to  all  the  rights  and  powers  belonging  to  any  members. 

But  to  the  point  of  the  legality  of  the  Mackey  house. 
The  constitutional  provisions  which  regulate  the  matter  of  a  legislative  quorum  in  South  Carolina 
are  (1)  that  "the  house  shall  consist  of  124  members''  and  (2)  that  "a  majority  of  each  house  shall  con- 
stitute a  quorum  to  do  business." 

Stated  in  its  most  condensed  form,  the  inquiry  here  is,  what  is  the  meaning  of  the  phrase  "a 
majority  of  each  house?''  Does  it  mean  a  majority  of  124  or  a  majority  of  the  members  duly  elected  or 
qualified? 

As  an  original  question  it  would  seem  that  there  are  strong  reasons  why  the  latter  view  should  be 
adopted. 

If  the  former  view  be  adopted  a  contingency  may  easily  occur  in  which  it  will  be  absolutely  impos- 
sible to  organize  a  lawful  house.  If  under  any  circiunstances  there  should  be  a  failvu^e  to  elect  a  majority 
of  the  whole  possible  representation,  the  government  would  be  brought  at  once  to  a  dead  stop;  nor 
would  there  be  any  power  anywhere  to  remove  the  obstruction. 

In  opposition  to  this  view  it  is  said  that  if  it  be  held  that  a  number  less  than  a  majority  of  the 
whole  possible  representation  constitute  a  quorum,  then  under  some  circumstances  it  will  be  in  the 
power  of  a  small  fraction  of  the  whole  representation  to  hold  and  exercise  the  powers  of  the  house.  This 
is  admitted;  but  such  a  danger  will  not  menace  the  life  itself  of  the  State.  The  government  wUl  be 
able  to  go  on  without  recourse  to  extra  legal  remedies. 

All  governments  aim  at  self-perpetuation.  No  element  of  self-destruction  is  intentionally 
admitted  into  the  framework  or  fundamental  law  of  a  State.  All  constitutional  provisions  should 
therefore  receive  a  construction,  if  possible,  which  shall  be  in  harmony  with  this  idea  of  the  perpetuity 
of  the  government,  of  its  unbroken  life  and  efficiency.  If  the  rule  were  adopted  that  a  quorum  of  the 
house  of  representatives  of  South  Carolina  must  consist  of  at  least  63  members,  then  if  from  any  cause 
63  members  should  not  be  elected,  it  would  be  impossible  by  any  constitutional  methods  to  obtain  a 
house  of  representatives  at  least  until  the  next  general  election. 

No  speaker  could  be  chosen;  no  writs  of  election  could  be  issued.  Did  the  59  members  composing 
the  body  at  the  statehouse  constitute  a  quorum  of  the  house  of  representatives? 

The  most  controlling  decisions  upon  this  question  are  those  of  the  two  Houses  of  Congress. 

The  Constitution  of  the  United  States  and  the  constitution  of  South  Carolina  may  be  said  to  contain 
identical  provisions  upon  this  point.     The  Constitution  of  the  United  States  provides  as  follows: 

"The  Senate  of  the  United  States  shall  be  composed  of  2  Senators  from  each  State,  chosen  by  the 
legislature  thereof  for  six  years."     (Art.  I,  sec.  3.) 

"The  number  of  Representatives  shall  not  exceed  1  for  every  30,000,  but  each  State  shall  have 
at  least  1  Representative."     (Art.  I,  sec.  2.) 

The  only  respect  in  which  these  provisions  differ  from  the  corresponding  provisions  of  the  consti- 
tution of  South  Carolina  is  that  here  the  numerical  aggregate  of  Senators  and  Representatives  is  no 


§630 


CONFLICTING   CREDENTIALS.  835 


stated.  The  rule  of  representation  is  laid  down,  and  under  that  rule  there  is  always  at  any  specified 
point  of  time  a  fixed  number  of  Senators  and  Representatives  in  Congress,  precisely  as  much  so  as  in 
South  Carolina. 

In  principle  these  two  constitutional  provisions  are  identical,  and  it  is  idle  to  insist  that  the  mere 
verbal  difference  is  of  the  least  importance. 

The  provisions  respecting  a  quorum  in  the  Constitution  of  the  United  States  and  that  of  South 
Carolina  are  identical  in  terms,  namely: 

"A  majority  of  each  house  shall  constitute  a  quorum  to  do  business." 

It  will  be  found  that  in  the  Senate  of  the  United  States  prior  to  1862  it  was  held  as  a  matter  of  par- 
liamentary practice  in  some  instances  that  a  quorum  consisted  of  a  majority  of  the  whole  possible  repre- 
sentation, and  in  other  instances  of  a  majority  of  Senators  elected  and  qualified. 

The  question  does  not  appear  to  have  been  discussed  by  the  Senate,  or  to  have  been  maturely  con- 
sidered, until  after  April  11,  1862.  On  that  day  Mr.  Sherman,  of  Ohio,  offered  a  resolution,  which  was 
referred  to  the  Committee  on  the  Judiciary,  in  these  words: 

"Resolved,  That  a  majority  of  the  Senators  duly  elected  and  entitled  to  seats  in  this  body  is  a  con- 
stitutional quorum."     (Congressional  Globe,  April  11,  1862.) 

On  July  9,  1862,  this  resolution  was  debated  in  the  Senate  and  laid  upon  the  table  by  a  vote  of 
19  t<3  18. 

On  March  7,  1864,  Mr.  Sherman  offered  a  resolution,  which  was  referred  to  the  Committee  on  the 
Judiciarj',  in  these  words: 

"Resolved,  That  a  quorum  of  the  Senate  consists  of  a  majority  of  the  Senators  duly  chosen  or 
qualified." 

On  May  3,  1864,  the  Committee  on  the  Judiciary  having  been  discharged  from  the  further  con- 
sideration of  the  resolution,  it  was  taken  up  and  debated.  On  this  and  the  following  day  the  subject 
was  elaborately  discussed,  especially  by  Senators  Carlisle  and  Davis  against  the  resolution,  and  by 
Senators  Johnson  and  Sherman  in  its  favor.  The  words  "or  qualified  "  having  been  struck  out,  the  reso- 
lution was  adopted  by  a  vote  of  26  to  11,  May  4,  1864,  in  these  words: 

"Resolved,  That  a  quorum  of  the  Senate  consists  of  a  majority  of  the  Senators  duly  cnosen."  (Con- 
gressional Globe,  March  7,  May  3  and  4,  1864.) 

The  precedents  in  the  House  of  Representatives  prior  to  1861  had  been  varying,  but  here,  as  in 
the  Senate,  the  subject  does  not  appear  to  have  been  maturely  considered  untQ  1861.  During  the  first 
session  of  the  Thirty-seventh  Congress,  in  the  House  of  Representatives,  Speaker  Grow  finally  decided 
that  a  quorum  of  the  House  consisted  of  a  majority  of  the  members  chosen,  and  he  was  sustained  by  the 
House  in  this  decision.     (House  Journal,  first  session  Thirty-seventh  Congress.) 

The  effort  has  sometimes  been  made  to  disparage  this  precedent  by  stating  that  it  was  made  under 
the  stress  of  a  necessity  to  secure  an  organization  of  the  House.  This  is  a  mistake.  The  decision  was 
made  fifteen  days  after  the  organization  of  the  House,  and  upon  a  question  which  did  not  involve  the 
question  of  the  validity  of  the  organization. 

The  resolution  adopted  by  the  Senate  in  1864  has  since  been  adopted  by  the  Senate  as  a  perma- 
nent rule,  and  now  appears  in  Rule  1. 

If,  in  opposition  to  these  precedents,  it  is  urged  that  they  were  made  because  of  special  circum- 
stances then  existing,  or  upon  certain  constitutional  theories  regarding  the  status  of  the  States  then  in 
rebellion,  the  answer  is  that  there  is  no  doubt  that  the  peril  of  an  opposite  construction  did  lead  to  the 
final  reversal  of  former  precedents.  And  justly  so.  One  of  the  truest  canons  of  constitutional  con- 
struction is  that  which  adopts  the  construction  which  best  effectuates  the  purpose  of  the  instrument  or 
provision  to  be  construed.  A  construction  which  leads  directly  to  the  practical  paralysis  of  the  legis- 
lative power  of  a  State  can  never  be  admitted. 

Professor  Farrar,  in  his  Manual  of  the  Constitution  of  the  United  States,  page  166,  says  in  relation 
to  the  constitutional  provision  respecting  a  quorum  that  "this  has  been  held  to  be  a  majority  of  the 
Members  actually  sworn  in  and  entitled  to  seats  at  the  time,  and  not  a  majority  of  a  full  delegation  from 
all  the  States." 

Another  precedent  arose  in  the  Senate  of  the  United  States  on  March  2,  1861,  when  a  proposition 
to  amend  the  Constitution  was  on  its  passage.  The  Constitution,  upon  this  point,  provides  that  "Con- 
gress, whenever  two-thirds  of  both  Houses  shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution,"  etc. 


836  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §  630 

When  the  vote  was  taken  in  the  Senate,  March  2, 1861,  Mr.  Trumbull  raised  the  point  of  order  that 
this  provision  required  two-thirds  of  all  the  Senators  which  all  the  States  were  entitled  to  elect.  The 
Presiding  Officer  overruled  the  point  of  order,  and  upon  appeal  the  ruling  was  sustained  by  a  vote  of  33 
to  1. 

Another  precedent  of  considerable  force  is  found  in  connection  with  the  ratification  of  the  fifteenth 
amendment  to  the  Constitution.  The  constitution  of  Indiana  provided  that  two-thirds  of  each  house 
should  constitute  a  quorum.  In  1867  certain  members  of  the  legislature  resigned  in  order  to  defeat  a 
vote  upon  the  ratification  of  the  amendment.  The  remaining  members  thereupon  decided  that  two- 
thirds  of  the  actual  membership  constituted  a  quorum,  and  proceeded  to  ratify  the  amendment.  Thia 
action  was  certified  in  forwarding  the  vote  of  the  legislature  on  the  ratification  of  the  amendment.  No 
question  was  raised  by  Congress  in  regard  to  the  legality  of  the  vote,  and  the  vote  of  Indiana,  as  thus 
cast,  was  accepted  and  counted. 

The  case  of  State  v.  Huggins  (1  McCord,  139),  decided  in  the  court  of  appeals  in  South  Carolina,  is 
in  point.  Eighteen  managers  of  election  were  appointed  by  the  legislature  for  the  district  of  George- 
town. Two  had  refused  to  qualify,  one  was  dead,  and  one  was  disqualified,  reducing  the  number  to 
fourteen.  It  was  held  by  the  court  that  a  majority  of  foiu-teen  properly  formed  the  board  of  managers 
for  the  district  to  determine  the  validity  of  the  election  of  a  sheriff,  a  majority  of  those  qualified  to  serve, 
and  not  a  majority  of  the  whole  number  appointed,  being  a  lawful  quorum. 

Under  the  provision  of  the  Constitution  of  the  United  States  that  "each  House  shall  be  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  Members,"  the  Senate  is  the  sole  judge  of  this  mat- 
ter. The  action,  opinion,  or  decision  of  any  other  body  is,  therefore,  entitled  to  such  weight  or  respect 
only  as  may  be  due  to  the  reasons  which  support  it. 

It  is  proper  to  consider  the  connection  of  the  supreme  court  of  the  State  of  South  Carolina  with 
this  case.  And  it  may  be  remarked  that  this  presents  the  most  remarkable  and,  perhaps,  unfortunate 
feature  of  the  controversy.  That  court  may  be  said,  without  injustice,  to  have  taken  part  in  the  purely 
political  contests  of  the  State.  Instead  of  leaving  such  contests  to  be  settled  by  other  departments  of 
the  government,  where  they  properly  belong,  the  court  engaged  in  those  contests. 

The  action  of  that  court  was  taken  under  these  circumstances:  After  the  Mackey  house  and  the 
Wallace  house  were  each  organized,  the  former  with  59  and  the  latter  with  57  members  declared  elected 
by  the  canvassing  board,  a  petition  was  presented  to  the  supreme  court  by  Mr  Wallace,  as  speaker  of  the 
Wallace  house,  asking  a  mandamus  to  compel  the  secretarj'  of  state  and  the  speaker  of  the  Mackey  house 
to  deliver  to  him  the  returns  of  the  election  for  governor  and  lieutenant-governor. 

By  Article  III,  section  4,  of  the  constitution  of  the  State  these  returns  are  required  to  be  sent  by 
the  managers  of  the  election  to  the  secretary  of  state,  who  is  required  to  return  them  to  the  speaker  of 
the  house  of  representatives. 

By  the  return  of  the  secretary  of  state  to  the  rule  to  show  cause,  issued  by  the  supreme  court 
upon  the  petition  above  stated,  it  appeared  that  that  officer  had  delivered  the  returns  to  the  speaker  of 
the  Mackey  house. 

The  return  of  the  speaker  of  the  Mackey  house  showed  that  he  had  received  the  returns  from 
the  secretary  of  state,  and  held  them  by  virtue  of  his  office  as  speaker,  and  he  denied  the  power  and 
jurisdiction  of  the  court  in  the  matter. 

The  coiut  thereupon  reserved  the  question  as  to  the  secretary  of  state  for  further  argimient  and 
dismissed  the  petition  as  to  Speaker  Mackey. 

In  coming  to  this  conclusion  the  court  said  that  "63  members  were  in  their  seats  when  Mr.  Wallace 
was  elected.  *  *  *  That  the  house  of  representatives  consisted  of  124  members,  and  63  were 
necessary  for  a  quorum  to  do  business.  *  *  *  That  aU  the  members  had  certificates  from  the 
secretary  of  state  except  8,  and  the  qualification  of  these  8  was  established  by  the  proceedings  in  this 
court.  *  *  *  That,  no  matter  what  was  the  character  of  the  certificates  they  had,  the  return  of  the 
board  of  State  canvassers  to  the  court,  showing  that  they  had  received  the  greatest  number  of  votes  in 
their  particular  counties,  entitled  them  to  access  to  the  floor  for  the  purpose  of  organization." 

In  taking  cognizance  of  this  matter  and  rendering  a  decision  therein  the  court  plainly  transgressed 
the  limits  of  its  judicial  powers,  and  its  decision  is  void  and  binding  on  no  one. 

The  constitution  of  the  State,  in  section  26  of  Article  I,  provides  that  "in  the  government  of  this 
Commonwealth  the  legislative,  executive,  and  judicial  powers  of  the  government  shall  be  forever 
separate  and  distinct  from  each  other." 


§  630  CONFLICTING   CREDENTIALS.  837 

That  the  due  organization  of  the  house  of  representatives  is  a  legislative  power  or  function,  and  not 
a  judicial  one,  seems  too  clear  for  argument.  Two  bodies  were  claiming  each  to  be  the  lawful  house  of 
rppresentatives.  This  was  a  purely  political  question.  It  was  a  question  between  two  sections  or  parts 
of  one  legislative  body,  each  claiming  to  represent  that  body.     No  other  questions  were  involved. 

^^"hether  Mackey  or  Wallace  was  entitled  to  have  the  election  returns  was  a  question  which  directly 
involved  the  action  of  the  members  of  the  legislative  body,  not  in  its  effects  upon  citizens  generally,  but 
in  relation  to  the  due  organization  of  that  body  under  powers  granted  to  it  alone  by  the  constitution. 

The  interposition  of  the  court  was  not  only  without  authority  but  was  also  absolutely  unnecessary. 
There  was  ample  power  in  the  lawful  house  of  representatives  to  afford  the  necessarj-  remedy  in  the 
matter,  if  any  remedy  was  needed. 

The  judgment  of  the  court  itself  shows  for  another  reason  its  want  of  jurisdiction  over  the  case.  It 
held  that  Mackey,  not  being  an  official  person,  could  not  be  reached  by  mandamus  and  dismissed  the 
petition.  It  could  grant  no  relief,  accomplish  no  result,  and  yet  it  proceeded  to  express  an  opinion. 
This  was  extrajudicial.  The  court  must  have  recognized  this  dilemma  at  the  outset,  namely,  if  Mackey 
is  speaker,  he  is  the  lawful  custodian  of  the  returns;  if  he  is  not  speaker,  he  is  not  such  an  official  person 
as  can  be  reached  by  mandamus.  Hence,  in  either  event,  no  writ  could  have  been  issued,  and  nothing 
remained  but  to  dismiss  the  petition. 

Under  these  circumstances  the  expression  of  an  opinion  that  Wallace  was  the  speaker  and  that  63 
members  are  necessary  to  form  a  quorum  was  utterly  uncalled  for,  a  mere  empty  obiter  dictum. 

When,  therefore,  it  is  claimed  that  the  supreme  court  of  the  State  is  empowered  to  construe  the 
constitution,  and  hence  to  decide  upon  the  question  of  a  quorum,  the  answer  is  that  this  is  true  only 
when  the  court  has  a  proper  case  before  it  requiring  the  decision  of  such  a  question. 

But,  further,  it  is  to  be  noted  that  the  court  in  giving  this  opinion  assumed  the  fact,  now  denied, 
that  124  members  of  the  house,  instead  of  116,  had  been  in  fact  chosen. 

The  supreme  court  gave  no  reason  for  the  opinion  that  63  members  were  necessary  to  form  a  quorum. 
It  was  their  unsupported  opinion,  a  dictum  in  every  sense,  not  expressed  in  the  course  of  reasoning 
or  discussion  leading  to  a  judgment,  and  whoUy  unsupported  by  argument. 

In  Carroll  v.  Lessee  of  Carroll  ( 16  How. ,  28 )  Judge  Curtis  said :  '  This  court,  and  other  courts  organ- 
ized under  the  common  law,  has  never  held  itself  bound  by  any  part  of  an  opinion  which  was  not  needful 
to  the  ascertainment  of  the  right  or  title  in  question  between  the  parties.  In  Cohens  r.  Virginia  (6 
Wheat.,  399)  this  court  was  much  pressed  with  some  portion  of  its  opinion  in  the  case  of  Marburj-  v. 
Madison.  And  Mr.  Chief  Justice  Marshall  said :  '  It  is  a  maxim  not  to  be  disregarded  that  general  expres- 
sions in  every  opinion  are  to  be  taken  in  connection  with  the  case  in  which  those  expressions  are  used. 
If  they  go  beyond  the  case  they  may  be  respected,  but  ought  not  to  control  the  judgment  in  a  subsequent 
suit,  when  the  very  point  is  presented.  The  reason  of  this  maxim  is  obvious.  The  question  actually 
before  the  court  is  investigated  with  care,  and  considered  in  its  full  extent;  other  principles  which 
may  serve  to  illustrate  it  are  considered  in  their  relation  to  the  case  decided,  but  their  possible  bearing 
on  all  other  cases  is  seldom  completely  investigated.'  The  cases  of  ex  parte  Christy  (3  How.,  292)  and 
Jenness  v.  Peck  (7  How.,  612)  are  an  illustration  of  the  rule  that  any  opinion  given  here  or  elsewhere 
can  not  be  relied  on  as  a  binding  authority  unless  the  case  called  for  its  expression.  Its  weight  of  reason 
must  depend  on  what  it  contains." 

The  conclusion  on  this  point  is  that  the  construction  of  that  provision  of  the  Constitution  of  the 
United  States  relative  to  a  quorum  given  by  both  Houses  of  Congress  is  applicable  to  a  like  provision 
in  the  constitution  of  the  State  of  South  Carolina. 

It  is  a  construction  dictated  by  sound  reason  and  public  policy.  And  if  it  is  a  safe  and  sound 
construction  of  the  Constitution  of  the  United  States,  it  is  equally  a  safe  and  sound  construction  of  the 
constitution  of  the  State  of  South  Carolina. 

A  quorum,  therefore,  of  either  house  of  the  legislature  of  South  Carolina  must  be  held  to  be  a  majority 
of  the  members  chosen. 

The  minority  views  hold : 

Theonly  real  question  is  whether  the  house  of  representatives  of  thelegislature  which  it  is  claimed 
elected  Mr.  Corbin  was  a  legal  house  or  a  legal  quorum  of  a  house  under  the  constitution  and  laws  of  South 
Carolina. 

By  section  4,  Article  II,  of  the  constitution  it  is  provided  that  "the  house  of  representatives  shall 
consist  of  124  members." 


838  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  631 

By  section  14,  Article  II,  it  is  provided  that  ' '  a  majority  of  each  house  shall  constitute  a  quonun 
to  do  business;  but  a  smaller  niunber  may  adjourn  from  day  to  day  and  may  compel  the  attendance  of 
absent  members  in  such  manner  and  under  such  penalties  as  may  be  provided  by  law." 

It  is  difficult  to  see  how  language  could  more  plainly  define  what  should  be  a  house,  or  what  should 
be  a  quorum  of  a  house,  or  what  only  a  less  number  than  a  quorum  had  power  to  do.  Nor  is  there  any- 
thing in  law,  morals,  or  party  exigency  which  can  justify  a  resort  to  construction  or  sophistry  to  confuse 
Buch  plain  language.  The  number  of  members  who  assembled  in  what  is  called  the  Mackey  house, 
which  pretended  to  elect  Corbin,  was  59.  Clearly  this  was  neither  a  house  nor  the  quorum  of  a  house,  as 
plainly  defined  by  the  constitution  of  the  State,  and  this  number  had  no  power  except  to  adjourn  from 
day  to  day  and  compel  the  attendance  of  absent  members.  But  this  number  proceeded  to  organize  as 
a  legal  quorum  to  do  business. 

The  pretext  for  this  extraordinary  assumption  of  power  by  5S>  membeis  was  that  the  board  of  State 
canvassers  had  only  issued  certificates  of  election  to  116  members,  and  the  claim  is  that  59  is  a  majority 
of  116.  But  this  very  statement  admits  that  a  quonmi  of  the  house  was  certified  as  elected.  The  59, 
then,  are  left  without  excuse  for  failing  to  exercise  their  only  power  under  the  constitution — '  'to  compel 
the  attendance  of  absent  members."  But  the  facts  show  that  the  people  in  fact  elected  124  members, 
a  full  house.  The  precinct  commissioners  and  the  county  commissioners  of  election,  in  all  the  counties, 
respectively,  made  out  and  forwarded  the  statements  required  by  law  showing  the  votes  cast  at  the  elec- 
tion. The  board  of  State  canvassers  refused  to  cast  up  the  votes  in  the  counties  of  Edgefield  and  Laurens, 
under  the  shallow  pretext  that  they  were  unable  to  determine  whether  the  elections  in  those  counties 
were  legal.  They  refused  t«  discharge  their  plain  ministerial  duty  of  casting  up  the  votes  and  thereby 
"determine  and  declare  what  persons  had  been  by  the  greatest  number  of  votes  duly  elected,"  but 
excused  themselves  from  this  duty  by  pretending  they  were  not  able  to  determine  whether  there  had  been 
legal  elections  in  those  counties.  This  was  a  question  which,  under  the  constitution,  each  house  alone 
had  authority  to  determine,  and  which  the  board  of  State  canvassers,  by  plain  language  of  the  act  creating 
it,  is  forbidden  to  determine. 

In  due  time,  also,  the  house  of  representatives  did  determine  that  there  had  been  elections  held 
in  the  counties  of  Edgefield  and  Laurens,  and  the  returns  very  plainly  showed  who  had  been  elected, 
and,  in  fact,  the  full  house  of  124  members  were  elected.  Both  in  fact  and  law,  therefore,  59  was  not 
a  quorum  of  the  house  to  do  business,  and  Mr.  Corbin  was  not  elected  by  a  legal  legislature. 

(3)  The  majority  discuss  at  length  the  action  of  the  State  canvassers  in  refusing 
credentials  to  the  persons  claiming  election  from  the  two  disturbed  counties,  finding 
that  action  legal  and  proper.  The  minority  do  not  discuss  the  subject  at  length, 
saying  merely  that  their  action  was  "mere  trickery"  and  should  not  receive  the 
approbation  of  the  Senate. 

631.   The  case  of  Corbin  v.  Butler,  continued. 

A  Senate  committee's  discussion  of  the  functions  of  credentials  in  the 
organization  of  a  legislature. 

By  a  letter  presented  and  read  to  the  Senate  a  contestant  withdrew  his 
claim  to  a  seat  after  the  committee  had  reported  in  his  favor. 

(4)  A  question  as  to  the  organization  of  the  State  house  of  representatives  is 
thus  discussed  by  the  majority: 

Passing  now  from  questions  affecting  the  legality  of  the  action  of  the  board  of  canvassers,  we  come  to 
questions  concerning  the  mode  of  organizing  the  Mackey  house,  and  especially  the  exclusion  therefrom 
of  all  persons  not  declared  elected  by  the  canvassing  board. 

The  legal  and  parliamentary  principles  on  which  the  Mackey  house  was  organized  may  be  stated  as 
follows: 

First.  That  no  persons  except  those  declared  elected  and  duly  returned  by  the  board  of  State  can- 
vassers and  holding  certificates  of  the  secretary  of  state  were  entitled  by  law  or  usage  to  be  placed  upon 
the  roll.     (Gushing,  sees.  229  and  240.) 


§  631  CONFLICTING   CKEDENTIALS.  839 

Second.  That  the  organization  of  the  house  must  be  effected  by  those  pereona  only  whose  election 
had  thus  been  declared  by  the  board  of  State  canvassers  and  certified  by  the  secretary  of  state  in  accord- 
ance with  the  law  of  the  State. 

Third.  That  all  other  persons  claiming  to  be  entitled  to  seats  in  the  house  of  representatives  must 
submit  their  claims  to  the  house  after  its  organization  by  the  members  whose  seats  were  undisputed. 
(Cashing,  sees.  229  and  240.) 

"  It  is  to  be  observed  in  the  outset  that  when  a  number  of  persons  come  together,  each  claimiDg  to  be 
a  member  of  a  legislative  body,  those  persons  who  hold  the  usual  credentials  of  membership  are  alone 
entitled  to  participate  in  the  organization. "     (McCrary's  Law  of  Elections,  377.) 

"  It  is  apparent  that  the  case  of  Sykes  v.  Spencer  is  not  in  conflict  with  the  rule  that  in  the  organiza- 
tion of  legislative  bodies  persons  holding  the  usual  credentials  are  alone  authorized  to  act. "  (McCrary's 
Law  of  Elections,  392.) 

In  the  well-known  case  of  Kerr  ii.  Trego  (47  Pa.  S.  R.  — ),  cited  in  Brightly's  Leading  Cases  on  Elec- 
tions (p.  632),  Chief  Justice  Lowrie,  of  the  supreme  court  of  Pennsylvania,  laid  down  the  following 
principle: 

"On  the  division  of  a  body  that  ought  to  be  a  unit,  the  test  of  which  represents  the  legitimate  social 
succession,  is,  which  of  them  has  maintained  the  regular  forms  of  organization  according  to  the  law  and 
usages  of  the  body,  or,  in  the  absence  of  these,  according  to  the  laws,  customs,  and  usages  of  similar  bodies 
in  like  cases,  or  in  analogy  to  them.     This  is  the  uniform  rule  in  such  cases." 

And  in  the  same  case,  speaking  of  the  custom  of  the  clerk  of  the  former  organization  taking  charge 
of  the  organization  of  the  new  body,  he  says  (p.  638): 

"It  has  the  sanction  of  the  common  usage  of  every  public  body  into  which  only  a  portion  of  new 
members  is  annually  elected.  It  is  the  periodical  form  of  reorganizing  the  select  council  and  the  senate 
of  the  State,  and  also  the  form  of  organizing  the  Senate  of  the  United  States  on  the  meeting  of  a  new 
Congress,  when  the  Vice-President  does  not  appear  and  the  last  President  pro  tempore  does;  and  we 
understand  this  custom  to  be  uniform  throughout  the  United  States,  though  this  is  not  very  important. 
And  when  there  is  a  president  whose  term  as  a  member  has  expired,  then  the  functions  of  the  clerks  con- 
tinue, and  they  in  all  cases  act  as  the  organs  of  reorganizing  the  body,  and  continue  to  hold  office  until 
their  successors  are  chosen  and  qualified.  Our  State  and  Federal  Houses  of  Representatives  are  illus- 
tration enough  of  this.  So  un  iversal  is  this  mode  of  organizing  all  sorts  of  legislative  and  municipal  bodies 
that  all  departures  from  it  can  be  justified  only  as  founded  on  special  and  peculiar  usages  or  on  positive 
legislation.  Whenever  this  form  is  adhered  to,  a  schism  of  the  body  becomes  impossible,  though  the  proc- 
ess of  organization  may  be  very  tardy. 

"It  is  objected  that  a  rule  that  attributes  so  much  power  to  the  officers  of  the  previous  year 
gives  them  an  advantage  which  they  may  use  arbitrarily  and  fraudulently  against  the  new  members, 
so  as  to  secure  to  themselves  an  illegitimate  majority.  No  doubt  this  may  be  so,  but  no  law  can  guard 
against  such  frauds  so  as  to  entirely  prevent  them,  just  as  it  can  not  entirely  prevent  stealing  and  perjury 
and  bribery;  the  people  are  liable  to  such  frauds  at  every  step  in  the  processes  of  an  election  or  organiza- 
tion. But  so  much  more  the  need  for  order  and  law  in  this  part  of  the  process;  the  law  can  dictate  that, 
though  it  can  not  furnish  honesty  and  sound  judgment  to  the  actors  in  it.  That  the  law  and  order  that 
we  have  announced  have  existed  so  long  and  so  generally  is  proof,  at  least,  that  they  are  better  than  no 
law  at  all." 

In  Wilson's  Digest  of  Parliamentary  Law,  section  1603,  page  221,  this  author  says: 

"At  the  commencement  of  every  regular  session  the  Clerk  of  the  House  opens  the  session  by  call- 
ing the  names  of  Members  by  States  and  Territories,  if  in  Congress,  and  by  counties  if  in  State  legislative 
assemblies.  If  a  quorum  answer  to  their  names,  he  will  put  the  following  question:  'Is  it  the  pleasure 
of  the  House  to  proceed  to  the  election  of  a  Speaker? '  If  decided  in  the  aflSrmative,  tellers  are  gener- 
ally appointed  to  conduct  the  vote. " 

This  seems  to  be  the  universal  custom  in  the  organization  of  legislative  bodies,  and  such  custom 
not  only  prevails  in  South  Carolina,  but  is  specially  established  by  the  rules  of  the  house  of  representa- 
tives of  this  State. 

Rule  80  of  the  rules  of  the  house  of  representatives  of  this  State  is  as  follows: 

"In  all  cases  not  determined  by  these  rules,  or  by  the  laws,  or  by  the  constitution  of  this  State, 
as  ratified  on  the  14th,  15th,  and  16th  days  of  April,  1868,  this  house  shall  conform  to  the  parliamentary 
law  which  governs  the  House  of  Representatives  of  the  United  States  Congress. " 


S40  PRECEDENTS   OF   THE   HOUSE   OF   REPEESENTATIVES.  §  631 

Rule  81  is  as  follows: 

"These  rules  shall  be  the  rules  of  the  house  of  representatives  of  the  present  and  succeeding 
general  assemblies  until  otherwise  ordered.  " 

Turning  now  to  Barclay's  Digest  (pp.  44  et  seq.,  and  126),  we  find  that  the  law  governing  the  House 
of  Representatives  of  the  United  States  Congress  requires  the  Clerk  of  the  last  House  to  make  up  the 
roll  of  the  Members  of  the  new  House  by  placing  thereon  the  names  of  such  persons  only  whose  creden- 
tials show  "that  they  were  regularly  elected;"  that  having  ascertained,  by  a  call  of  this  roll,  that  a  quo- 
rum is  present,  the  Clerk  then  proceeds  to  call  the  names  of  the  Members  for  the  choice  of  a  Speaker; 
the  Speaker,  being  chosen,  assumes  the  duties  of  presiding  officer,  and,  after  swearing  in  the  Members, 
the  oath  of  office  being  first  administered  to  him,  proceeds  to  complete  the  organization.  Pending  the 
election  of  a  Speaker,  the  Clerk  preserves  order  and  decorum. 

Upon  the  question  of  the  right  of  the  claimants  from  Edgefield  and  Laurens  counties  to  he  placed 
upon  the  roll  and  to  participate  in  the  organization,  the  following  citation  from  Cushing's  Law  and 
Practice  of  Legislative  Assemblies,  section  229,  page  87,  is  in  point: 

"The  right  to  assume  the  functions  of  a  member,  in  the  first  instance,  and  to  participate  in  the 
preliminary  proceedings  and  organization,  depends  wholly  and  exclusively  upon  the  return  or  cer- 
tificate of  election,  those  persons  who  have  been  declared  elected  and  are  duly  returned  being  consid- 
ered as  members  until  their  election  is  investigated  and  set  aside  and  those  who  are  not  so  returned 
being  excluded  from  exercising  the  function  of  members,  even  though  duly  elected,  until  their  election 
is  investigated  and  their  right  admitted." 

To  the  same  effect  is  section  141  (p.  52)  of  the  same  work,  which  has  already  been  cited  in  con- 
nection with  the  action  of  the  Supreme  Court. 

In  section  238  (p.  91)  of  the  same  work,  in  discussing  the  principles  of  parliamentary  law  govern- 
ing the  assembly  and  organization  of  legislative  bodies,  Cu.'ihing  says: 

"Hence  it  has  occurred  more  than  once  that  struggles  for  political  power  have  begun  among  the 
members  of  our  legislative  assemblies,  even  before  their  organization;  and  it  has  happened,  on  the  one 
hand,  that  persons  whose  rights  of  membership  were  in  dispute,  and  who  had  not  the  legal  and  regular 
evidence  of  election,  have  taken  upon  themselves  the  functions  of  members,  and,  on  the  other,  that 
persons  having  the  legal  evidence  of  membership  have  been  excluded  from  participating  in  the 
proceedings." 

In  order  to  avoid  such  difficulties,  this  distinguished  writer  lays  down  the  following  principles  in 
section  240,  which  are  applicable  to  the  question  now  under  consideration: 

"That  no  person  who  is  not  duly  returned  is  a  member,  even  though  legally  elected,  until  his 
election  is  established. 

"That  those  members  who  are  duly  returned,  and  they  alone  (the  members  whose  rights  are  to  be 
determined  being  excluded),  constitute  a  judicial  tribunal  for  the  decision  of  all  questions  of  this 
nature." 

In  Kerr  v.  Trego  (Brightly's  Election  Cases,  p.  636),  already  cited,  the  chief  justice  said: 

"In  all  bodies  that  are  under  law,  the  law  is  that  where  there  has  been  an  authorized  election  for 
the  office  in  controversy  the  certificate  of  election  which  is  sanctioned  by  law  or  usage  is  a  prima  facie 
written  title  to  the  office,  and  can  be  set  aside  only  by  a  contest  in  the  form  prescribed  by  law.  This  is 
not  now  disputed.  No  doubt  this  gives  great  power  to  dishonest  election  officers,  but  we  know  no 
remedy  for  this  but  by  the  choice  of  honest  men." 

It  is  proper  here  in  this  connection  to  again  refer  to  the  language  already  quoted  from  the  same 
authority  (p.  638): 

"It  is  objected  that  a  rule  that  attributes  so  much  power  to  the  officers  of  the  previous  year  gives 
them  an  advantage  which  they  may  use  arbitrarily  and  fraudulently  against  the  new  members,  so  as 
to  secure  to  themselves  an  illegitimate  majority.  No  doubt  this  may  be  so;  but  no  law  can  guard  against 
such  frauds  so  as  to  entirely  prevent  them,  just  as  it  can  not  entirely  prevent  stealing  and  perjury  and 
bribery;  the  people  are  liable  to  such  frauds  at  ever\'  step  in  the  processes  of  an  election  or  organization. 
But  so  much  the  more  need  for  order  and  law  in  this  part  of  the  process:  the  law  can  dictate  that,  though 
it  can  not  furnish  honesty  and  sound  judgment  to  the  actors  in  it.  That  the  law  and  order  which  we 
have  announced  have  existed  so  long  and  so  generally  is  proof,  at  least,  that  they  are  better  than  no 
law  at  all. " 


§  632  CONFLICTING   CEEDENTI.VLS.  841 

Applying  the  law  as  now  stated  to  the  facts  in  the  present  instance,  it  is  clear,  first,  that  there  were 
no  representatives  from  Edgefield  and  Laurens  counties  ha^'ing  certificates  of  election  according  to  the 
law  and  usage  of  this  State,  and,  second,  that  under  the  law,  without  sucli  certificates,  the  clerk  had  no 
right  to  place  the  names  of  any  persons  upon  the  roll  of  the  house  as  representatives  from  these  counties. 

It  follows  that  59  members  of  the  house  of  representatives  who  met  in  the  statehouse  at  Columlna 
and  organized  lay  the  election  of  E.  W.  M.  Mackey  as  speaker  were  lawfully  convened,  were  lawfully 
organized,  and,  under  the  constitution  of  South  Carolina,  constituted  the  lawful  house  of  representatives 
of  that  State.  Though  less  than  a  majority  of  all  the  possible  members  of  that  body  (124),  there  was  a 
"quorum  to  do  business,"  which  consisted  of  a  "majority  of  the  members  chosen" — a  majority  of  all 
those  holding  lawful  certificates  of  election. 

This  house  of  representatives,  in  connection  with  the  unquestioned  senate,  constituting  together, 
as  they  did,  the  legislature  of  the  State  of  South  Carolina,  proceeded  on  the  12th  day  of  December,  1876, 
to  the  election  of  a  Senator  to  represent  that  State  in  the  Senate  of  the  United  States  for  the  term  of  six 
years,  to  commence  on  the  4th  of  March,  1877.  The  election  was  duly  held,  duly  determined  and 
declared,  and  D.  T.  Corbin  was  duly  and  formally  declared  elected  Senator,  and  subsequently  he  was 
duly  commissioned  as  such  by  the  governor  of  the  State.  He  is,  therefore,  entitled,  on  the  merits  of 
his  case,  to  a  seat  in  the  Senate  as  a  Senator  from  South  Carolina  for  the  term  of  six  years,  commencing 
on  the  4th  of  March.  A.  D.  1877. 

Finally,  after  reviewing  the  circumstances  of  the  election  of  Mr.  Butler  by  a 
legislature  consisting  of  one  house  only,  the  majority  recommended  this  resolution: 

Resolved,  That  David  T.  Corbin  was,  on  the  12th  day  of  December,  A.  D.  1876,  duly  elected  Ijy 
the  legislature  of  the  State  of  South  Carolina  a  Senator  from  that  State  in  the  Congress  of  the  United 
States  for  the  term  of  six  years,  commencing  on  the  4th  day  of  March,  A.  D.  1877,  and  that,  as  such, 
he  is  entitled  to  have  the  oath  of  office  administered  to  him. 

On  February  25,  1879,'  near  the  end  of  the  Congress,  Mr.  Cameron  moved  that 
the  Senate  proceed  to  the  consideration  of  the  resolution.  Tliis  motion  was 
disagreed  to — yeas  25,  nays  36. 

On  February  28  ^  the  Vice-President  laid  before  the  Senate  a  letter  from  David 
T.  Corbin  withdrawing  his  claim  to  the  seat.  He  stated  that  he  did  not  by  so  doing 
concede  that  his  claim  was  not  legal,  but  he  believed  that  it  would  not  be  acted  on, 
and  a  further  prosecution  in  the  next  Congress  would  be  unavailing. 

The  letter  was  laid  on  the  table. 

632.  The  Senate  election  case  of  Lucas  v.  Faulkner,  from  West  Vir- 
ginia, in  the  Fiftieth  Congress. 

There  being  conflicting  credentials  arising  from  a  question  as  to  the 
legality  of  election,  and  an  allegation  of  disqualification,  the  Senate 
determined  final  right  before  either  claimant  was  seated. 

In  electing  a  Senator  the  State  legislature  acts  under  authority  of  the 
Federal  Constitution,  and  a  State  constitution  and  laws  conflicting  there- 
with are  void. 

No  State  may  prescribe  qualifications  for  a  United  States  Senator  in 
addition  to  those  prescribed  by  the  Federal  Constitution. 

On  December  5,  1887,^  in  the  Senate,  the  President  pro  tempore  presented  the 
certificate  of  the  appointment,  by  the  governor  of  West  Virginia,  of  Daniel  B.  Lucas 
as  Senator  from  that  State,  to  hold  the  office  "until  the  next  meeting  of  the  legisla- 
ture of  said  State  having  authority  to  fiH"  the  vacancy  occasioned  by  the  expiration 
of  the  term  of  Johnson  N.  Camden  on  March  3,  1887. 

'■  Record,  p.  1882.  "  Record,  p.  2028.         '  First  session  Fiftieth  Congress,  Record,  pp.  1^. 


842 


PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES. 


§  632 


Then  the  President  pro  tempore  laid  before  the  Senate  the  credentials  of  Charles 
J.  Faulkner,  chosen  by  the  legislature  of  West  Virginia  a  Senator  for  the  term 
beginning  March  4,  1887.  These  credentials,'  signed  by  the  governor  and  attested 
by  the  secretary  of  state  under  the  seal  of  the  State,  not  only  certified  the  election 
in  the  usual  form,  but  contain  a  recitation  at  length  of  the  constitutional  conditions 
imder  which  the  legislature  acted  and  of  the  proceedings  of  the  legislature  properly 
attested. 

The  President  pro  tempore  also  laid  before  the  Senate  the  protest  of  Daniel  B. 
Lucas,  wherein  it  was  urged  that  the  legislature  had  no  constitutional  power  to  elect 
at  the  time  it  chose  Mr.  Faulkner,  and,  further,  that  Mr.  Faulkner  was  disqualified. 

During  the  swearing  in  of  the  Senators-elect  Mr.  George  F.  Hoar  objected  to 
the  administration  of  the  oath  to  Mr.  Faulkner,  and  the  latter  stood  aside,  as  it 
seemed  proper  that  a  committee  should  examine  the  case  before  the  administration 
of  the  oath. 

On  December  12,"  on  motion  of  Mr.  Hoar,  the  papers  in  the  case  were  referred 
to  the  Couunittee  on  Privileges  and  Elections. 

On  December  14^  Mr.  Hoar  submitted  the  report  of  the  committee.  This 
report  gave  the  following  statement  of  facts: 

The  Constitution  of  the  United  States,  Article  I,  section  3,  provides: 

"The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from  each  State,  chosen  by 
the  legislature  thereof,  for  six  years;  *  *  *  if  vacancies  happen,  by  resignation  or  otherwise,  during 
the  recess  of  the  legislature  of  any  State,  the  executive  thereof  may  make  temporary  appointments  until 
the  next  meeting  of  the  legislature,  which  shall  then  fill  such  vacancies. 

"Sec.  4.  The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives 
shall  be  prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress  may  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of  choosing  Senators." 

The  Revised  Statutes  of  the  United  States,  Title  II,  section  14,  provide: 

"The  legislature  of  each  State  which  is  chosen  next  preceding  the  expiration  of  the  time  for  which 
any  Senator  was  elected  to  represent  such  State  in  Congress  shall,  on  the  second  Tuesday  after  the 
meeting  and  organization  thereof,  proceed  to  elect  a  Senator  in  Congress." 

Section  15  prescribes  the  manner  of  such  election.     Section  16  is  as  follows: 

"Whenever,  on  the  meeting  of  the  legislature  of  any  State,  a  vacancy  exists  in  the  representation 
of  such  State  in  the  Senate,  the  legislature  shall  proceed,  on  the  second  Tuesday  after  the  meeting  and 
organization,  to  elect  a  person  to  fill  such  vacancy,  in  the  manner  prescribed  in  the  preceding  section 
for  the  election  of  a  Senator  for  a  full  term." 

The  Constitution  further  provides,  Article  I,  section  5: 

"Each  house  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  members." 

Of  course  the  opinion  of  any  other  tribunal  can  have  no  weight  as  an  authority  in  determining 
any  question  as  to  the  validity  of  the  election  of  a  Senator.  But  it  may  be  proper  to  note  that  the  con- 
stitutional authority  of  Congress  to  prescribe  the  time  and  manner  of  electing  Senators,  although  it  may 
not  exhaust  the  whole  subject,  but  still  leaves  in  force  the  regulations  of  a  State,  in  regard  to  the  same 
subject,  not  in  conflict  with  its  own,  is  expressly  affirmed  by  the  Supreme  Court  of  the  United  States 
in  ex  parte  Seibold  (100  U.  S.,  371). 

The  constitution  of  West  Virginia  provides  that — 

"The  legislature  shall  assemble  at  the  seat  of  government  biennially,  and  not  oftener,  unless  con- 
vened by  the  governor.     The  first  session  of  the  legislature,  after  the  adoption  of  this  constitution,  shall 

'  For  copy  of  credentials  see  Record,  pp.  1-3. 

^Record,  p.  36. 

2  Record,  pp.  53,  54;  Senate  Report  No.  1. 


§  632  CONFLICTING   CREDENTIALS,  843 

commence  on  the  third  Tuesday  of  November,  1872;  and  the  regular  biennial  session  of  the  legislature 
shall  commence  on  the  second  Wednesday  of  January,  1875,  and  every  two  years  thereafter  on  the  same 
clay.     (Art.  VI,  sec.  7.)" 

Article  VII,  section  7,  is  as  follows: 

"The  governor  may,  on  extraordinary  occasions,  convene,  at  his  own  instance,  the  legislature; 
but,  when  so  convened,  it  shall  enter  upon  no  business  except  that  stated  in  the  proclamation  by  which 
it  was  called  together." 

The  term  of  Mr.  Camden  as  a  Senator  from  West  Virginia  expired  on  the  4th  day  of  March,  1887. 
The  regular  biennial  session  of  the  legislature  began  on  the  second  Wednesday  of  January  in  pursuance 
of  the  provisions  of  the  constitution  cited. 

At  that  session  the  legislature  proceeded  to  ballot  for  a  successor  to  Mr.  Camden,  but  no  person 
obtained  a  majority  of  the  ballots  and  it  adjourned  without  making  a  choice.  Thereafter,  on  the  5th  day 
of  March,  the  governor  appointed  Mr.  Lucas,  in  the  recess  of  the  legislature,  and  issued  to  him  a  certifi- 
cate declaring  his  appointment  as  Senator  in  the  Senate  of  the  United  States  "until  the  next  meeting  of 
the  legislature  having  authority  to  fill  such  vacancy."     Mr. Lucas  accepted  the  appointment. 

On  the  same  5th  day  of  March  the  governor  issued  the  following  proclamation: 

The  report  gives  this  proclamation  in  full.  It  summoned  the  legislature  to 
convene  for  eight  specified  objects,  no  one  of  which  referred  to  the  election  of  a 
Senator. 

Having  set  forth  the  facts  the  report  discusses  two  questions  arising  in  the  case. 

(1)  As  to  the  action  of  the  legislature: 

The  legislature  met  in  special  session,  pursuant  to  said  call,  and  duly  elected  Mr.  Faulkner  to  fill 
the  existing  vacancy  in  the  Senate  of  the  United  States,  if  it  had  authority  so  to  do. 

The  Constitution  of  the  United  States  is  the  supreme  authority,  and  all  provisions  of  the  constitu- 
tion or  statutes  of  any  State  are  void  and  of  no  effect  unless  they  can  be  so  construed  as  not  to  conflict 
with  its  provisions. 

The  Constitution  of  the  United  States  expressly  provides  that  the  vacancy  which  happens  during 
the  recess  of  the  legislature  of  any  State  shall  be  filled  by  the  legislature  at  its  next  meeting.  The  statute 
of  the  United  States  merely  prescribes  the  time  and  manner  in  which,  at  such  meeting,  the  constitutional 
mandate  shall  be  obeyed.  The  only  question,  therefore,  which  can  possibly  arise  is  whether  the  body 
which  sat  in  piusuance  of  the  call  of  the  governor  was  a  legislature  in  the  constitutional  sense. 

It  is  claimed  by  Mr.  Lucas  that,  as  this  body  was  not  permitted  to  enter  upon  any  legislative 
business  except  such  as  related  to  the  eight  matters  set  forth  in  the  call,  it  was  not  a  legislature,  but  was 
a  body  deriving  its  power  from  the  will  of  the  executive,  and  so  was  exerting  a  certain  executive  or 
quasi  executive  function,  something  like  that  which  is  exercised  by  the  Senate  in  giving  its  assent  to  the 
nominations  of  public  officers. 

But  it  seems  to  us  that  this  view  can  not  be  supported.  In  the  first  place,  the  body  is  expressly 
declared  by  the  constitution  of  West  Virginia  itself  to  be  a  legislature.  In  the  next  place,  the  function 
which  it  exercised  in  making  enactments  upon  the  eight  great  subjects  mentioned  in  the  call  of  the 
governor  is  clearly  a  legislative  function.  Among  them,  under  Articles  I  and  II,  is  the  making  appro- 
priations of  public  money;  under  Article  III,  the  regulating  of  procedure  in  criminal  cases;  under 
Articles  V,  VI,  and  VII,  would  exist  the  power  to  declare  certain  high  crimes  and  misdemeanors;  and 
under  Article  VIII,  to  give  the  assent  of  the  State  to  the  establishment  and  confirmation  of  its  boundary 
lines. 

It  is  difficult  to  conceive  of  any  definition  of  the  word  "legislature  "  which  would  not  include  a  body 
capable  of  passing  and  actually  passing  such  enactments  as  these.  They  can  be  binding  on  the  people 
of  the  Commonwealth  only  as  legislation.  They  would  be  subject  to  be  construed  and  enforced  by  the 
courts  of  that  State  only  in  their  character  as  laws. 

But  it  seems  to  the  committee  that  the  construction  of  the  State  constitution  of  West  Virginia,  upon 
which  the  above  argument  is  based,  is  one  which  will  not  bear  examination.  When  that  constitution 
provided  that  the  legislature  so  convened  in  extraordinary  occasions  "should  enter  upon  no  business 
except  that  stated  in  the  proclamation  by  which  it  was  called  together,"  the  people  must  be  presimied 


844 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§  633 


to  have  liad  in  mind  business  to  be  transacted  under  authority  of  the  State  constitution,  and  not  to  have 
intended  to  prohibit  the  performance  of  duties  imposed  upon  it  by  the  supreme  authority  of  the 
Constitution  of  the  United  States. 

If  the  argument  be  sound  that  a  legislative  body  which  is  prohibited  from  entering  upon  certain 
classes  of  business,  or  which  is  confined  to  certain  classes  of  business  clearly  legislative  in  their  character, 
is  no  legislature  in  the  constitutional  sense,  its  logic  would  require  us  to  declare  that  the  legislature  of 
every  State  whose  bill  of  rights  excludes  it  from  large  domains  of  legislation  is  no  legislative  body.  If, 
under  the  same  provision  of  the  Constitution  of  the  United  States,  the  act  of  Congi-ess  had  fixed  a  day 
for  holding  elections  for  Representatives  to  Congress,  and  the  State  constitution  or  laws  should  prohibit 
the  assembling  of  the  people  for  such  elections  on  the  day  so  fixed,  it  would,  we  suppose,  be  held  clear 
that  the  act  of  the  State  would  be  void  and  the  authority  of  the  act  of  Congress  would  prevail. 

We  can  not  see  any  difference  between  such  prohibition  of  a  State  constituticm  api)licable  to  the 
constitutional  electors  of  Senators,  who  are  members  of  the  State  legislature,  and  the  constitutional 
electors  of  representatives,  who  are  a  body  of  electors  authorized  to  vote  for  members  of  the  most  numer- 
ous branch  of  the  State  legislature. 

^^'e  are  therefore  clearly  of  opinion  that  the  election  of  Mr.  Faulkner  at  the  special  session  of  the 
legislature  of  West  Virginia  was  valid. 

(2)  As  to  the  qualifications  of  Mr.  Faulkner,  the  report  holds: 

It  is  insisted  that  Mr. Faulkner  was  ineligible  to  the  office  of  Senator  by  reason  of  the  provision  of 
the  constitution  of  West  Virginia : 

"No  judge  during  his  term  of  office  shall  practice  the  profession  of  law  or  hold  any  other  office, 
appointment,  or  public  trust,  under  this  or  any  other  government,  and  the  acceptance  thereof  shall 
vacate  his  judicial  office.  Nor  shall  he,  during  his  continuance  therein,  be  eligible  to  any  political 
office."     (Art.  VIII,  sec.  16.) 

But  we  are  of  opinion  that  no  State  can  prescribe  any  qualification  to  the  office  of  United  States 
Senator  in  addition  to  those  declared  in  the  Constitution  of  the  United  States.  (See  the  debates  on  the 
case  of  Mr.  Trumbull,  supra,  p.  148.) 

This  provision,  according  to  the  settled  rule  of  construction,  must  be  so  construed  as  to  attribute 
to  it  a  meaning  not  inconsistent  with  the  constitution  of  West  Virginia.  This  can  well  and  properly  be 
done  by  holding  it  to  mean  "eligible  to  office  under  the  constitution  of  West  Virginia." 

Therefore  the  committee  concluded : 

We  therefore  find  that  Mr.  Faulkner  has  been  constitutionally  elected  to  the  seat  in  the  Senate 
made  vacant  by  the  expiration  of  the  term  of  Mr.  Camden  and  that  he  is  entitled  to  take  the  oath. 

We  report  the  following  resolutions: 

Resolved,  That  Daniel  B.  Lucas  is  not  entitled  to  a  seat  in  the  Senate  from  the  State  of  West 
Virginia. 

Resolved,  That  Charles  J.  Faulkner  has  been  duly  elected  Senator  from  the  State  of  West  Virginia 
for  the  term  of  six  years,  commencing  on  the  4th  day  of  March,  1887,  and  that  he  is  entitled  to  a  seat  in 
the  Senate  as  such  Senator. 

The  resolutions  were  agreed  to  without  division. 

Thereupon  Mr.  Faulkner  appeared  and  took  the  oath. 

633.  The  Senate  election  case  of  Addicks  v.  Kenney,  from  Delaware, 
in  the  Fifty-fourth  Congress. 

The  Senate  gave  immediate  prima  facie  effect  to  credentials  regular 
in  form,  although  a  contestant  presented  irregular  credentials. 

On  January  21,  1897,*  in  the  Senate,  Mr.  William  E.  Chandler,  of  New  Hamp- 

'  Second  session  Fifty-fourth  Congress,  Record,  p.  1004. 


§  633  COXFLICXING  CBEDEiJ^IIALS.  845 

shire,  presented  the  following  paper,   which  was  referred  to  the  Committee  on 
Privileges  and  Elections: 

Delaware,  ss: 

Be  it  known  that  the  legislature  of  the  State  of  Delaware  did,  on  the  20th  day  of  January,  in  the 
year  of  our  Lord  1897,  at  an  election  in  due  manner  held  according  to  the  form  of  the  act  of  the  general 
assembly  of  said  State  in  such  case  made  and  provided,  choose  John  Edward  Addicks  to  be  a  Senator 
from  said  State  in  the  Senate  of  the  United  States  for  the  constitutional  term  from  the  3d  day  of  March, 
in  the  year  of  our  Lord  1895. 

Given  under  our  hands  in  obedience  to  the  said  act  of  the  general  assembly  the  day  and  year 
aforesaid. 

Robert  J.  Hanby, 

Speaker  of  the  Senate. 
Thomas  C.  Moore, 
Speaker  of  the  House  of  Representatives. 
Geo.  W.  Rogers, 

Clerk  of  the  Senate. 
Chas.  R.  Hastings, 
Clerk  of  the  House  of  Representatives. 

On  February  5 '  Mr.  George  Gray,  of  Delaware,  presented  the  credentials  of 
Richard  W.  Kenney  as  a  Senator  from  the  State  of  Delaware.  The  credentials  were 
read,  as  follows: 

State  of  Delaware,  Executive  Department. 
To  the  President  of  the  Senate  of  the  United  States: 

This  is  to  certify  that  on  the  19th  day  of  January,  in  the  year  of  our  Lord  1897,  Richard  R.  Kenney 
was  duly  elected  by  the  legislature  of  Delaware  a  Senator  to  represent  said  State  in  the  Senate  of  the 
United  States,  to  fill  a  vacancy  existing  in  the  representation  of  said  State  for  the  term  ending  the  3d  day 
of  March,  X.  D.  1901. 

Witness  his  excellency,  our  governor,  Ebe  W.  Tunnell,  and  our  seal  hereunto  affixed,  at  Dover, 

this  21st  day  of  Januarj-,  in  the  year  of  our  Lord  1897,  and  of  the  Independence  of  the  LTnited  States  of 

America  the  one  hundred  and  twenty-first. 

Ebe  \V.  Tunnell. 
By  the  governor: 

\Vm.  H.  Brtce,  Secretary  of  State. 

Mr.  Kenney  being  present,  and  the  oath  prescribed  by  law  having  been  admiois- 
tered  to  him,  he  took  his  seat  in  the  Senate. 

ilr.  George  F.  Hoar,  of  Massachusetts,  chairman  of  the  Committee  on  Priv- 
ileges and  Elections,  after  referring  to  the  fact  that  the  Senate  had  declared  Henry  A. 
Du  Pont  not  entitled  to  the  seat,  and  that  the  Committee  on  Privileges  and  Elections 
had  reported  against  reopening  Mr.  Du  Font's  case,  said: 

K  it  be  true  that  Mr.  Du  Pont  was  not  legally  elected,  or  if  it  be  true  that  that  question  has  been 
settled  by  a  judgment  of  the  Senate,  it  follows  that  there  is  a  vacancy,  and  that  there  wa.s  a  vacancy 
at  the  time  of  the  alleged  election  of  Mr.  Kenney,  in  the  office  of  Senator  from  the  State  of  Delaware; 
and  there  being  a  vacancy  under  the  Constitution  and  statute  of  the  United  States,  the  credential  in 
due  form,  signed  by  the  executive  of  that  State,  gives  the  gentleman  who  now  applies  for  the  seat  a 
prima  facie  title  to  the  seat,  subject,  as  has  been  suggested  by  my  honorable  friend  from  New  Hamp- 
shire, to  reexamination  on  the  merits  hereafter,  if  that  reexamination  shall  be  desired.  I  therefore 
assent  to  the  request  of  the  Senator  from  Delaware  that  the  oath  be  administered. 


'  Record,  pp.  1559,  1560, 


846  PBECEDENTS   OF   THE   HOUSE   OF   BEFKESENTATIVES.  §  633 

On  March  19  '  Mr.  Julius  C.  Burrows,  of  Micliigan,  presented  the  petition  of 
John  Edward  Addicks,  a  citizen  of  the  State  of  Delaware,  setting  forth  that  on  the 
20th  day  of  January,  1897,  by  a  majority  of  the  duly  elected  and  qualified  members 
of  the  senate  and  house  of  representatives  of  the  State  of  Delaware,  he  was  duly 
elected  a  United  States  Senator  to  fill  the  vacancy  in  the  United  States  Senate 
occasioned  by  the  expiration  of  the  term  of  Anthony  Higgins,  and  that  he  was 
denied  the  usual  and  formal  certificate  of  election  to  which  he  was  entitled. 

The  memorial  was  referred. 

'  Record,  p,  66. 


Chapter  XXI* 
THE  HOUSE  THE  JUDGE  OF  CONTESTED  ELECTIONS. 


1.  Provision  of  the  Constitution.     Section  634.' 

2.  Fnnctions  of  Elections  Committee.     Sections  635,  636. 

3.  Hotise  not  bonnd  by  returns  of  State  authorities.     Sections  637,  638. 

4.  Belations  of  House  to  acts  of  canvassing  officers.     Sections  639-646.- 

5.  House  ascertains  intent  of  voter  when  ballot  is  ambiguous.     Sections  646-660. 

6.  Discretion  of  House  in  investigating  elections.     Sections  651-663.^ 

7.  Practice  in  making  decisions.     Sections  654-656.* 

8.  Privileges  of  contestant  and  returned  Member  in  debate.     Sections  667-672.' 

9.  General  practice.     Sections  673-677.' 


634.  The  House  is  the  judge  of  the  elections,  returns,  and  qualifica- 
tions of  its  own  Members.—"  Each  House  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  Members."' 

*  See  Volume  VI,  Chapter  CLXII. 

*  House  may  not  delegate  this  constitutional  function.     (Sec.  608  of  this  volume.) 
Elections  of  Delegates  as  well  as  those  of  Members  investigated.     (Sec.  772  of  this  volume.) 

'  House  respects  the  State  laws.     (Sec.  822  of  this  volume,  and  sees.  967  and  1011  of  Vol.  II.) 
As  to  duty  of  House  to  respect  the  construction  of  State  laws  made  by  State  officers  and  courts. 
(Sees.  346,  352,  423,  521,  525,  574,  608,  630,  731  of  this  volume,  and  sees.  856,  909,  959,  996,  1002,  1041, 
1048,  1056,  1069,  1071,  1105,  1121  of  Vol.  II.) 

'  House  may  set  aside  procedure  prescribed  by  law  for  conducting  contests  and  prescribe  new 
procedure  in  whole  or  in  part.  (Sees.  330,  339,  559,  597,  598  of  this  volume,  and  sees.  965,  1042,  and 
1070  of  Vol.  II.)  But  the  House  does  not  unnecessarily  set  aside  the  recommendations  of  the  law. 
(Sec.  719  of  this  volume  and  852  of  Vol.  II.) 

See  also  the  cases  of  Letcher  v.  Moore  (sec.  53)  and  Blakely  v.  Golladay  (sec.  322). 

*  Senate  decisions  that  an  election  case  once  decided  is  res  adjudicata  and  not  to  be  reopened. 
(Sees.  344,  357,  546,  629,  825,  833.)     House  reopens  the  Mississippi  case  in  1837.     (Sec.  518.) 

Effect  of  laying  on  the  table  a  resolution  relating  to  the  right  of  a  Member  to  his  seat.  (Sees. 
461,  467,  618.) 

Effect  of  negative  votes  on  affirmative  declarations  as  to  Member's  right  to  his  seat.  (Sec.  2588 
of  Vol.  III.) 

'  Instance  wherein  the  privileges  of  the  floor  were  denied  to  a  claimant  to  a  seat.     (Sec.  315.) 
Senate  declines  to  admit  contestant  to  the  floor  (sec.  546);  and  also  declines  to  hear  contestant 
in  debate  (sec.  392). 

'  A  contest  was  maintained  although  the  returned  Member  had  resigned.     (Sec.  985  of  Vol.  II.) 
A  proposition  relating  to  the  right  of  a  Member  to  his  seat  presents  a  question  of  privilege. 
(Sees.  2.579-2596  of  Vol.  III.) 

'  Constitution,  Art.  I,  sec.  5. 

847 


848 


PRECEDENTS   OF   THE    HOUSE   OF   BEPKESENTATIVES. 


§  635 


635.  The  House  has  declared  that  an  election  committee  should  act 
as  a  judicial  body,  according  to  the  rules  of  law. — On  January  24,  1870/  Mr. 
Albert  G.  Burr,  of  Illinois,  proposed  the  following  resolution : 

Resohed,  That  from  the  nature  of  its  duties  the  Committee  of  Elections  of  the  House  of  Repre- 
sentatives is  a  judicial  body,  and  in  deciding  contested  cases  referred  to  such  committee  the  members 
thereof  should  act  according  to  all  the  rules  of  law,  without  partiality  or  prejudice,  as  fully  as  though 
under  special  oath  in  each  particular  case  so  decided. 

A  motion  to  lay  this  resolution  on  the  table  was  decided  in  the  negative,  yeas 
44,  nays  129. 

The  resolution  was  then  agreed  to,  yeas  140,  nays  23. 

At  a  later  day  in  this  session — February  9  ^ — this  resolution  was  referred  to  in 
debate,  several  Members  explaining  their  attitude. 

636.  Instance  wherein  a  Member  of  the  House  was  authorized  to  act 
as  a  member  of  the  Elections  Committee  during  the  consideration  of  cer- 
tain cases. — On  December  7.  1869,  the  House  adopted  a  resolution  authorizing  Mr. 
Michael  C.  Kerr,  of  Indiana,  to  act  as  a  member  of  the  Committee  on  Elections  in 
the  consideration  of  the  pending  election  cases  from  the  State  of  Louisiana.^  Mr. 
Kerr  had  been  a  member  of  the  committee  in  the  preceding  Congress. 

637.  The  Georgia  election  case  of  Spaulding  v.  Mead  in  the  Ninth  Con- 
gress. 

The  certificate  of  the  governor  of  a  State  as  to  the  election  of  a  Mem- 
ber is  only  prima  facie  evidence  of  the  fact. 

The  certificate  of  a  State  executive,  issued  in  strict  accordance  with 
State  law,  does  not  prevent  examination  of  the  votes  by  the  House,  and  a 
reversal  of  the  return. 

Discussion  of  the  House's  right  to  judge  of  the  elections  and  returns 
of  its  Members,  as  related  to  State  laws. 

The  Elections  Committee  in  1805  declined  to  examine  a  contention 
sought  to  be  established  by  ex  parte  testimony. 

On  December  18,  1805,*  the  Committee  on  Elections  reported  in  the  contested 
election  case  of  Spaulding  v.  Mead,  of  Georgia.  The  committee  found  that  the  law  of 
Georgia  required  the  county  magistrates  presiding  at  the  election  to  transmit  their 
returns  to  the  governor  of  the  State  within  twenty  days  after  closing  the  poll;  and 
required  the  governor,  within  five  days  after  the  expiration  of  the  said  twenty  days, 
to  count  the  votes  returned,  and  immediately  thereafter  to  issue  his  proclamation 
declaring  the  result,  and  grant  a  certificate  thereof  under  the  great  seal  of  the  State. 
The  votes  of  three  counties  were  not  retiuned  within  the  twenty  days,  nor  within 
the  further  term  of  five  days  thereafter. 

The  governor,  complying  with  the  terms  of  the  law,  issued  a  certificate  to 
Cowles  Mead,  who  had  a  majority  of  the  votes  so  far  as  received  when  the  certificate 
was  issued.  When  the  returns  from  the  three  counties  were  received  it  appeared 
that  they  changed  the  result  and  gave  the  majonty  to  Thomas  Spaulding.     It  does 

'  Second  session  Forty-first  Congress,  Journal,  p.  190;  Globe,  pp.  709,  710. 

-  Globe,  pp.  1158-1160. 

"  Second  session  Forty-first  Congress,  Journal,  p.  28;  Globe,  p.  22. 

*  First  session  Ninth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  157. 


§  638  THE   HOUSE    THE   JUDGE   OF    COIJTESTED   ELECTIONS.  849 

not  appear  that  irregularities  sufficient  to  change  this  majority  for  Mr.  Spaulding 
were  alleged  in  the  three  counties.  The  committee  dechned  to  examine  the  con- 
tention sought  to  be  estabhshed  by  ex  parte  testimony,  and  disputed  by  contestee, 
that  the  delay  in  forwarding  the  late  returns  was  caused  by  a  hurricane  which 
injured  the  roads. 

The  committee  found  that,  as  the  votes  in  the  three  coimties  in  question  were 
good  and  lawful,  no  action  either  by  voters  or  candidate  requiring  their  forfeiture, 
they  should  be  counted  by  the  House,  the  certificate  of  the  governor  although  made 
in  accordance  with  the  State  law  being  only  prima  facie  evidence,  and  not  con- 
clusive on  the  House. 

Therefore  the  committee  reported  that  Cowles  Mead  was  not  entitled  to  the 
seat,  but  that  Thomas  Spaulding  was  entitled  to  it. 

The  report  was  debated  at  length  on  the  constitutional  point  as  to  what  extent 
the  House  was  judge  of  the  elections  and  returns  of  its  own  Members.  It  was  con- 
tended on  the  one  side  that  the  House  must  exercise  its  right  in  accordance  -svith 
the  fixed  rules  of  the  State  of  Georgia,  that  State  liaving  the  constitutional  right  to 
prescribe  them,  and  they  being  conclusive  imtil  revoked  by  Congress.  On  the  other 
hand,  it  was  contended  that  the  power  of  judging  the  returns  was  different  from 
the  State  power  of  determining  time,  place,  and  manner  of  elections.  The  law  of 
Georgia  could  only  be  considered  as  constituting  the  governor  the  organ  of  informa- 
tion to  this  House,  the  only  tribunal  to  which  the  returns  can  ultimately  be  made. 
The  fact  that  the  governor  had  counted  only  a  part  of  the  votes  could  not  prevent 
this  House  counting  all  of  them.  The  power  of  the  House  to  judge  could  not  be 
concluded  by  a  State  law  or  executive. 

The  House  decided,  yeas  68,  nays  53,  that  Cowles  Mead  was  not  entitled  to  the 
seat;  and  by  a  vote  of  yeas  68,  nays  53,  that  Thomas  Spaulding  was  entitled  to  a 
seat. 

638.  The  New  York  election  case  of  Golden  v.  Sharpe  in  the  Seven- 
teenth Congress. 

Votes  fairly  and  honestly  given  shovild  not  be  set  aside  for  the  omis- 
sion or  error  of  the  returning  officer. 

Instance  wherein  the  House  decided  an  election  contest  against  a 
returned  Member  who  had  not  appeared  to  claim  the  seat. 

On  December  12,  1821,'  the  House  concurred  with  the  report  of  the  Committee 
on  Elections  in  the  case  of  Colden  v.  Sharpe,  from  New  York,  seating  Mr.  Colden 
and  declaring  Mr.  Sharpe  not  entitled  to  the  seat. 

It  appeared  that  the  majority  of  votes  were  cast  for  "Mr.  Cadwallader  D. 
Colden,"  but  that  by  errors  of  returning  officers  220  votes  were  returned  as  for 
"Cadwallader  D.  Colder"  and  395  for  "Cadwallader  Colden,"  although  all  these 
votes  had  reallj-  been  cast  for  the  contestant  under  liis  appropriate  name,  as  was 
shown  by  testimony. 

The  committee  forbear  to  adduce  arguments  to  show  that  votes  fairly  and 
honestly  given  should  not  be  set  aside  for  the  omission  or  mistake  of  a  returning 
officer. 

'  First  scBsion  Seventeenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  369. 
.5994 — VOL  1—07 — —.54 


850 


PEECEDENTS   OF   THE   HOUSE   OF   BEPRESENTATIVES. 


§  639 


Mr.  Sharpe,  as  appeared  by  testimony,  was  notified  of  the  intention  to  contest 
the  seat,  but  took  no  testimony  and  made  no  resistance  to  Mr.  Colden's  claim. 
Indeed,  it  did  not  appear  affirmatively  that  Mr.  Sharpe  had  obtained  from  the 
governor  of  New  York  a  certificate  of  election,  but  it  was  presumed  that  he  had.  It 
appears  that  Mr.  Sharpe  did  not  take  a  seat  in  the  House.' 

639.  The  Virginia  election  case  of  McKenzie  v.  Braxton  in  the  Forty- 
second  Congress. 

The  House  may  go  behind  the  ballot  to  ascertain  the  intent  of  the 
voter,  so  as  to  explain  what  is  ambiguous  or  doubtful. 

In  dealing  with  ballots  whereon  occurs  an  error  in  a  name,  the  limi- 
tations of  the  House  are  very  different  from  those  of  canvassing  oflftcers. 

Discussion  as  to  the  effect  of  the  use  of  initials  or  the  omission  of  a 
middle  letter  of  a  name  on  a  ballot. 

On  January  9,  1872,^  Mr.  George  W.  McCrary,  of  Iowa,  from  the  Committee 
on  Elections,  submitted  the  report  of  the  committee  in  the  Virginia  case  of  McKenzie 
V.  Braxton. 

The  official  returns  gave  Lewis  McKenzie  10,259  votes,  Elliot  M.  Braxton  9,065, 
E.  M.  Braxton  3,654,  and  L.  McKenzie  935.     The  report  says: 

The  board  of  canvassers  decided  that  the  votes  set  down  in  the  above  abstract  as  cast  for  E.  M. 
Braxton  should  be  counted  for  the  sitting  Member,  and  that  those  set  down  in  said  abstract  as  cast  for 
L.  McKenzie  should  be  counted  for  contestant,  and  they  awarded  the  certificate  to  the  sitting  Member. 
It  will  be  seen  that  if  this  decision  of  the  board  was  correct,  and  if  no  votes  are  rejected  for  any  other 
cause,  the  majority  of  the  sitting  Member  is  1,525  votes. 

The  contestant,  among  other  things,  denied  the  correctness  of  the  decision,  and 
on  this  point  the  committee  foimd  that  the  case  turned.  The  law  as  to  the  imper- 
fect ballots  is  thus  discussed : 

The  proof  in  this  case  clearly  shows  that  the  sitting  Member  is  known  throughout  the  district  as 
well  by  the  name  of  E.  M.  Braxton  as  by  that  of  Elliott  M.  Braxton,  and  that  he  is  familiarly  called 
Elliott  Braxton;  also,  that  there  is  no  other  person  in  the  district,  except  the  sitting  Member's  infant 
son,  who  bears  the  name  of  Elliott  M.  Braxton,  E.  M.  Braxton,  or  Elliott  Braxton,  and  that  the  sitting 
Member  was  regularly  nominated  for  Congress  by  the  Democratic  or  conservative  convention  of  the 
district;  that  his  letter  of  acceptance  was  signed  E.  M.  Braxton;  that  he  canvassed  the  district  and  was 
the  only  person  of  the  name  of  Braxton  who  was  a  candidate.  These  facts  are  not  disputed  by  con- 
testant; but  we  are  asked  to  throw  out  a  large  number  of  votes,  unquestionably  cast  in  good  faith  for  the 
sitting  Member,  upon  the  purely  technical  ground  that  his  name  was  printed  upon  the  ballots  E.  M. 
Braxton  or  Elliott  Braxton,  instead  of  Elliott  M.  Braxton.  The  grounds  upon  which  the  contestant 
makes  this  claim  seem  to  be — 

1.  That  we  are  not  permitted  to  look  beyond  the  ballot  to  ascertain  the  voter's  intent;  and 

2.  That  the  ballots  in  question  can  not,  upon  their  face,  be  held  to  have  been  intended  for  Elliott 
M.  Braxton. 

It  may,  and  doubtless  is,  sometimes  necessary  to  sacrifice  justice  in  a  particular  case  in  order  to 
maintain  an  inflexible  legal  rule,  but  all  just  men  must  regret  such  necessity  and  avoid  it  when  possible 
to  do  so.  Your  committee  are  clearly  of  the  opinion  that  no  such  necessity  exists  here.  So  far  from 
demanding  such  a  sacrifice  of  right  the  law  as  well  as  equity  forbids  it. 

The  contestant  asks  the  House  to  apply  the  strict  rule  which  has  sometimes,  though  not  always, 
been  held  to  govern  canvassing  officers  whose  duty  is  purely  ministerial,  who  have  no  discretionary 
powers,  and  can  neither  receive  nor  consider  any  evidence  aliunde  the  ballots  themselves.     It  is  mani- 


>  Journal,  pp.  4,  23,  682. 

'  Second  session  Forty-second  Congress,  House  Report  No.  4;  Smith,  p.  19;  Rowell's  Digest,  p.  265. 


§  639  THE   HOUSE   THE   JUDGE    OF    CONTESTED   ELECTIONS.  851 

fest  that  the  House,  with  its  large  powers  and  wide  discretion,  should  not  be  confined  within  any  such 
narrow  limits.  The  House  possesses  all  the  powers  of  a  court  having  jurisdiction  to  try  the  question, 
WTio  was  elected?  It  is  not  even  limited  to  the  powers  of  a  court  of  law  merely,  but,  under  the  Consti- 
tution, clearly  possesses  the  functions  of  a  court  of  equity  also.  If,  therefore,  it  were  conceded  that  the 
canvassers  erred  in  counting  for  the  sitting  Member  the  votes  cast  for  E.  M.  Braxton  and  Elliott  Braxton, 
it  would  not  determine  the  question  as  to  what  the  House  should  do.  What,  then,  is  the  true  rule  for 
the  government  of  the  House  in  determining  what  votes  to  count  for  the  sitting  Member?  Your  com- 
mittee are  clearly  of  the  opinion  that  where  the  ballots  give  the  true  initials  of  the  candidate's  name 
that  is  sufficient,  and  we,  therefore,  without  hesitation,  hold  that  the  ballots  given  for  E.  M.  Braxton 
must  be  counted  for  the  sitting  Member. 

Another  objection,  urged  with  much  more  zeal  by  contestant's  counsel,  is  to  the  votes  cast  for 
Elliott  Braxton,  235  in  number.  These,  it  is  urged,  can  not  be  counted  for  Elliott  M.  Braxton,  the 
sitting  Member.  Even  if  we  were  not  permitted  to  look  beyond  the  ballots  themselves,  we  could  have 
little  doubt  as  to  our  duty;  but,  under  some  circumstances,  and  for  certain  purposes,  evidence  outside 
of  the  ballots  themselves  is  admissible.  It  is  true  that  no  evidence  aliunde  can  be  received  to  contra- 
dict the  ballot,  nor  to  give  it  a  meaning  when  it  expresses  no  meaning  of  itself;  but,  if  it  be  ambiguous 
or  of  doubtful  import,  the  circumstances  surrounding  the  election  may  be  given  in  evidence  to  explain 
it  and  to  enable  the  House  to  get  at  the  voter's  intent.  We  see  no  reason  why  a  ballot,  ambiguous  on 
its  face,  may  not  be  construed  in  the  light  of  surrounding  circumstances  in  the  same  manner  and  to  the 
same  extent  as  a  written  contract. 

Thereupon  Cooley  on  Constitutional  Limitations,  Attorney-General  v.  Ely  (4 
Wis.,  430),  People  v.  Ferguson,  (8  Cowan,  102),  People  v.  Cook  (14  Barbour,  259), 
People  V.  Seaman  (5  Denis,  409),  and  People  v.  Cicote  (16  Mich.,  283).  The  latter 
case  is  quoted  from  at  length. 

The  report  then  says: 

The  cases  are  numerous  where  an  Imperfect  ballot,  by  the  aid  of  extrinsic  evidence,  can  be  made 
clear  and  perfect.  No  harm  can  result  from  admitting  such  extrinsic  evidence  so  long  as  it  is  only 
admitted  to  cure  or  explain  such  imperfections  and  ambiguities  as  could  be  cured  if  they  occurred 
in  the  most  solemn  written  instruments,  and  to  this  extent  and  no  further  would  we  carry  it.  Thus 
guarded  and  qualified,  the  rule  is  most  salutary  and  most  just. 

Since,  therefore,  the  testimony  clearly  shows  that  the  votes  cast  for  Elliott  Braxton  were  intended 
for  the  sitting  Member,  we  deem  it  our  duty  to  count  them  for  him.  We  might,  with  great  propriety, 
rest  this  ruling  upon  another  and  different  ground.  The  doctrine  is  well  settled  that  the  law  knows 
but  one  Christian  name,  and  accordingly  the  courts  have  uniformly  held  that  the  omission  of  the  middle 
name,  or  the  initial  thereof,  is  not  a  material  or  fatal  omission.  The  following  are  among  the  authorities 
upon  this  point:  People  v.  Cook  (14  Barb.,  259,  and  same  case,  4  Selden,  67),  where  this  rule  is  applied 
to  a  contested-election  case  very  much  like  the  one  before  us;  Milk  r.  Christie  (1  HQl,  N.  Y.,  102); 
Bratton  v.  Seymour  (4  Watts,  Pa.,  329);   Franklin  r.  Talmadge  (5  Johns.,  84). 

The  sitting  Member  might  with  safety  have  relied  upon  this  doctrine  and  insisted  that  the  ballots 
cast  for  Elliot  Braxton  designated  Elliott  M.  Braxton  with  sufficinet  certainty.  He  has,  however, 
gone  further,  and  proved  the  facts  necessary  to  show  clearly  that  such  designation  was  intended  by 
the  voters. 

Contestant  insists  that  the  committee  and  the  House  ought  to  adopt  and  follow  an  opinion  given 
in  1860  by  the  attorney-general  of  Virginia  to  the  then  governor  of  that  State,  and  which  it  is  insisted 
covers  the  question  now  under  consideration.  An  examination  of  that  opinion  will  show  that  the 
question  decided  by  the  attorney-general  was  not  the  same  as  that  now  before  us. 

Where  a  wrong  initial  is  given,  the  case  is,  of  course,  very  different  from  one  where  the  first  name 
is  correctly  given  and  the  middle  initial  omitted;  and  so,  if  the  Christian  name  is  given  as  Anthony 
when  it  should  have  been  Andrew,  or  where  the  surname  is  erroneously  given.  These  are  very  dif- 
ferent questions  from  the  one  before  us,  which  is  simply  whether  votes  for  E.  M.  Braxton  and  for  Elliot 
Braxton  shall  be  counted  for  Elliott  M.  Braxton.  We  leave  out  of  view,  for  the  present,  votes  cast 
for  C.  M.  Braxton  and  Braxton.     The  opinion  of  the  attorney-general,  then,  does  not  cover  this  case. 

But  a  further  and  still  more  conclusive  answer  to  this  position  of  contestant  is  found  in  the  fact 


852  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   640 

that  the  opinion  of  the  attorney-general  was  given  to  an  executive  officer  to  guide  him  in  the  discharge 
of  purely  ministerial  duties,  and  not  intended  to  be  a  rule  for  the  guidance  of  courts  or  legislative  bodies 
in  the  exercise  of  their  judicial  functions.  The  opinion  in  question  may,  and  possibly  does,  lay 
down  the  correct  rule  for  the  government  of  ministerial  officers  whose  powers  are  limited  to  a  consid- 
eration of  what  appears  upon  the  face  of  the  returns  themselves;  but,  as  we  have  already  seen,  a  very 
different  rule  applies  when  the  parties  in  interest  come  before  a  body  clothed  with  full  power  to  pass 
upon  their  rights  in  the  light  not  only  of  the  returns  themselves,  Ijut  of  all  cnrnpctent  evidence. 

640.  The  election  case  of  McKenzie  v.  Braxton,  continued. 

The  contestant  in  an  election  case  must  confine  his  proof  to  the  allega- 
tions of  his  notice. 

In  the  absence  of  any  statutory  prohibition  and  no  injury  being 
shown  to  complainant,  the  numbering  of  the  ballots  was  held  not  to 
invalidate  the  election. 

The  failure  of  an  officer  to  certify  properly  a  return  does  not  prevent 
the  admission  of  secondary  evidence  to  prove  the  actual  state  of  the  vote. 

The  committee  also  passes  on  the  following  questions  not  vital  to  the  determina- 
tion of  the  case — 

1.  The  contestant  objected  to  the  vote  of  certain  precincts  because  the  ballots 
were  numbered,  and  in  his  argument  included  Murkham  precinct,  which  was  not 
mentioned  in  the  notice  of  contest.  "The  House  has  often  held,"  says  the  report, 
"that  the  contestant  must  confine  his  proof  to  the  allegations  of  his  notice." 

2.  The  "  numbering  of  the  ballots  cast  at  an  election,  in  the  absence  of  a  statute 
expressly  so  declaring,  does  not  of  itself  invalidate  an  election,  unless  some  injury 
is  shown  to  have  resulted  to  the  party  complaining."  The  former  Virginia  law  had 
required  the  numbering  of  the  ballots,  and  at  a  few  precincts  the  officers,  imaware  of 
the  repeal  of  the  law,  continued  the  practice.  Although  this  mmibering  rendered 
it  possible  to  show  how  each  person  voted,  it  is  not  claimed  that  it  was  done  in  this 
case,  or  that  the  tickets  were  numbered  for  any  such  purpose  or  for  any  improper  or 
unlawful  purpose.  Therefore  the  committee  concluded  that  the  votes  should  not 
be  thrown  out. 

3.  As  to  the  failure  to  certify  certain  returns,  the  report  says: 

Of  course  the  returns  of  an  election  must  be  certified  by  the  proper  officers.  If  not  so  certified, 
they  prove  nothing,  and  when  offered  in  evidence,  if  objected  to,  they  must  be  rejected.  It  was  so 
held  by  the  House  in  Barnes  v.  Adams  in  the  last  Congress.  It  does  not,  however,  necessarily  follow 
that  the  vote  cast  at  such  an  election  is  lost  or  thrown  away.  An  uncertified  return  does  not  prove 
what  the  vote  was — that  is  all.  The  duly  certified  return  is  the  best  evidence,  but  if  it  be  shown  that 
this  does  not  exist,  we  doubt  not  secondary  evidence  would  be  admissible  to  prove  the  actual  state  of 
the  vote.  The  failure  of  an  officer,  either  by  mistake  or  design,  to  certify  a  return,  should  not  be  allowed 
to  nullify  an  election,  or  to  change  a  result,  if  other  and  sufficient  and  satisfactory  evidence  is  forth- 
coming to  show  what  the  vote  actually  was. 

In  accordance  with  their  findings  the  committee  reported  a  resolution  con- 
firming the  title  of  sitting  Member  to  the  seat. 

On  January  18  '  the  resolution  was  agreed  to  without  debate  or  division. 

641.  The  South  Carolina  election  case  of  Lee  v.  Rainey  in  the  Forty- 
fourth  Congress. 

While  canvassing  officers  must  return  votes  as  they  are  cast,  the 
House  is  not  bound  by  the  return. 


'  Journal,  p.  182;  Globe,  p.  470. 


§  64:1  THE   HOUSE   THE   JUDGE    OF    CONTESTED   ELECTIONS.  853 

The  House  may  go  behind  the  ballot  to  ascertain  the  intent  of  the 
voter  so  as  to  explain  what  is  ambiguous  or  doubtful. 

The  name  of  a  candidate  being  written  wrongly  on  a  ballot,  the  House 
examined  testimony  as  to  the  intent  of  the  voter. 

On  May  24,  1876,'  Mr.  John  T.  Harris,  of  Virginia,  submitted  the  report  of  the 
committee  in  the  South  Carolina  case  of  Lee  v.  Rainey.     The  report  says: 

In  tliis  case  the  main  question  to  be  determined  is,  whether  669  ballots  bearing  "J  AS  H 
RAIN  E  Y,"  in  the  county  of  Georgetown,  were  intended  for  and  cast  for  "Joseph  H.  Rainey,"  for 
if  those  ballots  are  counted  for  Joseph  H.  Rainey,  then  he  has  a  decided  majority  and  is  duly  elected; 
while,  on  the  other  hand,  if  the  same  are  not  counted  for  hun  he  is  not  elected.  As  this  question  is 
clearly  decisive  of  the  case,  the  committee  have  not  deemed  it  necessary  to  consider  the  other  questions 
raised  by  the  notice  of  contest  and  answer.  There  is  a  question  of  law  and  a  question  of  fact  involved. 
The  question  of  law  is,  whether  the  House  can  look  beyond  the  ballot  to  ascertain  the  voter's  intent.  The 
committee  think  it  clear,  although  canvassing  officers  charged  with  purely  ministerial  duties  may  not 
go  outside  of  the  ballot,  whatever  may  be  the  defect  in  the  same,  but  must  make  their  return  upon  the 
ballots  as  they  appear  on  their  face,  that  the  House,  as  the  final  judge  of  the  elections,  returns,  and 
qualifications  of  its  Members,  has  not  only  the  right  but  the  duty,  when  a  ballot  is  ambiguous  or  of 
doubtful  import,  to  look  at  the  circumstances  surrounding  the  election  explaining  the  ballot,  and  to 
get  at  the  intent  and  real  act  of  the  voter. 

This  will  not  give  the  right  to  contradict  the  ballot  itself,  but  simply  to  explain  what  is  uncertain 
and  ambiguous  in  reference  to  it.  This  rule  of  law  has  become  too  well  settled  to  admit  of  question. 
(McCrary  on  Elections,  chap.  7,  and  cases  there  cited;  Gunter  v.  WUshire,  first  session  Forty-third 
Congress,  Report  631.  i 

Such  being  the  law,  the  remaining  question  is  purely  one  of  fact,  ^•iz:  For  whom  did  those  who 
cast  the  ballots  "J  AS  H  RAINEY''  intend  to  vote  and  for  whom  did  they  vote?  WTiat  are  the 
facts  upon  this  point?  It  appears  that  only  two  candidates  were  nominated,  viz:  Samuel  Lee  and 
Joseph  H.  Rainey.  No  other  persons  appear  to  have  been  named  in  connection  with  the  office  of  Repre- 
sentative to  Congress  from  that  district.  There  is  no  pretense  that  any  person  by  the  name  of  James  H. 
Rainey,  other  than  Joseph  H.  Rainey.  was  a  candidate  for  that  office,  and  it  is  not  seriously  contended 
by  any  one  that  any  person  who  cast  the  ballot  "J  A  S  H  R  A I  N  E  Y"  cast  it  intentionally  for  any 
other  than  Joseph  H.  Rainey,  the  sitting  Member. 

The  evidence  clearly  shows  that  the  ballots  printed  "J AS  H  RAINEY''  were  printed  for 
"Joseph  H.  Rainey,"  and  the  fact  that  such  was  the  case  was  explained  to  the  voters  to  whom  the 
tickets  were  given  by  the  party  who  had  them  printed.  (Evidence  of  Joseph  Bush,  p.  27;  Charles  H. 
Sperry,  p.  28.)  There  is  no  evidence  in  this  case  showing  that  there  was  at  the  time  of  the  election  any 
man  in  the  district  by  the  name  of  James  H.  Rainey,  who  was  eligible  to  the  office  of  Representative  to 
Congress,  or  who  had  ever  been  spoken  of  for  that  office,  or  that  any  person  did  vote  for  "James  H. 
Rainey."  except  one  Russell  Green  (p.  41),  and  he  testified  "that  he  did  not  know  that  Joseph  H.  Rainey 
was  running,"  and  thensays  "that  he  had  made  up  his  mind  before  going  to  the  poll  that  he  did  not  intend 
to  vote  for  Joseph  H.  Rainey."  His  evidence  is  not  of  such  a  character  as  to  entitle  it  to  weight,  and 
your  committee  are  far  from  being  satisfied  that  he  ever  knew  that  the  name  "  J  A  S  H  RAINEY" 
was  upon  the  ticket  he  voted.  The  fact  that  no  person  by  the  name  of  Rainey  other  than  Joseph  H. 
Rainey  was  named  in  connection  with  the  office  of  Representative  to  Congress  Ls  a  fact  entitled  to  the 
greatest  weight  in  determining  the  intent  of  the  voter. 

The  report  goes  on  to  say  that  it  is  clear  that  those  who  voted  for  Jas.  H. 
RaLaey  did  it  ignorantly  or  with  the  intention  of  casting  blank  ballots.  It  could 
not  be  presumed  that  669  voters  thus  intended  to  cast  blank  ballots.  And  the 
evidence  showed  clearly  that  they  intended  to  vote  for  sitting  Member.  The 
report  says: 

If  this  House  can  not  consider  at  all  the  surrounding  circumstances  attending  the  election  to 
learn  the  intention  of  the  voter,  then  how  is  it  to  determine  the  identity  of  the  person  voted  for?    How 

'  First  session  Forty-fourth  Congress,  House  Report  No.  578;  Smith,  p.  589;  RoweU's  Digest,  p.  313. 


854  PBECEDENTS   OF   THE   HOUSE   OF   REPKESENTAXIVES.  §   642 

will  it  determine  between  two  men  of  the  same  name  if  it  can  not  look  to  the  surrounding  circumstances 
to  determine  who  was  voted  for?  The  House  must,  in  such  a  case,  certainly  look  to  something  besides 
the  face  of  the  ballot;  it  must  inquire  into  the  intent  of  the  voter.  It  would,  indeed,  be  a  singular 
position  for  this  House  to  assume  that,  because  there  are  two  men  bearing  the  same  name  as  the  one 
voted  for  in  a  district,  it  has  no  power  to  determine  who  was  voted  for  or  elected.  If  it  can  not,  how 
can  it  determine  the  elections,  returns,  and  qualification  of  its  Members?  It  has  always  examined 
into  the  intent  of  the  voter  when  it  did  not  clearly  appear  by  the  face  of  the  ballot,  where  it  could  be 
done  without  contradicting  the  ballot. 

The  report  then  quotes  the  cases  of  Gunter  v.  Wilshire  and  McKenzie  v.  Broxton, 
and  further  says: 

The  decision  of  the  committee  to  count  these  votes  for  Joseph  H.  Rainey  can  be  fully  sustained 
upon  the  ground  that  Joseph  H.  Rainey  was,  on  election  day,  in  the  county  of  Georgetown,  known  by 
the  name  "JAS  H  RAINEY"  as  well  as  by  the  name  Joseph  H.  Rainey.  There  is  evidence  that 
the  voters  were  so  informed  at  the  polls;  were  informed  that  JAS  H  RAINEY  was  the  same  as 
Joseph  H.  Rainey,  and  there  is  every  reason  to  believe  that  the  voters  so  regarded  it,  and  in  a  criminal 
case  this  would  be  evidence  tending  to  show  that  he  was  known  by  the  one  name  as  well  as  by  the  other, 
and  upon  this  evidence  the  House  has  not  only  the  right,  but  is  bound  so  to  find,  if  satisfied  of  the  fact. 
Your  committee  believe  that  great  injustice  will  be  done  the  First  district  of  South  Carolina  should  the 
House,  where  there  is  really  no  serious  question  made  by  any  one  but  that  the  ballots  for  "JAS  H 
RAINEY"  were  intended  for  Joseph  H.  Rainey,  fail  to  count  them  for  him. 

The  report  further  points  out  that  there  is  equal  reason  for  the  decision  which 
is  reached,  if  the  name  was  printed  wrong  with  fraudulent  intent. 

Therefore  the  committee  report  a  resolution  confirming  title  of  sitting  Mem- 
ber to  the  seat,  and  on  June  23  ^  the  House  agreed  to  the  resolution  without  debate 
or  division. 

642.  Declaration  of  a  House  committee  that  returning  boards  with 
judicial  authority  are  dangerous. — In  a  report  submitted  on  March  3,  1879," 
Mr.  Clarkson  N.  Potter,  of  New  York,  from  the  committee  appointed  to  investigate 
alleged  frauds  in  the  Presidential  election  of   1876,  included  the  following: 

When  the  Democrats  recovered  control  of  Louisiana  they  abolished  the  returning  board,  and 
there  no  longer  exists  in  the  United  States  any  tribunal  having  discretion  to  receive  or  reject  at  pleasure 
the  votes  cast.  No  such  body  ought  ever  again  to  be  permitted.  If  the  wisdom  of  the  fathers  and  the 
experience  of  free  government  have  settled  anything,  it  is  the  necessity  of  keeping  the  functions  of 
judging  and  of  administering  the  laws  separate.  No  tribunal  ought  to  be  clothed  with  such  a  discretion; 
no  persons  ought  to  be  trusted  with  absolute  powers,  upon  the  exercise  of  which  the  success  of  their 
own  party  and  their  own  power  and  that  of  their  friends  depend. 

643.  The  Texas  election  case  of  Houston  v.  Broocks  in  the  Fifty- 
ninth  Congress. 

The  House  does  not  change  the  returned  result  of  an  election  because 
of  frauds  and  irregularities  unless  they  be  sufficient  to  change  the  result. 

Instance  wherein  an  elections  committee  considered  a  question  not 
raised  in  the  notice  of  contest. 

The  name  of  a  candidate  for  United  States  Senator  on  the  ballot  w^as 
held  not  to  be  such  distinguishing  mark  as  would  destroy  the  secrecy  of 
the  ballot. 

'Journal,  p.  1143;  Record,  p.  4076. 

^ Third  session  Forty-fifth  Congress,  House  Report  No.  140,  p.  64. 


§  644  THE   HOUSE   THE   JUDGE   OF    CONTESTED   ELECTIONS.  855 

On  June  23,  1906/  Mr.  M.  E.  Driscoll,  of  New  York,  from  the  Committee  on 
Elections,  No.  3,  submitted  the  report  of  the  committee  in  the  case  of  Houston  v. 
Broocks,  from  Texas.     As  to  the  status  of  the  case,  the  report  says: 

The  said  election  took  place  on  the  8th  day  of  November,  1904.  Thereafter  the  votes  cast  at  said 
election  for  the  office  of  Representative  in  Congress  were  counted  and  canvassed,  and  as  the  result  of 
said  count  and  canvass,  the  Hon.  M.  L.  Broocks,  the  contestee,  was  declared  to  have  received  13,119 
votes,  and  in  like  manner  the  Hon.  A.  J.  Houston,  the  contestant,  was  declared  to  liave  received  4,161 
votes,  and  in  pursuance  of  said  count  and  canvass  the  Hon.  M.  L.  Broocks  received  the  certificate  of 
election  by  a  plurality  of  8,958  votes. 

Three  questions  were  involved  in  decision: 

1.  The  committee,  without  dissent,  held  as  follows  as  to  the  merits  of  the 
election: 

WhUe  there  was  some  evidence  of  fraud,  irregularity,  and  intimidation  in  several  of  the  counties 
of  said  district,  your  committee  is  of  the  opinion  that  such  frauds,  irregularities,  and  intimidations,  sepa- 
rately or  combined,  were  not  so  gross,  general,  or  far-reaching  as  to  account  for  the  large  plurality  of  votes 
cast  and  counted  for  the  contestee,  and  your  committee  does  not  feel  justified  in  rejecting  a  sufficient 
number  of  the  votes  cast  for  the  contestee  on  these  grounds  to  give  the  contestant  a  plurality,  nor  is  your 
committee  of  the  opinion  that  the  refusal  of  Democratic  officers  empowered  by  law  to  appoint  judges  and 
clerks  of  elections,  to  appoint  Republican  judges  and  clerks  where  requested  by  Republican  voters  so  to 
do,  justifies  it  in  rejecting  a  sufficient  number  of  votes  which  were  cast  and  counted  for  the  contestee  to 
give  the  contestant  a  plurality  and  to  say  that  he  was  under  the  law  fairly  elected  Representative  in 
Congress  from  said  district. 

2.  The  next  question  was  one  which  was  not  referred  to  in  the  notice  of  contest, 
but  which  the  committee  nevertheless  notice  in  their  report : 

The  point  is  made  in  the  evidence  and  in  contestant's  brief  that  all  the  Democratic  ballots  cast  in 
the  Second  Congressional  district  of  the  State  of  Texas  were  Ulegal,  invalid,  and  void,  for  the  reason 
that  on  them  appeared  the  name  of  C.  A.  Culberson  fur  United  States  Senator,  on  the  ground  that  this 
was  a  distinguishing  mark  or  device.  The  names  of  party  candidates  for  United  States  Senator  were  not 
on  other  party  tickets,  and  it  is  claimed  that  this  was  a  distinguishing  mark  or  device.  With  this  claim 
we  can  not  agree.  The  words,  "For  United  States  Senator,  C.  A.  Culberson,"  were  no  more  a  distin- 
guishing mark  or  device  than  were  the  words,  "For  Congressman,  Second  district,  M.  L.  Broocks." 

Both  names  were  on  the  same  ticket  next  to  each  other.  The  names  of  all  the  State  Democratic 
electors  were  on  the  same  ticket.  It  was  the  intention  to  give  notice  to  all  that  it  was  the  regular 
Democratic  ticket  for  that  district,  for  the  words,  "Official  ballot.  Democratic  party,"  were  distinctly 
written  at  the  top  of  the  ticket  above  all  the  names.  It  is  difficult  to  see  how  the  name  of  Senator 
Culberson  could  distinguish  and  identify  those  ballots,  which  were  without  that  fully  identified  and 
distinguished  from  all  others.  This  name  can  hardly  be  said  to  be  a  "picture,  sign,  vignette,  device,  or 
mark,"  and  did  not  disclose  the  secrecy  of  the  ballot.  This  point  is  very  technical,  and  is  not  mentioned 
in  the  notice  of  contest.  Election  contests  should  be  decided  on  the  substantial  merits.  The  will  of 
the  electors  as  expressed  in  their  ballots  should  be  recognized  and  respected,  and  your  committee  does 
not  believe  that  all  of  the  ballots  cast  for  the  contestee  in  said  election  should  be  rejected  on  account  of 
this  error,  which  did  not  affect  the  result. 

644.   The  case  of  Houston  v.  Broocks,  continued. 

It  being  charged  that  the  State  laws  establishing  qualifications  of 
voters  violated  the  reconstruction  laws  and  the  Constitution  of  the 
United  States,  a  divided  committee  considered  the  question  one  for  the 
courts. 

•First  session  Fifty-ninth  Congress,  Record,  p.  9036;  House  Report  No.  4998. 


856  PKECEDENTS   OF   THE    HOUSE   OF   KEPKESESTTATIVES.  §  644 

The  laws  of  Texas  have  a  poll-tax  qualification  for  suffrage,  which 
discriminates  between  residents  of  the  city  and  the  country. 

The  validity  of  the  election  laws  of  a  State  being  impeached  and  the 
question  not  being  determined,  the  House  declared  a  contestant  not 
elected,  but  did  not  affirm  the  title  of  returned  Member,  who  had  a  major- 
ity of  the  votes  cast. 

3.  The  real  issue  in  the  case  was  set  forth  by  the  majority  of  the  committee: 

Tte  serious  question  for  the  consideration  of  your  committee  and  of  the  House  in  the  determination 
of  this  contest  is  involved  and  set  forth  in  the  first  and  second  counts  in  the  notice  of  contest.  These 
counts  may  be  considered  together,  because  each  of  them  questions  the  constitutionality  of  the  election 
law  of  the  State  of  Texas,  which  was  approved  April  1,  1903,  and  under  and  in  pursuance  of  which  the 
elections  in  the  State  of  Texas  were  conducted  in  the  year  1904.  That  law  makes  the  payment  of  a  poll 
tax  a  necessary  qualification  for  the  right  to  vote  by  any  citizen  or  class  of  citizens  of  the  United  States. 
That  poll  tax  in  cities  of  10,000  inhabitants  or  upward,  is  $2.75,  and  in  small  towns  and  rural  districts 
$1.75,  and  it  must  be  paid  on  or  before  the  1st  day  of  February  to  enable  the  person  paying  it  to  vote  at 
the  following  November  election.  In  this  particular  case  no  man  otherwise  qualified  to  vote  for  Repre- 
sentative in  Congress  was  permitted  to  vote  on  the  8th  day  of  November,  1904,  unless  he  had  paid  his 
poll  tax  on  or  before  the  1st  day  of  February,  1904,  and  produced  his  receipt  for  such  payment,  or  other- 
wise proved  that  he  had  paid  it. 

It  is  claimed  by  the  contestant  that  this  law  is  illegal,  invalid,  and  unconstitutional,  because  it  is  in 
direct  conflict  with  and  in  violation  of  the  act  of  Congress  approved  March  30,  1870,  as  follows: 

AN  ACT  to  admit  the  State  of  Texas  to  representation  in  the  Congress  of  the  United  States. 

Whereas  the  people  of  Texas  have  framed  and  adopted  a  constitution  of  State  government,  which  is 
Republican;  and  whereas  the  legislature  of  Texas,  elected  under  said  constitution,  has  ratified  the 
fourteenth  and  fifteenth  amendments  to  the  Constitution  of  the  United  States;  and  whereas  the  perform- 
ance of  these  several  acts  in  good  faith  is  a  condition  precedent  to  the  representation  of  the  State  in 
Congress:  Therefore 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of  America  in  Congress 
assembled,  That  the  said  State  of  Texas  is  entitled  to  representation  in  the  Congress  of  the  United 
States.    *    *    * 

*  *  *  And  provided  further,  That  the  State  of  Texas  is  admitted  to  representation  in  Congress 
as  one  of  the  States  of  the  Union  upon  the  following  fundamental  conditions:  First.  That  the  constitution 
of  Texas  shall  never  be  so  amended  or  changed  as  to  deprive  any  citizen  or  class  of  citizens  of  the  United 
States  of  the  right  to  vote  who  are  entitled  to  vote  by  the  Constitution  herein  recognized,  except  as  a 
punishment  for  such  crimes  as  are  now  felonies  at  common  law,  whereof  they  shall  have  been  duly 
convicted  under  laws  equally  applicable  to  all  the  inhabitants  of  said  State:  Provided,  That  any  altera- 
tion of  said  constitution  prospective  in  its  effects  may  be  made  in  regard  to  the  time  and  place  of 
residence  of  voters.     *    *    * 

It  is  also  claimed  by  the  contestant  that  this  poll-tax  qualification  for  citizens  of  the  United  States 
violates  the  fourteenth  and  fifteenth  amendments  of  the  Federal  Constitution.  It  is  further  alleged 
that  the  enforcement  of  this  poll-tax  law  disqualified  and  prevented  from  voting  a  very  large  number 
of  colored  voters,  citizens  of  the  United  States,  who  would  except  for  this  law  and  its  enforcement  have 
been  qualified  to  vote  for  Representative  in  Congress  at  the  election  held  on  the  8th  day  of  November, 
1904;  that  the  overwhelming  majority  of  those  colored  voters  who  were  disfranchised  by  said  poll-lax 
law  and  its  enforcement  were  Republicans,  and  would  have  voted  for  the  contestant  at  said  election, 
and  that  were  it  not  for  said  poll-tax  law  and  its  enforcement  the  contestant  would  have  received  a 
majority  of  the  votes  cast  at  said  election  and  would  have  been  duly  elected  as  Representative  in  Con- 
gress from  said  Congressional  district. 

These  allegations  and  the  evidence  taken  under  them  directly  question  the  constitutionality  of 
the  Texas  constitution  adopted  in  the  year  1902,  and  the  Texas  election  law  passed  in  the  year  1903, 
and  applied  to  the  election  in  this  particular  case.  If  this  Committee  on  Elections  and  the  House  of 
Representatives  should  hold  that  the  election  laws  of  the  State  of  Texas  are  violative  of  the  Federal 


I    644  THE    HOUSE   THE   JUDGE    OF    CONTESTED   ELECTIONS.  857 

Ck)iistitution,  the  conclusion  would  necessarily  follow,  not  that  the  contestant  was  elected,  but  that  the 
whole  election  was  null  and  void,  and  that  the  Second  Congressional  district  of  the  State  of  Texas  is 
not  entitled  to  representation  in  Congress. 

This  is  the  only  election  contest  from  that  State  before  the  House  of  Representatives  for  determi- 
nation. But  the  decision  in  this  case,  construing  the  election  laws  of  the  State  of  Texas,  applies  to 
the  whole  State,  and  if  the  contestee  in  this  particular  case  is  not  legally  entitled  to  retain  his  seat, 
then  none  of  the  sixteen  Representatives  from  that  State  are  legally  entitled  to  seats  on  the  floor  of  this 
House,  and  none  of  them  will  in  the  future  be  entitled  to  seats  if  elected  under  the  present  law  in  their 
State.  Therefore  the  gravity  of  the  question  involved  in  this  particular  case  is  manifest.  Texas  is 
one  of  the  great  States  of  the  Union,  and  is  entitled  to  its  full  delegation  in  Congress.  But  its  consti- 
tutican  and  laws  should  conform  to  the  Constitution  and  laws  of  the  United  States  so  as  to  leave  no  cloud 
on  the  title  of  that  delegation  to  their  seats. 

Your  committee  appreciates  the  unusual  responsibility  which  devolves  on  it  in  the  determination 
of  this  question,  and  each  Member  has  applied  himself  to  its  consideration  with  as  much  honesty, 
patriotism,  and  ability  as  he  possessed.  If  we  declared  this  election  void  and  our  report  were  confirmed 
by  the  House,  all  the  Representatives  from  that  State,  and  the  State  itself,  would  suffer  a  great  and 
irreparable  wrong.  On  the  other  hand,  if  this  House  should  adopt  a  resolution  that  the  contestee  was 
duly  elected  Representative  in  Congress  from  the  Second  Congressional  district,  with  reference  to 
which  several  members  of  this  committee,  at  least,  entertain  grave  doubt,  that  action  would  stamp 
with  approval  the  present  constitution  and  election  laws  of  the  State  of  Texas.  We  have  therefore 
concluded  to  follow  neither  course. 

We  report  that  the  contestant  was  not  elected,  but  do  not  report  that  the  contestee  was  elected. 
We  are  silent  on  that  phase  of  the  case.  We  realize  that  we  may  be  accused  of  shirking  our  responsi- 
bUity.  To  this  we  answer  that  the  responsibility  is  so  great,  and  the  consequences  of  a  mistake  would 
be  so  serious  and  far-reaching,  that  we  respectfully  request  that  this  important  question  be  referred 
to  the  Supreme  Court  of  the  United  States  for  their  decision.  Your  committee  is  aware  that  a  decision 
in  this  case  concerns  not  alone  the  State  of  Texas.  That  many  other,  if  not  all,  of  the  reconstructed 
States  have  in  recent  years  adopted  constitutions  and  enacted  election  laws  which  are  claimed  to  be 
in  violation  of  the  Federal  Constitution  and  laws.  That  election  contests  are  brought  before  every 
Congress,  predicated  on  the  alleged  violation  of  the  Federal  Constitution  and  laws  by  the  constitutions 
and  laws  of  the  States  from  which  these  contests  come.  All  those  questions  are  substantially  alike,  and 
a  decision  in  this  case  would  be  a  precedent  in  many  others  which  may  arise. 

We  ha,ve  precedents  which  may  be  considered  authority  for  our  action  in  this  case,  which  in  effect 
advise  the  reference  of  this  constitutional  question  to  the  Supreme  Court.  In  the  last  Congress,  two 
years  ago,  the  contested  election  case  of  Prioleau  v.  Legare,  from  the  State  of  South  Carolina,  was  referred 
to  this  committee.  The  question  presented  in  that  case  was  substantially  the  same  as  the  one  in  this. 
While  the  constitution  and  election  laws  of  the  State  of  South  Carolina  are  not  exactly  like  those  of 
Texas,  the  constitutionality  of  the  election  law  was  raised,  and  the  question  was  practically  the  same 
as  the  one  under  consideration.  This  committee  advised  the  contestant,  Mr.  Prioleau,  and  his  counsel 
to  make  a  case  and  present  the  question  to  the  courts  for  determination,  and  did  not  submit  a  report  or 
resolutions  to  the  House. 

Also,  in  the  last  Congress,  the  contested  election  case  of  Dantzler  v.  Lever,  from  South  Carolina, 
involving  exactly  the  same  questions,  was  referred  to  the  Committee  on  Elections  No.  1.  That  com- 
mittee submitted  a  resolution,  which  was  adopted  by  the  House,  that  the  contestant  was  not  elected, 
and  the  report,  written  by  the  chairman,  Mr.  Mann,  of  Illinois,  recommended  that  the  constitutional 
question  he  referred  to  the  Supreme  Court  for  decision.  Four  contested  election  cases  were  brought 
from  the  same  State  to  this  Congress,  all  of  which  were  referred  to  the  Committee  on  Elections  No.  1, 
and  we  are  informed  that  the  same  disposition  will  be  made  of  them.  Since  the  questions  in  those  cases 
are  exactly  the  same  as  the  one  raised  two  years  ago  in  Dantzler  v.  Lever,  no  other  conclusion  can  be 
expected.  Therefore,  this  committee,  in  order  to  be  consistent  with  its  action  in  the  last  Congress,  and 
in  deference  to  the  decision  of  the  House  in  the  other  cases  referred  to,  notwithstanding  the  individual 
opinions  of  some  of  its  Members,  feels  constrained  to  submit  this  report  and  the  resolution  in  pursuance 
thereof. 

If  this  House,  with  its  large  Republican  majority,  should  declare  the  election  held  in  the  Second 
Congressional  district  of  Texas  void  and  unseat  the  contestee  in  this  case,  such  action  would  very  likely 


858 


PKECEDENTS  OF  THE  HOUSE  OF  EEPEESENTATIVES. 


§   644 


be  looked  upon  as  a  partisan  decision.  And  if  perchance  the  next  Congress  should  have  a  Democratic 
majority  and  the  same  question  should  arise,  the  strong  probabilities  are  that  it  would  be  decided  the 
other  way.  Such  conflicting  decisions  would  lead  only  to  confusion,  uncertainty,  and  possibly  to  more 
serious  consequences.  The  Supreme  Court  is  a  continuing  body.  We  are  led  to  believe  that  the  mem- 
bers thereof  are  not  influenced  by  political  considerations;  that  partisan  spirit  is  eliminated  as  far  as 
possible.  The  people  respect  that  tribunal  and  bow  with  deference  to  its  judgments.  The  constitu- 
tional questions  presented  by  the  election  laws  of  Texas  and  other  reconstructed  States  should  be 
submitted  to  that  court  for  final  determination.  Such  a  decision  would  be  recognized  by  the  people 
of  those  several  States  and  by  the  Congress  as  the  law  of  the  land,  and  would  be  a  positive  benefit 
to  all  concerned. 

If  the  election  laws  of  Texas  are  violative  of  the  Federal  Constitution  and  the  reconstruction  acts, 
those  laws  should  be  repealed  or  so  amended  as  to  conform  with  the  decision  and  opinion  of  the  Supreme 
Court.  If  they  should  be  held  to  be  legal  and  valid,  then  its  Representatives  would  hold  their  seats 
without  any  question  or  cloud  on  their  titles.  Furthermore,  the  Democrats  as  well  as  the  Republicans 
of  that  great  State  and  other  States  similarly  situated  should  unite  and  assist  one  another  in  submitting 
those  issues  to  the  Supreme  Court,  and  in  obtaining  from  that  great  tribunal  a  comprehensive  and 
positive  decision  on  their  merits,  in  order  that  those  people  may  know  what  are  their  political  rights. 

Mr.  Henry  Bannon,  of  Ohio,  did  not  concur  in  the  opinion  of  the  committee, 
but  filed  minority  views,  as  follows: 

It  seems  to  me  that  the  propositions  to  be  considered  in  this  case  are  the  following: 

1.  Texas  was  admitted  to  representation  in  Congress  as  a  State  of  the  Union  under  the  provisions  of 
an  act  of  Congress  approved  March  30,  1870,  by  the  terms  of  which  it  was  provided,  as  a  fundamental 
condition  to  admission — 

"That  the  constitution  of  Texas  shall  never  be  so  amended  or  changed  as  to  deprive  any  citizen  or 
class  of  citizens  of  the  United  States  of  the  right  to  vote  who  are  entitled  to  vote  by  the  Constitution  herein 
recognized,  except  as  a  punishment  for  such  crimes  as  are  now  felonies  at  common  law,  whereof  they 
shall  have  been  duly  convicted  under  laws  equally  applicable  to  all  the  inhabitants  of  said  State." 

2.  On  July  28, 1868,  the  proclamation  was  issued  that  the  fourteenth  amendment  had  been  ratified. 
Section  2  of  said  amendment  reads  as  follows: 

"Representatives  shall  be  apportioned  among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  executive  and  judicial  officers  of  a  State,  or  the  members  of  the 
legislature  thereof  is  denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years  of  age, 
and  citizens  of  the  United  States,  or  in  any  way  abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such  State." 

3.  On  April  1,  1904,  Texas  enacted  a  law  making  the  payment  of  a  certain  poll  tax  on  or  before 
February  1  preceding  the  November  election  a  condition  precedent  to  the  right  to  vote.  This  legislation 
has  deprived  some  citizens  of  the  United  States  residing  in  Texas  of  the  right  to  vote. 

It  is  contended  in  this  case  that  Texas  has  deprived  herself  of  the  right  to  any  representation  in 
Congress;  but,  if  not,  that  the  contestant  was  duly  elected  as  a  Representative  from  that  State. 

There  is  nothing  in  the  proof  that  would  warrant  a  finding  that  contestant  was  elected.  That  is 
sufficient  to  dispose  of  that  contention. 

I  do  not  think  that  the  present  election  laws  of  Texas  deprive  that  State  of  all  representation  in 
Congress.  If  these  laws  deprive  some  of  her  citizens  of  the  right  to  vote,  the  remedy  is  not  to  deny  all 
representation  in  Congress,  but  the  remedy  is  found  in  the  second  section  of  the  fourteenth  amendment. 
That  remedy,  I  think,  is  exclusive  of  all  others.  If  Texas  has  deprived  some  of  her  citizens  of  the  right 
to  vote,  her  representation  in  Congress  should  be  proportionately  reduced. 

The  obligation  to  do  this  is  with  Congress,  and  not  the  judiciary.  In  the  case  of  Giles  v.  Board  of 
Registration  (189  U.  S.,  488),  decided  by  the  Supreme  Court  of  the  United  States  on  April  27,  1903,  the 
court,  in  the  Alabama  election-law  case,  said: 

"Apart  from  damages  to  the  individual,  relief  from  a  great  political  wrong,  if  done  as  alleged,  by 


§  645  THE   HOUSE   THE   JUDGE   OF    CONTESTED   ELECTIONS.  859 

the  people  of  a  State,  and  the  State  itself,  must  be  given  by  them  or  by  the  legislative  and  political 
departments  of  the  Government  of  the  United  States." 

In  my  opinion  there  is  nothing  in  these  cases  that  can  be  submitted  to  the  comrts.  The  obligation 
is  upon  the  legislative  department  of  the  Fedreal  Government  to  ascertain  whether  the  right  to  vote  has 
been  denied  any  of  the  citizens  of  Texas,  and  if  so,  its  representation  in  Congress  should  be  reduced 
proportionately. 

In  accordance  with  their  conclusions,  the  majority  of  the  committee  recom- 
mended this  resolution,  in  which  Mr.  Bannon  also  concurred: 

Resolved,  That  A.  J.  Houston  was  not  elected  a  Member  of  the  Fifty-ninth  Congress  from  the  Second 
Congressional  district  of  Texas  and  is  not  entitled  to  a  seat  therein. 

The  resolution  was  agreed  to  without  debate  or  division. 

645.  The  election  case  of  the  California  Members  in  the  Forty-ninth 
Congress. 

After  examination  of  precedents  the  Committee  on  Elections  and  the 
House  followed  the  interpretation  of  a  State  law  given  by  the  highest 
court  of  the  State. 

On  May  11,  1886,'  Mr.  Robert  Lowry,  of  Indiana,  presented  the  report  of  the 
Committee  on  Elections  in  the  California  case.     The  report  states  the  case  thus: 

It  is  claimed  on  behalf  of  contestants  that  the  votes  cast  at  the  Congressional  elections  of  the  4th 
day  of  November,  1884,  in  the  State  of  California,  should  have  been  compared  and  estimated  under  the 
apportionment  law  existing  in  that  State  prior  to  the  13th  day  of  March,  1883,  and  not  in  accordance 
with  the  act  of  the  legislature  of  that  State  of  the  day  named,  entitled  "An  act  to  divide  the  State  of 
California  into  Congressional  districts."  Under  the  prior  law  the  State  was  divided  into  four  districts, 
with  two  Representatives  at  large.  Under  the  latter  act  the  State  was  apportioned  into  six  Congressional 
districts,  each  one  of  which  was  entitled  to  one  Representative,  and  none  at  large.  In  order  to  sustain 
the  contention  of  the  contestants,  it  is  obligatory  upon  them  to  show  that  the  act  of  March  13,  1883,  is 
invalid,  and  this  they  attempt  to  do. 

The  claim  is  that  this  act  was  not  passed  in  accordance  with  section  15,  Article  IV,  of  the  State 
constitution,  which  requires  that  every  bill  should  be  read  on  three  several  days  in  each  home. 

Passing  by  a  number  of  immaterial  points  upon  which  testimony  was  taken  in  this  contest,  we 
proceed  at  once  to  the  substantial  ground  urged  against  the  sitting  Members.  That,  we  think,  has  been 
fully  and  definitely  settled  in  a  decision  of  the  supreme  court  of  the  State  of  California  in  a  case  reported 
in  volume  8,  West  Coast  Reporter,  page  29,  entitled  "People,  ex  rel.  Leverson,  v.  Thompson, secretary 
of  state." 


After  quoting  in  full  the  opinion,  the  report  proceeds: 

T*    .«C11    1 — •,    *\^^t-    *l.^.    { :. — i:__i! 1 ii. 


It  wiU  be  seen  that  the  foregoing  case  was  an  application  by  these  contestants  to  the  supreme 
coiu-t  of  the  State  of  California  for  a  writ  of  mandate  to  compel  the  secretary  of  state  to  compare  and 
certify  to  the  votes  cast  at  the  last  elections,  in  accordance  with  the  law  in  force  in  California  prior  to 
the  passage  of  the  act  the  validity  of  which  is  brought  in  question  by  this  contest. 

It  is  not  denied  in  this  case  that  the  bill  itself  was  read  in  accordance  with  the  constitutional  pro- 
visions, but  it  is  said  that  there  was  an  amendment  thereto  which  should  also  have  been  read  "upon 
three  several  days." 

The  Miller  case  was  presented  for  decision  in  the  State  of  Ohio,  entitled  "Miller  v.  The  State" 
(3  Ohio  St.  Rep.,  479).  The  point  was  very  satisfactorily  disposed  of  by  Judge  Thurman,  who  was 
then  upon  the  supreme  bench  of  that  State.  He  admits  in  his  decision  that  there  might  be  some 
plausibility  in  the  argument  that  an  amendment  radically  changing  the  subject-matter  should  be  read 
three  times,  the  same  as  a  bill,  but  holds  that  to  bring  an  amendment  within  that  objection  it  should 
be  of  such  a  character  as  to  change  the  subject  or  proposition  of  the  bill  wholly,  and  where  the  amend- 

'  First  session  Forty-ninth  Congress,  House  Report  No.  2338;  Mobly,  p.  481. 


860  PEECEDENTS   OF   THE   HOUSE    OF   EEPKESENTATIVES.  §  646 

ment  does  not  effect  any  such  radical  change  in  the  purpose,  aim,  and  scope  of  the  bill,  that  it  does 
not  come  within  the  constitutional  requirement  that  it  should  be  read  three  times. 

The  decision  cited  of  the  full  bench  of  the  supreme  court  of  the  State  of  California  seems  to  be 
fully  definitive  of  the  principles  involved  here.  Such  being  the  case,  your  committee,  in  conformity 
with  an  almost  invariable  rule,  follow  the  construction  of  the  statutes  given  by  the  court  of  last  resort  of 
the  State  from  which  the  cases  come. 

Such  is  the  rule  of  the  Supreme  Court  of  the  United  States,  and  we  do  not  perceive  why  one  so 
well  based  upon  reason  and  common  sense  should  be  departed  from  in  this  case. 

In  Leavenworth  v.  Barnes  (94  U.  S.  Rep.,  70),  the  validity  of  a  statute  of  the  State  of  Kansas  being 
assailed  as  having  been  improperly  passed,  the  Supreme  Court  said: 

"The  recent  decision  upon  this  identical  statute  by  the  supreme  court  of  Kansas,  in  a  suit  against 
this  county,  relieves  us  from  all  embarrassment  upon  this  question.  It  gives  effect  and  construction 
to  one  of  its  own  statutes,  and,  according  to  well-settled  rules,  will  be  followed  by  this  court." 

In  support  of  this  rule  of  construction  a  number  of  well-considered  cases  are  cited  in  the  opinion. 

The  same  rule  has  been  followed  by  the  House  of  Representatives  in  election  contests.  In  the 
matter  of  the  election  of  a  Representative  from  the  State  of  Tennessee,  in  the  Forty-second  Congress, 
the  Elections  Committee  said: 

"  It  is  a  well-established  and  most  salutary  rule  that  when  the  proper  anthorities  of  the  State  gov- 
ernment have  given  a  construction  to  their  constitution  and  statutes,  that  construction  will  be  followed 
by  the  Federal  authorities.  This  rule  is  absolutely  necessary  to  the  harmonious  workings  of  our  com- 
plex government.  State  and  national,  and  your  committee  are  not  disposed  to  be  the  first  to  depart  from 
it.  In  the  case  of  Birch  v.  Van  Horn  (2  Bartlett,  205)  the  House  refused  to  go  into  an  inquiry  as  to  the 
validity  of  the  new  constitution  of  Missouri,  upon  the  ground  that  it  had  been  recognized  as  valid  by  all 
the  departments  of  the  State  government." 

While  the  conclusion  arrived  at  by  Justices  Ross  and  Myrick  is  not  authority  to  the  full  extent  to 
which  the  opinion  of  the  full  bench  is  thus  recognized,  we  present  their  views  as  embodying  what  we 
regard  to  be  a  reasonable  construction  of  that  clause  of  the  constitution  of  California  bearing  upon  the 
question  raised.  It  is  one,  we  think,  which  we  would  not  hesitate  to  adopt  did  the  controversy  turn 
upon  the  question  of  constitutional  construction  alone. 

This  disposes  of  everything  requiring  notice  in  these  cases. 

The  contestants  only  received  a  vote  running  from  six  to  fifty  each,  and  upon  no  ground  that 
would  be  recognized  under  any  rule  of  law,  or  commend  itself  to  any  principle  of  justice,  can  either  one 
of  the  contestees  be  unseated.  Even  if  they  could,  it  is  quite  clear  that  no  one  of  the  contestants  is 
entitled  to  a  seat. 

Your  committee  therefore  recommend  the  adoption  of  the  following  resolutions: 

Resolved,  That  Barclay  Henley,  James  A.  Loutitt,  Joseph  McKenna,  \V.  W.  Morrow,  Charles  N. 
Felton,  and  H.  H.  Markham  were  duly  elected  as  Representatives  from  the  State  of  California  to  the 
Forty-ninth  Congress,  and  are  legally  entitled  to  their  seats. 

Resolved,  That  Alexander  M.  McKay,  Montague  R.  Leverson,  and  Archibald  McGrew  were  not 
elected  as  such  Representatives,  and  are  not  entitled  to  seats  in  this  body. 

The  resolutions  were  agreed  to  in  the  House  without  debate  or  division.' 

646.  The  Massachusetts  election  case  of  Turner  v.  Baylies  in  the 
Eleventh  Congress. 

The  House  held  that  ballots  wherein  the  word  "  junior  "  was  omitted 
from  the  candidate's  name  should  be  counted  on  proof  that  they  were 
intended  for  the  candidate. 

The  House  unseated  a  person  returned  as  elected  at  a  second  election 
on  ascertaining  that  another  person  had  actually  been  chosen  at  the  first 
election. 

Instance  of  a  House  election  contest  instituted  by  petition. 

'Journal,  p.  1.571. 


§  647  THE    HOUSE   THE   JUDGE    OF    CONTESTED   ELECTIONS.  861 

One  of  the  parties  to  an  election  case  having  failed  to  attend  the  tak- 
ing of  testimony  after  notification,  the  House  considered  the  testimony, 
although  ex  parte. 

On  May  24,  1809,^  a  petition  was  presented  on  behalf  of  Charles  Turner,  jr.,  who 
contested  the  right  of  William  Baylies  to  a  seat  in  the  House  of  Representatives 
from  one  of  the  Massachusetts  districts.  The  facts  in  this  case,  as  found  by  the 
Committee  of  Elections,  were  as  follows: 

At  the  election  held  in  conformity  with  State  law  on  the  first  Monday  of  Novem- 
ber, 1808,  the  votes  were  returned  to  the  governor  as  follows:  For  "Charles  Turner, 
junior,  esq.,"  1,44.3;  for  "Charles  Turner,  esq.,"  430;  a  total  of  1,873  votes  for  the 
two  names.  These  1,873  votes  constituted  the  required  majority  for  an  election, 
but  the  governor,  finding  that  a  majority  of  votes  had  not  been  cast  for  any  one 
name,  and  exercising  a  prerogative  lawful  in  cases  where  no  candidate  received  a 
majority  of  votes,  ordered  another  election  for  January  19,  1809.  At  this  second 
election  William  Baylies  received  a  majority  of  the  votes  and,  receiving  the  certificate 
of  the  governor,  took  his  seat  in  the  House. 

The  committee  received  testimony  showing  that  the  votes  cast  for  "Charles 
Turner,  junior,  esq."  and  for  "Charles  Turner,  esq.,"  must  have  been  meant  for  one 
and  the  same  person.  The  sitting  Member  had  been  cited  to  appear  during  the 
taking  of  this  testimony  and  had  neglected  to  do  so.  Therefore  the  Committee  of 
Elections  admitted  the  testimony,  although  in  fact  taken  ex  parte. 

The  conclusions  of  the  committee  were  embodied  in  the  following  resolutions: 

Resolved,  That  the  election  held  in  Plymouth  district  in  Xovember  last  was  legal  and  proper. 
Resolved,  That  William  Baylies  is  not  entitled  to  a  seat  in  this  House. 
Resolved,  That  Charles  Turner,  jr.,  is  entitled  to  a  seat  in  this  House. 

On  June  23,  the  House  agreed  to  the  first  resolution,  yeas  58,  nays  13;  to  the 
second,  yeas  60,  nays  40;  to  the  third,  yeas  62,  nays  41. 

Thereupon  Mr.  Turner  appeared  and  qualified. 

647.  The  New  York  election  case  of  Williams,  jr.,  v.  Bowers  in  the 
Thirteenth  Congress. 

The  House  held  that  ballots  wherein  the  word  "  junior  "  was  omitted 
from  the  candidate's  name  should  be  counted  on  proof  that  they  were 
intended  for  the  candidate. 

On  July  2,  1813,-  the  Committee  on  Elections  reported  in  the  contested  election 
case  of  Williams,  jr.,  v.  Bowers,  from  New  York,  that  the  return  of  the  votes  for  the 
district  was  as  follows : 

Votes. 

John  M.  Bowers 4, 287 

Isaac  Williams,  jr 4, 129 

Isaac  Williams 434 

John  M.  Bowey 1 

Several  other  persons,  in  all 17 

It  appeared  to  the  committee  that  there  were  residing  within  the  district  three 
persons  by  the  name  of  Isaac  Williams,  one  of  whom  was  distingtiished  by  the 

'  First  session  Eleventh  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  234. 
^  First  session  Thirteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  2G3. 


8g2  PRECEDENTS   OF   THE   HOUSE   OF   EEPEESENTATIVES.  §  648 

addition  of  "jiinior."  It  was  also  admitted  by  the  sitting  Member  that  Isaac 
Williams,  jr.,  was  the  only  candidate  opposed  to  him,  Avithin  his  knowledge.  The 
committee  also  found  that  in  each  of  four  towns  of  the  district  neariy  100  votes 
were  given  for  Isaac  "Williams,  and  not  one  for  Isaac  Wilhams,  jr.  It  therefore 
appeared  to  the  committee  that  the  votes  given  for  Isaac  Williams  were  intended 
for  Isaac  Williams,  jr.,  but  considered  that  further  evidence  was  necessarJ^ 

So  the  subject  was  postponed  until  the  next  session,  and  on  December  16,  1813, 
the  committee  again  reported,  finding  that  in  the  towns  of  Exeter,  Milford,  and 
Westford,  322  votes  were,  through  the  mistakes  of  the  local  inspectors  of  electiont, 
returned  for  Isaac  Williams.  From  the  testimony  of  these  inspectors  it  appeared 
that  these  322  votes  were  given  to,  and  ought  to  have  been  returned  for,  Isaac 
Wilhams,  jr.  Adding  these  votes  to  the  poll  of  Isaac  Wilhams,  jr.,  gave  him  a 
majority  of  164  votes  over  Mr.  Bowers.  Therefore  the  committee  submitted  the 
following  resolutions,  which  were  unanimously  agreed  to  by  the  House: 

Resolved,  That  John  M.  Bowers  is  not  entitled  to  a  seat  in  this  House. 
Resolved,  That  Isaac  Williams,  jr.,  is  entitled  to  a  seat  in  this  House. 

648.  The  New  York  election  case  of  Willoughby  v.  Smith  in  the  Four- 
teenth Congress. 

Election  officers  having  ommitted  the  word  "  junior  "  in  returning 
the  vote  of  a  candidate  in  two  towns,  the  House  seated  the  candidate  on 
finding  that  the  error  had  affected  the  result  decisively. 

On  December  11,  1815,*  the  Committee  on  Elections,  to  whom  had  been  referred 
the  case  of  Willoughby,  jr.,  v.  Smith,  of  New  York,  reported  that  it  appeared  from 
the  testimony  of  certain  local  inspectors  of  elections,  that  in  the  towns  of  German 
Flats  and  Litchfield,  299  votes  were,  through  the  mistake  of  the  said  inspectors, 
returned  for  Westel  Willoughby,  although  in  fact  they  were  given  for  Westel  Wil- 
loughby, jr.,  and  that  in  the  said  towns  no  votes  were  given  for  Westal  Willoughby 
without  having  the  word  "junior"  added  thereto.  The  299  votes  above  mentioned 
being  added  to  the  poll  of  Westel  Willoughby,  jr.,  gave  him  a  majority  of  255  votes 
over  William  S.  Smith.  The  committee  therefore  recommended  resolutions  that 
Mr.  Smith  was  not  entitled  to  the  seat,  and  that  Westel  Willoughbj^,  jr.,  was  entitled 
to  it. 

On  December  15  the  House  agreed  to  the  recommendation  of  the  committee, 
and  Mr.  Willoughby  took  his  seat. 

649.  The  New  York  election  cases  of  Guyon,  jr.,  v.  Sage  and  Hugunin 
V.  Ten  Eyck  in  the  Sixteenth  and  Nineteenth  Congresses. 

The  omission  of  the  word  ''  junior  "  in  the  return  of  a  candidate's 
vote  was  corrected  by  the  House  on  being  shown  by  testimony. 

Instance  wherein  the  House  decided  an  election  contest  against  a 
returned  Member  who  had  not  appeared  to  claim  the  seat. 

On  January  12,  1820,^  the  Committee  on  Elections  reported  in  the  contested 

'  First  session  Fourteenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  265. 
^  First  session  Sixteenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  348. 


§  650  THE   HOUSE   THE   JUDGE    OF    CONTESTED   ELECTIONS.  863 

case  of  Guyon,  jr.,  v.  Sage,  of  New  York,  which  had  been  instituted  by  a  petition. 
The  committee  foimd  that  votes  were  cast  as  follows: 

Votes. 

For  Ebenezer  Sage 2, 085 

For  James  Guyon,  jr 1,  701 

For  James  Guyon 396 

The  evidence  showed  that  the  396  votes  were  actually  cast  for  "James  Guyon, 
jr,"  but  that  the  word  "junior"  was  omitted  through  the  mistake  of  certain  return- 
ing officers. 

The  committee  therefore  submitted  the  following  resolutions,  which  were  agreed 
to  by  the  House  on  January  14,  1820: 

Resolved,  That  Ebenezer  Sage  is  not  entitled  to  a  seat  in  this  House. 
Resolved,  That  James  Guyon,  jr.,  is  entitled  to  a  seat  in  this  House. 

The  committee  also  found  that  Mr.  Sage  had  not  appeared  to  claim  his  seat, 
and  no  evidence  had  been  adduced  of  his  intention  to  make  such  claim. 

On  December  1.5,  1825,'  in  the  case  of  Hugunin,  jr.,  v.  Ten  Eyck,  of  New  York, 
the  House  iinseated  Mr.  Ten  Eyck  and  seated  Mr.  Hugunin,  because  a  correction 
of  the  returns  showed  that  the  omission  of  the  word  "junior"  in  certain  returns  had 
deprived  the  latter  of  enough  votes  actually  cast  for  him  to  secure  his  election.  The 
question  was  not  discussed,  since  the  principle  had  been  discussed  and  passed  on 
several  times. 

650.  Tlie  New  York  election  cases  of  Wright,  jr.,  v.  Fisher  and  Root 
V.  Adams  in  the  Twenty-first  and  Fourteenth  Congresses. 

The  omission  of  the  word  "junior"  in  the  return  of  a  candidate's 
vote  was  corrected  by  the  House  on  being  shown  by  testimony. 

Instance  wherein  a  person  declined  to  take  a  seat  assigned  him  after 
a  contest  as  to  final  right. 

On  January  19,  1830,^  the  Conmaittee  on  Elections  reported  in  the  case  of 
Wright,  jr.,  v.  Fisher,  of  New  York.  It  appeared  that  at  the  election  in  November, 
1828,  there  were  given  to  "Silas  Wright,  junior,"  42  votes  in  the  town  of  Edwards, 
which  were  retiuned  for  "Silas  Wright;"  and  there  were  given  for  "Silas  Wright, 
junior,"  in  two  other  towns  a  total  of  130  votes  which,  by  mistake  of  election  officers, 
were  not  returned  for  him. 

The  addition  of  these  votes  to  the  poll  showed  the  election  of  Silas  Wright,  jr. ; 
and  in  accordance  with  this  showing  the  committee  reported  a  resolution  unseating 
Mr.  Fisher  and  declaring  Mr.  Wright  entitled  to  the  seat. 

On  February  5  the  House  agreed  to  the  resolution. 

Mr.  Wright,  not  having  appeared,  on  February  13  ^  it  was 

Resolved,  That  the  Speaker  of  this  House  inform  the  executive  of  New  York  that  the  seat  in  the 
present  Congress,  for  the  Twentieth  Congressional  district,  occupied  by  George  Fisher,  has  been,  by  a 
resolution  of  the  House,  awarded  to  Silas  Wright,  jr. 

'  First  session  Nineteenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  501. 
'  First  session  Twenty-first  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  518. 
2  Journal,  p.  293. 


864  PRECEDENTS    OF   THE   HOUSE   OF   REPRESENTATIVES.  §   651 

Mr.  Wright  did  not  appear,  and  on  March  9  a  letter  from  him  declining  the 
seat  was  presented  to  the  House.* 

On  December  26,  1815,Hhe  Committee  on  Elections  reported  in  the  contested 
election  case  of  Koot  v.  Adams,  of  New  York,  that  John  Adams  was  not  entitled 
to  a  seat  in  the  House,  and  that  Erastus  Root  was  entitled  to  the  seat. 

In  this  case  it  appeared  from  the  sworn  statement  of  a  clerk  in  one  of  the 
coimties  that  his  deputy  had  returned  the  votes  of  certain  towns  as  cast  for  "Eras- 
tus Rott"  instead  of  "Erastus  Root,"  for  whom  they  were  in  fact  cast.  The  sti- 
ting  Member  admitted  the  truth  of  this  statement,  and  as  the  number  of  votes  so 
incorrectly  returned  was  sufficient  to  change  the  result  of  the  election  in  favor  of 
the  sitting  Member,  the  House  concurred  in  the  report  of  the  committee.  Mr. 
Root  therefore  qualified  and  took  his  seat. 

651.  The  South  Carolina  election  case  of  McKissick  v.  Wallace  in 
the  Forty-second  Congress. 

Contestant's  evidence  being  too  indefinite  to  establish  his  case,  the 
House  confirmed  the  title  of  sitting  Member  although  irregularities  in 
the  election  were  evident. 

On  May  7,  1872,^  Mr.  G.  W.  Hazelton,  of  Wisconsin,  from  the  Committee  on 
Elections,  submitted  the  report  of  the  committee  in  the  case  of  McKissick  v.  Wallace, 
of  South  Carolina.  The  sitting  Member  had  been  retiirned  by  a  certified  majority 
of  3,304.     The  contestant  claimed  that  the  election  was  irregular. 

The  committee  found  the  evidence  voluminous,  but  not  sufficiently  definite 
and  tangible  to  warrant  the  committee  in  assailing  the  apparent  or  prima  facie 
right  of  the  sitting  Member  to  the  seat.     The  report  says: 

Indeed,  there  is  no  evidence  of  the  actual  vote  certified  in  the  several  counties  of  the  district 
on  which  the  certificate  of  election  was  predicated. 

There  is  some  reason  for  the  belief  that  irregularities  may  have  occurred  in  some  localities,  but 
the  evidence  of  the  contestant  falls  short  of  determining  to  what  extent  these  irregularities  were  carried, 
or  affording  any  means  of  ascertaining  their  effect  upon  the  actual  vote  of  the  district. 

The  law  under  which  the  election  was  held  seems  to  be  well  calculated  to  cover,  if  not  to  encourage, 
fraud,  inasmuch  as  it  neither  requires  registration  of  the  voters  nor  a  public  canvass  of  the  votes  at  the 
close  of  the  polls,  but  allows  the  managers  of  each  precinct,  or  one  of  them,  to  retain  possession  of  the 
boxes  containing  the  ballots  uncounted  for  three  days,  at  the  end  of  which  time  they  are  required  to 
deliver  them  over  to  the  commissioners  of  election  for  their  county,  together  with  the  poll  list,  and 
these  latter  officers  may  retain  the  boxes  for  ten  days  longer  before  making  the  canvass. 

But  the  committee,  having  no  power  over  this  law,  must  content  itself  with  simply  calling  attention 
to  it. 

Therefore  the  committee  recommended  a  resolution  confirming  the  title  of 
sitting  Member  to  the  seat. 

On  May  9^    this  report  was  agreed  to  by  the  House  without  division. 

652.  The  House  in  the  Fifty-eighth  Congress  declined  to  investi- 
gate the  election  of  a  Delegate  to  the  Fifty-ninth  Congress. — On  February 

'Journal,  p.  394. 

^  First  session  Fourteenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  271. 

^  Second  session  Forty -second  Congress,  House  Report  No.  66;  Smith,  p.  98. 

♦Journal,  pp.  831,  832;  Globe,  p.  3243,  3244. 


§  653  THE    HOUSE    THE    JUDGE    OF    CONTESTED    ELECTIONS.  865 

22,  1905/  Mr.  Martin  E.  Olmsted,  of  Pennsylvania,  submitted,  from  the  Com- 
mittee on  Elections  No.  2,  the  following  report: 

The  Committee  on  Elections  No.  2,  to  which  was  referred  the  following  memorial,  viz: 

"  Memorial-  of  the  Independent  Home  Rule  party  of  Havaii  praying  for  the  appointment  of  a  commisnon 
to  investigate  the  recent  election  in  that  Territory. 

"resolutions. 

"Whereas  the  official  printed  ballots  used  in  every  election  precinct  throughout  the  Territory  of 
Hawaii  on  the  Tuesday  (November  8)  after  the  first  Monday  in  November,  1904,  were  ballots  attached 
to  a  niunbered  stub,  and  in  the  right  comer  of  said  ballot,  which  corner  is  perforated  for  purposes  of 
detachment  therefrom,  is  contained  the  number  of  said  ballot,  corresponding  with  the  number  printed 
upon  the  stub  aforesaid ;  and    *    *    * 

"Be  it  resolved,  That  Congress  is  hereby  memorialized  and  requested  to  send  as  soon  as  practicable 
a  commission  to  this  Territory  to  inquire  and  investigate  into  the  illegal  ballots  as  aforesaid,  or  order  the 
governor  of  this  Territory  to  send  to  Congress  one  or  two  ballot  boxes  containing  the  aforesaid  numbered 
and  perforated  ballots  or  sample  thereof;  and    *    *    *    " 

respectfully  begs  leave  to  report  that  it  has  also  received  from  citizens  of  Hawaii  a  numerously  signed 
"Palapala  Hoopii,"  asking  "that  the  territorial  election  held  on  Tuesday,  November  8,  1904,  be  declared 
by  the  Congress  of  the  United  States  null  and  void,"  for  reasons  therein  set  forth,  which  are  substantially 
those  contained  in  the  foregoing  memorial.  No  person  desiring  such  action  has  appeared  before  your 
committee  or  submitted  any  proof  of  the  allegations  contained  in  the  memorial.  But  the  Hon.  A.  L.  C. 
Atkinson,  the  secretary  of  the  Territory  of  Hawaii,  the  official  referred  to  in  the  said  memorial,  has 
appeared,  submitted  a  sample  showing  the  form  of  ballot  used,  and  explained  its  use. 

After  describing  the  ballot,  the  committee  continues: 

Upon  this  point  it  would,  perhaps,  be  improper  for  your  committee  or  for  this  House  to  express  an 
opinion,  in  view  of  the  fact  that  it  wUl  in  any  event  have  to  be  passed  upon  by  the  Fifty-ninth  Congress 
in  a  contest  which  has  been  filed  against  the  person  returned  as  elected  to  be  a  Delegate  therein.  So 
far  as  the  eight  senators  and  thirty  representatives  elected  to  the  territorial  legislature  are  concerned, 
no  reason  has  been  shown  us  why  the  legality  of  their  elections  may  not,  or  might  not  have  been,  deter- 
mined upon  proper  proceedings  instituted  before  the  designated  local  legal  tribunals. 

We  therefore  submit  that  there  is  no  occasion  for  the  present  Congress  to  send  a  commission  to 
Hawaii  or  to  take  any  action  in  the  premises,  and  recommend  the  adoption  of  the  following  resolution: 

Resolved,  That  it  is  inexpedient  for  this  House,  at  this  time,  to  take  any  action  in  relation  to  the 
election  of  senators  and  representatives  to  the  territorial  legislature  in  Hawaii,  or  the  election  of  Delegate 
to  the  Fifty-ninth  Congress. 

After  short  debate  this  resolution  was  agreed  to  without  division.'' 

653.    The    Senate    election    case  of  Lane  and  McCarty  v.   Fitch  and 

Bright,  from  Indiana,  in  the  Thirty-fifth  Congress. 

In  1858  the  Senate  decided  that  a  decision,  once  made  in  an  election 

case  should  not  be  revised  or  reversed. 

^  Third  session  Fifty-eighth  Congress,  Record,  p.  3075. 

^  This  memorial  had  been  referred  in  the  regular  course. 

^  In  1890  the  Senate  considered  the  case  of  Fred  T.  Dubois,  of  Idaho.  (Election  Cases,  Senate 
Docimient  No.  11,  special  session  Fifty-eighth  Congress,  p.  763.)  December  30,  1890,  the  credentials 
of  Mr.  Dubois,  as  Senator  from  Idaho  for  six  years  beginning  March  4,  1891,  were  laid  before  the  Senate 
and  referred  to  the  Committee  on  Privileges  and  Elections.  January  5  that  committee  reported  that  it 
was  not  customarj'  to  consider  any  questions  arising  on  the  credentials  of  a  Senator  until  the  term 
for  which  he  claimed  to  be  elected,  and  recommended  that  the  credentials  be  placed  on  file.  The 
credentials  were  filed  accordingly. 
5994— VOL  1—07 55 


866  PRECEDENTS   OF   THE    HOUSE   OF   EEPRESENTATIVES.  §  653 

On  June  12,  1858,'  the  Senate  had  declared  Messrs.  Graham  N.  Fitch  and 
Jesse  D.  Bright,  of  Indiana,  entitled  to  their  seats,  after  proceedings  on  a  memorial 
objecting  to  the  validity  of  their  election. 

At  the  next  session  of  Congress  Messrs.  Henry  S.  Lane  and  WilUam  M. 
McCarty  appeared,  bearing  credentials  as  Senators-elect  from  Indiana.  The 
question  was  referred  to  the  Committee  on  the  Judiciary,  which  on  February  3, 
1859,  reported.^     This  report,  after  reviewing  the  history  of  the  case,  said: 

It  appears  by  the  memorial  that  the  legislature  of  Indiana,  at  its  recent  session  in  December  last, 
assumed  the  power  of  revising  the  final  decision  thus  made  by  the  Senate  of  the  United  States,  under 
its  unquestioned  and  undoubted  constitutional  authority  to  "be  the  judge  of  the  qualifications  of  its 
own  members."  Under  this  assumption,  it  also  appears  by  the  journals  of  the  senate  and  house  of 
representatives  of  the  State  of  Indiana,  the  legislature  of  Indiana,  treating  the  seats  of  the  Senators 
from  that  State  as  vacant,  proceeded,  subsequently,  by  a  concurrent  vote  of  the  senate  and  house  of 
representatives  of  the  State,  to  elect  the  Hon.  Henry  S.  Lane  as  a  Senator  of  the  United  States  for  the 
State  of  Indiana,  to  serve  as  such  until  the  4th  of  March,  1863,  and  the  Hon.  William  Monroe  McCarty 
as  a  Senator  for  the  same  State,  to  serve  as  such  until  the  4th  of  March,  A.  D.  1861.  Under  this  action 
of  the  legislature  of  Indiana  those  gentlemen  now  claim  their  seats  in  the  Senate  of  the  United  States. 

It  may  be  conceded  that  the  election  would  have  been  valid  and  the  claimants  entitled  to  their 
seats  had  the  legislature  of  Indiana  possessed  the  authority  to  revise  the  decision  of  the  Senate  of  the 
United  States  that  Messrs.  Fitch  and  Bright  had  been  duly  elected  Senators  from  Indiana,  the  former 
until  the  4th  of  March,  1861,  and  the  latter  until  the  4th  of  March,  18G3. 

In  the  opinion  of  the  committee,  however,  no  such  authority  existed  in  the  legislature  of  Indiana. 
There  was  no  vacancy  in  the  representation  of  that  State  in  the  Senate,  and  the  decision  of  the  Senate, 
made  on  the  12th  of  June,  1858,  established  finally  and  (in  the  absence  of  a  motion  to  reconsider) 
irreversibly  the  right  of  the  Hon.  Graham  N.  Fitch  as  a  Senator  of  the  State  of  Indiana  until  the  4th 
of  March,  1861,  and  the  right  of  the  Hon.  Jesse  D,  Bright  as  a  Senator  from  the  same  State  until  the 
4th  of  March,  A.  D.  1863. 

The  decision  was  made  by  an  authority  having  exclusive  jurisdiction  of  the  subject;  was  judicial 
in  its  nature;  and,  being  made  on  a  contest  in  which  all  the  facts  and  questions  of  law  involving  the 
validity  of  the  election  of  Messrs.  Fitch  and  Bright,  and  their  respective  rights  to  their  seats,  were  as 
fully  known  and  presented  to  the  Senate  as  they  are  now  in  the  memorial  of  the  legislature  of  Indiana, 
the  judgment  of  the  Senate  then  rendered  is  final,  and  precludes  further  inquiry  into  the  subject  to 
which  it  relates. 

There  being,  by  the  decision  of  the  Senate,  no  vacancy  from  the  State  of  Indiana  in  the  Senate 
of  the  United  States,  the  election  held  by  the  legislature  of  that  State  at  its  recent  session  is,  in  the 
opinion  of  the  committee,  a  nullity,  and  merely  void,  and  confers  no  rights  upon  the  persons  it  assumed 
to  elect  as  Senators  of  the  United  States.  The  committee  ask  to  be  discharged  from  the  further  consid- 
eration of  the  memorial  of  the  legislature  of  Indiana. 

The  minority  combated  these  views,  as  follows: 

The  power  of  the  Senate  to  judge  of  the  election  and  qualification  of  its  own  members  is  unlimited 
and  abiding.  It  is  not  exhausted  in  any  particular  case  by  once  adjudicating  the  same,  as  the  power 
of  reexamination  and  the  correction  of  error  or  mistake,  incident  to  all  judicial  tribunals  and  proceed- 
ings, remains  with  the  Senate  in  this  respect,  as  well  to  do  justice  to  itself  as  to  the  States  represented, 
or  to  the  persons  claiming  or  holding  seats.  Such  an  abiding  power  must  exist  to  purge  the  body  from 
intruders,  otherwise  anyone  might  retain  his  seat  who  had  once  wrongly  procured  a  decision  of  the 
Senate  in  his  favor  by  fraud  and  falsehood,  or  even  by  papers  forged  or  fabricated. 

In  what  cases  and  at  whose  application  a  rehearing  will  at  all  times  be  granted  is  not  now  necessary 
to  inquire;  but  when  new  parties,  with  apparently  legal  claim,  apply,  and  especially  when  a  sovereign 
State,  by  its  legislature,  makes  respectful  application  to  be  represented  by  persons  in  the  Senate  legally 
elected,  and  insists  that  the  sitting  members  from  that  State  were  never  legally  chosen,  we  consider 

'  First  session  Thirty-fifth  Congress,  Globe,  p.  2981.  ^  1  Bartlett,  p.  632;  Globe,  p.  772. 


§  654  THE   HOUSE   THE   JUDGE   OF   CONTESTED   ELECTIONS.  867 

that  the  subject  should  be  fully  reexamined,  and  that  neither  the  State,  the  legislature,  nor  the  persons 
now  claiming  seats  can  legally  or  justly  be  estopped,  or  even  prejudiced,  by  any  former  proceedings 
of  the  Senate  to  which  they  were  not  parties. 

******* 
In  the  case  of  the  State  of  Mississippi,  in  the  House  of  Representatives  in  the  Twenty-fifth  Congress, 
the  power  to  reexamine  a  decision  made  on  an  election  of  Members  was  fully  considered  and  decided. 
Gholson  and  Claiborne  were,  at  a  special  election  held  on  the  proclamation  of  the  governor,  chosen 
Representatives  from  that  State  to  a  special  session  of  Congress  called  by  the  President.  At  that 
session  exception  was  taken  to  them,  but  after  some  objection  they  were  admitted  to  their  seats.  Their 
case  and  papers  were  referred  to  the  Committee  of  Elections,  who  made  report,  and  thereupon,  on 
full  and  elaborate  discussion,  it  was  resolved  that  they  were  duly  elected  Members  of  the  Twenty-fifth 
Congress  and  entitled  to  their  seats.  This  was  in  September.  In  November  following  an  election  was 
holden  in  said  State,  and  Prentiss  and  Ward  were  elected  Members  of  the  Twenty-fifth  Congress,  who, 
in  December  following,  presented  their  credentials  and  claimed  their  seats.  It  was  then  insisted  in 
that  case,  as  it  now  is  in  this,  that  the  decision  so  before  made  was  conclusive  of  the  right  of  Claiborne 
and  Gholson  to  their  seats  as  Members  of  the  Twenty-fifth  Congress,  and  the  whole  matter  was  res 
adjudicata.  But  on  full  examination  and  after  fuU  discussion,  the  former  resolution  declaring  said 
Claiborne  and  Gholson  as  duly  elected  Members  of  the  Twenty-fifth  Congress  was  rescinded. 

On  February  11  the  question  was  debated,  especially  wnth  reference  to  the 
right  of  review,  and  the  Senate  by  a  vote  of  yeas  31,  nays  20  the  subject  laid  on 
the  table.     So  Messrs.  Fitch  and  Bright  retained  their  seats. 

654.  The  House,  overruling  its  Speaker,  held  that  a  negative  decision 
on  a  resolution  declaring  a  person  not  entitled  to  a  seat  was  not  equiva- 
lent to  an  aflarmation  of  the  title. — On  March  10,  lS22,i  the  House  was  consid- 
ering the  contested  election  case  of  Reed  v.  Causden,  from  the  State  of  Maryland, 
the  Committee  on  Elections  having  reported  the  resolutions,  which,  as  amended  by 
the  Committee  of  the  Whole,  came  before  the  House  as  follows: 

Resolved,  That  Jeremiah  Causden  is  not  entitled  to  a  seat  in  this  House. 
Resolved,  That  Philip  Reed  is  not  entitled  to  a  seat  in  this  House. 

The  first  resolution  was  agreed  to  by  the  House;  and  on  the  question  of  agreeing 
to  the  second  resolution  there  were,  yeas  74,  nays  75. 

The  Speaker  ■  voted  in  the  affirmative,  thereby  making  an  equal  division,  and, 
as  provided  by  the  rule,  announced  that  the  question  was  lost.  The  resolution 
being  lost,  he  decided,  as  a  necessary  consequence  thereof,  that  the  converse  of  the 
proposition  contained  in  the  said  resolution  was  affirmed,  to  wit,  that  Phihp  Reed 
is  entitled  to  a  seat  in  this  House. 

Mr.  Henry  Baldwin,  of  Pennsylvania,  appealed,  and  the  decision  of  the  Speaker 
was  overruled,  after  debate. 

Mr.  Romulus  M.  Sanders,  of  North  Carohna,  then  moved  this  resolution,  which 
was  agreed  to — yeas  82,  nays  77: 

Resolved,  That  Philip  Reed  is  entitled  to  a  seat  in  this  House  as  one  of  the  Representatives  from 
the  State  of  Marj-land. 

Mr.  Reed  thereupon  appeared  and  qualified. 

655.  In  voting  on  election  cases  the  negativing  of  one  proposition  is 
not  regarded  as  affirming  its  converse.— On  January  29,  1881,^  majority  and 

'  First  session  Seventeenth  Congress,  Journal,  pp.  368-370;  Annals,  pp.  1321-1323. 

-  Philip  P.  Barbour,  of  Virginia,  Speaker. 

^  Third  session  Forty-sixth  Congress,  Record,  pp.  1050,  1051. 


868  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  656 

minority  resolutions  were  before  the  House  in  a  contested  election  case,  the  minority 
resolutions  being  the  converse  of  the  majority  in  their  declarations.  After  the 
minority  proposition,  which  had  been  offered  as  an  amendment  in  the  nature  of  a 
substitute,  had  been  rejected,  the  point  of  order  was  made  that  this  action  decided 
the  majority  proposition,  and  that  a  further  vote  was  unnecessary.  The  Speaker 
pro  tempore  (Mr.  Adlai  E.  Stevenson,  of  Illinois)  held  that,  as  the  substitute  had 
been  voted  on,  the  question  was  then  on  the  majority  resolution. 

656.  A  resolution  declaring  a  Delegate  (already  seated  on  prima 
facie  showing)  entitled  to  his  seat  being  laid  on  the  table,  his  status 
was  not  thereby  affected. — On  July  23,  18G8,'  the  House  considered  these  res- 
olutions : 

Resolved,  That  William  McGrorty  is  not  entitled  to  a  seat  in  this  House  as  a  Delegate  from  the 
Territory  of  Utah. 

Resolved,  That  William  H.  Hooper  is  entitled  to  a  seat  in  this  House  as  a  Delegate  from  the  Ter- 
ritory of  Utah. 

The  contestant,  IMr.  McGrorty,  charged  the  sitting  Member,  Mr.  Hooper,  with 
having,  as  a  Mormon,  taken  oaths  inconsistent  with  his  duties  as  a  Delegate,  with 
suspicious  connection  with  the  perpetrators  of  the  Mountain  Meadow  massacre,  etc. 
The  official  canvass  showed,  however,  that  Mr.  Hooper  received  15,068  votes  and 
Mr.  McGrorty  105.  The  contestant  having  been  heard,  the  first  resolution  was 
agreed  to  and  the  second  resolution  was  laid  on  the  table. 

As  Mr.  Hooper  had  already  taken  the  oath  and  exercised  his  functions  as  a 
Delegate,  the  laying  on  the  table  of  the  resolution  declaring  him  entitled  to  the 
seat  did  not  affect  his  status.     He  continued  to  be  a  Member  through  this  Congress.^ 

657.  In  1792,  1804,  and  1841  the  House  permitted  parties  in  elec- 
tion cases  to  be  heard  by  attorneys  at  the  bar  of  the  House. — On  March 
10,  1792,  at  the  time  of  the  trial  of  the  contested  election  case  of  Jackson  v.  Wayne, 
leave  was  granted  to  the  sitting  Member  "to  be  heard  by  his  coimsel  at  the  bar 
of  the  House."' 

658.  On  March  1,  1804,^  in  the  contested  election  case  of  Moore  v.  Lewis, 
it  was — 

Resolved,  That  the  memorialist  and  the  sitting  Member  shall,  If  they  desire  it,  be  heard  by  coun- 
sel before  the  bar  of  the  House. 

On  March  3  Mr.  Lewis  was  heard  by  his  counsel. 

659.  On  September  4,  1841,^  the  House  agreed  to  a  resolution  that  David 
Levj^,  claiming  a  seat  as  Delegate  from  Florida,  be  heard  in  person  or  by  counsel 
at  the  bar  of  the  House. 

660.  In  1836  the  House,  after  full  discussion,  declined  to  permit  the 
contestant  in  an  election  case  to  be  heard  by  counsel  at  the  bar  of  the 
House. — On   March  2,   1836,"   when  the  House  was  about  to  proceed  to  the  con- 

'  Second  session  Fortieth  Congress,  Globe,  pp.  4383-4389. 

^  Third  session  Fortieth  Congress,  Journal,  p.  181. 

2  First  session  Second  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  49. 

*  First  session  Eighth  Congress,  Journal,  pp.  609,  615. 

'First  session  Twenty-seventh  Congress,  Journal,  p.  460. 

«  First  seesion  Twenty-fourth  Congress,  Journal,  pp.  445,  468,  499,  500;  Debates,  pp.  2664,  2759. 


§   661  THE   HOUSE   THE   JUDGE    OF    CONTESTED   ELECTIONS.  869 

sideration  of  the  contested  election  case  of  Newland  v.  Graham,  from  North  Caro- 
lina, a  motion  was  made  that  the  petitioner,  David  Newland,  have  leave  to  appear 
at  the  bar  and  address  the  House  on  the  subject  of  his  petition. 

Mr.  Jesse  A.  Bynum,  of  North  Carolina,  moved  as  an  amendment  to  this  motion 
"that  he  have  leave  to  address  the  House  by  himself  or  counsel  on  the  main  ques- 
tion." 

Over  this  motion  a  debate  arose  as  to  the  propriety  of  allowing  the  petitioner 
to  be  heard  by  counsel.  In  support  of  his  motion  Mr.  Bynum  cited  precedents  in 
1789  and  1804  in  which  the  petitioner  was  heard  by  counsel. 

On  March  5  Mr.  Bynum's  amendment  was  disagreed  to  by  the  House,  yeas  67, 
nays  112. 

On  March  12  a  motion  to  reconsider  this  vote  was  decided  in  the  negative, 
yeas  91,  nays  96.  Then  the  original  motion  that  the  petitioner  have  leave  to  appear 
at  the  bar  antl  address  the  House  was  agreed  to.^ 

661.  Tlie  House,  in  1856,  declined  to  permit  a  contestant  who  could 
not  speak  the  English  language  to  be  heard  by  counsel  at  the  bar  of 
the  House.— On  May  8,  1856,=  Mr.  William  E.  Smith,  of  Alabama,  from  the 
Committee  on  Elections,  submitted  the  following  resolutions: 

Resolved,  That  Jos^  M.  Gallegos  is  not  entitled  to  a  seat  in  this  body  as  a  delegate  from  the  Terri- 
tory of  New  Mexico. 

Resolved,  That  Miguel  A.  Otero  is  entitled  to  a  seat  in  this  body  as  such  Delegate. 

Resolved,  That  the  parties  to  this  contest  be  allowed  to  appear  before  this  House,  either  in  person 
or  by  counsel,  to  defend  their  respective  claims. 

The  House  proceeded  first  to  the  consideration  of  the  last  of  the  series  of  res- 
olutions, which  was  reported  principally  for  the  reason  that  Mr.  Gallegos  could  not 
speak  the  EngHsh  language. 

The  subject  was  considered  at  length,  Mr.  Alexander  H.  Stephens,  of  Georgia, 
going  into  a  careful  examination  of  the  precedents,  and  favoring  the  resolution  as 
a  result  of  that  examination.     But  on  May  9  the  resolution  was  disagreed  to.^ 

662.  The  contestant  in  an  election  case  is  sometimes  permitted  to 
address  the  House  in  his  own  behalf. — On  January  30.  1890,*  Mr.  John  J.  Jen- 
kins, of  Wisconsin,  from  the  Committee  on  Elections  No.  3,  made  a  report  in  the 
case  of  Rosenthal  i'.  Crowley,  and  gave  notice  that  he  would  call  up  the  case  on 
the  next  day.  Thereupon  he  asked  mianimous  consent  of  the  House  that  the  con- 
testant be  allowed  one  hoiu"  to  debate  when  the  case  should  come  up. 

The  request  was  granted,  there  being  no  objection. 

'  On  March  11  Mr.  Bynum  made  an  elaborate  argument  in  favor  of  allowing  the  petitioner  to  be 
heard  by  counsel,  citing  numerous  precedents,  both  American  and  English.  (Debates,  pp.  2737-2746.) 
This  was  replied  to  on  March  12,  also  with  a  learned  discussion  of  precedents.     (Globe,  p.  230.) 

On  July  16,  1840,  in  the  New  Jersey  case,  a  proposition  was  made  that  the  contestants  be  heard 
on  the  floor  of  the  House  by  themselves  or  counsel;  but  was  ruled  out,  the  previous  question  having 
been  ordered.     (First  session  Twenty-sixth  Congress,  Journal,  p.  1295.) 

^  First  session  Thirty-fourth  Congress,  Journal,  pp.  943,  947,  952;  Globe,  pp.  1162,  1179,  1186. 

^Subsequently,  on  May  26  (Globe,  p.  1302;  Journal,  p.  1045),  Mr.  Stephens  presented  from  Mr. 
Gallegos  a  speech  written  in  English  and  giving  his  case,  which  was  ordered  to  be  printed.  Mr.  Stephens 
presented  this  as  privileged,  but  no  issue  was  raised. 

■*  First  session  Fifty-fourth  Congress,  Record,  pp.  1120,  1168. 


870  PKECEDENTS   OF   THE    HOUSE   OF    KEPEESENTATIVES.  §  663 

663.  The  House  in  early  years  gave  the  privileges  of  the  floor  to 
contestants  during  discussion  of  the  reports  on  their  cases,  with  leave 
to  speak  on  the  merits.— On  January  5,  1820,^  Mr.  John  W.  Taylor,  of  New 
York,  chairman  of  the  Committee  on  Elections,  offered  the  following  order  to  give 
privilege  to  a  contestant  for  a  seat: 

Ordered,  That  Rollin  C.  Mallary  have  leave  to  occupy  a  seat  on  the  floor  of  this  House,  pending 
the  discussion  of  the  report  of  the  Committee  on  Elections  upon  his  petition;  and  that  he  have  leave 
to  speak  on  the  merits  of  the  petition,  and  the  report  thereon. 

The  order  was  agreed  to. 

664.  On  January  6,  1824,=  it  was — 

Resolved,  That  Parmelio  Adams,  who  contests  the  election  of  Isaac  Wilson,  returned  a  Member 
of  this  House,  be  permitted  to  appear  within  the  bar,  and  be  heard  in  support  of  his  petition,  during 
the  discussion  of  the  report  of  the  Committee  on  Elections  on  said  petition. 

665.  In  1830,'  during  consideration  of  the  Tennessee  contested  election  case  of 
Arnold  v.  Lea,  the  contestant  had  as  usual  been  admitted  to  the  floor  and  had 
addressed  the  Committee  of  the  Whole  (wherein  the  case  was  considered),  and  had 
concluded.  Thereupon  the  sitting  Member  was  recognized  and  proceeded  to 
address  the  committee.  When  he  had  concluded,  the  contestant  requested  recog- 
nition. A  question  being  made  as  to  his  right  to  be  heard,  the  chairman**  declared 
that  he  did  not  have  the  right,  as  it  was  not  proper  to  have  any  collision  between 
the  petitioner  and  the  sitting  Member. 

666.  The  House,  in  1841,  indicated  its  opinion  that  the  returned 
Member  might  speak  of  right  in  his  own  election  case,  but  that  the  con- 
testant needed  the  consent  of  the  House. — On  January  5,  1841,=  the  House, 
after  some  debate,  voted  that  Charles  J.  Ingersoll,  a  contestant  for  the  seat  occupied 
by  Charles  Naylor,  of  Pennsylvania,  have  leave  as  well  as  Mr.  Naylor,  to  address 
the  House.  This  resolution  created  debate.  The  propriety  of  allowing  Mr.  Inger- 
soll to  speak  seems  to  have  been  admitted,  but  it  was  objected  that  the  form  of 
the  resolution  seemed  to  imply  that  the  sitting  Member  also  needed  the  permission 
of  the  House,  whereas,  it  was  contended,  he  had  as  much  right  to  the  floor  as  any 
other  Jklember.  Therefore  the  resolution,  before  being  adopted,  was  amended  by 
striking  out  the  reference  to  Mr.  Naylor.* 

667.  Form  of  resolution  used  in  1848  to  give  to  a  contestant  the 
right  to  be  heard  in  person  at  the  bar  of  the  House. — On  March  29,  1848,' 
the  House  agreed  to  the  following  resolution: 

Resolved,  That  James  Monroe,  who  contests  the  seat  of  David  S.  Jackson,  have  leave  to  be  heard 
in  person  at  the  bar  of  this  House. 

'  First  session  Sixteenth  Congress,  Journal,  p.  107  (Gales  &  Seaton  ed.);  Annals,  p.  860. 

''First  session  Eighteenth  Congress,  Journal,  p.  119;  Annals,  p.  940. 

3  First  session  Twenty-first  Congress,  Journal,  p.  137;  Contested  Elections  (Clarke),  p.  643. 

*Mr.  George  McDuffie,  of  South  Carolina. 

'  Second  session  Twenty-sixth  Congress,  Journal,  p.  145;  Globe,  pp.  83,  84. 

"  A  question  arose  as  to  whether,  in  view  of  the  fact  that  the  proceedings  had  arisen  from  a  petition 
of  people  of  the  district,  Mr.  Ingersoll  appeared  as  a  claimant  or  as  attorney  for  the  people.  It  was 
shown  that  Mr.  Ingersoll  also  had  claimed  the  seat  by  petition,  and  the  House,  by  a  vote  of  139  to  42, 
confirmed  to  him  the  privilege  of  being  heard. 

'  First  session  Thirtieth  Congress,  Journal,  p.  626;  Globe,  p.  549. 


§  668  THE   HOUSE    THE   JUDGE    OP    CONTESTED   ELECTIONS.  871 

668.  A  contestant  having  the  privilege  of  the  floor  with  leave  to 
speak  '*  to  the  merits  of  said  contest  and  the  report  thereon,"  was  per- 
mitted to  speak  on  a  preliminary  question. — On  January  27,  1858,^  the  con- 
testant in  the  contested  election  case  of  Vallandigham  v.  Campbell,  of  Ohio,  was, 
by  resolution,  allowed  to  occupy  a  seat  on  the  floor  "pending  the  discussion  of  the 
report"  of  the  committee,  and  was  given  leave  to  speak  "to  the  merits  of  said  con- 
test and  the  report  thereon." 

On  February  3  there  arose  a  question  as  to  whether  the  contestant  could  be 
on  the  floor  and  participate  in  the  discussion  of  a  resolution  relating  to  extending 
the  time  for  taking  testimony  in  the  case.  By  laying  on  the  table  a  motion  to 
reconsider  the  House  permitted  the  contestant  to  be  present  and  participate  in 
the  decision  of  the  preliminary  question.  Precedents  were  cited  to  show  that 
this  was  in  accordance  with  the  practice. 

669.  The  practice  of  giving  general  permission  to  claimants  for  seats 
to  enjoy  the  privileges  of  the  floor  was  embodied  in  a  rule  in  1880. 

The  House  in  one  case  included  the  right  to  speak  to  the  merits  with 
a  general  permission  to  contestants  to  enjoy  the  privileges  of  the  floor. 
On  July  5,  1861,^  the  House  agreed  to  the  following  resolution: 

Resolved,  That  the  several  gentlemen  who  shall  have  contests  for  seats  pending  before  this  House 
have  the  privilege  of  the  floor  during  such  contest,  with  the  right  to  speak  with  regard  to  their  respective 
cases. 

Before  this  the  above  permission  had  been  granted  in  each  case  as  it  came  up. 

670.  On  July  5,  1867,^  the  House  gave  leave  to  contestants  for  seats  to  have 
the  privileges  of  the  floor  until  their  cases  should  be  disposed  of. 

671.  In  the  Thirtv-ninth  Congress  (1865-67)*  contestants  for  seats  were,  in 
each  case  from  a  loyal  State,  admitted  by  special  resolution  to  seats  on  the  floor, 
generally  with  the  right  to  speak  on  the  case.  These  resolutions  were  passed  gen- 
erally early  in  the  session,  giving  the  contestant  the  pri\alege  during  the  time  the 
case  was  being  considered  in  committee,  as  well  as  during  the  time  of  actual  con- 
sideration by  the  House. 

But  a  general  resolution  giving  the  privilege  of  the  floor  to  claimants  from 
States  lately  in  rebellion  was  negatived  yeas — 40,  nays  111 — on  December  11,  1865.' 

On  December  12,  1865,°  a  resolution  recitLag  the  loyalty  of  the  persons  claim- 
ing seats  from  Tennessee  and  granting  them  the  privileges  of  the  floor  was  laid  on 
the  table — yeas  90,  nays  63 — and  then  a  resolution  inviting  these  persons  as  individ- 
uals to  seats  on  the  floor,  but  not  referring  to  them  as  claimants,  was  agreed  to, 
yeas  133,  nays  35. 

672.  In  1880,'  when  the  rules  of  the  House  were  revised,  a  provision  was 
inserted  in  Rule  XXXW  allowing  the  privileges  of  the  floor  to  "contestants  in 
election  cases  during  the  pendency  of  their  cases  in  the  House." 

'  First  session  Thirty-fifth  Congress,  Globe,  pp.  452,  558. 

^  First  session  Thirty-seventh  Congress,  Journal,  p.  20;  Globe,  p.  12. 

'  First  session  Fortieth  Congress,  Journal,  p.  165. 

*  First  session  Thirty-ninth  Congress,  Journal,  pp.  17,  41,  etc.;  Globe,  pp.  9,  20,  etc. 

'Journal,  p.  47;  Globe,  pp.  21,  22. 

"Journal,  pp.  53-55;  Globe,  p.  33. 

'  Second  session  Forty-sixth  Congress,  Journal,  p.  1552. 


872 


PRECEDENTS  OF  THE  HOUSE  OF  BEPEESENTATIVES. 


§  673 


673.  A  resolution  for  the  employment  of  a  handwriting  expert  in  an 
election  case  was  admitted  as  privileged. — On  January  13,  1904/  Mr.  Mar- 
lin  E.  Olmsted,  of  Pennsylvania,  from  the  Committee  on  Elections  No.  3,  offered, 
as  involving  a  question  of  privilege,  the  following : 

Resolved,  That  Committee  on  Elections  No.  2  shall  be,  and  is  hereby,  authorized  to  employ  an 
expert  in  handwriting  to  pass  upon  such  matters  or  questions  as  shall  be  submitted  to  him  by  said  com- 
mittee or  any  subcommittee  thereof  in  the  contested  election  case  of  Bonynge  v.  Shafroth,  from  the  First 
Congressional  district  of  Colorado,  the  expense  of  emplojdng  such  expert  to  be  paid  out  of  the  contingent 
fund  of  the  House. 

The  resolution  was  entertained  as  a  question  of  privilege,^  and  was  agreed  to 
by  the  House. 

674.  A  proposition  relating  to  the  pay  of  a  contestant  for  a  seat  is 
not  a  question  of  privilege. — On  May  17,  1864,''  the  House  had  disposed  of  the 
contested  election  cases  of  Joseph  Segar  and  L.  H.  Chandler,  of  Virginia,  when  Mr. 
Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee  on  Elections,  submitted, 
as  a  question  of  privilege,  a  resolution  providing  for  payments  out  of  the  contingent 
fund  of  the  House  to  the  two  claimants  of  sums  equal  to  mileage  and  pay  for  the 
session  up  to  the  time  of  the  decision  of  the  cases. 

Mr.  William  S.  Holman,  of  Indiana,  made  the  point  of  order  that  the  resolu- 
tion was  not  privileged. 
The  Speaker^  said: 

The  resolution  would  certainly  not  be  privileged  if  delayed  until  after  the  subject  had  passed  away 
from  the  House,  but  the  Chair  thinks  that,  offered  in  connection  with  the  subject,  it  has  been  usually 
regarded  as  privileged. 

675.  On  June  17,  1870,^*  after  the  disposition  of  the  contested  election  case 
of  Whittlesey  v.  McKenzie,  from  Virginia,  a  resolution  was  presented  for  compen- 
sating the  contestant. 

Objection  being  made,  the  Speaker*  said: 

The  unqualified  privilege  of  the  Committee  on  Elections  in  regard  to  a  report  as  to  the  right  to  a 
seat  does  not  carry  with  it  as  privielged  a  resolution  as  to  compensation.  *  *  *  Such  a  resolution  is 
not  privileged. 

676.  Reference  to  the  laws  relating  to  payment  of  contestants  and 
contestees  in  an  election  case. 

The  amount  for  which  a  party  to  an  election  case  may  be  reimbursed 
for  expenses  is  limited  by  law. 

A  party  to  an  election  case  must  file  a  detailed  account  and  vouchers 
in  support  of  his  claim  for  expenses. 

Allowances  for  witness  fees  in  an  election  case  must  be  in  strict  con- 
formity to  section  128,  Revised  Statutes. 

•  Second  session  Fifty-eighth  Congress,  Journal,  p.  142;  Record,  p.  721. 
^Joseph  G.  Cannon,  of  Illinois,  Speaker. 

^  First  session  Thirty-eighth  Congress,  Globe,  p.  2323. 

*  Schuyler  Colfax,  of  Indiana,  Speaker. 

'  Second  session  Forty-first  Congress,  Globe,  p.  4519. 
"James  G.  Blaine,  of  Maine,  Speaker. 


§  677  THE    HOUSE   THE   JUDGE    OF    CONTESTED   ELECTIONS.  873 

The  statutes '  provide : 

That  hereafter  no  contestee  or  contestant  for  a  seat  in  the  House  of  Representatives  shall  be  paid 
exceeding  two  thousand  dollars  for  expenses  in  election  contests;  and  before  any  sum  whatever  shall  be 
paid  to  a  contestant  or  contestee  for  expenses  of  election  contests  he  shall  file  with  the  clerk  of  the  Com- 
mittee on  Elections  a  full  and  detailed  account  of  his  expenses,  accompanied  by  vouchers  and  receipts 
for  each  item,  which  account  and  vouchers  shall  be  sworn  to  by  the  party  presenting  the  same,  and  no 
charges  for  witness  fees  shall  be  allowed  in  said  accounts  unless  made  in  strict  conformity  to  section 
one  hundred  and  twenty-eight.  Revised  Statutes  of  the  United  States. 

677.   Pa3rments  for  the  expenses   of  either  party  to  an  election  case 
may  not  be  made  by  the  House  out  of  its  contingent  fund  or  otherwise. 
The  statutes  provide: 

No  payment  shall  be  made  by  the  House  of  Representatives,  out  of  its  contingent  fund  ^  or  otherwise 
to  either  party  to  a  contested  election  case  for  expenses  incurred  in  prosecuting  or  defending  the  same.' 


>  20  Stat.  L.,  p.  400. 

'  On  February  19,  1861,  a  resolution  was  agreed  to  providing  for  the  payment  of  the  expenses  of  the 
contested  elections  out  of  the  contingent  fund  of  the  House.  (Second  session  Thirty-sixth  Congress, 
Journal,  p.  350;  Glob»,  p.  1030.) 

'  Revised  Statutes,  sec.  130. 


Chapter  XXII.* 

PLEADINGS  IN  CONTESTED  ELECTIONS. 


1.  Provision  of  statute  as  to  notice  and  answer.     Section  678.' 

2.  Attitude  of  House  as  to  informalities  in.     Sections  679-687. 

3.  Foundation  required  for  Senate  investigations  as  to  bribery,  etc.     Sections  688-696. 


678.  A  person  proposing  to  contest  the  election  of  a  Member  serves 
notice  within  thirty  days  after  determination  of  the  result. 

A  Member  on  whom  has  been  served  a  notice  of  contest  shall  answer 
within  thirty  days  of  such  service. 

Both  the  notice  of  contest  and  answer  are  required  to  present  particu- 
lar specifications. 

The  statutes  provide. 

Whenever  any  person  intends  to  contest  an  election  of  any  Member  of  the  House  of  Representa- 
tives of  the  United  States,  he  shall,  within  thirty  days  after  the  result  of  such  election  shall  have  been 

*  See  Volume  VI,  Chapter  CLXIII. 

'  As  to  time  of  serving  notice.     Section  38  of  this  volume. 

Instances  of  notices  served  too  late.     Sections  901,  1052  of  Volume  II. 

Extension  of  time  for  serving  notice.     Sections  436,  621. 

Committee  given  discretion  to  regulate  serving  of.     Section  599. 

Manner  of  serving  (section  337  of  this  volume  and  sections  862  and  984  of  Volume  II)  and  proof 
of  service.     Section  862  of  Volume  II. 

Waiver  of  informality  in  serving  notice.     Sections  852,  1057  of  Volume  II. 

More  than  one  notice  may  be  served  (section  839),  but  each  must  be  within  the  required  time. 
Section  855  of  Volume  II. 

House  may  disregard  law  as  to  notice  where  its  observance  has  been  impracticable.  Sections 
327,  599. 

As  to  the  determination  of  result  of  election,  on  which  the  issuance  of  the  notice  is  predicated. 
Sections  425,  527  of  this  volume  and  862,  884,  992  of  Volume  II. 

Construction  of  words  ''specify  particularly"  in  law  as  to  notice.  Section  337  of  this  volume, 
and  sections  821,  824,  830,  835,  848,  864,  905,  909,  917,  942,  972,  1064,  1074,  1075,  1171  of  Volume  II. 

House  sometimes  proceeds  with  contest  although  notice  or  answer  may  be  vague  and  indefinite. 
Section  778  of  this  volume,  and  sections  850,  859,  949  and  1107  of  Volume  II. 

Instance  of  notice  by  telegraph.     Section  467. 

Amended  notice  admitted.     Sections  452,  624. 

Waiver  as  to  sufficiency  of  notice.     Sections  855,  864. 

Notice  and  answer  should  be  free  from  personalities  (sections  938, 1125  of  Volume  II)  and  trivial 
and  irrelevant  matter.     Sections  1103,  1126  of  Volume  II. 

Before  the  enactment  of  the  law,  contests  were  instituted  by  memorial.     Sections  322,  362,  370, 
434,  435,  525,  547,  647,  70S,  729,  756,  758,  760,  763,  806,  815,  820  of  this  volume;  and  986  of  Volume  II. 
Instance  also  after  the  enactment  of  the  law.     Section  825  of  this  volume. 
874 


§  679  PLEADINGS   IN    CONTESTED   ELECTIONS,  875 

determined  by  the  officer  or  board  of  canvassers  authorized  by  law  to  determine  the  same,  give  notice 
in  writing,  to  the  Member  whose  seat  he  designs  to  contest,  of  his  intention  to  contest  the  same,  and 
in  such  notice  shall  specify  particularly  the  grounds  upon  which  he  relies  in  the  contest.' 

Any  Member  upon  whom  the  notice  mentioned  in  the  preceding  section  may  be  served  shall, 
within  thirty  daj^s  after  the  ser\-ice  thereof,  answer  such  notice,  admitting  or  denying  the  facts  alleged 
therein,  and  stating  specifically  any  other  grounds  upon  which  he  rests  the  validity  of  his  election; 
and  shall  sen"e  a  copy  of  his  answer  upon  the  contestant.  - 

679.  The  House  decided  in  1806  that  a  petition  instituting  an  elec- 
tion contest  should  state  the  grounds  with  reasonable  certainty. 

The  House  decided  that  in  an  election  case  introduced  by  petition,  the 
petitioner  should  not  give  evidence  of  any  fact  not  alleged  in  the  petition. 

On  January  3,  1806,^  the  House  conciured  in  the  action  of  the  Committee  on 
Elections  giving  Mchael  Leib,  of  Pennsylvania,  leave  to  withdraw  liis  petition. 
The  committee  expressed  the  grounds  for  this  conclusion  as  follows: 

A  petition  against  the  election  of  any  person  returned  as  a  Member  of  the  House  of  Representatives 
ought  to  state  the  ground  on  which  the  election  is  contested  with  such  certainty  as  to  give  reasonable 
notice  thereof  to  the  sitting  Member,  and  to  enable  the  House  to  judge  whether  the  same  be  verified 
by  the  proof,  and,  if  proved,  whether  it  be  sufficient  to  vacate  the  seat;  and  the  petitioner  ought  not 
to  be  permitted  to  give  evidence  of  any  fact  not  substantially  alleged  in  his  petition. 

680.  The  Tennessee  election  case  of  Thomas  v.  Arnell,  in  the  Thirty- 
ninth  Congress. 

The  parties  to  an  election  case  may  not  by  mutual  consent  waive  the 
requirements  that  an  issue  shall  be  made  up  by  the  pleadings  of  notice 
and  answer. 

For  exceptional  reasons  the  House  may  authorize  an  election  case  to 
be  made  up  as  to  notice  and  answer  after  the  time  prescribed  by  law. 

Form  of  resolution  providing  for  notice  and  answ^er  in  election  case 
after  expiration  of  time  prescribed  by  law. 

On  Januarj'  21,  1867,*  the  C!ommittee  on  Elections,  through  Mr.  Henry  L. 
Dawes,  of  Massachusetts,  reported  in  the  case  of  Thomas  v.  Arnell,  of  Tennessee. 
The  report  states  the  facts  and  conclusions  as  follows : 

That  the  election  here  contested  was  held  on  the  first  Thursday  in  August,  1865,  and  the  certifi- 
cate of  election  was  given  by  the  governor  of  the  State  to  Mr.  Arnell,  under  which,  at  the  commence- 
ment of  the  present  session,  Mr.  Arnell  appeared,  was  qualified,  and  still  holds  the  seat. 

The  statute  of  February  19,  1851,  provides  that  the  contestant  shall  serve  notice  of  contest  upon 
the  sitting  Member  within  thirty  days  after  the  result  of  said  election  shall  have  been  determined  by 
the  officer  or  board  of  commissioners  authorized  by  law  to  determine  the  same,  and  the  sitting  Member 
shall  answer  the  same  within  thirty  days,  and  all  testimony  shall  be  taken  within  sixty  days  thereafter. 
In  the  present  case  the  statute  has  not  been  complied  with;  neither  notice  of  contest  nor  answer  have 
been  served.  At  the  hearing  before  the  committee  the  contestant  claimed  the  right  to  be  heard  upon 
the  allegations  in  his  petition  without  further  pleadings,  for  the  reasons  set  forth  in  the  same,  and  the 
sitting  Member  contended  that  the  case  should  be  dismissed  for  want  of  a  compliance  with  the  require- 
ments of  said  statute. 

'  Revised  Statutes,  sec.  105.  The  present  system  of  making  up  contested  election  cases  dates 
from  1851.  Before  that,  except  for  a  brief  period  in  the  early  years  of  the  House,  there  had  been  no 
statute  governing  the  procedure,  and  contests  had  been  instituted  by  memorial. 

^  Revised  Statutes,  sec.  106. 

^  First  session  Ninth  Congress,  Contested  Election  Cases  in  Congress,  1789  to  1834,  p.  165. 

*  Second  session  Thirty-ninth  Congress,  2  Bartlett,  p.  162;  Rowell's  Digest,  p.  211. 


876 


PBECEDENTS    OF   THE    HOUSE   OF    REPRESENTATIVES. 


§   680 


The  following  letter  from  the  sitting  Member  was  submitted  by  the  contestant  as  evidence  that 
he  had  waived  a  notice  of  contest,  and  there  was  no  other  evidence  upon  this  point: 

"Thirty-ninth  Congress  of  the  United  States, 

"  Washington,  D.  C,  December  4,  1866. 
"My  Dear  Sir:  Yours  of  the  3d  instant  has  been  received.  The  following  statement  contains 
the  substantial  facts,  so  far  as  I  remember  them:  In  the  house  of  representatives  at  Nashville,  Tenn., 
after  learning  that  Governor  Brownlow  had  given  to  me  the  certificate  of  election  for  the  Sixth  Congres- 
sional district  of  Tennessee  to  the  Thirty-ninth  Congress,  you  remarked  to  me  that  you  intended  to  con- 
test the  election.  I  replied,  'Very  well;  I  expect  you  to  do  so.'  After  some  other  conversation  of  a 
mutually  friendly  character,  on  your  turning  away,  I  volunteered  the  information  that  it  was  necessary 
to  give  me  notice,  which  you  seemed  not  to  have  thought  of.  I  further  remarked  that  I  desired  to  throw 
no  obstacles  in  the  way,  and  would  acknowledge  notice.  You  then  called  up  several  witnesses  and  the 
matter  was  verbally  understood. 

"Hoping  that  this  will  be  satisfactory,  I  am,  very  respectfully,  yours, 

"Samuel  M.  Arnell. 
"Hon.  D.  B.  Thomas." 

Without  critically  examining  this  note  for  the  purpose  of  ascertaining  whether  it  sustained  the 
position  of  the  contestant,  that  it  waived  all  notice  whatever,  or,  as  contended  by  the  sitting  Member, 
was  merely  evidence  of  an  s^eement  on  his  part  to  acknowledge  the  service  of  legal  notice  whenever 
the  same  should  be  made,  the  committee  were  of  opinion  that  it  was  not  competent  for  the  parties  to 
entirely  waive  the  requirements  of  the  statute  of  1851;  that  said  statute  was  enacted  not  only  to  aid  the 
parties  in  the  preparation  of  their  case,  but  also  to  secure  a  record  and  a  distinct  and  well-defined  issue, 
upon  which  the  committee  and  the  House  were  to  pass.  To  this  end  the  statute  requires  the  notice  to 
be  in  writing,  and  to  specify  in  such  writing  particularly  the  grounds  upon  which  he  relies  in  the  con- 
test, and  the  answer  to  admit  or  deny  the  facts  alleged  in  the  notice,  and  to  state  specifically  any  othea 
grounds  upon  which  he  rests  the  validity  of  his  election.  To  the  issue  thus  distinctly  defined  the 
statute  and  the  uniform  decisions  of  the  House  confine  all  testimony  to  be  taken.  It  must  be  evident 
to  every  one  that  it  is  impossible  for  the  committee  or  the  House  to  hear  and  determine  a  case  without 
an  issue  joined.  Besides,  no  testimony  could  be  taken  by  either  party  without  such  issue,  previously 
framed.  The  statute  requires  testimony  to  be  taken  in  a  manner  therein  prescribed,  before  a  time 
therein  fixed,  and  in  support  of  an  issue  previously  made  up.  It  is  perfectly  absurd  to  suppose  it  pos- 
sible for  cither  party  to  take  testimony  in  support  of  his  own  allegations,  or  in  contravention  of  those  of 
the  other  party,  before  either  have  been  made,  or  for  the  committee  to  hear  the  parties  upon  an  issue 
reserved. 

The  committee  were,  therefore,  of  opinion  that  this  case  could  not  be  heard  by  them  in  its  present 
position,  and  that  it  must  be  dismissed  unless  the  House  should  authorize  the  parties  to  make  up  an 
issue  and  submit  the  same,  with  such  evidence  as  each  may  be  able  to  produce  in  relation  to  the  same, 
to  the  committee  or  the  House.  It  was  thereupon  claimed  by  the  contestant  that  he  has  been  led  into 
this  noncompliance  with  the  statute  by  the  agreement  of  the  sitting  Member  to  acknowledge  notice 
heretofore  alluded  to,  and  also  by  the  peculiar  condition  of  the  State  of  Tennessee  in  reference  to  repre- 
sentation in  this  House.  All  representation  from  that  State  had  been  refused  admission  into  Congress 
till  near  the  close  of  the  first  session,  and  it  was  not  known  till  then,  long  after  the  time  prescribed  by 
the  statute  for  serving  notice  had  elapsed,  that  a  contest  would  be  of  any  avail. 

The  committee  heard  both  parties  upon  the  question  of  recommending  to  the  House  that  the 
authority  prayed  for  be  given.  This  authority  was  given  in  the  case  of  Williamson  v.  Sickles  (Bart., 
288)  for  the  special  reasons  existing  in  that  case,  and  in  the  opinion  of  the  committee  there  are  peculiar 
reasons  existing  in  the  present  case,  not  likely  again  to  occur,  which  will  justify  the  House  in  authoriz- 
ing the  making  up  of  a  record  as  nearly  in  conformity  with  the  requirements  of  the  statute  as  the  cir- 
cumstances of  the  case  will  permit.     They  therefore  recommend  the  adoption  of  the  following  resolution: 

Resolved,  That  Dorsey  B.  Thomas,  contesting  the  right  of  the  Hon.  Samuel  M.  Arnell  to  a  seat  in 
this  House  as  a  Representative  from  the  Sixth  Congressional  district  of  Tennessee  be,  and  he  is  hereby, 
required  to  serve  upon  the  said  Arnell,  within  eight  days  after  the  passage  of  this  resolution,  a  particular 
statement  of  the  grounds  of  said  contest,  and  that  said  Arnell  be,  and  he  is  hereby,  required  to  serve 
upon  said  Thomas  his  answer  thereto  in  eight  days  thereafter,  and  that  both  parties  be  allowed  eighteen 


§  681  PLEADINGS    IX    CONTESTED    ELECTIONS.  877 

days  next  after  the  service  of  said  answer  to  take  testimony  in  support  of  their  several  all^ations  and 
denials  in  all  other  respects  in  conformity  to  the  requirements  of  the  act  of  February'  19,  1851,  except 
that  not  more  than  four  days'  notice  shall  be  required  for  the  taking  of  any  deposition  under  this  reso- 
lution. 

On  January  23,  1867/  the  House  agreed  to  the  resolution  proposed  by  the 
committee;  but  no  conclusion  was  ever  reached  on  the  merits  of  the  case,  and  on 
March  2  '  the  House  discharged  the  Elections  Committee  from  the  consideration 
of  the  subject. 

681.  The  Virginia  election  case  of  Stovell  v.  Cabell  in  the  Forty- 
seventh  Congress. 

Although  there  may  be  irregularities  in  pleadings  and  in  taking  of 
testimony,  the  committee  sometimes  examines  an  election  case  on  the 
merits. 

Where  no  la'w^  requires  the  use  of  only  one  ballot  box  at  a  voting  pre- 
cinct, the  use  of  two  does  not  justify  rejection  of  the  return. 

On  July  IS,  1882,^  Mr.  Gibson  Atherton,  of  Ohio,  from  the  Committee  on  Elec- 
tions, submitted  the  report  of  that  committee  in  the  Virginia  case  of  Stovell  v. 
Cabell.     The  official  returns  gave  sitting  Member  a  majority  of  859  votes. 

The  committee  say: 

The  contestant  does  not  claim  in  his  notice  of  contest  that  he  was  elected  a  Representative  to  the 
Forty-seventh  Congress,  but  that  he  would  have  been  elected  but  for  certain  wrongs  of  which  he  com- 
plains. To  all  of  contestant's  allegations  the  contestee  interposed  a  general  as  well  as  a  specific  and 
particular  denial,  and  challenged  the  proof. 

The  contestant  has  not  attempted  to  substantiate  by  proof  any  of  the  grounds  of  contest  specified 
in  his  notice,  except  such  as  relate  to  the  precincts  of  Danville,  Cascade,  Brosville,  Hall's  Crossroads, 
and  Ringgold,  in  the  county  of  Pittsylvania;  Charity  and  Gates's  Store,  in  Patrick  County;  and  HUls- 
vUle  and  Dalton's  Store,  in  the  county  of  Carroll. 

He  has  offered  some  testimony,  which  has  been  duly  considered,  relating  to  the  precinct  of  Phillips's 
Store,  Nesters,  Fancy  Gap,  and  Smith's  Mill,  in  Carroll  County.  But  these  precincts  are  not  mentioned 
in  the  notice  of  contest,  and  the  depositions  relating  to  them  were  objected  to  for  that  reason  by  the  con- 
testee, and  are  inadmissible.  Besides,  the  depositions  were,  in  disregard  of  the  contestant's  objections, 
taken  in  Carroll  County  by  a  Pittsylvania  County  notary,  who  had  no  authority,  under  State  or  Federal 
law,  to  take  them. 

If  all  the  demands  made  by  the  contestant  in  his  notice  of  contest  respecting  the  precincts  to  which 
his  proofs  relate  be  conceded,  the  result  will  be  as  follows:  Cabell,  10,225;  Stovell,  9,844;  a  majority  of 
381  for  sitting  Member. 

The  conunittee  examined  the  testimony  of  contestant,  however,  but  find  it 
inconclusive. 

It  was  shown  that  at  Hall's  Crossroads  separate  ballot  boxes  were  used  to 
receive  the  votes  of  white  and  colored  voters.     The  report  says  of  this: 

The  testimony  shows  that  two  boxes  had  been  used  since  the  period  of  reconstruction,  without 
objection  from  any  source. 

There  is  no  statute  which  expressly,  or  by  necessary  implication,  forbids  the  use  of  two  boxes  in 
that  way.  The  only  question  is  whether  their  use  interfered  with  the  purity,  freedom,  or  convenience 
of  the  election.     That  it  did  not  is  incontestably  proven  by  the  testimony. 

'  Journal,  p.  250. 

^Journal,  pp.  559,  560 

^  First  session  Forty-seventh  Congress,  House  Report  Xo.  169G;  2  Ellsworth,  p.  667. 


878  PRECEDENTS   OF   THE    HOUSE   OF   KEPEESENTATIVES.  §  682 

As  to  Charity  precinct,  the  report  says: 

The  contestant,  in  his  notice  of  contest,  asserts  that  the  county  canvassers  of  Patrick  County  ille- 
gally rejected  the  returns  of  Charity  precinct,  and  demands  that  the  returned  vote  of  this  precinct  be 
counted. 

But  his  own  proof  shows  that  the  only  return  made  by  the  judges  of  election  of  the  precinct  was  a 
return  of  the  vote  for  electors  of  President  and  Vice-President,  which  return  wholly  omits  the  votes  cast 
for  the  Republican  electoral  candidates.  It  shows  that  the  judges  of  election  made  no  return  at  all  of 
the  vote  for  Representative  in  Congress.  The  omission  of  the  county  canvassers  to  canvass  votes  not 
returned  was  not  illegal.  On  the  contrary,  the  canvass  of  votes  not  returned  would  have  been  a  lawless 
proceeding. 

If  it  were  true,  as  the  contestant  asserts  in  his  brief,  that  51  votes  were  cast  for  the  contestant,  and 
only  20  for  the  contcstee,  at  this  precinct,  the  contestant  might  have  availed  himself  of  the  net  result  by 
proper  averments  in  his  notice,  duly  supported  by  legal  proof.  But  he  made  no  such  averments.  His 
only  averment  was  that  the  county  canvassers  illegally  rejected  the  return;  and  that  averment  was  not 
true.     Nor  is  the  testimony  taken  on  the  subject  before  the  county  clerk  admissible. 

In  accordance  with  their  views  the  committee  reported  resolutions  confirming 
the  title  of  sitting  Member  to  the  seat. 

These  resolutions  were  agreed  to  by  the  House  without  division  or  debate.' 

682.  The  Pennsylvania  election  case  of  Reynolds  v.  Shonk,  in  the 
Fifty-second  Congress. 

The  notice  of  contest  in  an  election  case  must  be  specific  in  its  alle- 
gations. 

A  notice  of  contest  condemned  in  an  election  case  as  inadequate. 

The  Committee  on  Elections  sometimes  hears  a  contest  on  its  merits, 
although  the  notice  may  fail  in  definiteness. 

On  January  17,  1893/  Mr.  Littleton  W.  Moore,  of  Texas,  from  the  Committee 
on  Elections,  submitted  the  report  in  the  Pennsylvania  case  of  Reynolds  v.  Shonk. 
The  contestant  had  served  on  sitting  Member  the  following  notice  of  contest: 

Hon.  Geo.  W.  Shonk. 

Sir:  This  is  to  notify  you  that  I  design  and  intend  to  contest  your  election  and  your  seat  in  the 
Fifty-second  House  of  Representatives  of  the  United  States,  and  I  specify  particularly  the  grounds  upon 
which  I  rely. 

First.  Fraud  in  the  election,  and  bribery,  intimidation,  and  corruption  of  voters,  (a)  In  the  use 
of  money  with  election  officials  and  Democratic  poll  men.  (6)  In  the  piu-chase  of  voters  to  vote  for  you, 
especially  well-known  Democratic  voters,  by  the  payment  of  sums  of  money  of  various  amounts;  in  the 
employment  of  large  numbers  of  men  by  you,  at  various  prices,  each  to  attend  the  polls,  and  by  intimi- 
dation and  numbers  compel  Democratic  voters  to  vote  for  you;  by  bargaining  with  and  paying  to  leaders 
and  influential  men  of  foreign  nationality  large  sums  of  money,  who  agreed  to  and  did,  by  various  devices 
and  tricks,  by  influence  and  violence,  compel  or  influence  their  countrymen  to  vote  for  you;  by  the  use 
of  the  regular  Democratic  ticket,  with  your  name  inserted  as  the  candidate  for  Congress  and  my  name 
excluded,  and  the  employment  and  purchase,  with  money,  of  Democrats  and  others  to  induce  voters  to 
vote  the  same,  by  representing  this  fraudulent  ticket  to  be  the  straight  Democratic  ticket;  by  this  and 
other  practices  of  deception  and  guile  deceiving  large  numbers  of  voters;  by  promise  of  patronage  of 
office;  by  agreement  to  nominate  or  procure  the  nomination  of  individuals  to  certain  offices  of  oiu-  State 
and  the  United  States;  and  by  engagements  to  procure  executive  clemency  or  immunity  from  punish- 
ment for  violation  of  the  election  laws,  voters  were  induced  to  cast  their  votes  for  you  in  every  election 
district  of  the  Twelfth  Congressional  district  of  Pennsylvania. 

Respectfully,  yours,  John  B.  Reynolds. 

Wilkes-Barre,  Pa.,  December  2,  1890. 

'  Record,  p.  6174;  Journal,  p.  1664. 

^  Second  session  Fifty-second  Congress,  House  Report  No.  2268;  RoweU's  Digest,  p.  477;  Stofer's 
Digest,  p.  47;  Journal,  p.  94. 


§  683  PLEADINGS   IN   CONTESTED   ELECTIONS.  879 

Sitting  Member  filed  exceptions  to  this  notice,  on  the  ground  that  it  was  too 
informally  drawn  and  too  vague,  not  stating  in  what  district  the  election  was  held, 
or  who  were  the  candidates,  or  what  votes  they  received,  or  that  the  certified  result 
of  the  election  was  not  correct ;  and  that  it  did  not  give  specific  instances  of  wrong- 
doing, particularizing  as  to  locality,  method  or  form  of  the  alleged  unlawful  acts. 

The  committee,  after  citing  the  law  of  Congress  as  to  notices  of  contest,  say: 

It  will  be  observed  that  the  contestant  nowhere  claims  tnat  he  was  elected,  but  seeks  only  to 
impeach  the  title  of  the  contestee  to  the  office.  The  committee  took  no  formal  action  upon  the  excep- 
tions filed  to  the  notice  of  contest  nor  pronounced  their  decision  upon  it.  But  we  are  of  opinion  that 
the  notice  of  contest  in  its  various  charges  upon  which  there  was  any  testimony  is  too  vague  and  indefinite 
and  does  not  conform  to  the  act  of  Congress  referred. 

In  Blomberg  v.  Haralson  (Smith's  Report  of  Election  Cases,  p.  355)  the  committee  say: 
'The  statute  requires  that  the  contestant  in  his  notice  shall  'specify  particularly  the  grounds  upon 
which  he  relies  in  his  contest.'  It  is  impossible  to  conceive  of  a  specification  of  the  grounds  of  contest 
broader  or  more  general  in  its  terms.  It  fixes  no  place  where  the  act  complained  of  occurred.  It 
embraces  the  whole  district  in  one  sweeping  charge.  The  specifications  embrace  three  general  grounds 
of  complaint,  not  one  of  which  possesses  that  particularity  essential  to  good  pleading." 

The  committee,  however,  heard  the  case  on  its  merits,  but  found  no  evidence 
sufiicient  to  assail  successful!}'  the  1,484  plurality  returned  for  sitting  Member. 
Sitting  Member  admitted  that  he  spent  89,5.50  in  the  canvass,  but  explained  to  the 
satisfaction  of  the  committee  that  the  expenditure  was  for  legitimate  purposes. 
Therefore  resolutions  confirming  the  title  of  sitting  Member  to  the  seat  were  recom- 
mended, and  on  February  16,  189.3,  were  agreed  to  by  the  House  without  debate 
or  division. 

683.  Instances  wherein  the  House  permitted  amended  notices  of  con- 
test to  be  filed,  -with  right  to  file  amended  answers. 

The  House  denied  the  petition  of  certain  electors  in  a  district  asking 
leave  to  take  testimony  in  an  election  case. 

On  March  14,  1S71,'  Mr.  George  W.  McC'rary,  of  Iowa,  submitted  from  the 
Committee  of  Elections  the  following  resolutions,  which  was  agreed  to  without 
debate  or  division: 

Rtsolved,  That  James  H.  Harris,  contesting  the  claim  of  Hon.  Sion  H.  Rogers  to  a  seat  in  this  House 
as  the  Representative  of  the  Fourth  district  of  North  Carolina,  shall  be  permitted  to  serve  upon  said 
Rogers  an  amended  notice  of  contest  within  ten  days  from  and  after  the  passage  of  this  resolution,  and 
that  said  Rogers  be  permitted  to  answer  the  same  within  thirty  days  after  the  service  thereof,  and  the  time 
for  taking  testimony  under  the  law  is  extended  sixty  days  from  the  date  of  the  service  of  the  answer  to 
said  amended  notice. 

On  April  1.3,^  also,  a  similar  resolution  in  the  case  of  Schenck  v.  Campbell  pro- 
vided that  the  notice  of  contest  might  be  amended  "by  adding  thereto  an  allegation 
charging  fraud  in  the  election  in  the  second  ward  of  the  city  of  Hamilton,  Ohio,  which 
amendment  shall  be  served  on  or  before,"  etc.  On  April  10,  1872,^  Mr.  George  W. 
McCrary,  of  Iowa,  from  the  Committee  of  Elections,  reported  adversely  petition 
of  certain  electors  of  the  district  asking  leave  to  take  testimony  in  the  case.  The 
petition  was  laid  on  the  table. 

'  First  session  Forty-second  Congress,  Journal,  p.  57;  Globe,  p.  101. 

2  Journal,  p.  1.50;  Globe,  p.  627. 

'  Second  session  Forty-second  Congress,  Journal,  p.  666;  Globe,  p.  2342. 


880 


PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES. 


§   684 


684.  The  Texas  election  case  of  Rosenthal  v.  Crowley  in  the  Fifty- 
fourth  Congress. 

An  instance  wherein,  after  an  amended  notice  of  contest  had  been 
authorized,  the  House  heard  the  election  case  as  if  it  had  actually  been 
made. 

On  January  21,  1896,'  Mr.  Samuel  M.  Stephenson,  of  Michigan,  introduced  the 
following  resolution,  which  was  referred  to  Committee  of  Elections  No.  3: 

Resolved,  That  the  contestant,  A.  J.  Rosenthal,  be,  and  he  is  hereby,  authorized  to  so  amend  his 
notice  of  contest  in  the  case  of  A.  J.  Rosenthal  v.  Miles  Crowley,  Tenth  Congressional  district,  State  of 
Texas,  by  adding  thereto  the  following,  to  wit:  "That  there  were  unlawfully  counted  in  making  up  the 
returns  from  said  district  divers  precincts  in  Galveston  County."  [Here  follow  specifications  and 
numbers  of  the  precincts.] 

The  committee,  in  hearing  the  case,  heard  it  as  if  the  amendment  had  actually 
been  made,  and  it  being  evident  that,  even  if  all  should  be  proved  as  claimed,  the 
contestant  could  not  make  out  his  case,  recommended  the  resolution  adversely  and 
on  January  31^  the  House  laid  it  on  the  table. 

As  to  the  merits  of  the  case  the  committee  reported  on  January  30,^  confirming 
the  title  of  the  sitting  Member  to  the  seat,  and  on  January  31^  the  House  agreed 
to  the  report. 

The  sitting  Member  had  been  returned  by  a  plurality  of  1 ,303  votes.  Contest- 
ant asked  that  votes  be  excluded  in  one  county  because  returns  received  by  the 
county  commissioners'  court  after  the  limit  prescribed  by  law  had  been  forwarded 
to  the  secretary  of  state ;  and  in  another  county  where  such  belated  returns  had  not 
been  forwarded  by  the  coimty  commissioners  the  contestant  asked  that  they  be 
coimted.  The  committee  believed  that  there  was  no  reason  shown  why  one  rule 
shall  not  be  applied  to  both  cases,  and  such  being  the  case  the  plurality  of  sitting 
Member  could  not  be  attacked  successfully. 

685.  The  Missouri  election  case  of  Reynolds  v.  Butler  in  the  Fifty- 
eighth  Congress. 

Question  as  to  the  serving  of  amended  notices  of  contest  in  election 
cases. 

Sundays  and  legal  holidays  are  not  excluded  in  computing  the  forty 
days  allowed  for  taking  testimony  in  an  election  case. 

In  an  election  case  testimony  taken  ex  parte,  in  another  case  involv- 
ing only  a  portion  of  the  district,  was  not  admitted. 

On  December  15,  1904,'^  Mr.  Marlin  E.  Olmsted,  of  Pennsylvania,  from  the 
Committee  on  Elections  No.  2,  presented  the  report  of  the  committee  in  the  Missouri 
election  case  of  Reynolds  v.  Butler. 

The  report  states  the  case  as  follows: 

At  the  regular  Congressional  election  in  1900,  James  J.  Butler  was  returned  as  elected  to  a  seat  in 
the  Fifty-seventh  Congress.     His  election  was  contested  by  William  M.  Horton.     The  Committee  on 

'  First  session  Fifty-fourth  Congress,  Journal,  p.  134;  House  Report  No.  197;  Rowell's  Digest,  p.  529. 

-Journal,  p.  166. 

'House  Report  No.  177. 

'Journal,  p.  166. 

'Third  session  Fifty-eighth  Congress,  Record,  pp.  313-317;  House  Report  No.  3129. 


§  685 


PLEADINGS   IN   CONTESTED   ELECTIONS.  881 


Elections  No.  1,  to  which  the  contest  was  referred,  reported  that,  "fraud  so  permeated  the  conduct  of 
the  election  in  a  la'ge  part  of  the  district  as  to  prevent  a  full,  free,  and  fair  expression  of  the  public  desire 
in  respect  to  the  election  of  a  Representative  in  Congress,"  and  the  House,  on  the  28th  of  June,  1902 
adopted  a  resolution  declaring  the  seat  vacant. 

The  governor  of  Missouri  thereupon  ordered  a  special  election.  Mr.  Butler  was  again  a  candidate 
and  returned  as  elected  to  fill  the  vacancy  caused  by  his  own  unseating.  His  opponent  in  that  election 
was  Mr.  George  C.  R.  Wagoner,  who  contested  his  seat  in  the  second  session  of  the  Fifty-seventh  Congress, 
which  assembled  on  the  first  Monday  of  December,  1902. 

.*.s  the  time  fixed  by  statute  for  the  taking  of  testimony  would  have  carried  the  case  beyond  tne 
expiration  of  the  term  for  which  Wagoner  claimed  to  have  been  elected,  he  presented  a  memorial  to  the 
House,  which,  on  the  11th  day  of  December,  1902,  adopted  a  resolution  specifying  a  certain  time  within 
which  the  contestant  might  take  testimony,  a  certain  time  for  the  contestee,  and  again  a  certain  time 
for  the  contestant  in  rebuttal,  and  required  the  Committee  on  Elections  No.  2  to  consider  and  report 
upon  the  case  so  that  it  might  be  disposed  of  during  the  life  of  that  Congress.  That  committee  reported 
that  by  reason  of  gross  frauds,  clearly  shown,  making  it  impossible  to  ascertain  the  legal  votes  cast  the 
returns  from  certain  precincts  must,  in  accordance  with  the  well-established  precedent  of  the  House  and 
the  rule  laid  down  by  courts  and  learned  authors,  be  entirely  rejected,  and  that  Wagoner  had  been  duly 
elected  and  was  entitled  to  his  seat.  Resolutions  to  that  effect  were  adopted  by  the  House,  and  Wagoner 
seated  February  — ,  1903. 

November  4,  1902,  the  day  fixed  by  the  governor  for  holding  the  special  election  for  filling  the 
vacancy  in  the  Fifty-seventh  Congress,  was  also  the  day  fixed  by  law  for  the  general  election,  at  whicn 
there  was  to  be  chosen  a  Representative  in  this  the  Fifty-eighth  Congress.  Mr.  Butler  was  a  candidate 
for  that  seat  also  and  was  opposed  by  Mr.  George  D.  Reynolds,  the  present  contestant. 

The  Missouri  legislature  had  by  act  of  March  16,  1901,  redistricted  the  State,  so  that  the  district  in 
which  Reynolds  competed  with  Butler  for  a  seat  in  the  Fifty-eighth  Congress  was  not  identical  with  the 
district  in  which  Wagoner,  upon  the  same  day,  competed  with  Butler  for  a  seat  in  the  Fifty-seventh  Con- 
gress. Although  the  district,  which  is  within  the  city  of  St.  Louis,  is  still  known  as  the  Twelfth,  at  least 
one-half  of  it,  territorially  speaking  (and  being  the  one-half  in  which  Wagoner  received  his  majority), 
had  been  cut  off  from  the  district,  while  some  new  territory  had  been  added.  To  be  explicit,  precincts 
1.  2.  3,  4,  5,  6,  7,  8,  9,  10,  11,  12,  and  13  of  the  Twenty-fourth  Ward;  precincts  1  and  2  of  the  Twenty- 
eighth  Ward;  precinct  11  of  the  Twelfth  Ward;  precinct  12  of  the  Seventh  Ward;  precinct  1  of  the  Twen- 
tieth Ward,  and  precincts  1  and  2  of  the  Twenty-first  Ward,  which  formed  part  of  the  district  in  which 
Wagoner  ran  against  Butler  for  a  seat  in  the  Fifty-seventh  Congress,  were  not  in  the  district  in  which 
Reynolds  ran  against  Butler  for  a  seat  in  the  Fifty-eighth  Congress,  while  precincts  7,  8,  9,  10,  11,  12  and 
13  of  the  Twenty-fifth  Ward,  and  precincts  2,  3,  and  4  of  the  Fifteenth  W'ard,  which  never  had  been  in 
the  district  in  which  Wagoner  ran  against  Butler,  are  in  the  district  in  which  Reynolds  ran  against  Butler. 
All  of  the  Fourth,  Fifth,  Sixth,  Thirteenth,  Fourteenth,  and  Twenty-third  wards  and  parts  of  the  Fif- 
teenth, Twenty-second,  and  Twenty-fifth  wards  were  in  both  districts. 

Differently  stated,  the  old  district  in  which  Wagoner  ran  against  Butler  for  the  Fifty-seventh  Con- 
gress, contained  20  election  precincts  which  are  not  in  the  present  district  in  which  Reynolds  ran  against 
Butler  for  a  seat  in  the  Fifty-eighth  Congress,  and  10  precincts  in  the  present  district  in  which  Reynolds 
ran  were  not  in  the  district  in  which  Wagoner  ran. 

The  returns  of  the  election  for  the  Fifty-eighth  Congress  showed  Butler  to  have  received  1.5,316 
votes  and  Reynolds  8,698,  an  apparent  majority  of  6,618  for  Butler,  who  was  sworn  in  at  the  beginninc 
of  the  present  Congress  and  now  occupies  the  seat  which  Reynolds  contests. 

In  his  notice  of  contest,  in  more  or  less  general  terms,  he  charges  frauds  of  various  kinds,  and  in  the 
ninth  paragraph  thereof  specifically  charges  that  in  sundry  precincts,  therein  set  forth,  there  were  frauds 
so  gross  and  extensive  that  it  was  impossible  to  ascertain  the  actual  and  legal  votes,  and  that  the  returns 
should  therefore  be  rejected  altogether. 

The  contestant  was  not  diligent  in  prosecuting  his  contest.  Provision  for  the  taking  of  testimony 
in  such  cases  is  found  in  section  107,  United  States  Revised  Statutes,  which  reads  thus: 

"Time  for  taking  testimony:  In  all  contested  election  cases  the  time  allowed  for  taking  testimony 
shall  be  ninety  days,  and  the  testimony  shall  be  taken  in  the  following  order:  The  contestant  shall  take 

5994— VOL  1—07 56 


g82  PRECEDENTS   OF   THE   HOUSE   OF   KEPBESENTATIVES.  §  685 

testimony  during  the  first  forty  days,  the  returned  Member  during  the  succeeding  forty  days,  and  the 
contestant  may  take  testimony  in  rebuttal  only  during  the  remaining  ten  days  of  said  period." 
The  act  of  March  2,  1875,  chapter  119,  section  2,  declares: 

"That  section  107  of  the  Revised  Statutes  of  the  United  States  shall  be  construed  as  requiring  all 
testimony  in  cases  of  contested  election  to  be  taken  within  ninety  days  from  the  day  on  which  the  answer 
of  the  returned  Member  is  served  upon  the  contestant." 

In  this  case  the  notice  of  contest  was  dated  December  20,  1902.  Mr.  Butler's  answer  was  served 
December  22,  1902.  Contestant  thereupon  served  an  additional  or  supplemental  notice  of  contest,  to 
which  the  contestee  made  reply  December  24.  The  statute  makes  no  provision  for  the  servace  of  addi- 
tional grounds  of  contest,  and  these  amended  specifications  must  be  considered,  if  received  at  all,  as 
served  in  the  original  notice  of  contest.  (McDuffy  v.  Torpin,  Stofer,  355;  McCrary  on  Elections,  448.) 
Certainly  after  answer  filed,  a  supplemental  notice  of  contest  can  not  be  held  to  extend  the  time  for  the 
taking  of  testimony.  Contestee's  answer  having  been  served  December  22,  1902,  the  forty  calendar  days 
expired  with  the  31st  day  of  January,  1903.  Within  those  forty  days  contestant  called  no  witnesses  and 
took  no  testimony  whatever.  On  the  forty-second  day  (February  2),  contestant  proposing  to  take  testi- 
mony, and  having  himself  been  sworn,  counsel  for  contestee  objected  to  the  taking  of  any  testimony 
whatever,  and  in  his  statement  of  objections  said,  inter  alia: 

"George  D.  Reynolds  has  slept  on  his  rights,  and  the  forty  days  during  which  Congress  says  testi- 
mony for  contestee  shall  be  taken  have  expired  without  his  having  taken  any  testimony  whatsoever, 
and  George  D.  Reynolds  has,  to  all  intents  and  purposes,  abandoned  his  contest,  and  can  not  now  revive 
the  same  in  the  time  allotted  to  contestee  in  which  to  take  testimony  had  he  obeyed  the  mandatorj' 
provision  of  the  law." 

This  and  other  objections  were  spread  at  length  upon  the  record.  Contestant  was  then  himself 
examined,  but  testified  simply  to  the  service  of  notice  of  contest  and  of  the  additional  grounds  of  contest. 
Two  other  witnesses  testified  also  as  to  the  service  of  these  papers,  and  the  papers  themselves  were  put  in 
evidence  as  exhibits,  whereupon  the  further  taking  of  testimony  was  adjourned  until  February  3.  This 
was  the  forty-first  calendar  day  after  the  service  of  the  answer  to  the  additional  notice  of  contest  and  the 
forty-third  after  the  service  of  the  answer  to  the  original  notice.  One  witness  was  examined  and  an 
adjournment  had  to  February  4  (the  forty-fourth  day).  Two  witnesses  were  then  examined  and  an 
adjournment  had  to  February  5  (the  forty-fiftli  day).  Depositions  were  also  taken  on  the  6th,  7th,  9th, 
10th,  and  11th  of  February  (the  forty-sixth,  forty-seventh,  forty-ninth,  fiftieth,  and  fifty-first  days).  No 
testimony  was  at  any  time  taken  by  contestee  and  none  by  contestant  between  February  11  and  March 
31.  Upon  the  latter  date  (the  one  hundredth  day)  certain  testimony  was  taken  by  contestant.  Also 
upon  the  1st,  2d,  3d,  6th,  7th,  and  10th  of  April  (the  one  hundred  and  first,  one  hundred  and  second, 
one  hundred  and  third,  one  hundred  and  sixth,  one  hundred  and  seventh,  and  one  hundred  and 
tenth  days). 

Contestant  insists  that  in  computing  the  time  under  the  statute,  Sundays  and  legal  holidays  must  be 
excluded  so  as  to  leave  forty  working  days.  It  has  never  been  so  considered  and  we  can  not  take  that 
view.  Section  108  of  the  Revised  Statutes,  being  part  of  the  same  act,  referring  to  notice  of  intention  to 
take  depositions,  requires  that  it  "shall  be  served  so  as  to  allow  the  opposite  party  sufficient  time  by  the 
usual  route  of  travel  to  attend  and  one  day  for  preparation,  exclusive  of  Sundays  and  the  day  of  service." 
The  exclusion  of  Sundays  in  one  section  and  not  in  the  other  is  very  significant.  In  section  1007  it  is 
provided  that  in  order  to  make  a  writ  of  error  a  supersedeas  it  must  be  ser\'ed  upon  the  adverse  party 
"within  sixty  days,  Sundays  exclusive,"  and  generally  where  Congress  has  intended  to  exclude  Sun- 
days it  has  so  stated. 

"Sundays  are  included  in  computations  of  time,  except  when  the  time  is  limited  to  twenty-four 
hours,  in  which  case  the  following  day  is  allowed."     (Endich  on  Statutes,  sec.  393.) 

"In  the  computation  of  statute  time  an  intervening  Sunday  is  to  be  counted,  unless  expressly 
excluded  by  the  statute."     (King  v.  Dowdall,  2  Sand.,  131  N.  Y.) 

Mr.  Justice  Brown,  in  Monroe  Cattle  Co.  v.  Becker  (147  U.S.,  55)  states  the  general  rule  to  be — 
"that  when  an  act  is  to  be  performed  within  a  certain  number  of  days  and  the  last  day  falls  on  Sunday, 
the  person  charged  with  the  performance  of  the  act  has  the  following  day  to  comply  with  his  obligation." 
Subject  to  that  rule  we  hold  that  the  statute  means  calendar  days.  The  contestant  took  no  testi- 
mony whatever  within  the  time  prescribed  by  the  statute,  and  some  upon  which  he  relies  was  taken 
many  days  after  the  statutory  period,  even  if  construed  as  he  desires. 


§  685  PLEADINGS   IN   CONTESTED   ELECTIONS.  883 

It  is  quite  true  that  the  statute  providing  and  limiting  the  time  for  the  taking  of  testimony  is  not 
binding  upon  this  House,  which  under  the  Constitution  is  the  only  and  absolute  judge  of  the  qualifica- 
tions and  elections  of  its  Members.  But,  as  has  frequently  been  held,  it  furnishes  a  wise  and  wholesome 
rule  of  action  and  ought  not  to  be  departed  from  except  for  sufficient  cause  shown,  or  where  the  interests 
of  justice  clearly  require.  It  would  seem  that  contestant  might  have  commenced  and  concluded  his 
testimony  in  this  case  within  forty  days.  Certainly  he  might  have  commenced.  No  reason  whatever 
appears  upon  the  record  why  he  could  not,  or  did  not,  but  upon  the  argument  before  yoiir  committee  it 
was  stated  that  counsel  for  the  present  contestant  were  also  counsel  for  Wagoner  in  his  contest,  and  that 
some  or  all  of  them  were  engaged  upon  that  case  most  of  the  time.  There  must,  however,  have  been 
other  counsel  in  St.  Louis  quite  capable  of  taking  such  testimony  as  was  taken  in  this  case. 

The  report  then  goes  on  to  cite  testimony  to  show  the  character  of  the  evidence 
produced.  The  contestant  called  the  notaries  public  before  whom  testimony  was 
taken  in  the  case  of  Wagoner  v.  Butler,  and  \>j  them  proved  carbon  copies  of  the 
depositions  taken  in  that  case.     The  report  says  as  to  this  procedure : 

Mr.  Butler  was  not  present,  either  in  person  or  by  counsel,  at  this  hearing,  having  previously 
given  notice  that  he  would  not  attend  any  hearing,  as  he  protested  against  the  right  of  contestant  to  take 
any  testimony  at  all  after  the  expiration  of  forty  calendar  days.  Neither  of  the  witnesses  Moore  and 
Halter  were  examined  at  all  touching  the  case  of  Reynolds  against  Butler.  They  were  called  for  the 
single  purpose  of  introducing  in  that  way  the  testimony  of  witnesses  examined  before  them,  as  notaries 
public,  in  the  Wagoner  case.  No  notice  was  given  Butler  that  the  testimony  of  the  witnesses  in  the 
Wagoner  case  was  thus  to  be  introduced,  and  the  notice  serv'ed  upon  him  of  contestant's  intention  to 
take  testimony  did  not  include  even  the  names  of  Moore  and  Halter.  Several  other  notaries  before 
whom  depositions  were  taken  in  the  Wagoner  case  were  also  called,  and  in  like  manner  there  were 
introduced  carbon  copies  of  the  depositions  taken  before  them  in  the  Wagoner  case.  The  testimony  of 
21  witnesses  in  the  Wagoner  case  was  thus  introduced  April  10,  1903  (the  one  hundred  and  tenth  day). 
These  witnesses  were  examined  in  the  Wagoner  case  between  December  19  and  December  27,  1902,  and 
the  only  reason  given  for  delay  in  introducing  copies  of  their  depositions  in  the  Reynolds  case  was  that 
the  notary  would  not  surrender  carbon  copies  until  his  fees  were  paid. 

It  is  not  pretended  that  the  testimony  taken  directly  in  this  contest  makes  out  a  case  against  the 
sitting  Member,  but  contestant  relies  upon  the  testimony  taken  in  the  Wagoner  case  and  proved,  or 
attempted  to  be  proved,  by  the  notaries  public  in  the  manner  above  indicated.  For  the  competency  of 
this  exadence  his  counsel  rely  upon  Greenleaf  on  E^ddence,  section  553,  which  they  cite  in  their  brief 
as  follows: 

"In  regard  to  the  admissibility  of  a  former  judgment  in  e^ddence,  it  is  generally  necessary  that  there 
be  a  perfect  mutuality  between  the  parties,  neither  being  concluded  unless  both  are  alike  bound.  But 
with  respect  to  depositions,  though  this  rule  is  admitted  in  its  general  principle,  yet  it  Ls  applied  with 
more  latitude  of  discretion;  and  complete  mutuality  is  not  required.  It  is  generally  deemed  sufficient, 
if  the  matters  in  issue  were  the  same  in  both  cases,  and  the  party  against  whom  the  deposition  is  offered 
had  full  power  to  cross-examine  the  witness." 

That  is  not  a  fair  citation,  as  it  omits  more  than  half  of  the  section,  particularly  the  following: 

"If  the  power  of  cross-examination  was  more  limited  in  the  former  suit  in  regard  to  the  matters  in 
controversy  in  the  latter,  it  would  seem  that  the  testimony  ought  to  be  excluded." 

Furthermore,  it  omits  the  fact,  manifest  from  a  reading  of  the  entire  section,  and  particularly  in 
connection  with  section  163,  that  the  learned  author  referred,  in  any  event,  only  to  cases  in  which  the 
witnesses  were  dead  or  for  some  other  reason  not  compellable  to  testify  in  person. 

The  matter  in  issue  in  the  Wagoner  case  was  the  right  to  a  seat  in  the  Kfty-seventh  Congress  from 
the  old  district.  The  matter  in  issue  in  this  controversy  is  the  right  to  a  seat  in  the  Fifty-eighth  Congress 
from  the  new  district.  The  matters  in  issue  are  therefore  not  identical.  The  parties  are  not  the  same, 
except  that  ilr.  Butler,  the  contestee  here,  was  also  the  contestee  in  the  Wagoner  case.  He  certainly 
did  not,  in  the  Wagoner  case,  have  "full  power  to  cross-examine"  the  witnesses  touching  the  Reynolds 
case.  His  "power  of  cross-examination  was  more  limited  in  the  former  suit,  in  regard  to  the  matters  in 
controversy,  than  in  the  latter."  Indeed,  in  the  Wagoner  case,  which  related  solely  to  a  seat  in  the  Fifty- 
seventh  Congress,  he  had  no  opportunity  to  cross-examine  witnesses  at  all  concerning  his  controversy 


884 


PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES. 


§  685 


with  Reynolds  for  a  seat  in  the  Fifty-eighth.  No  questions  concerning  the  Reynolds  contest  were  asked 
in  direct  examination  of  the  witnesses,  and  cross-examination  concerning  it  would  not  have  been  in 
order.  As  a  matter  of  fact,  he  did  not  cross-examine  them  at  all  in  the  Wagoner  case.  Doubtless  he 
had  his  own  reasons  for  not  doing  so.  He  may  have  thought  it  useless  to  make  much  of  a  fight  in  that 
district,  and  yet  he  might  have  been  very  anxious  to  cross-examine  them  touching  the  present  contest, 
involvinc  an  election  from  a  changed  district  more  favorable  to  his  party  because  of  the  elimination  of 
sundry  Republican  precincts  which  had  been  in  the  old  district.  He  was  certainly  under  no  obligation 
to  cross-examine  them  in  the  Wagoner  case,  and  the  fact  that  he  did  not  is  no  bar  to  his  right  to  cross- 
examine  them  in  this  entirely  different  controversy. 

It  is  asserted  in  contestant's  brief  that  the  elections  were  held  by  the  same  officers  and  by  the  use 
of  the  same  official  ballots,  but  he  has  failed  to  show  even  that  fact  by  any  evidence  offered  in  the  case. 
It  is  not  claimed  that  the  witnesses,  whose  testimony  in  the  Wagoner  case  contestant  seeks  to  introduce, 
are  dead  or  were  for  any  other  reason  beyond  the  reach  of  service  of  subpoena.  So  far  as  we  are  advised 
their  presence  could  readily  have  been  secured,  and  failure  to  call  them  was  based  purely  on  reasons 
of  convenience  and  expense.  Under  such  circumstances,  copies  of  their  depositions  would  not  be 
admissible  in  a  court  of  justice. 

But  there  is  a  further  objection.  Section  108  of  the  Revised  Statutes  requires  that  the  party 
desiring  to  take  depositions  in  a  contested  election  case  "  shall  give  the  opposite  party  notice,  in  writing, 
of  the  time  and  place  when  and  where  the  same  will  be  taken,  of  the  names  of  the  witnesses  to  be 
examined  and  their  places  of  residence."  Mr.  Butler  was  not  given  the  names  of  the  witnesses  whose 
testimony,  in  the  Wagoner  case,  it  was  proposed  to  introduce  in  this  contest,  and  in  at  least  one 
important  instance  the  notice  to  him  did  not  even  give  the  names  of  the  notaries  public  who  were  called 
as  witnesses  in  this  contest  for  the  purpose  of  proving  the  depositions  of  numerous  witnesses  in  the 
Wagoner  case. 

But,  even  if  all  the  testimony  offered  by  contestant  were  to  be  received  and  given  its  full  effect, 
it  is  deficient  in  at  least  one  very  important  particular.  In  the  notice  of  contest  it  is  alleged  that  over 
10,000  illegal  ballots  were  received  and  counted  by  the  judges  of  election,  and  that  "the  parties  so 
voting  were  not  legally  registered  voters  and  were  not  entitled  to  vote  at  said  election."  We  find  upon 
examination  of  the  published  report  of  the  committee  which  passed  upon  the  Wagoner  case  in  the 
Fifty-seventh  Congress  that  the  result  in  that  case  was  largely  based  upon  the  reception  of  illegal  ballots 
from  persons  whose  names  did  not  appear  upon  the  official  printed  registry  sheets.  We  find  in  the  record 
in  this  pending  controversy,  commencing  at  page  666,  a  paper  entitled  "Contestant's  Exhibit  No.  14 
of  February  4,  1903— James  D.  Halter,  notary  public,  city  of  St.  Louis,  Mo."  This  exhibit  purports  to 
contain  the  depositions  of  90  witnesses  examined  before  J.  T.  Sanders,  notary  public,  in  the  Wagoner 
case,  between  December  13,  1902,  and  January  3,  1903. 

It  does  not  appear  from  the  record  that  Sanders,  before  whom  the  depositions  were  taken,  was  called 
as  a  witness,  or  that  Halter,  as  notary  public,  took  any  depositions  at  all  in  this,  the  Reynolds  case- 
We  are  therefore  at  a  loss  to  account  for  the  appearance  in  this  record  of  these  90  depositions.  We  were 
inclined  to  think  that  Sanders,  the  notary  public  before  whom  depositions  were  taken  in  the  Wagoner 
case,  was  called  as  a  witness  in  this  case  before  Halter,  acting  as  notary  public,  and  handed  in  carbon 
copies  of  the  depositions  of  these  witnesses,  and  that  the  contestant,  while  sending  Exhibit  No.  14,  failed 
to  return  the  deposition  of  Sanders  showing  the  offering  of  the  exhibit.  A  letter  from  contestant's 
counsel  shows  this  to  have  been  the  case. 

However  that  may  be,  we  find  among  these  90  depositions,  constituting  the  so-called  Exhibit  No. 
14,  that  of  Louis  P.  Aloe,  who,  in  the  Wagoner  case,  produced  a  book,  concerning  which  he  said: 

"This  is  the  complete  printed  register  of  the  qualified  voters  of  the  Twelfth  Congressional  district 
for  the  election  of  November  4  and  thereafter,  1902 — that  is,  the  official  list." 

It  appears  from  the  testimony  that  that  book  was  marked  "Exhibit  C"  in  the  Wagoner  case.  It 
was  not  printed  with  the  testimony  in  that  case.  But  it  was  undoubtedly  submitted  to  and  used  by  the 
conunittee  in  preparing  its  report.  It  was  not,  however,  sent  by  contestant  Reynolds  to  the  Clerk  of  the 
House  with  the  testimony  in  this  case,  nor  produced  before  your  committee,  and  therefore,  although  we 
find  in  the  testimony  what  purport  to  be  lists  of  the  names  of  the  persons  who  voted,  showing  also  whether 
they  voted  for  Butler  or  for  Reynolds,  we  are  utterly  unable  to  teU  who  of  said  voters  were  registered  and 
who  were  not,  or  to  what  extent  such  persons  as  were  unregistered  voted,  either  for  Butler  or  for 
Reynolds. 


§  686  PLEADINGS   IX    CONTESTED   ELECTIONS.  885 

Our  conclusions  are  more  succintly  stated  in  the  following 

SUMMARY. 

1.  No  part  of  contestant's  testimony  was  taken  within  the  forty  days  allowed  by  statute  for  that 
purpose,  and  some  of  it  was  taken  as  late  as  the  one  hundred  and  tenth  day  after  answer  filed.  No  good 
and  sufficient  reason  has  been  shown  for  the  delay. 

2.  The  witnesses  upon  whose  testimony  contestant  relies  were  not  called  and  examined  in  this  case, 
but  he  has  introduced  carbon  copies  of  their  depositions,  taken  by  a  different  contestant  in  a  former  case, 
concerning  a  seat  in  a  different  Congress,  and  from  a  different  district.  The  present  contestee  was  con- 
testee  also  in  the  earlier  case,  but  did  not  then  have  fiill  power  of  cross-examination  of  said  witnesses 
touching  the  present  contest. 

3.  The  contestee  was  not  given  the  names  of  the  witnesses  in  the  former  case  whose  depositions 
contestant  proposed  to  introduce  in  this  case,  nor  of  his  intention  to  introduce  such  testimony,  and 
in  some  instances  was  not  given  in  advance,  as  the  statute  requires,  the  names  of  the  witnesses  who 
were  called  in  this  case  and  by  whom  the  depositions  of  the  witnesses  in  the  former  case  were  proved  or 
attempted  to  be  proved. 

4.  There  is  no  evidence  that  all  or  any  of  the  witnesses,  carbon  copies  of  whose  depositions  in  the 
Wagoner  case  have  been  introduced  in  this  case,  are  dead  or  were  for  any  other  reason  not  compellable  to 
attend  and  testify  in  this  contest. 

5.  Neither  the  original  nor  any  copies  of  the  official  registry  lists  having  been  furnished,  it  is 
impossible  to  determine  what  votes  were  illegal  by  reason  of  ha\ing  been  cast  by  unregistered  persona 
as  charged. 

Upon  the  whole  case  your  comjnittee  recommends  the  adoption  of  the  following  resolution,  viz: 
''Resolved,  That  Committee  on  Elections  No.  2  shall  be,  and  is  hereby,  discharged  from  further 

consideration  of  the  contested  election  case  of  George  D.  Reynolds  r.  James  J.  Butler  from  the  Twelfth 

Congressional  district  of  Missouri." 

After  brief  debate,  from  which  it  appeared  that  the  report  of  the  committee 
was  practically  unanimous,  the  resolution  proposed  by  the  committee  was  agreed 
to  without  division. 

686.  The  Virginia  election  case  of  Beach  v.  TJpton  in  the  Thirty- 
seventh.  Congress. 

Rule  prescribed  by  the  House  for  serving  notice  and  taking  testimony 
in  a  delayed  election  case. 

Instance  in  1861  of  an  election  contest  instituted  by  memorial. 

In  1861,  at  the  extraordinan-  session  of  the  Thirty-seventh  Congress,  Mr. 
Charles  H.  Upton,  of  the  Seventh  Congressional  district  of  Virginia,  had  been 
allowed  the  prima  facie  title  to  the  seat,  the  House  laying  on  the  table  a  motion 
to  refer  his  credentials  to  the  Committee  on  Elections.  Mr.  Upton's  credentials 
purported  to  show  that  he  had  been  elected  on  May  23,  1861. 

On  December  6,  1861,'  when  the  second  or  regular  session  of  the  Congress 
opened,  there  was  presented  a  memorial  of  Mr.  S.  Ferguson  Beach,  denying  the 
authority  of  Mr.  Upton  to  hold  his  seat,  and  claiming  that  he  had,  himself,  been 
elected  Representative  of  the  district  on  October  24,  1861. 

On  December  9,  1861,^  Mr.  Henry  L.  Dawes,  of  Massachusetts,  reported  from 
the  Committee  on  Elections  the  following  resolution,  which  was  agreed  to  without 
debate : 

Resolved,  That  S.  F.  Beach,  contesting  the  right  of  Hon.  Charles  H.  Upton  to  a  seat  in  this  House 
as  a  Representative  from  the  Seventh  district  of  the  State  of  Virginia,  be,  and  he  is  hereby,  required 

'  Second  session  Thirty-seventh  Congress,  Journal,  p.  7;  House  Report  No.  42. 
-Journal,  p.  47. 


886  PBECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §   687 

to  serve  upon  the  said  TJpton,  within  six  days  after  the  passage  of  this  resolution,  a  particular  statement 
of  the  grounds  of  said  contest;  and  that  the  said  TJpton  be,  and  he  is  hereby,  required  to  serve  upon 
the  said  Beach  his  answer  thereto  in  six  days  thereafter;  and  that  both  parties  be  allowed  twenty  days 
next  after  the  service  of  said  answer  to  take  testimony  in  support  of  their  several  allegations  and  denials 
before  some  person  residing  in  said  district,  or  the  District  of  Columbia,  authorized  by  the  laws  of 
Virginia  or  of  the  United  States  to  take  depositions,  but  in  all  other  respects  in  the  manner  prescribed 
in  the  act  of  February  19,  1851. 

On  February  3,  1862,"  Mr.  Upton  presented  as  a  question  of  privilege  a  reso- 
lution directing  the  Committee  on  Elections  to  summon  before  them  certain  of  the 
election  officers  at  one  of  the  precincts  of  the  district. 

This  resolution  was  laid  on  the  table,  the  chairman  of  the  Committee  on  Elec- 
tions stating  that  the  committee  had  all  the  testimony  it  required. 

687.  The  election  case  of  Morton  and  Daily  from  the  Territory  of 
Nebraska  in  the  Thirty-seventh  Congress. 

The  revocation  of  credentials  having  reversed  the  position  of  the 
parties,  the  House  by  resolution  authorized  investigation  without  regard 
to  notice. 

On  July  8,  1861/  the  House,  without  debate  or  division,  agreed  to  the  following: 

Resolved,  That  the  papers  in  the  case  of  the  contested  seat  for  Delegate  from  the  Territory  of 
Nebraska  be  referred  to  the  Committee  on  Elections,  and  that  they  be  authorized  to  investigate  and 
report  on  the  same  without  regard  to  notice. 

This  was  a  case  where  Mr.  Samuel  G.  Daily,  who  had  taken  testimony  under 
the  law  of  1851  as  contestant,  had  by  reason  of  the  revocation  of  the  certificate  of 
his  opponent,  become  the  sitting  Member.  And  Mr.  J.  Sterling  Morton,  who  had 
acted  under  the  law  as  sitting  Delegate,  had  become  contestant. 

688.  The  Senate  election  case  relating  to  Simon  Cameron,  from  Penn- 
sylvania, in  the  Thirty-fourth  Congress. 

The  Senate  declined,  on  vague  and  indefinite  charges  of  corruption, 
to  investigate  the  election  of  a  duly  returned  Member. 

On  March  11  and  13,  1857,^  the  Senate  considered  a  report  of  the  Committee 
on  the  Judiciary,  which  was  as  follows  in  regard  to  a  protest  signed  by  members  of 
the  house  of  representatives  of  Pennsylvania : 

It  is  a  general  allegation  "that  the  election  of  the  said  Simon  Cameron  was  procured,  as  they  are 
informed  and  believe,  by  corrupt  and  unlawful  means,  influencing  the  action  and  votes  of  certain 
members  of  the  house  of  representatives,"  and  the  Senate  of  the  United  States  is  asked  to  investigate 
the  charge. 

The  committee  can  not  recommend  that  this  prayer  be  granted.  The  allegation  is  entirely  too 
vague  and  indefinite  to  justify  such  a  recommendation.  Not  a  single  fact  or  circumstance  is  detailed 
as  a  basis  for  the  general  charge.  Neither  the  nature  of  the  means  alleged  to  be  corrupt  and  unlawful, 
nor  the  time,  place,  or  manner  of  using  them,  is  set  forth,  nor  is  it  even  alleged  that  the  sitting  Member 
participated  in  the  use  of  such  corrupt  means,  or,  indeed,  had  any  knowledge  of  their  existence.  Under 
no  state  of  facts  could  your  committee  deem  it  consistent  with  propriety,  or  with  the  dignity  of  this  body, 
to  send  out  a  roving  commission  in  search  of  proofs  of  fraud  in  order  to  deprive  one  of  its  Members  of  a 
seat  to  which  he  is,  prima  facie,  entitled;  still  less  can  they  recommend  such  a  course  when  the  parties 
alleging  the  fraud  and  corruption  are  themselves  armed  with  ample  powers  for  investigation.  If  it  be, 
indeed,  true  that  members  of  the  house  of  representatives  of  Pennsylvania  have  been  influenced  by 

>  Journal,  p.  262;  Globe,  p.  608. 

^  First  session  Thirty-seventh  Congress,  Journal,  p.  51;  Globe,  p.  26. 

^  Third  session  Thirty-fourth  Congress,  Appendix  of  Globe,  pp.  387,  391;  1  Bartlett,  p.  627. 


&  689  PLEADIXGS   IN    CONTESTED   ELECTIONS.  887 

corrupt  considerations  or  unlawful  appliances,  the  means  of  investigation  and  redress  are  in  the  power 
of  the  very  parties  who  seek  the  aid  of  the  Senate  of  the  United  States.  Let  their  complaint  be  made 
to  the  house  of  which  they  are  members,  and  which  is  the  tribunal  peculiarly  appropriate  for  conducting 
the  desired  investigation.  That  their  complaint  wiU  meet  the  respectful  consideration  of  that  house 
yoiur  committee  are  not  permitted  to  doubt.  If  upon  such  investigation  the  facts  charged  are  proven, 
and  if  they,  in  any  manner,  involve  the  character  of  the  recently -elected  Member  of  this  body  from  the 
State  of  Pennsylvania,  the  Constitution  of  the  United  States  has  not  left  the  Senate  without  ample  means 
for  protecting  itself  against  the  presence  of  unworthy  Members  in  its  midst. 

There  was  debate  and  some  dissent;  but  a  resolution  discharging  the  committee 
from  further  consideration,  as  requested  by  the  committee,  was  agreed  to  wathout 
division. 

689.  The  Senate  election  case  relating  to  S.  C.  Pomeroy,  of  Kansas, 
in  the  Forty-second  Congress. 

The  evidence  being  insufficient  to  show  that  the  election  of  a  Senator 
was  effected  by  corrupt  means,  the  Judiciary  Committee  asked  to  be 
discharged  from  consideration  of  the  case. 

On  Jime  3,  1872/  in  the  Senate,  ^Ir.  John  A.  Logan,  of  Illinois,  submitted 
the  following  report : 

The  Committee  on  Pri^-ileges  and  Elections,  to  whom  was  referred  a  certified  copy  of  the  report 
of  the  joint  committee  of  investigation  appointed  by  the  Kansas  legislature  of  1872  to  investigate  all 
charges  of  bribery  and  corruption  connected  with  the  Senatorial  elections  of  1867  and  1871,  met  on 
the  20th  of  April,  1872,  and  directed  the  clerk  of  said  committee  to  prepare  an  abstract  of  the  evidence 
furnished  by  the  said  report  of  the  legislature  of  Kansas.  On  the  23d  of  April  your  committee  met 
and  adjourned  over  until  the  24th,  when,  on  account  of  sickness  in  the  family  of  Senator  Thurman, 
the  case  was  postponed  until  he  should  retiim  from  a  visit  home. 

On  May  the  11th  your  committee  met  and  adopted  the  following  resolution: 

"Resolved,  That  the  chairman  of  the  committee  do  ask  the  Senate  for  leave  to  send  for  persons 
and  papers  in  reference  to  the  elections  of  both  1867  and  1871,  and  that  the  committee  have  leave  to 
sit  in  the  vacation  and  to  take  testimony  by  either  the  whole  committee  or  a  subcommittee,  at  Wash- 
ington or  elsewhere;  that,  in  asking  for  authority  as  aforesaid,  the  chairman  be  requested  to  state  that 
the  committee  express  no  opinion  upon  the  subject." 

On  the  same  day  the  Senate,  in  response  to  the  request  of  the  committee,  adopted  the  following 
resolution: 

In  the  Senate  of  the  United  St.\tes,  May  11,  1872. 

Resolved,  That  the  Committee  on  Privileges  and  Elections  be  authorized  to  investigate  the  elec- 
tion of  Senator  S.  C.  Pomeroy,  by  the  legislature  of  Kansas,  in  1867,  and  the  election  of  Senator  Alex- 
ander Caldwell  in  1871;  that  the  committee  have  power  to  send  for  persons  and  papers;  that  the  chair- 
man, or  acting  chairman,  of  said  committee,  or  any  subcommittee  thereof,  have  power  to  administer 
oaths,  and  that  the  committee  be  authorized  to  sit  in  Washington,  or  elsewhere,  during  the  session 
of  Congress  and  in  vacation. 

Attest: 

Geo.  C.  GoRH.iM,  Secretary. 

By  W.  J.  McDonald,  CltUf  Clerk. 

On  the  13th  of  May  your  committee  met,  and,  in  accordance  with  the  authority  conferred  upon 
them  by  the  resolution  of  the  Senate,  directed  all  witnesses  in  reference  to  the  charges  against  S.  C. 
Pomeroy,  Senator  from  the  State  of  Kansas,  to  be  summoned  to  appear  forthwith  and  testify  in 
reference  to  said  charges,  and  also  the  clerk  of  the  committee  was  directed  to  make  inquiry  who  is 
the  present  custodian  of  the  books  and  papers  of  the  late  Perry  Fuller,  of  Washington,  D.  C;  and,  Lf 
such  information  can  be  had,  that  the  party  having  possession  of  his  account  books,  check  books, 

'  Second  session  Forty-second  Congress,  Senate  Report  No.  224;  Election  Cases,  Senate  Docu- 
ment Xo.  11,  special  session  Fifty-eighth  Congress,  p.  426. 


888  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  689 

and  bank  books,  for  the  time  between  December  1, 1866,  and  February  1, 1867.  be  summoned  to  appear 
with  them. 

On  motion,  the  committee  adjourned  subject  to  the  call  of  the  chairman. 

On  the  21st  day  of  May  your  committee  was  called  together  for  the  purpose  of  proceeding  with 
the  examination,  a  portion  of  the  witnesses  having  arrived. 

Senator  Caldwell,  of  Kansas,  appeared  and  urged  an  early  examination  and  disposition  of  the 
question  in  reference  to  his  election  in  1871.  Your  committee,  however,  considering  the  time  too 
short  during  the  sitting  of  Congress  to  thoroughly  investigate  both  Senatorial  elections,  concluded 
to  proceed  only  with  the  investigation  of  the  election  of  Mr.  Pomeroy  in  1867,  leaving  the  case  of 
Mr.  Caldwell  to  be  examined  during  the  vacation  of  Congress,  or  at  such  time  as  may  be  agreed 
upon  by  your  committee. 

The  examination  of  the  witnesses  in  the  case  of  Mr.  Pomeroy  was  then  proceeded  with,  and 
continued  from  day  to  day  until  the  case  was  closed. 

Your  committee  respectfully  submit  all  the  testimony,  and  report  as  follows: 

1.  That  it  appears  from  the  evidence  that  two  United  States  Senators  were  elected  by  the 
Kansas  legislature  in  1867,  Mr.  S.  C.  Pomeroy  for  a  full  term  of  six  years,  and  Mr.  Ross  for  an  unexpired 
term  of  four  years  from  the  4th  day  of  March,  1867;  tliat  the  candidacy  of  Mr.  Pomeroy  was  generally 
understood  by  the  people  of  Kansas  during  the  election  of  members  of  the  legislature  who  were  to  elect 
Senators  for  the  State  of  Kansas,  and  that  the  election  of  Mr.  Pomeroy  as  one  of  those  Senators  was 
generally  conceded;  that  all  candidates  against  Mr.  Pomeroy  for  the  long  term  withdrew  from  the  con- 
test, save  Mr.  A.  L.  Lee.  Mr.  Pomeroy,  in  joint  convention  of  the  two  houses  of  the  legislature,  received 
84  votes;  Mr.  Lee  received  25  votes;  the  disparity  of  votes  being  so  great  as  to  preclude  of  itself  the 
idea  that  the  election  of  Mr.  Pomeroy,  against  the  will  of  the  constituents  of  those  who  voted  for  him, 
was  procured  by  corrupt  means. 

2.  There  is  no  evidence  that  Mr.  Pomeroy,  or  anyone  for  him,  used  any  money  or  other  valu- 
able thing  to  influence  any  vote  in  his  favor,  or  in  any  manner  to  bring  about  his  election,  except  hear- 
say, and  this  is  plainly  contradicted  by  the  direct  testimony  of  the  parties  either  to  whom  or  by  whom 
it  is  alleged  such  considerations  were  given. 

3.  The  evidence  that  Mr.  Pomeroy's  canvass  for  Senator  cost  him  considerable  money  is  clearly 
shown  to  be  the  expenses  paid  by  him  for  himself  and  friends  during  the  Senatorial  convass,  for  hotel 
accommodations,  disconnected  entirely  with  the  vote  of  any  member,  either  for  or  against  him. 

4.  The  evidence  shows  that  some  of  the  friends  of  Mr.  Pomeroy  have  been  appointed  to  office 
under  the  Government  of  the  United  States,  but  fails  to  show  that  they  were  appointed  in  consider- 
ation of  any  vote  or  any  influence  used  by  them  in  procuring  the  election  of  Mr.  Pomeroy,  and  your 
committee  beg  leave  to  say  that  they  can  find  no  fault  with  Mr.  Pomeroy  or  anyone  else  (when  they 
recommend  for  appointment  to  office)  that  they  recommend  their  friends  instead  of  their  enemies. 

5.  It  appears  from  the  evidence  that  Mr.  Pomeroy  engaged,  for  a  compensation  to  be  made,  the 
services  of  the  Lawrence  State  Journal  to  advance  the  interests  of  the  Republican  candidates  and  of 
the  Republican  party  in  the  State  of  Kansas  in  the  year  1866,  but  it  also  appears  that  said  journal 
broke  its  engagement,  and  supported  the  Conservative  or  Democratic  ticket. 

Your  committee  therefore,  after  maturely  considering  the  testimony  adduced  before  them,  are 
clearly  of  the  opinion  that  the  charges  of  bribery  and  corruption  against  S.  C.  Pomeroy,  connected 
with  his  Senatorial  election  by  the  Kansas  legislature  in  1867,  totally  fail  to  be  sustained  by  any  com- 
petent proof,  but  seem  to  have  been  urged  for  some  purpose,  unknown  to  your  committee,  beyond 
that  of  correcting  existing  evUs.  Your  committee  therefore  beg  to  be  discharged  from  the  further 
consideration  of  the  same. 

O.  P.  Morton, 
B.  F.  Rice, 
John  A.  Logan, 
H.  B.  Anthony, 
Matt.  H.  Carpenter, 

Committee. 

We  concur  with  the  other  members  of  the  committee  in  the  finding  that  there  is  not  evidence 
before  us  sufficient  to  show  that  Mr.  Pomeroy's  election  was  procured  by  the  use  of  corrupt  means; 
and  having  no  definite,  reliable  information  leading  to  the  conclusion  that  further  investigation  would 


§  690  PLEADINGS   IN    CONTESTED   ELECTIONS.  889 

develop  such,  evidence,  we  concur  in  the  recommendation  that  the  committee  be  discharged  from 

the  further  consideration  of  the  subject.     Here  we  think  that  our  duty  ends.     We  do  not  think  it  proper 

to  impugn  the  motives  of  those  who  urged  this  investigation.     The  subject  was  brought  to  the  notice 

of  the  Senate  by  the  general  assembly  of  Kansas,  and,  as  it  seems  to  us,  a  proper  respect  for  that  body 

precludes  an  imputation  of  improper  motives. 

We  can  not,  therefore,  concur  in  the  last  paragraph  of  the  report,  and  there  are  other  passages 

that  do  not  meet  our  approval.     For  these  reasons  we  have  preferred  to  state  our  views  in  our  own 

language. 

A.  G.  Thurman. 

Joshua  Hill. 

In  1873,^  at  the  tliird  session  of  the  Congress,  another  investigation  was  ordered 
on  the  motion  of  Mr.  Ponieroy;  and  on  March  3,  the  last  day  of  the  Congress,  and 
the  last  day  of  Mr.  Pomeroy's  Senatorial  term,  a  report  was  submitted  discussing 
the  testimony  favorably  to  Mr.  Pomeroy,  but  with  minority  views  expressing  the 
opinion  that  the  charges  were  sustained. 

690.  The  Senate  election  case  of  John  J.  Ingalls,  from  Kansas,  in  the 
Forty-sixth  Congress. 

The  Senate  decided  to  investigate  the  election  of  one  of  its  Members 
on  the  strength  of  a  memorial  formulating  specific  charges,  and  accom- 
panied by  evidence  relating  thereto. 

Bribery  enough  to  affect  the  result  not  being  shown,  and  the  Member 
not  being  personally  implicated,  the  Senate  did  not  disturb  his  tenure. 

An  election  inquiry  instituted  in  the  Senate  by  memorial. 

On  March  18,  1879,-  at  the  beginning  of  the  Congress,  Mr.  John  J.  Ingalls  was 
sworn  in  as  Senator  from  Kansas. 

On  March  19^  the  Vice-President  presented  the  memorial  of  certain  members 
of  the  legislature  of  Kansas  in  relation  to  tne  election  of  Mr.  Ingalls.  This  memorial 
was  referred  to  the  Committee  on  Privileges  and  Elections. 

On  March  27*  the  Vice-President  laid  before  the  Senate  the  authenticated 
report  of  a  committee  of  the  Kansas  house  of  representatives  which  had  investi- 
gated the  election  of  Mr.  Ingalls.  This  was  referred  to  the  Committee  on  Privileges 
and  Elections. 

The  memorial^  was  addressed  to  the  Senate,  and  signed  by  members  of  the 
legislature,  who  represented  "that  they  have  good  reason  to  believe  that"  Mr. 
Ingalls  "secured  his  election  by  acts  of  bribery  and  corruption."  The  memorial 
proceeds  with  ten  specifications,  naming  instances  of  bribery  or  attempted  bribery, 
as  well  as  other  matters  tending  to  cast  suspicion  on  the  election.  The  charges  as 
to  bribery  were  specific,  naming  persons  and  sums  of  money. 

The  committee,  on  January  20,"  reported  a  resolution  authorizing  it  to  investi- 
gate the  charges  and  statements  contained  in  the  memorials,  with  power  to  compel 
testimony,  etc.,  and  on  June  21  the  resolution  was  agreed  to  without  debate. 

•  Senate  Document  No.  11,  special  session  Fifty-eighth  Congress,  p.  434. 
^  First  session  Forty-sixth  Congress,  Record,  p.  1. 

^  Record,  p.  15. 

*  Record,  p.  75. 

^  Second  session  Forty-sixth  Congress,  Senate  Report  No.  277,  pp.  2-4. 
'  First  session  Forty-sixth  Congress,  Record,  pp.  2196,  2257. 


890  PKECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   691 

On  February  17,  1880,^  the  committee  reported,  embodjdng  their  conclusions  in 
this  resolution : 

Resolved,  That  the  testimony  taken  by  the  committee  proves  that  bribery  and  other  corrupt  means 
were  employed  by  persons  favoring  the  election  of  Hon.  John  J.  Ingalls  to  the  Senate  to  obtain  for  him 
the  votes  of  members  of  the  legislature  of  Kansas  in  the  Senatorial  election  in  that  State.  But  it  is  not 
proved  by  the  testimony  that  enough  votes  were  secured  by  such  means  to  determine  the  result  of  the 
election  in  his  favor.  Nor  is  it  shown  that  Senator  Ingalls  authorized  acts  of  bribery  to  secure  his 
election. 

Three  members  of  the  committee  presented  views  concurring  in  the  main 
conclusion,  but  calling  attention  to  the  fact  that  persons  opposing  Mr.  Ingalls's 
election  had  also  resorted  to  bribery. 

It  does  not  appear  that  this  resolution  was  acted  on,  Mr.  Ingalls  retaining  his 
seat  as  a  matter  of  course. 

691.  The  Senate  election  case  of  Henry  B.  Payne,  from  Ohio,  in  the 
Porty-ninth  Congress. 

On  the  ground  that  the  memorials  and  accompanying  papers  pre- 
sented no  allegations  that  proof  existed  to  support  the  charges,  the  Sen- 
ate declined  to  investigate  the  election  of  a  Senator. 

Discussion  as  to  the  extent  to  which  probable  cause  should  be  shown 
to  justify  the  Senate  in  investigating  charges  that  an  election  had  been 
procured  by  bribery. 

Charges  made  by  the  bodies  of  a  State  legislature  were  not  consid- 
ered sufficient  ground  to  justify  the  Senate  in  investigating  the  election 
of  one  of  its  Members. 

No  personal  participation  in  bribery  being  shown,  a  Senator  should 
be  unseated  only  on  proof  that  enough  votes  for  him  had  been  influenced 
corruptly  to  decide  the  election. 

On  March  4,  1885,-  at  the  special  session  of  the  Senate,  during  the  swearing  in 
of  the  Senators-elect,  the  oath  was  administered  to  Mr.  Henry  B.  Payne,  of  Ohio. 

On  April  27,  1886,^  the  President  pro  tempore  laid  before  the  Senate  a  letter 
from  the  clerk  of  the  house  of  representatives  of  the  State  of  Ohio  transmitting 
testimony  taken  by  a  select  committee  of  the  house  of  representatives  of  Ohio, 
and  the  report  of  the  committee  as  to  charges  against  the  official  integrity  and 
character  of  certain  members  of  said  house  of  representatives  in  connection  with 
the  election  of  Hon.  Henry  B.  PajTie  as  a  United  States  Senator. 

After  a  statement  by  Mr.  Payne  the  papers  were  referred  to  the  Committee  on 
Privileges  and  Elections. 

On  May  4  ■*  Mr.  George  F.  Hoar,  of  Massachusetts,  presented  a  letter  from  the 
secretary  of  the  committee  of  the  Ohio  house  calling  attention  to  interpolations  in 
the  document  as  printed  by  the  Senate.  The  letter  was  referred  to  the  Committee 
on  Privileges  and  Elections,  and  the  document  as  printed  was  recalled. 

'  Second  session  Forty-sixth  Congress,  Senate  Report  No.  277. 
'  First  session  Forty-ninth  Congress,  Record,  p.  1. 
=  Record,  p.  3861. 
*  Record,  p.  4118. 


§  691  PLEADINGS    IN    CONTESTED    ELECTIONS.  891 

On  May  1 1 '  Mr.  Hoar  presented  a  memorial  of  the  Republican  State  com- 
mittee of  Ohio  requesting  the  Senate  to  investigate  charges  of  corruption  in  con- 
nection \\-ith  the  election  of  Mr.  PajTie.  This  memorial,  as  well  as  other  papers  of 
a  similar  tenor,  including  resolutions  of  both  branches  of  the  legislature  of  Oliio,  pre- 
sented at  a  later  date,  was  referred  to  the  Committee  on  Privileges  and  Elections. 

On  July  15-  Mr.  James  L.  Pugh,  of  Alabama,  in  behalf  of  a  majority  of  the 
committee,  including  besides  himself  Messrs.  Eli  Saulsbury,  of  Delaware,  Z.  B. 
Vance,  of  Xorth  Carolina,  and  J.  B.  Eustis,  of  Louisiana,  submitted  a  report  ask- 
ing that  the  committee  be  discharged  and  that  the  whole  matter  be  postponed. 
Mr.  WilUam  M.  Evarts,  of  New  York,  in  behalf  of  himself  and  Messrs.  Henry  M. 
Teller,  of  Colorado,  and  John  A.  Logan,  of  Illinois,  submitted  minority  views  con- 
curring in  the  recommendation  of  the  majority,  but  discussing  the  case  somewhat 
differently.  Mr.  George  F.  Hoar,  of  Massachusetts,  with  Mr.  William  P.  Frye,  of 
Maine,  submitted  other  minority  \'iews  recommending  an  investigation. 

The  views  submitted  by  Mr.  Evarts  embody  fully  the  position  of  the  majority 
of  the  committee  and  the  issues  of  the  case: 

Upon  undisputed  facts  it  appears  that  of  the  general  assembly  of  Ohio,  as  in  session  and  constituted 
in  January,  1884,  each  house  contained  a  majority  of  members  of  the  Democratic  party;  that  at  a  joint 
caucus  of  that  party  held  on  Tuesday,  January  8,  upon  the  first  ballot,  votes  were  cast — for  Mr.  Booth, 
1  vote;  for  Mr.  Pendleton,  15  votes;  for  Mr.  Ward,  17  votes;  and  for  Mr.  Pajiie,  46  votes;  thus  showing 
a  majority  in  the  caucus  of  13  for  Mr.  PajTie  over  the  united  vote  of  all  the  other  candidates.  In  regular 
conduct  of  the  election  of  Senator  by  the  legislature  Mr.  Payne  was  elected,  and  his  credentials  were 
received  by  the  Senate  of  the  United  States  at  the  session  of  March,  1885,  and  Mr.  Paj-ne  since  then 
has  held,  and  now  holds,  a  seat  as  Senator  from  Ohio  in  this  body.  No  action  was  taken  by  or  before 
the  legislature  which  elected  Mr.  Payne  calling  in  question  the  validity  of  his  election  or  the  conduct 
of  the  same  in  the  canvass,  the  caucus,  or  the  legislature  itself. 

A  new  legislature,  as  in  session  and  constituted  in  January  in  the  present  year,  showed  a  majority 
of  the  general  assembly  of  the  Republican  party,  and  on  the  13th  day  of  January  the  house  of  repre- 
sentatives adopetd  the  following  resolution: 

''Whereas  the  Cincinnati  Commercial-Gazette  of  January  12,  1886,  contains  a  printed  statement, 
on  the  authority  of  S.  K.  Donavin,  alleging  grave  charges  against  the  official  integrity  and  characters 
of  members  of  this  house,  namely,  Hon.  D.  Baker,  Hon.  P.  Hunt,  Hon.  W.  A.  Schultz,  and  Hon.  Mr. 
Zieglcr,  so  definite  and  precise  in  statements  as  to  call  for  immediate  action  in  order  to  vindicate  the 
reputation  of  members  of  this  house:  Therefore, 

"Resolved,  That  a  select  committee  of  five  be  appointed  to  inquire  into  all  the  facts  of  the  charges 
so  alleged,  and  report  their  conclusions  to  this  house  at  as  early  a  date  as  possible;  and  in  the  prosecution 
of  this  inquirj-  said  select  committee  are  empowered  to  send  for  persons  and  papers  and  to  examine 
witnesses  under  oath." 

The  select  committee  commenced  the  taking  of  testimony  under  this  inquiry  on  the  20th  January, 
and  concluded  the  same  on  the  6th  April  last.  Two  reports  were  made  to  the  house,  one  presented  by 
a  majority  of  three,  and  the  other  by  the  minority  of  two.  On  April  16  the  house  adopted  the  following 
resolution: 

"Resolved  by  the  house  of  representatives  of  the  sixty-seventh  general  assembly  of  the  State  of  Ohio, 
That  the  clerk  of  the  house  be,  and  he  is  hereby,  directed  to  transmit  a  copy,  duly  authenticated,  of 
the  testimony  taken  by  the  select  committee  appointed  in  pursuance  of  house  resolution  No.  28,  and 
the  report  of  said  committee,  to  the  President  of  the  United  States  Senate,  to  be  by  him  presented  to 
that  body." 

The  President  pro  tempore  of  the  Senate  laid  before  the  Senate  the  testimony  and  reports,  and 
the  same  were  referred  to  the  Committee  on  Privileges  and  Elections. 

'  Record,  p.  4344.  ^^Rgcord^  p   6948  Senate  Report  No.  1490. 


892  PRECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES.  §  691 

The  majority  report  of  the  committee  of  the  Ohio  house  presented  as  their  •'conclusion"  the  fol- 
lowing statement; 

"Although,  as  stated  in  the  outset,  the  testimony  developed  nothing  of  an  inculpating  character 
concerning  the  members  of  this  house  named  in  the  resolution  of  inquiry,  we  believe  that  circumstances 
surrounding  the  election  of  Henry  B.  Payne  as  one  of  the  Senators  to  represent  the  State  of  Ohio  in  the 
Congress  of  the  United  States,  as  presented  by  the  testimony,  are  such  as  to  warrant  us  in  recommending 
that  an  authenticated  copy  of  the  testimony  and  report  be  transmitted  to  the  President  of  the  United 
States  Senate  for  the  information  of  the  body  of  which  Senator  Payne  is  a  member,  and  for  such  action 
as  it  may  deem  advisable." 

The  minority  report  presented  as  their  conclusion  the  following  statement: 

"The  minority  of  your  committee,  therefore,  find,  in  conclusion,  that  there  has  been  no  testimony 
going  to  show  that  any  unusual  or  improper  methods  were  resorted  to  by  any  person  with  any  member 
of  the  sixty-sixth  general  assembly  to  induce  them  to  support,  or  that  any  member  was  unduly  influ- 
enced to  support,  Hon.  Henry  B.  Payne  for  either  his  nomination  or  election  to  the  United  States 
Senate." 

It  appears  that  when  the  select  committee  of  the  Ohio  house  of  representatives  was  entering  upon 
the  inquiry  before  them  the  following  correspondence  took  place  between  Mr.  Payne  and  Mr.  Cowgill, 
the  chairman  of  the  select  committee,  and  that  Mr.  Payne  was  never  advised  by  the  committee  that 
"any  testimony  tending  to  inculpate  him  in  any  degree  witli  any  questionable  transaction"  had  been 
received,  or  any  opportunity  was  afforded  him  of  appearing  before  the  committee; 

"United  States  Senate, 
"  Washington,  D.  C,  January  22,  1886. 
"Hon.  Thomas  A.  Cowgill, 

"  Chairman,  Columbus,  Ohio. 
"Sir;  As  one  branch  of  the  general  assembly  has  appointed  a  special  committee,  of  which  you 
are  the  chairman,  to  investigate  the  conduct  of  the  Democratic  caucus  which,  in  January,  1884,  nomi- 
nated a  candidate  for  United  States  Senator,  and  as  the  matter  is  thus  raised  to  the  plane  of  respecta- 
bility and  placed  in  charge  of  intelligent  and  honorable  gentlemen,  I  propose  to  give  it  appropriate 
attention.  For  myself,  I  invite  and  challenge  the  most  thorough  and  rigid  scrutiny.  My  private 
correspondence  and  boolis  of  account  will  be  cheerfully  submitted  to  your  inspection  if  you  desire  it. 
I  only  insist,  in  case  any  testimony  is  given  which  in  the  slightest  degree  inculpates  me,  I  may  be 
afforded  an  opportunity  of  appearing  before  the  committee. 

"I  am,  very  respectfully,  your  obedient  servant,  H.  B.  PAYNE." 


"Columbus,  Ohio,  January  25,  1886. 
"Hon.  H.  B.  Payne, 

"  United  Stales  Senate,  Washington,  D.  C: 

"Sir:  I  acknowledge  the  receipt  of  your  favor  of  the  22d  instant,  wherein  you  note  the  fact  that 
a  special  committee  of  the  Ohio  house  of  representatives  has  been  appointed  to  investigate  the  conduct 
of  the  Democratic  caucus,  which,  in  January,  1884,  nominated  a  candidate  for  United  States  Senator, 
and  you  also  declare  that  you  propose  to  give  the  investigation  appropriate  attention. 

"In  reply,  I  have  to  say  that  the  resolution  to  which  you  refer  recites  the  fact  that  allegations 
of  bribery,  published  on  authority  of  S.  K.  Donavin,  are  of  so  grave  and  positive  character  as  to  call 
immediate  action  in  order  to  vindicate  the  reputation  of  members  of  the  present  general  assembly. 
It  directs  the  special  committee  to  'inquire  into  all  tlie  facts  of  the  alleged  bribery,  and  report  their  con- 
clusions thereon  to  the  house.' 

"If  in  the  prosecution  of  this  inquiry  any  testimony  tending  to  inculpate  you  in  any  degree  with 
any  questionable  transaction  be  received,  I  assure  you  that  your  request  to  appear  before  the  committee 
in  such  event  will  be  most  cordially  and  fully  acceded  to. 
"Very  respectfully, 

Thomas  A.  Cowgill,  Chairman." 

Instead  of  attempting  a  selection  or  summary  of  the  testimony  transmitted  to  the  Senate  by  the 
Ohio  house  of  representatives,  for  the  illustration  or  support  of  our  views  and  conclusions  as  to  the  proper 


§  691  PLEADINGS   IN    CONTESTED   ELECTIONS.  893 

disposition  of  the  matter  referred  to  the  Committee  on  Privileges  and  Elections,  we  have  thought  it 
eminently  just  to  accept  as  the  basis  of  our  observations  the  two  careful  and  intelligent  presentations 
of  the  testimony  to  the  Ohio  house  of  representatives  by  the  majority  and  minority  reports  of  the  select 
committee. 

Your  committee  were  addressed  by  two  honorable  Members  of  the  House  of  Representatives 
from  Ohio,  Mr.  Little  and  Mr.  Butterworth,  in  exposition  and  enforcement  of  the  testimony  and  of  the 
just  rules  and  principles  which  should  govern  your  committee  in  their  disposition  of  the  matter  before 
them.  Subsequently,  and  while  the  committee  was  deliberating  upon  the  case  as  submitted  to  them, 
these  honorable  gentlemen  placed  before  your  committee  certain  suggestions  in  the  nature  of  corrob- 
orative or  cumulative  evidence,  which  we  append,  with  the  majority  and  minority  reports  to  which 
we  have  referred,  to  accompany  our  report.  These  supplementary  suggestions  we  have  justly  given 
this  prominence  to,  as  indicating  in  nature,  if  not  in  substance,  what  might  be  shown  in  testimony  if 
an  investigation  should  be  entered  upon  by  the  Senate. 

The  only  constitutional  rights,  powers,  and  duties  which  can  sustain,  or  properly  induce,  an 
investigation  such  as  is  presented  for  the  consideration  of  the  Senate  by  the  honorable  house  of  repre- 
sentatives of  the  State  of  Ohio,  arise  from  two  separate  and  independent  clatises  of  the  Constitution: 

By  the  first  clause  of  section  5  of  Article  I  of  the  Constitution  each  House  of  Congress  is  made  "the 
judge  of  the  elections,  returns,  and  qualifications  of  its  own  Members." 

By  the  second  clause  of  the  same  section  each  House  may,  "with  the  concurrence  of  two-thirds 
expel  a  Member." 

As  these  two  ends  alone  limit  the  basis  and  object  of  any  investigation  proposed,  either  for  invali- 
dating the  election  of  a  Senator  or  expelling  from  the  Senate  a  duly  elected  and  qualified  member  of 
it,  a  scrutiny  of  the  grounds,  in  fact,  upon  which  such  action  is  demanded  in  any  case  arising  from  the 
Senate  requires  an  ascertainment  whether  the  scope  of  the  proposition  and  the  testimony  presented 
or  reasonably  assured,  would  justify  the  ultimate  action  of  the  Senate  under  one  or  the  other  of  these 
clauses  of  the  Constitution.  We  do  not  understand  that  the  house  of  representatives  of  Ohio  presents 
any  case  upon  the  testimony  taken  or  imagined  to  be  accessible  to  any  investigation  by  the  Senate  or 
upon  any  allegation  of  the  existence  of  facts  suspected,  though  not  probable,  as  would  affect  Mr.  Payne 
with  such  personal  delinquency  or  turpitude  as  would  invite  or  tolerate  his  expulsion  from  the  Senate 
for  his  participation  in  the  transaction  which  resulted  in  his  election.  The  examination  of  the  testimony 
suggests  no  support  for  such  an  imputation,  and  the  course  of  the  select  committee  in  not  giving  Mr. 
Payne  an  opportunity  to  be  heard  before  them  precludes  any  intimation  that  such  a  notion  was  enter- 
tained for  a  moment  by  that  committee  or  the  Ohio  house  of  representatives. 

We  do  not  understand  that  any  member  of  the  Committee  on  Privileges  and  Elections  has  harbored 
or  expressed  the  idea  that  the  testimony  taken,  or  suggested  as  accessible  or  possible,  touches  the  subject 
of  this  personal  inciUpation  of  Mr.  Payne.  We  shall  therefore  confine  our  further  discussion  of  the 
matter,  as  presented  for  the  investigation  or  action  of  the  Senate,  to  the  question  arising  upon  the 
validity  of  Mr.  Payne's  election  and  the  declaration  of  his  seat  in  the  Senate  vacant  for  such  cause. 

It  is  no  doubt  supposable  that  an  election  may  be  vitiated  by  fraud,  corruption,  and  bribery 
without  the  Member  unseated  being  accused  even  of  personal  participation  in  the  fraud,  corruption 
or  bribery  by  which  his  election  was  compassed.     If  the  election  is  thus  vitiated,  the  Member's  seat 
can  not  be  saved  by  his  personal  exculpation  and  vindication.     The  integrity  of  the  election,  and  not 
of  the  Member,  is  in  question  under  this  clause  of  the  Constitution. 

But,  on  the  same  reason,  the  investigation,  which  now  deals  with  the  election  as  vitiated  and 
not  the  Member  as  innocent,  must  reach  the  proof  that  the  fraud,  corruption,  or  bribery  embraces 
enough  in  number  of  the  voting  electors  to  have  changed,  by  these  methods,  the  result  of  the  election. 
If  these  corrupted  votes  gave  the  innocent  Member  his  seat,  the  deprivation  of  these  corrupted  votes 
vacates  his  seat,  however  innocent  he  is.  But,  if  the  uncorrupted  votes  were  adequate  to  his  election 
and  he  is  purged  from  complicity  in  the  fraud,  corruption,  or  bribery,  his  seat  is  not  exposed  to  any 
question  of  validity  in  the  election. 

Upon  a  reference  to  the  testimony  presented  by  the  Ohio  house  of  representatives,  and  sifted  and 
emphasized  by  the  select  committee's  majority  and  minority  reports,  we  are  able  to  ascertain  the  num- 
ber of  members  of  the  general  assembly  of  Ohio  that  have  been  brought  into  inculpation,  the  degree 
and  weight  of  evidence  affecting  each  of  them,  and  the  conclusions  of  these  two  committees  as  to  what 
had  been  proved,  or  could  be  expected  to  be  proved,  as  bearing  upon  each  of  these  members. 


894 


PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES. 


§691 


As  to  four  members,  viz,  Messrs.  Baker,  Hunt,  Schultz,  and  Ziegler,  being  the  members  of  the 
house  of  representatives  of  1886  upon  charges  against  whom  the  general  investigations  were  set  on  foot, 
we  find  the  committee,  by  the  majority  report,  declare  that  "the  testimony  developed  nothing  of  an 
inculpating  character  concerning  the  members  of  this  house  named  in  the  resolution  of  inquiry."  The 
minority  report  express  their  conclusions  to  the  same  effect,  as  follows: 

"That  there  has  been  absolutely  nothing  found  in  any  way  compromising  the  four  members 
charged,  and  they  are  wholly  exonerated  from  the  charges  made,  and  stand  to-day  without  the  shadow 
of  a  suspicion  attaching  to  them  in  regard  to  conduct  unbecoming  members  of  this  house." 

A.S  to  two  members  of  the  house,  viz,  Mr.  Kahle  and  Mr.  Hull,  the  majority  report  names  them  as 
"two  instances  in  which  attempted  bribery  in  the  Senatorial  canvass  was  reported  by  members  of  the 
Sixty-sixth  general  assembly,"  and  sets  forth,  as  the  report  expresses  it,  "the  testimony  taken  as  to  what 
those  members  reported "  "in  brief."  Both  Mr.  Kahle  and  Mr.  Hull  were  active  and  earnest  supporters 
of  Mr.  Pendleton  in  the  canvass  and  so  continued  to  the  end,  voting  for  Mr.  Pendleton  in  the  caucus 
and  in  the  legislature.  The  evidence  respecting  these  two  members,  as  given  or  commented  upon  by 
the  majority  and  minority  reports,  we  refer  to,  conformably  to  our  declared  purpose,  without  attempting 
any  observations  of  our  own  upon  the  testimony.  For  the  immediate  consideration  now  presented 
it  is  sufficient  to  say  that  no  diversion  from  Mr.  Pendleton's  support  to  Mr.  Payne's  was  effected  as  to 
these  two  electors. 

The  select  committee  names  in  the  majority  report  two  senators  and  two  representatives  and  speaks 
of  them  as  follows: 

"Rumors  as  to  suspected  bribery  with  which  were  connected  the  names  of  Messrs.  Mooney  and 
Roche,  members  of  the  house,  and  Messrs.  White  and  Ramey,  members  of  the  senate,  of  the  Sixty-sixth 
general  assembly,  all  of  whom  voted  in  caucus  for  Henry  B.  Payne  for  United  States  Senator,  were 
traced  by  the  committee  until  developments  which  were  regarded  as  important  were  reached,  as 
follows"— 

giving  the  testimony  bearing  upon  each,  as  viewed  by  the  majority  of  the  committee.  The  minority 
report  takes  up  the  case  of  each  of  these  members  and  comments  upon  the  evidence  which  it  adduces 
from  the  testimony,  and  declares  as  to  each  of  them  that  the  testimony  justifies  no  imputation  upon 
any  one  of  them.  We  again,  without  anj'  observations  of  our  own  on  the  evidence,  refer  to  the  majority 
and  minority  reports  on  this  topic. 

It  is  proper  that  we  should  call  the  attention  of  the  Senate  to  the  very  explicit  and  candid  state- 
ment of  the  majority  report  as  to  the  reach  and  scope  which  were  given  to  the  investigation  and  of  the 
distinction  drawn  between  the  testimony  at  large  and  the  report  itself,  as  the  latter  containing  "no 
facts"  "which  are  not  sustained  by  testimony  upon  which  a  legislative  body  might  base  further  action.'' 
This  report  says: 

"Whenever  our  attention  was  called  to  anything  which  indicated  the  probable  employment  of 
improper  means  to  gain  support,  we  followed  the  clews  presented,  on  the  theory  that  we  were  not  only 
authorized,  but  in  duty  bound,  to  pursue  any  matter  that  promised,  even  remotely,  to  show  the  use  of 
such  means  in  connection  with  the  election,  because  the  discovery  of  one  important  fact,  although 
having  no  immediate  bearing  upon  the  charge  against  the  persons  named  in  the  resolution,  might  lead 
to  the  discovery  of  facts  having  such  bearing.  And  furthermore,  and  upon  the  same  theory,  our  inquiries 
were  not  confined  to  the  technical  rules  of  legal  proof,  but  the  committee  availed  itself  of  any  source  of 
information — admitted  hearsay  statements  and  even  the  opinions  of  witnesses.  But  we  consider  that 
in  making  this  report  no  facts  should  be  stated  which  are  not  sustained  by  testimony  upon  which  a 
legislative  body  might  base  further  action." 

The  minority  report  thus  speaks  of  the  completeness  of  the  investigation  instituted  by  the  com- 
mittee: 

"Your  committee,  in  its  anxiety  that  nothing,  however  trivial  and  remote,  that  might  have,  either 
directly  or  indirectly,  any  possible  bearing  on  the  matter  under  consideration,  have  exercised  the 
greatest  liberality  possible  in  the  taking  of  testimony,  which  has  extended  the  scope  of  its  inquiry  far 
beyond  the  limits  that  could  be  given  the  most  liberal  construction  of  the  resolution." 

As  the  result  of  this  wide  investigation  it  does  not  appear  that  the  select  committee  recommended 
any  action  by  the  legislature  looking  to  a  further  investigation,  or  to  the  incrimination  or  punishment 
in  the  courts  of  law  of  any  persons  named  in  the  report,  nor  that  the  legislature  itself  has  proposed  any 


I   691  PLEADINGS    IN    CONTESTED    ELECTIONS.  895 

action  in  such  directions,  or  either  of  them.  Indeed,  the  whole  recommendation  of  the  committee  to 
the  house  of  representatives  is  in  these  words: 

"That  an  authenticated  copy  of  the  testimony  and  report  be  transmitted  to  the  President  of  the 
United  States  Senate  for  the  information  of  the  body  of  which  Senator  Payne  is  a  member  and  for  such 
action  as  it  may  deem  advisable." 

In  pursuance  of  this  recommendation  the  house  of  representatives  communicated  to  the  senate  the 
testimony  taken  and  the  reports  of  the  committee,  which  are  before  the  Committee  on  Privileges  and 
Elections.  The  only  action  taken  by  either  house  of  the  general  assembly  of  Ohio  since  that  has  been 
brought  to  the  attention  of  the  Senate  or  of  its  committee  is  shown  in  a  resolution  of  the  senate  of  Ohio 
and  one  of  the  house  of  representatives,  as  follows: 

"  Senatorial  election  in  Ohio. 
"[Senate  resolution — Mr.  Hardacre — No.  58.] 

"Whereas  by  common  report,  suggested  and  corroborated  by  the  public  press  of  the  State  without 
respect  to  party,  and  by  a  recent  investigation  of  the  house  of  representatives,  the  title  of  Henry  B.  Payne 
to  a  seat  in  the  United  States  Senate  is  vitiated  by  corrupt  practices  and  the  corrupt  use  of  money  in 
procuring  his  election;  and 

"Whereas  it  is  deemed  expedient,  in  order  to  secure  a  thorough  investigation  of  his  said  election 
as  Senator  by  the  United  States  Senate,  that  the  belief  of  the  general  assembly  in  this  regard  be  formu- 
lated in  a  specific  charge:  Therefore,  be  it 

''Resolved,  That  in  the  opinion  of  the  general  assembly,  and  it  so  charges,  the  election  of  Henry  B. 
Payne  as  Senator  of  the  United  States  from  Ohio,  in  January,  1884,  was  procured  and  brought  about  by 
the  corrupt  use  of  money,  paid  to  or  for  the  benefit  of  divers  and  sundry  members  of  the  Sixty-sixth 
general  assembly  of  Ohio,  and  by  other  corrupt  means  and  practices,  a  more  particular  statement  of 
which  can  not  now  be  given. 

"Resolved,  That  the  Senate  of  the  United  States  be,  and  the  same  is  hereby,  requested  to  make  a 
full  investigation  into  the  facts  of  such  election  so  far  as  pertains  to  corrupt  means  used  in  that  behalf. 

"Resolved,  That  the  governor  be,  and  is  hereby,  requested  to  forward  a  copy  thereof  to  the  President 
of  the  Senate  of  the  United  States. 

"I  hereby  certify  that  the  foregoing  is  a  true  and  correct  copy  of  said  resolution,  as  the  same 
appears  upon  the  senate  journal  of  Friday,  May  14, 1886,  after  being  changed  from  a  "joint "  to  a  "senate  " 
resolution,  and  adopted  by  the  senate. 

"C.  N.  Vallandigh.\m,  Clerk  Ohio  Senate." 

'•  [n.  R.  No.  89— Mr.  Bramback.] 

"Whereas  it  is  the  precedent  in  the  United  States  Senate  that  charges  of  bribery  must  be  directly 
made  to  warrant  a  committee  of  said  body  in  proceeding  to  investigate  the  title  of  any  United  States 
Senator  to  his  seat:  Therefore, 

"Be  it  resolved  by  the  house  of  representatives  of  Ohio,  That  in  the  investigation  made  under  house 
resolution  No.  28,  ample  testimony  was  adduced  to  warrant  the  belief  that  the  charges  heretofore  made 
by  the  Democratic  press  of  Ohio  are  true,  to  wit:  That  the  seat  of  Henry  B.  Payne  in  the  United  States 
Senate  was  purchased  by  the  corrupt  use  of  money;  and 

"Further  resolved,  That  the  honor  of  Ohio  demands,  and  this  house  of  representatives  requests 
that  the  said  title  of  Henry  B.  Payne  to  a  seat  in  the  United  States  Senate  be  rigidly  investigated  by 
said  Senate;  and 

"Further  resolved,  That  the  governor  of  Ohio  be  requested  to  forward  a  copy  of  this  resolution  to 
the  President  of  the  United  States  Senate. 

"In  House  of  Representatives. 

"Adopted  May  18,  1886. 

"Attest: 

"David  Lanning,  Clerk." 

Upon  the  whole  matter  as  presented,  in  evidence  and  argument,  to  the  Committee  on  Privileges 
and  Elections,  we  are  of  opinion  that  there  is  no  evidence  which  purports  to  prove  that  fraud,  corruption, 
or  bribery  was  employed  in  the  election  of  Mr.  Payne  affecting  the  votes,  given  either  in  the  caucus  or 


\ 


896  PRECEDENTS   OF   THE   HOUSE    OF   EEPBESENTATIVES.  §  691 

in  the  legislature,  whereby  the  election  was  carried  by  corrupt  votes  to  the  effect  of  his  election.  Nor, 
in  our  opinion,  is  there  any  allegation  that  proof  exists  or  would  be  forthcoming  to  the  extent  that  would 
vitiate  the  election  of  Mr.  Payne  by  reason  of  the  necessary  votes,  in  caucus  or  in  the  legislature,  for  his 
election  having  been  obtained  by  fraud,  corruption  or  bribery. 

We  are  of  opinion,  therefore,  that  under  the  first  clause  of  the  fifth  section  of  Article  I  of  the  Con- 
stitution the  testimony  and  other  considerations  placed  before  the  Senate  do  not  warrant  the  Senate  in 
instituting  by  itself  an  investigation  looking  to  the  unseating  of  Mr.  Payne  as  a  member  of  the  Senate. 

We  have  in  our  conclusions  made  no  distinction  between  the  use  of  fraud,  corruption,  or  bribery 
in  a  caucus  vote  or  in  the  legislative  vote  for  a  Senator.  Although  a  caucus,  or  what  proceeds  in  it,  has 
no  constitutional  or  legal  relation  to  the  election  of  a  Senator,  yet,  by  the  habit  of  political  parties,  the 
stage  of  determination  as  to  who  is  to  be  elected  Senator,  and  the  influences,  proper  or  improper,  that 
produce  that  determination,  is  that  which  precedes  and  is  concluded  in  the  caucus.  So  far  as  the  ques- 
tion of  personal  delinquency  or  turpitude  is  concerned,  no  moral  distinction  should  be  taken  between 
corrupt  proceedings  in  caucus  and  those  in  the  legislature.  How  far  any  such  distinction  would  need  to 
be  insisted  upon  in  any  case,  on  the  question  of  unseating  a  Senator,  where  he  himself  was  not  affected 
with  any  personal  misconduct  or  complicity  with  the  misconduct  of  others,  we  have  no  occasion,  in  the 
immediate  case  or  attitude  of  the  subject,  to  consider  or  suggest. 

At  the  outset  of  our  observations  we  stated  the  limits  which  properly  should  control  the  action  of 
the  Senate  under  the  applicable  clauses  of  the  Constitution,  and  by  the  same  reason  the  ends  which 
should  be  proposed  in  its  investigations  and  to  which  they  should  be  confined.  It  is  obvious  that  the 
province  and  duty  of  a  State  in  its  investigations  of  fraud,  corruption,  and  bribery  in  an  election  of 
Senator  are  much  more  extensive.  A  State  is  not  confined  at  all  to  the  question  whether  the  actual 
election  brought  in  question  involves  the  Senator  personally  in  misconduct,  or  whether  enough  votes  for 
him  were  effected  by  fraud,  corruption,  or  bribery  that  would  require  his  seat  to  be  vacated,  although 
himself  free  from  imputation. 

The  State  should  execute  its  laws  respecting  the  purity  of  Senatorial  elections  by  the  indictment 
and  conviction  of  a  single  person  who  bribes  or  is  bribed,  whether  the  election  is  affected  or  not.  The 
State  should  investigate  as  well  to  the  end  of  better  laws  and  surer  execution  of  the  laws.  The  State, 
too,  is  charged  with  the  maintenance  of  "the  honor  of  Ohio,"  and  its  vindication  rests  with  its  own 
legislation,  its  own  judiciary,  and  its  own  people;  but  it  can  not  demand  this  vindication  at  the  hands 
of  the  United  States  Senate,  except  as  that  may  flow  from  investigations  by  that  body  within  the  limits 
of  its  constitutional  powers  and  duties. 

That  State  has  conducted  and  concluded  its  investigations  into  the  election  of  Mr.  Payne,  and  has 
placed  the  result  before  the  Senate  of  the  United  States.  It  has  attempted  no  further  investigations 
either  by  the  plenary  power  of  its  legislature  or  through  the  functions  of  the  courts  of  law.  If,  upon 
further  examinations  made  liy  the  State,  through  its  legislature  or  its  courts,  a  case  should  be  presented 
for  renewed  consideration  by  the  Senate,  within  the  rules  and  principles  we  have  stated  as  governing  the 
action  of  the  Senate,  the  further  action  of  the  Senate  will  be  governed  by  what  may  then  appear.  As  the 
whole  matter  now  stands  before  the  committee,  we  concur  in  its  judgment  that  an  investigation  should 
not  be  instituted  by  the  Senate,  and  the  committee  be  discharged  from  the  further  consideration  of  the 
subject,  and  for  the  reasons  which  we  have  thus  given. 

The  views  submitted  by  Mr.  Hoar  take  issue  with,  the  position  of  the 
majority: 

The  senate  and  house  of  representatives  of  the  State  of  Ohio,  and  the  Republican  State  committee, 
representing  the  political  party  which  for  much  the  larger  portion  of  the  last  thirty  years  has  contained  a 
majority  of  the  voters  of  that  State,  have  each  addressed  a  memorial  to  the  Senate  charging  that  the 
election  of  the  sitting  member  was  procured  by  bribery  and  corruption,  and  praying  the  Senate  to  cause 
an  investigation  into  said  charges.  Two  gentlemen  of  high  character  and  position,  Messrs.  Little  and 
Butterworth,  both  now  Members  of  the  other  House  from  the  State  of  Ohio,  the  former  lately  attorney- 
general  of  that  State,  appeared  before  the  committee,  declared  their  personal  belief  in  the  truth  of  the 
charge,  asserted  that  in  their  opinion  the  belief  is  entertained  by  a  large  majority  of  the  people  of  Ohio  of 
both  political  parties,  and  asked  to  be  permitted  to  lay  before  the  committee  evidence  to  support  it. 
Besides  Messrs.  Little  and  Butterworth  eight  of  the  Ohio  delegation  in  the  House  add  their  earnest  request 


§  691  PLEADINGS   IN   CONTESTED   ELECTIONS.  897 

to  the  same  effect,  aifirin  that  the  investigation  is  demanded  by  a  large  majority  in  number  and  influence 
of  the  press  of  the  State,  say  that  additional  testimony  is  in  the  possession  of  Messrs.  Little  and  Butter- 
worth,  and  express  their  belief  that  "if  opportunity  is  offered,  the  charges  of  the  Ohio  senate  will  be 
sustained  by  testimony  to  your  full  satisfaction." 

Before  the  memorials  above  referred  to  were  presented  there  had  been  presented  to  the  Senate 
for  its  information  the  evidence  taken  by  a  committee  of  the  house  of  representatives  of  Ohio,  who  were 
directed  to  investigate  charges  of  corruption  in  said  election  against  four  members  of  the  present  house 
of  representatives  of  Ohio,  being  the  only  members  of  the  legislature  who  made  the  election  against  whom 
allegations  of  briberj'  were  made  who  have  been  continued  in  the  public  service,  and  the  conclusions 
of  the  committee  upon  said  evidence.  Messrs.  Little  and  Butterworth  also  produced  certain  affidavits 
and  letters  stating  confessions  of  persons  implicated,  and  pointing  out  other  sources  where  evidence 
would  probably  be  obtained  if  lawful  authority  should  be  given  by  the  Senate  to  procure  it. 

Wc  think  this  presents  a  case  where  it  is  the  duty  of  the  Senate  to  permit  the  petitioners  to  present 
their  evidence  and  to  authorize  the  issue  of  proper  process  to  aid  them  in  procuring  the  attendance  of 
witnesses. 

The  Constitution  declares  that  "each  House  shall  be  the  judge  of  the  elections,  returns,  and  quali- 
fications of  its  own  Members."  The  Senate  is  the  only  court  which  has,  or  under  the  Constitution 
possibly  can  have,  jurisdiction  of  this  question.  There  can  be  no  trial,  inquirj',  or  adjudication  any- 
where else  to  which  this  inquiry  is  not  totally  foreign  and  immaterial.  The  courts  in  Ohio  may  exercise 
jurisdiction  of  the  offense  of  bribery  of  or  by  an  individual.  But  the  question  whether  the  result  of  an 
election  of  Senator  was  thereby  changed  can  never  be  before  those  courts.  Either  house  of  the  legis- 
lature may  inquire  as  to  the  personal  turpitude  of  its  own  members.  But  the  action  which  may  result 
from  such  investigation  must  be  precisely  the  same,  whether  other  persons  also  were  or  were  not  cor- 
rupted and  whether  the  choice  of  Senator  were  or  were  not  affected. 

As  the  Senate  is  the  only  court  that  can  properly  try  this  question,  so  the  charge  is  made,  if  not  in 
the  only  way  it  can  be  made,  yet  certainly  in  the  way  beyond  all  others  in  which  it  can  be  made  with 
most  authority.  The  legislature  of  Ohio  is  the  representative  of  *he  dignity,  interest,  and  honor  of  the 
State.  It  appoints  the  Senators  of  the  United  States,  and  if  a  vacancy  in  the  office  exist  it  must  fill  it. 
It  is  supported  in  this  charge  by  the  committee  who  are,  under  our  political  customs,  the  organ  of  more 
than  half  the  voters  of  the  State  concerned. 

For  the  Senate  to  refuse  to  listen  to  this  complaint,  so  made,  would,  it  seems  to  us,  be,  and  be 
everywhere  taken  to  be,  a  declaration  that  it  is  indifferent  to  the  question  whether  its  seats  arc  to  be 
in  the  future  the  subject  of  bargain  and  sale,  or  may  be  presented  by  a  few  millionaires  as  a  compliment 
to  a  friend.  No  more  fatal  blow  can  be  struck  at  the  Senate  or  at  the  purity  and  permanence  of  repub- 
lican government  itself  than  the  establishment  of  this  precedent. 

But  the  case  does  not  rest  alone  upon  the  charge  and  character  of  the  parties  who  make  it  and 
who  ask  to  be  permitted  to  produce  evidence  in  its  support.  If  it  did,  it,  in  our  judgment,  would  be 
enough.  It  is  surely  a  strange  answer  to  be  given  by  a  court  to  a  suitor  to  say  that  it  has  already 
considered  the  question  and  decided  the  case  before  it  is  presented. 

But  the  petitioners  adduce  strong  reasons  to  show  probable  cause  that  they  can  establish  their 
case.  The  testimony  taken  by  the  committee  in  Ohio  has  been  referred  to  us.  Our  attention  has  also 
been  called  to  evidence  pointing  to  a  large  mass  of  additional  testimony.  The  committee  of  the  Ohio 
house  has  power  only  to  inquire  into  the  conduct  of  four  members  of  that  body.     They  report  that — 

"A  number  of  clews  furnished  were  not  followed,  because  we  were  convinced  that  they  could  lead 
only  to  points  at  which  further  pursuit  would  become  necessary,  but  which  could  not  be  passed  without 
authority  to  reach  beyond  the  limits  of  the  State  for  witnesses,  and  much  anonymous  information  was 
ignored  by  the  committee  chiefly  for  the  same  reason." 

We  have  examined  the  evidence  taken  by  that  committee.  It  does  not  support  the  charges  as  to 
the  four  members  implicated;  it  does  not  connect  Mr.  Payne  with  the  transactions;  it  does  not  show 
that  the  result  was  changed  or  effected  by  comipt  means.  But  it  does  show  that  Mr.  Payne's  name  was 
not  publicly  suggested  as  a  candidate  for  Senator  until  after  the  State  election;  that  it  was  not  very 
prominently  suggested  until  shortly  before  his  election  in  January;  that  many  persons  who  had  been 
supposed  to  favor  Pendleton  voted  for  Payne ;  that  there  was  a  widespread  belief  that  corrupt  means  were 
5994— VOL  1—07 57 


898  PBECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  691 

used  to  procure  the  result;  that  one  member  was  offered  a  large  sum  of  money  by  another  member  to  vote 
for  Payne;  that  there  were  hearsay  statements  charging  corruption  as  to  several  others;  that  two  members 
of  the  legislature  received  large  sums  of  money  about  the  time  of  the  election,  of  which  they,  being  called 
as  witnesses,  gave  no  satisfactory  account;  that  the  prominent  managers  of  Mr.  Payne's  canvass,  viz, 
Paige,  McLean,  Huntington,  and  Oliver  H.  Payne,  did  not  testify  before  the  committee.  There  was  no 
evidence  tending  to  show  the  bribery  of  any  particular  member,  except  as  above  stated. 

When  we  say  it  was  not  shown  that  the  result  was  changed  or  effected  by  corrupt  means,  we  are 
speakin"  of  direct  testimony.  But  the  consideration  should  not  be  forgotten  that  where  persons  familiar 
with  the  whole  case  would  be  quite  sure  to  know  whether  such  means  were  needful  to  change  the  result, 
or  whether  their  candidates  would  be  elected  without  it,  if  they  are  found  expending  large  sums  of  money 
corruptly  the  fact  alone  affords  strong  reason  for  the  inference  that  the  result  was  thereby  controlled. 
But  the  result  of  the  investigation  in  Ohio  seems  to  the  undersigned  absolutely  unimportant.  That 
committee,  while  they  took  a  wider  range  of  inquiry  than  the  matter  committed  to  them,  neither  had, 
nor  conceived  they  had,  any  power  to  inquire  into  Mr.  Payne's  title  to  his  seat.  They  issued  no  process 
extending  beyond  the  limits  of  Ohio.  They  report  no  conclusion,  except  as  to  the  four  members. 
When  witnesses  refused  to  answer,  they  did  not  press  them.  They  went  beyond  the  scope  of  the  reso- 
lution appointing  them  only,  as  they  say,  "to  gain  something  like  a  comprehensive  view  of  the  situation." 

The  Ohio  senate  of  1883-84  contained  33  members.  Of  these,  22  were  Democrats  and  11  Repub- 
licans. The  house  contained  105  members,  of  which  60  were  Democrats  and  45  Republicans.  The 
members  entitled  to  vote  on  joint  ballot  were  138  in  all,  82  Democrats  and  56  Republicans.  Eighty-two 
persons  were  entitled  to  vote  in  the  Democratic  caucus,  of  whom  42  were  a  majority.  Seventy-nine 
persons  actually  attended  that  caucus,  of  whom  40  were  a  majority.  Is  there  fair  reason  for  instituting 
an  inquiry  whether  the  result  of  the  election  was  procured  by  bribery?  We  think  that  the  character 
of  the  persons  making  the  charge  is  of  itself  sufficient  to  require  the  Senate  to  listen  to  it.  But  they 
produce  a  great  body  of  evidence,  all  pointing  in  the  same  direction. 

We  are  not  now  to  consider  whether  the  case  is  proved,  or  even  whether  there  be  a  prima  facie  case. 
There  has  as  yet  been  no  evidence  l?id  before  us  addressed  to  either  of  these  considerations.  That  can 
not  be  done  without  the  issue  of  process  for  the  attendance  of  witnesses.  Messrs.  Little  and  Butter- 
worth  now  offer,  on  their  personal  responsibility,  to  establish  to  the  satisfaction  of  the  Senate,  largely 
by  witnesses  who  were  not  within  the  reach  of  the  Ohio  committee,  and  partly  by  evidence  which 
strengthens,  supplements,  and  confirms  that  which  was  before  that  committee,  the  following  among 
other  propositions: 

First.  That  of  the  Democratic  members  elected  to  the  sixty-sixth  general  assembly  more  than 
three-fourths  were  positively  pledged  to  Mr.  Pendleton  and  General  Ward,  and  more  than  a  majority 
pledged  to  Mr.  Pendleton.  This  they  off?r  to  prove  by  Mr.  Pendleton  himself,  by  Col.  W.  A.  Taylor, 
and  others. 

Second.  That  in  these  pledges  these  members  represented  the  opinion  and  desire  of  their  constituents. 

Third.  That  Mr.  Payne  was  nowhere  spoken  of  or  known  as  a  candidate  during  the  popular  election, 
or  until  a  very  short  time  before  the  appointment  of  Senator. 

Fourth.  That  just  before  the  legislative  caucus,  where  the  nomination  was  made,  which  was  one 
week  before  the  election,  large  sums  of  money  were  placed  by  Mr.  Payne's  son  and  other  near  friends 
of  his  at  the  control  of  the  active  managers  of  his  canvass  in  Columbus.  This  they  allege  can  be  shown 
by  the  books  of  one  or  more  banks. 

Fifth.  Mr.  Payne's  near  friends  declared  that  his  election  had  cost  very  large  sums. 

A  gentleman  whose  name  is  offered  to  be  given  will  testify  that  David  R.  Paige  declared  to  him 
that  he  had  handled  $65,000. 

Oliver  B.  Payne  stated  to  the  same  person  that  it  had  cost  him  $100,000  to  elect  his  father. 

Sixth.  That  the  members  of  the  legislature  who  changed  from  Pendleton  to  Payne  did  so  after 
secret  and  confidential  interviews  with  the  agents  who  had  the  disbursement  of  these  moneys. 

Seventh.  That  members  of  the  legislature  who  so  suddenly  changed  their  attitude  can  be  proved 
to  have,  at  about  the  time  of  the  change,  acquired  large  sums  of  money,  of  which  they  give  no  satisfactory 
account. 

Eighth.  Respectable  Ohio  Democrats  affirm  that  just  before  the  caucus  the  room  of  Mr.  Payne's 
manager,  Paige,  "was  like  a  banking  house;"  that  the  "evidence  of  large  sums  of  money  there  was 


§691 


PLEADINGS    IN    CONTESTED    ELECTIONS.  899 


abundant  and  conclusive;"  that  Paige's  clerk  declared  in  the  presence  of  a  gentleman  of  integrity  that 
"he  had  never  seen  so  much  money  handled  in  his  lite." 

Ninth.  That  the  public  belief  that  the  choice  of  Senator  was  procured  by  the  corrupt  use  of  money 
prevails  almost  universally  in  Ohio  among  persons  of  both  parties,  which  finds  very  general  expression 
in  the  press. 

Tenth.  That  there  is  specific  proof  leading  with  great  force  to  the  conclusion  that  each  of  10  mem- 
bers will  be  shown  to  have  changed  their  votes  corruptly,  and  thereby  that  the  result  was  changed. 

The  Senate  has  also  recently  referred  to  the  committee  certain,resolutions  adopted  by  a  convention 
of  the  Republican  editors  of  Ohio,  held  at  Columbus,  July  8, 18S6,  praj-ing  the  Senate  to  investigate  these 
charges.  The  newspaper  reports  of  the  convention  show  that  the  governor  of  the  State  was  present  at  the 
convention,  and  declared  his  concurrence  in  said  prayer.  There  have  also  been  communicated  to  us 
extracts  from  the  Democratic  newspapers  of  Ohio,  showing  that  a  majority  of  those  papers  have  declared 
their  opinion  that  the  election  was  procured  by  corruption.     Copies  of  these  extracts  are  appended. 

What  is  the  effect  upon  an  election  of  Senator  of  briberj-  of  voters  in  a  caucus  of  the  legislators  who 
are  to  make  the  choice  is  a  question  upon  which  we  prefer  not  to  form  an  opinion  until  the  evidence  is 
before  us.  The  members  of  a  caucus  ordinarily  deem  themselves  bound  in  honor  to  vote  in  the  election 
for  the  person  whom  it  nominates  by  the  vote  of  a  majority,  on  condition  that  such  person  belong  to 
their  party  and  is  fit  for  the  office  in  point  of  character  and  ability.  Briberj',  therefore,  which  changes 
the  result  in  the  caucus  would  ordinarily  determine  the  election. 

If  B,  C,  and  D  have  promised  to  vote  as  A  shall  vote,  if  A  be  corrupted  four  votes  are  gained  by  the 
process,  although  B,  C,  and  D  be  innocent.  In  looking,  therefore,  to  see  whether  an  election  by  the 
legislature  was  procured  or  effected  by  bribery,  it  may  be  very  important  to  discover  whether  that 
bribery  procured  the  nomination  of  a  caucus  whose  action  a  majority  of  the  legislature  were  bound  in 
honor  to  support.  Seventy-nine  persons  attended  the  Senatorial  caucus  and  voted  on  the  first  ballot. 
Of  these  Mi.  PajTie  had  the  votes  of  46,  Ward  17,  Pendleton  15,  Booth  1.  If  6  only  of  Mr.  PajTie's  votes 
in  the  caucus  were  procured  by  bribery,  the  result  of  the  election  of  Senator  was  clearly  brought  about 
by  that  means.  Now,  Messrs.  Little  and  Butterworth  tender  specific  proof,  part  of  which  was  before  the 
Ohio  committee  and  part  here  offered  for  the  first  time,  directly  and  very  strongly  tending  to  create 
the  belief  as  to  each  of  10  of  the  members  of  the  Ohio  legislature  that  his  vote  for  Mr.  Payne  was  purchased 
and  that  proper  process  and  inquiry  will  establish  the  fact  by  competent  and  sufficient  evidence. 

One  member  after  the  caucus  deposited  $2,500  in  two  amounts,  and  being  charged  that  it  was  the 
price  of  his  vote,  did  not  persist  in  a  denial. 

Another,  who  changed  to  PajTie,  just  before  the  caucus  stated  to  a  colleague  that  he  waa  offered 
$5,000  to  vote  for  PajTie,  and  intended  to  accept  it,  and  tried  to  induce  his  colleague  to  do  the  same. 
That  person's  wife  iust  afterwards  deposited  $2,500  in  a  bank  in  Toledo,  took  a  certificate  therefor,  which 
she  transferred  to  her  husband. 

Another  who  is  claimed  to  have  changed  suddenly  from  Pendleton  to  Payne  is  found  making,  soon 
after,  expenditures  amounting  to  $1,600  with  his  own  money  on  land,  the  title  to  which  was  taken  in  the 
name  of  his  father,  who  paid  $2,000  for  it  about  the  same  time.  The  father  and  son  lived  together  in  the 
same  house.  The  son  testified  that  ho  did  not  know  where  the  father  got  the  money  to  pay  the  $2,000. 
The  father  refused  to  state  where  he  got  his  $2,000,  and  said  he  did  not  know  where  the  son  got  the 
$1,600,  and  if  he  did  he  would  not  tell.  The  same  member  also  made  other  large  pajTnents  of  money 
about  the  same  time. 

Another,  who  had  to  borrow  money  when  he  went  to  Columbus,  and  changed  suddenly  from  Pendle- 
ton to  Payne,  was  shown  just  after  the  election  to  be  in  possession  of  money  to  purchase  property, 
refurnish  his  house,  etc.  He  was  denounced  by  another  member  as  having  sold  his  vote.  He  turned 
exceedingly  sick,  made  no  denial,  and  was  taken  away.  Two  others,  elected  as  antimonopolists, 
became  supporters  of  Mr.  Payne  and  were  heard  discussing  together  the  amount  of  money  each  had 
received.  Another,  who  had  before  been  for  another  candidate,  but  voted  for  Mr.  Payne,  received  from 
Oliver  B.  Payne  $3,500,  which  he  said  was  a  loan.  Another,  according  to  affidavits  produced  by  Mr. 
Little,  was  declared  by  a  fellow  member  to  be  claiming  $3,500  for  his  vote.  Another,  who  had  been 
very  earnest  in  support  of  Pendleton,  visited  the  room  of  Mr.  Payne's  managers,  where  the  large  sums 
of  money  are  alleged  to  have  been  seen,  and  immediately  afterwards  voted  for  Mr.  Payne. 


900  PRECEDENTS   OF   THE   HOUSE    OF   EEPKESENTATIVES.  §  691 

Tte  committee  received  this  communication  from  Messrs.  Little  and  Butterworth  in  addition  to 
the  statements  made  by  them  at  the  hearing: 

"Hon.  George  F.  Hoar, 

"Chairman  of  the  Comndttee  on  Privileges  and  Elections,  United  States  Senate: 

"Dear  Sir:  Since  our  appearance  before  your  committee  the  last  tune  we  have  received  infor- 
mation, deemed  by  us  important,  bearing  upon  the  question  of  investigation,  and  desire  to  indicate  its 
general  character. 

"First.  We  have  information,  regarded  as  trustworthy,  that  a  member  of  the  sixty-sixth  general 
assembly,  one  of  the  sudden  converts  to  Payne,  with  meager  means  and  without  financial  credit  prior 
to  January,  1884,  was  able  to  and  did  deposit  in  bank  to  his  own  credit  shortly  after  the  election,  to  wit, 
February  13,  1884,  $1,350,  besides  showing  other  signs  of  prosperity  not  accountable  for  in  ordinary  ways. 

"Second.  We  can  show  by  witnesses,  whose  credibility  will  not  be  questioned,  that  just  prior  to 
the  meeting  of  the  caucus  at  which  Mr.  Payne  was  nominated  he  (witness)  was,  in  the  interest  of  Payne, 
summoned  by  telegraph  to  Columbus.  He  went,  and  was  asked  by  Payne's  managers  what  sum  of 
money  would  be  required  to  withdraw  the  vote  of  the  representative  of  his  (witness's)  county  from 
Pendleton  and  give  it  to  Payne.  The  question  was  squarely  and  seriously  addressed  to  witness:  'How 
much  money  does  he  (the  representative)  want?' 

"Third.  We  have  from  reliable  sources  additional  information  of  a  convincing  nature  pointing  to 
bribery,  consisting  of  conversation,  statements,  and  admissions  of  implicated  members  and  others, 
which  we  are  not  at  liberty  to  state  more  explicitly  in  this  communication,  owing  to  the  conditions 
under  which  the  information  is  imparted,  but  which,  with  the  other  matters  referred  to,  we  can  verbally 
communicate  to  you  in  more  particular  form  if  desired. 

"In  the  line  of  matter  heretofore  submitted  we  deem  it  worth  while  to  give  this  additional  instance: 

"Fourth.  We  quote  from  a  letter  in  our  possession  from  a  responsible  person  in  Ohio,  omitting 
names: 

"'Our  representative,  ,  had  been  elected  as  a  Pendleton  man  and  had  agreed  to 

support  Pendleton.     A  few  days  before  the  caucus  it  waa  whispered  that  " had  been  seen"  and 

that  he  would  vote  for  Payne.     A  telegram  was  at  once  sent  from  here  to (the  member)  by  lead- 
ing Democrats,  warning  him  against  such  a  coiu'se,  and and  others  at  once  went  to  Columbus 

and  saw  the  member.     He  hooted  at  the  idea  that  he  would  vote  for  Payne.     assured  Pendleton 

that  the  member  would  support  him.    then  came  home  feeling  confident  that  the  member  would 

not  disappoint  him.' 

"This  member  was  interviewed  in  the  presence  of  a  friend  of  Mr.  Pendleton  and  asserted  his 
devotion  to  him,  but  was  suspected  and  watched.  As  the  hour  of  the  caucus  approached  it  was  noticed 
that  he  was  not  present.     The  friend  of  Mr.  Pendleton  went  to  his  room  for  him.     We  quote  further: 

"'He  found  him  in  company  with  one  of  the  men  who  handled  the  "boodle,"  and  he  was  much 

embarrassed  by 's  presence.     But  he  went  to  the  caucus  with  ,  and  on  the  way  again 

asserted  his  allegiance  to  Pendleton.     If  I  remember  correctly,  said  they  had  printed  ballots 

for  both  candidates  and  that  he  gave  (the  member)  a  Pendleton  ticket.     But  when  the  vote 

was  taken, (Pendleton's  friend)  observed  that (the  member)  wrote  something  on  a  piece 

of  legal  cap  and  then  tore  it  off.     He  afterwards  discovered  that (the  member)  put  in  the  hat 

the  same  piece  of  paper,  and  then (Pendleton's  friend)  went  to 's  (the  member's)  desk 

and  tore  off  a  piece  of  the  legal  cap  large  enough  to  include  the  small  piece  torn  off  by (the 

member).     I  think (Pendleton's  friend)  was  one  of  the  tellers.     At  any  rate,  he  got  the  ballot 

which  fitted  the  piece  of  legal  cap,  and  which had  voted,  and  found  that  Payne's  name  was  on 

the  ballot.' 

"This  member  was  thereupon  charged  by  the  Democratic  county  paper  of  his  county  with 
betrayal,  etc. 

"We  do  not  question  that  the  facts  can  be  shown  substantially  as  indicated  with  respect  to  the 
member  referred  to. 

"Should  this  information  not  be  used,  names  and  means  of  identity  placed  on  record  would  or 
might  lead  to  annoyances  for  no  purpose.     They  are,  therefore,  not  here  given. 

"  Yoiu-  committee,  we  will  venture  to  add  in  conclusion,  will  not  overlook  the  fact  that  our  showing. 


§   691  PLEADINGS   IN    CONTESTED    ELECTIONS.  901 

made  in  the  face  of  a  most  persistent  and  powerful  opposition,  of  unlimited  means  and  expedients,  has 
been  one  for  an  investigation,  and  not  final  action  following  an  investigation. 
"Very  respectfully, 

"John  Little. 

"Benj.  Butterworth." 

It  is  said  that  much  of  this  is  hearsay  and  that  taken  together  it  is  insufficient  to  establish  a  case 
which  wiU  overcome  the  presumption  arising  from  the  certificate  of  election.  We  are  not  now  dealing 
with  that  question.  The  Senate  is  to  determine  whether  there  is  probable  cause  for  an  inquirJ^  Any 
man  who  lays  a  claim  to  any  property,  real  or  personal,  may  institute  his  process  at  pleasure,  and  compel 
the  courts  to  hear  and  try  the  cause.  Even  a  criminal  accusation  requires  only  the  oath  of  the  accuser, 
who  is  justified,  if  he  have  probable  cause. 

It  will  not  be  questioned  that  in  everj'  one  t^f  these  cases  there  is  abundant  probable  cause  which 
would  justify  a  complaint  and  compel  a  grand  jury  or  magistrate  to  issue  process  and  make  an  investi- 
gation. Is  the  Senate  to  deny  to  the  people  of  a  great  State,  speaking  tlirough  their  legislature  and 
their  representative  citizens,  the  only  opportunity  for  a  hearing  of  this  momentous  case  which  can  exist 
under  the  Constitution?  We  have  not  prejudged  the  case,  nor  do  we  mean  to  prejudge  it.  We  sincerely 
trust  that  the  investigation,  which  is  as  much  demanded  for  the  honor  of  the  sitting  Member  as  for  that 
of  the  Senate  or  the  State  of  Ohio,  may  result  in  vindicating  his  title  to  his  seat  and  the  good  name 
'if  the  legislature  that  elected  him. 

But  we  can  not  consent  to  be  accomplices  in  denying  justice  to  either.  We  do  not  believe  the 
-American  people  will  be  satisfied  that  the  Senate  should  refuse  to  hear  this  case  either  on  the  ground 
that  some  other  tribimal  has  tried  some  other  case,  or  on  the  ground  that  it  has  already  been  decided 
without  hearing  or  evidence,  or  on  the  ground  that  a  bribe  paid  for  a  vote  in  a  legislative  caucus  is  not 
understood  by  both  parties  to  include  a  vote  in  the  legislature  for  the  candidate  of  that  caucus. 

How  can  a  question  of  bribery  ever  be  raised  or  ever  be  investigated  if  the  arguments  against  this 
investigation  prevail?  You  do  not  suppose  that  the  men  who  bribe  or  the  men  who  are  bribed  will 
volunteer  to  furnish  e^adence  against  themselves?  You  do  not  expect  that  impartial  and  unimpeacli- 
able  witnesses  will  be  present  at  the  transaction.  Ordinarily,  of  course,  if  a  claim  like  this  be  brought 
to  the  attention  of  the  Senate  from  a  respectable  quarter  that  a  title  to  a  seat  here  was  obtained  by 
corrupt  means  the  Senator  concerned  will  hasten  to  demand  an  investigation.  But  that  is  wholly 
within  his  own  discretion,  and  does  not  affect  the  due  mode  of  procedure  by  the  Senate.  From  the 
nature  of  the  case  the  process  of  the  Senate  must  compel  the  persons  who  conducted  the  canvass  and 
the  persons  who  made  the  election  to  appear  and  disclose  what  they  know;  and  until  that  process  issue 
you  must  act  upon  such  information  only  as  is  enough  to  cause  inquiry  in  the  ordinary  affairs  of  life. 

The  question  now  is  not  whether  the  case  is  proved — it  is  only  whether  it  shall  be  inquired  into. 
That  has  never  yet  been  done.  It  can  not  be  done  until  the  Senate  issues  its  process.  No  unwOling 
witness  has  ever  yet  been  compelled  to  testify;  no  process  has  gone  out  which  could  cross  State  lines. 
The  Senate  is  now  to  determine,  as  the  law  of  the  present  case  and  as  the  precedent  for  all  future  cases, 
as  to  the  great  crime  of  bribery — a  crime  which  poisons  the  waters  of  republican  liberty  in  the  fountain — 
that  the  circumstances  which  here  appear  are  not  enough  to  demand  its  attention. 

It  will  hardly  be  doubted  that  cases  of  purchase  of  seats  in  the  Senate  will  multiply  rapidly  under 
the  decision  proposed  by  the  majority  of  the  committee.  The  first  great  precedent  to  constitute  the 
rule  under  this  branch  of  law  is  to  be  this: 

Held,  by  the  Senate  of  the  United  States,  that  a  charge  made  by  the  legislature  of  a  State,  and 
by  the  committee  of  the  political  party  to  which  the  larger  number  of  its  citizens  belong,  and  by  10  of 
its  Representatives  in  Congress,  that  an  election  of  Senator  was  procured  by  bribery,  accompanied  by 
the  offer  to  prove  the  fact,  does  not  deserve  the  attention  of  the  Senate,  and  this,  although  it  also  appear — 

That  there  is  a  general  and  widespread  public  belief  in  the  truth  of  the  charge;  that  there  was 
a  sudden  and  unexpected  and  unaccounted  for  change  to  the  sitting  member  from  another  candidate, 
to  whom  a  majority  of  the  electing  body  had  been  previously  pledged;  that  lai^e  Bums  of  money  were 
brought  to  the  place  of  election  just  before  the  choice  by  the  managers  of  the  canvass  for  the  person 
elected;  that  there  is  evidence  tending  to  show  the  bribery  of  several  members,  and  the  acquisition  by 
others,  who  so  changed  their  support,  of  considerable  sums  of  money,  immediately  after  such  change, 
affect  at  least  10  members  of  said  legislature;  that  a  change  by  corrupt  means  of  the  votes  of  6  persons 


902  PKECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   692 

would  have  changed  the  result  in  a  legislative  caucus,  and  thereby  bound  and  committed  the  vote  in 
the  legislature  of  82  persons,  who  were  a  large  majority  of  such  legislature; 

Provided  it  also  appear  that  one  branch  of  a  subsequent  legislature  of  the  same  State  have,  in 
investigating  charges  against  four  of  their  members,  incidentally  inquired  into  charges  against  other 
persons,  so  far  as  they  could  without  compelling  unwilling  witnesses  to  answer,  without  use  of  process 
extending  beyond  their  State,  and  "without  following  out  many  clues,  which  they  did  not  follow 
because  they  were  convinced  that  they  would  lead  only  to  points  of  which  further  pursuit  would  become 
necessary." 

We  recommend  the  adoption  of  the  accompanying  resolution: 

Resolved,  That  the  Committee  on  Privileges  and  Elections,  or  any  subcommittee  thereof,  be  author- 
ized to  investigate  the  charges  affecting  the  title  to  the  seat  of  the  Hon.  Henrj'  B.  Payne,  and  to  send 
for  persons  and  papers,  administer  oaths,  and  employ  a  clerk  and  stenographer,  and  to  sit  during  the 
recess  of  the  Senate;  and  that  the  expenses  of  the  investigation  be  paid  out  of  the  contingent  fund  of 
the  Senate. 

On  the  issues  thus  joined,  the  case  was  debated  at  length  in  the  Senate  on 
July  21,  22,  and  23,*  and  on  the  latter  day  the  resolution  proposed  in  the  views 
submitted  by  Mr.  Hoar  was  disagreed  to,  yeas  17,  nays  44.  Then  the  proposition 
of  the  majority  was  agreed  to,  yeas  44,  nays  17.' 

692.  The  Senate  election  case  of  Williaiii  A.  Clark,  from  Montana,  in 
the  Fifty-sixth  Congress. 

A  Senator-elect  took  the  oath  on  his  prima  facie  right  without  chal- 
lenge, although  charges  of  bribery  in  his  election  were  presented  imme- 
diately thereafter. 

A  memorial  having  set  forth  specifically  charges  of  bribery,  and 
specified  evidence  in  support  thereof,  the  Senate  decided  to  examine  a 
Senator's  title  to  his  seat. 

Instance  of  a  Senate  election  case  instituted  by  a  memorial. 

On  December  4,  1899,^  in  the  Senate  William  A.  Clark,  whose  credentials  were 
on  file  as  Senator  from  Montana,  took  the  oath  of  office  without  objection. 

Very  soon  thereafter,  on  that  day,  Mr.  Thomas  H.  Carter,  of  Montana,  pre- 
sented the  memorial  of  Henry  C.  Stiff,  speaker  of  the  house  of  representatives  of 
Montana,  and  26  members  of  the  legislative  assembly  of  that  State,  protesting 
against  the  validity  of  Mr.  Clark's  election.  Mr.  Carter  also  presented  a  petition 
signed  by  the  governor  of  Montana  and  other  State  officers,  by  the  Member  of 
Congress  from  that  State,  and  an  ex-Member,  praying  for  an  early  hearing  on  the 

'  Record,  pp.  7251,  7308,  7350-7361. 

^  In  1898  the  Senate  considered  the  case  of  Marcus  A.  Hanna,  Senator  from  Ohio.  (Election 
Cases,  Senate  Doc.  No.  11,  special  session  Fifty-eighth  Congress,  p.  878.)  Mr.  Hanna  was  chosen  by 
the  legislature  of  the  State  of  Ohio  a  Senator  from  that  State  for  the  remaining  portion  of  the  term  ending 
March  3, 1899.  Mr.  Hanna  appeared  January  17, 1898,  and  took  his  seat  in  the  Senate  without  objection. 
Subsequently,  and  on  the  28th  day  of  May,  1898,  a  certified  copy  of  the  report  of  the  committee  appointed 
by  the  senate  of  the  State  of  Ohio  to  investigate  charges  of  bribery  in  the  election  of  Mr.  Hanna  to  the 
Senate  of  the  United  States  was  filed  and  referred  to  the  Committee  on  Privileges  and  Elections.  On 
the  28th  day  of  February,  1899,  the  committee  submitted  a  report  asking  to  be  discharged  from  further 
consideration  of  the  report  of  the  State  senate  of  Ohio.  A  minority  of  the  committee  submitted  a 
minority  report  recommending  further  inquiry'  and  investigation.  One  member  of  the  committee  did 
not  join  in  either  the  majority  or  the  minority  report,  but  submitted  a  separate  report  for  himself.  No 
further  action  was  taken  by  the  Senate  in  the  case. 

'First  session  Fifty-sixth  Congress,  Record,  pp.  1,  2. 


§  692  PLEADINGS    IN    CONTESTED    ELECTIONS.  903 

protest.  The  memorial  and  petition  were  referred  to  the  Committee  on  Privileges 
and  Elections. 

On  December  6 '  Mr.  William  E.  Chandler,  of  New  Hampshire,  presented 
certain  exhibits  to  accompany  the  memorial  alreadj-  presented. 

On  December  7  ^  Mr.  Chandler  reported  from  the  Committee  on  Privileges  and 
Elections  the  following  resolution,  which  was  agreed  to  on  December  12  without 
debate : 

Resolved,  That  the  Committee  on  Privileges  and  Elections  of  the  Senate,  or  any  subcommittee 
thereof,  be  authorized  and  directed  to  investigate  the  right  and  title  of  William  A.  Clark  to  a  seat  as 
Senator  from  the  State  of  Montana,  and  said  committee  is  authorized  to  sit  during  the  sessions  of  the 
Senate,  to  employ  a  stenographer,  to  send  for  persons  and  papers,  and  to  administer  oaths,  and  that  the 
expense  of  the  inquirj-  shall  be  paid  from  the  contingent  fund  of  the  Senate  upon  vouchers  to  be  approved 
by  the  chairman  of  the  committee. 

This  decision  of  the  Senate,  made  without  question  or  debate,  was  evidently 
based  on  the  full  showing  made  in  the  memorial  presented  by  Mr.  Carter.  This 
memorial,^  addressed  "To  the  honorable  Senate  of  the  United  States,"  set  forth: 

1.  That  the  petitioners  were  citizens  of  the  United  States  and  of  the  State  of 
Montana,  and  that  they  were  such  long  prior  to  the  meeting  of  the  sixth  leoislative 
assembly,  which  convened  on  the  first  Monday  of  January,  1899. 

2.  That  the  legislature  as  organized  consisted  of  certain  persons,  whose  names, 
politics,  and  districts  are  set  down. 

3.  That  it  was  the  duty  of  the  said  legislature  to  elect  a  United  States  Senator, 
and  that  William  A.  Clark  was  a  member. 

4.  That  the  said  William  A.  Clark  entered  into  a  conspiracy  with  certain  others 
to  influence  the  action  of  the  legislature  in  the  choice  of  a  Senator,  and  that  in 
pursuance  of  that  conspiracy  money  was  paid  to  divers  persons  to  influence  cor- 
ruptly the  choice  of  Senator.  The  memorial  sets  forth  the  names  of  the  persons 
thus  corruptly  in  receipt  of  money  and  the  sum  received  by  each,  and  also  other 
persons  mentioned  by  name  to  whom  stated  sums  were  offered  to  cause  them  as 
members  of  the  said  legislatiu-e  to  vote  for  the  said  W.  A.  Clark  for  Senator. 

5.  That  the  aforesaid  corrupt  offers  were  made  with  the  full  knowledge  and 
authorization  of  the  said  W.  A.  Clark. 

6.  That  by  the  aid  of  these  corrupt  expenditirres  of  money  W.  A.  Clark  received 
a  majority  of  the  votes  of  £he  legislative  assembly  for  Senator,  and  that  without 
such  corrupt  expenditure  he  would  not  have  received  such  majority. 

7.  That  various  investigations  had  been  made  in  Montana  by  the  legislature 
and  by  the  grand-jmy  system,  and  a  large  amount  of  testimony  taken,  whereof 
transcripts  were  sent  as  a  part  of  the  memorial. 

The  memorial  concludes  as  follows: 

Wherefore,  your  petitioners  pray  your  honorable  body  at  the  earliest  practicable  moment  to  set  a 
time  and  place  for  hearing  this  protest  and  the  evidence  in  support  thereof  before  the  Committee  on 
Privileges  and  Elections  of  your  honorable  body,  to  the  end  that  substantial  justice  may  be  done  to  the 
people  of  the  State  of  Montana  and  all  others  concerned  in  the  matters  set  forth  herein,  and  that  pending 

'  Record,  p.  85. 

^Record,  pp.  132,  231. 

'  First  session  Fifty-sixth  Congress,  Senate  Report  No.  1052,  Part  I,  Document  No.  3. 


904  PEECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   693 

Buch  investigation  the  said  William  A.  Clark  be  denied  the  privileges  of  participation  in  the  duties  and 
business  of  the  Senate  as  a  Member  thereof. 

On  information  and  belief  I  sign  the  foregoing  statement  and  charges. 

The  signatures  of  the  petitioners  follow. 

The  Senate  having  aclmitted  Mr.  Clark  on  his  prima  facie  showing,  no  steps 
were  taken  to  grant  the  request  of  the  petitioners  that  he  be  denied  participation 
in  the  proceedings  of  the  Senate. 

693.   The  case  of  William  A.  Clark,  continued. 

The  committee  recommended  that  a  Senator's  election  be  declared 
void,  enough  bribery  being  shown  to  have  affected  the  result. 

A  Senator  threatened  with  loss  of  his  seat  for  bribery  having 
resigned,  the  proceedings  abated. 

Criticism  and  discussion  as  to  latitude  of  inquiry  permitted  in  a  com- 
mittee's investigation  of  the  right  of  a  Senator  to  his  seat. 

On  April  23  '  Mr.  Chandler  reported  from  the  Committee  on  Privileges  and 

Elections  this  resolution: 

Resolved,  That  William  A.  Clark  was  not  duly  and  legally  elected  to  a  seat  in  the  Senate  of  the 
United  States  by  the  legislature  of  the  State  of  Montana. 

This  resolution  was  the  result  of  the  imanimous  action  of  the  committee. 
With  the  resolution  was  a  written  report'  going  over  the  evidence  at  length,  dis- 
cussing the  individual  cases  of  bribery,  and  summarizing  the  law  and  the  facts,  as 
follows : 

In  justifying  the  finding  of  the  committee  it  is  not  necessary  to  discuss  any  doubtful  questions 
of  law. 

(1)  It  is  clear  that  if  by  briberj-  or  corrupt  practices  on  the  part  of  the  friends  of  a  candidate  who 
are  conducting  his  canvass  votes  are  obtained  for  him  without  which  he  would  not  have  had  a  majority, 
his  election  should  be  annulled,  although  proof  is  lacking  that  he  knew  of  the  bribeiy  or  corrupt  prac- 
tices. (Pomeroy's  case,  Taft  Election  Cases,  330;  Caldwell's  case,  334;  Clayton's  case,  348;  Ingall'e 
case,  596;  Payne's  case,  604,  609,  610;  Minority  report,  616.) 

(2)  It  seems  to  have  been  admitted  that  if  the  person  elected  clearly  participated  in  any  one  act 
of  bribery  or  attempted  bribery  he  should  be  deprived  of  his  office,  although  the  result  of  the  election 
was  not  thereby  changed.  (Pomeroy's  case,  Taft  Election  Cases,  330,  where  Mr.  Pomeroy  had  84  votes 
against  25.) 

According  to  the  law,  as  understood  by  the  committee.  Senator  Clark  can  not  be  permitted  to 
retain  his  seat.  He  received  54  votes  and  there  were  39  against  him,  leaving  him  an  apparent  majority 
of  15.  If  he  obtained  through  illegal  and  corrupt  practices  8  votes  which  would  otherwise  have  been 
cast  against  him,  he  was  not  legally  elected.  More  than  this  number  of  votes,  the  committee  find 
from  all  the  evidence,  was  thus  obtained. 

It  is  also  a  reasonable  conclusion  upon  the  whole  case  that  Senator  Clark  is  fairly  to  be  charged 
with  knowledge  of  the  acts  done  in  his  behalf  by  his  committee  and  his  agents  conducting  his  canvass. 
He  arrived  in  Helena  from  Butte  on  January  4  and  remained  there  until  after  his  election  on  January  28, 
and  was  in  constant  conference  with  his  committee  and  agents. 

Two  members  of  the  committee,  Messrs.  E.  W.  Pettus,  of  Alabama,  and  W.  A. 
Harris,  of  Kansas,  while  agreeing  to  the  resolution,  offered  minority  views  which, 
besides  discussing  the  evidence,  criticised  the  methoil  of  taking  it. 

It  was  our  misfortune  not  to  agree  with  a  majority  of  the  committee  in  the  general  conduct  of 
the  investigation  of  this  case.  We  believed  that  in  this  important  inquiry  the  committee  was  bound 
by,  and  ought  to  act  on,  the  ordinary  rules  of  evidence. 

'  Senate  Report  No.  1052,  Record,  pp.  3429. 


§   693  PLEADINGS    IN    CONTESTED    ELECTIONS.  905 

And  in  this  contention  we  merely  followed  another  member  of  the  committee  who  is  one  of  our 
great  lawyers  and  who  is  fresh  from  a  long  service  as  a  nisi  prius  judge  under  Federal  authority.  That 
great  law^'er,  in  gentle  but  forceful  language,  admonished  us  of  the  great  danger  of  disregarding  the 
common  rules  of  evidence  established  by  great  judges  through  the  centuries  and  known  to  all  lawyers. 
But  it  was  said  the  committee  was  not  a  court  and  had  a  right  to  receive  "hearsay"  evidence  in  order 
to  get  on  the  track  of  better  evidence.     And  we  did  receive  it  constantly,  and  in  great  volumes. 

We  tried  merely  to  discharge  our  duties  as  members  of  this  committee  and  as  judges  in  this  most 
important  cause.  The  chairman,  however,  left  the  committee  little  to  do.  The  committee  made  an 
order  at  the  beginning  appointing  the  chairman  and  another  member  to  determine  what  witnesses 
should  be  summoned,  and  the  two  did  determine  that  matter  at  first,  but  the  chairman  kindly  relieved 
the  other  members  of  that  labor  and  determined  that  matter  for  the  committee. 

This  report  of  the  chairman  declares  that,  as  to  many  matters  stated  separately,  some  members 
of  the  committee  think  or  believe  one  way  and  some  think  or  believe  another  way.  So  we  preferred 
to  state  our  individual  findings  for  ourselves. 

It  is  our  opinion  from  the  evidence  that  the  friends  of  Senator  Clark  illegally  and  improperly 
used  large  amounts  of  money  and  thereby  caused  the  election,  and  that  this  election  is  not  valid,  but 
under  the  law  of  the  land  is  void,  and  therefore  we  agreed  to  the  resolution  reported  by  the  chairman. 
******* 

A  large  part  of  the  evidence  taken  by  the  committee  and  submitted  to  the  Senate  is  irrelevant 
to  the  miatter  of  inquiry.  Take  as  a  sample  the  matter  of  what  is  called  the  attempt  to  bribe  the  supreme 
court  and  the  attorney-general.  This  transaction,  so  far  as  we  are  informed,  occurred  six  or  seven 
months  after  the  senatorial  election ;  no  fact  proved  connects  Mr.  Clark  with  any  part  of  that  transac- 
tion. Doctor  Treacy  had  no  sort  of  connection,  directly  or  indirctely,  with  Mr.  Clark;  and  if  he  had 
there  was  no  connection  between  the  election  in  January  and  the  supreme  judges  in  the  fall  of  that  year. 

You  can  not  lawfully  charge  a  man  with  one  crime  and  prove  that  he  committed  that  crime  by 
proving  that  he  did  commit  another  crime.  The  Constitution  provides  that  the  accused  must  "be 
informed  of  the  nature  and  caiLse  of  the  accusation."  No  mention  of  the  judges  of  the  supreme  court  of 
Montana  was  made  in  the  charges  against  Mr.  Clark.  All  of  that  evidence  was  nothing  more  than  what 
lawyers  call  "  coloring  matter."  And  it  was  admitted  against  the  protest  of  the  Senator  from  Maryland 
and  others. 

And  in  the  conduct  of  this  case  much  other  mere  ''coloring  matter"  was  received  as  evidence. 

In  the  report  made  for  the  committee  there  are  several  curious  statements  of  a  part  of  the  evidence 
as  to  the  thing  stated.  For  example,  it  is  stated  that  Senator  Clark,  in  June,  1899.  destroyed  the  checks 
which  he  had  drawn  on  his  bank.  But  the  report  fails  to  state  that  for  years  past  it  was  his  habit  to 
destroy  his  checks  when  his  account  was  rendered  by  the  bank  and  examined.  And  the  report  failed 
to  state  that  the  committee  had  the  bank  account  of  Mr.  Clark  during  all  the  time  in  which  it  was  charged 
that  money  had  been  illegally  used. 

And  there  is  another  feature  of  that  report  which  should  be  noticed.  Statements  are  made  as  facts 
which  are  based  only  on  the  testimony  of  a  witness  of  doubtful  credit,  and  that  testimony  plainly  con- 
tradicted. 

The  only  proposition  for  which  we  contend  is,  that  this  is  a  judicial  case,  and  a  committee  of  the 
Senate  ought  to  consider  and  report  it  as  judges. 

On  May  3'  the  consideration  of  the  resolution  was  postponed  until  May  15. 
On  the  latter  day,-  Mr.  Clark,  rising  to  a  question  of  personal  pri\nlege,  and  after 
reviewing  the  evidence  and  criticising  the  methods  hj  which  the  evidence  had  been 
taken,  submitted  a  copy  of  a  letter  addressed  by  him  on  May  1 1  to  the  governor  of 
Montana,  in  which  he  resigned  his  seat  in  the  Senate. 

Mr.  Chandler  thereupon  asked  that  the  resolution  might  go  over  to  the  next  day. 
On  that  da}'"  it  was  further  postponed  to  enable  the  Committee  on  Privileges  and 
Elections  to  determine  what  further  action  should  be  taken.     On  June  5/  near  the 

'  Record,  pp.  5021,  5022.  '  Record,  p.  5584. 

=  Record,  pp.  5531-5536.  *  Record,  p.  6698. 


906  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   694 

close  of  the  session,  ]\lr.  Chandler  submitted  a  supplemental  report  in  which  the 
majority  of  the  conmiittee  justified  their  method  of  conducting  the  investigation, 
and  replied  to  the  criticisms  made  by  Mr.  Clark : 

The  distinct  criticisms  made  by  Mr.  Clark  on  May  15  of  the  report  of  the  committee  are  not  serious 
in  their  character,  and  it  is  fortunate  that  they  were  made,  because  they  may  be  taken  as  being  all  the 
criticisms  which  the  party  most  at  interest  can  claim  can  justly  be  made.  The  correctness  of  all  other 
statements  made  by  the  committee  not  criticised  by  Senator  Clark  may  be  taken  to  be  admitted  by  him. 
All  his  statements  will  not  be  now  reviewed,  but  some  of  them  should  be  noticed  by  the  committee. 

He  complains  that  the  method  of  procedure  of  the  committee  was  unfair  and  nonjudicial,  and 
that  testimony  was  received  contrary  to  the  established  rules  of  evidence,  hearsay  and  irrelevant  testi- 
mony; and  that  the  case  was  like  the  Dreyfus  case,  where  there  was  a  constant  presumption  of  guilt 
instead  of  innocence. 

The  answers  to  this  complaint  are  simple. 

(1)  That  no  such  testimony  was  received  except  after  deliberate  decision  by  the  committee  for 
the  purpose  of  ascertaining  what  additional  witnesses  it  might  be  necessary  to  summon,  as  stated  by 
the  chairman  on  page  432  of  the  testimony,  as  follows: 

"The  Chairman.  It  would  only  be  admissible  as  laying  the  foundation  for  sending  for  other 
witnesses." 

(2)  That  no  single  finding  of  the  committee  has  been  based  upon  hearsay  testimony. 

The  finding  of  the  whole  committee  that  the  election  was  null  and  void  was  based  upon  the  admitted 
or  undisputed  facts  with  their  attendant  circumstances,  and  no  facts  are  recited  in  the  report  of  the 
committee  beyond  the  admitted  and  undisputed  facts  except  in  those  cases  where  any  denial  of  those 
facts  is  distinctly  recited. 

The  methods  of  procedure  were  in  no  case  unfair,  but  were  such  as  ordinarily  prevail  in  investiga- 
tions like  this. 

The  presumption  of  innocence  was  at  no  time  disregarded,  and  findings  imfavorable  to  Mr.  Clark 
were  made  as  a  court  or  jury  would  have  made  them  upon  a  full  and  fair  consideration  of  all  the  facts 
in  the  case. 

He  denies  the  conclusion  of  the  committee  that  a  sufficient  number  of  legislators  were  corrupted 
to  change  the  result  of  ths  election. 

This  criticism  is  merely  the  complaint  that  the  committee  differed  in  opinion  from  him  and  his 
eminent  counsel  and  made  findings  contrary  to  their  desires. 

The  report  then  discusses  the  evidence  more  at  length. 

694.   The  case  of  William  A.  Clark,  continued. 

A  Senator  having  resigned  apparently  to  escape  being-  unseated  for 
bribery,  was  not  readmitted  on  credentials  showing  appointment  by  an 
acting  governor. 

On  May  22,*  Mr.  Carter  presented  to  the  Senate  the  following  credentials: 

State  of  Montana,  Executive  Chamber, 

Helena,  Mont.,  May  15,  1900. 

Whereas  a  vacancy  has  occurred  in  the  representation  of  the  State  of  Montana  in  the  Senate  of 
the  United  States,  caused  by  the  resignation  of  Senator  William  A.  Clark;  and 

Whereas  the  legislature  of  said  State  is  not  in  session,  but  in  recess: 

Therefore  be  it  known  that,  pursuant  to  the  power  vested  in  me  by  the  Constitution  of  the  United 
States,  I,  A.  E.  Spriggs,  the  lieutenant-governor  and  acting  governor  of  the  said  State,  do  hereby  appoint 
William  Andrews  Clark,  a  citizen  and  inhabitant  of  said  State,  to  be  a  member  of  the  Senate  of  the 
United  States,  to  fill  the  vacancy  so  caused  and  existing  as  aforesaid,  to  have  and  to  hold  the  said  office 
and  membership  until  the  next  meeting  of  the  legislature  of  this  State. 

'  Record,  p.  5850. 


§   694  PLEADINGS   IN    CONTESTED    ELECTIONS.  907 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed  the  great  seal  of  said  State,  at  the 
city  of  Helena,  in  said  State,  this  15th  day  of  May,  A.  D.  1900. 

[seal.]  a.  E.  Spriggs,  Acting  Governor. 

By  his  excellency  the  acting  governor: 

T.  S.  HoGAN,  Secretary  of  State. 

The  credentials  were,  at  Mr.  Carter's  suggestion,  laid  on  the  table,  no  propo- 
sition being  made  to  administer  the  oath  to  Mr.  Clark. 

On  May  25  •  Mr.  Carter  presented  similar  credentials,  in  due  form,  but  signed 
by  Robert  B.  Smith,  the  governor  of  Montana,  certifying  that  he  had  appointed 
Martin  Maginnis  to  fill  the  vacancy  caused  by  Mr.  Clark's  resignation.  These 
credentials  also  were  laid  on  the  table. 

Mr.  Chandler  presented  a  resolution  referring  the  two  credentials  to  the  Com- 
mittee on  Privileges  and  Elections,  with  instructions  to  inquire  which  of  the  two 
claimants  was  entitled  to  the  seat.     This  resolution  was  also  laid  on  the  table. 

On  June  5,^  very  near  the  end  of  the  session  of  Congress,  Mr.  Chandler  submitted 
a  resolution  providing  for  a  more  general  investigation  of  the  subject,  which  was 
referred  to  the  Committee  to  Audit  and  Control  the  Contingent  Expenses  of  the 
Senate. 

On  December  4,  1900,^  at  the  beginning  of  the  next  session  of  Congress,  Mr. 
Carter  called  up  for  consideration  the  resolution  proposed  by  Mr.  Chandler  on  May 
25,  providing  for  an  investigation  of  the  rival  claims  of  Messrs.  Clark  and  Maginnis. 
On  December  1 1  *  the  resolution  was  considered  by  the  Senate  and  debated  some- 
what. Mr.  Carter,  in  the  course  of  the  debate,  stated  that  the  lieutenant-governor 
of  Montana,  in  the  absence  of  the  governor,  had  appointed  Mr.  Clark.  The  governor, 
on  his  return,  had  attempted  to  revoke  that  appointment  and  had  then  appointed 
Mr.  Maginnis.  Mr.  John  C.  Spooner,  of  Wisconsin,  suggested  that  it  might  appear 
that  under  the  decisions  of  the  Senate  it  might  be  shown  that  the  governor  had  no 
right  to  appoint  at  all. 

The  resolution  was  then  agreed  to. 

Mr.  Chandler  next  asked  that  the  resolution  declaring  William  A.  Clark  not 
duly  elected,  which  had  remained  as  unfinished  business  since  the  resignation  of  Mr. 
Clark,  be  recommitted  to  the  Committee  on  Privileges  and  Elections.  This  request 
led  to  a  debate  as  to  the  status  of  Mr.  Clark  in  the  Senate  before  his  resignation 
and  as  to  the  nature  of  the  vacancy  in  view  of  the  power  of  the  governor  to  appoint. 
The  matter  went  over  ^vithout  action. 

On  March  2  ^  Mr.  Chandler  presented  a  memorial  of  Henry  R.  Knapp  and 
others,  of  Helena,  Mont.,  remonstrating  against  seating  Mr.  Clark. 

On  the  same  day "  (March  2,  1901)  Mr.  Chandler  called  up  the  resolution  declar- 
ing WiUiara  A.  Clark  not  duly  elected  and  proposed  an  amendment  substituting  a 
declaration  that  !^Ir.  Clark  was  personally  responsible  for  the  offenses  disclosed  by 
the  examination  of  liis  alleged  election.  Mr.  Chandler  addressed  the  Senate,  but 
did  not  press  the  amendment  to  a  vote. 


'  Record,  p.  6017.  *  Record,  pp.  216-219. 

-  Record,  p.  6693.  °  Record,  p.  3389. 

'  Second  session  Fifty-sixth  Congress,  Record,  p.  29.  "  Record,  p.  3421. 


908 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§  695 


695.  The  case  of  William  A.  Clark,  continued. 

The  Senate  seated  a  Senator-elect  on  prima  facie  showing  of  his  elec- 
tion by  a  legislature,  although  his  election  for  a  prior  term  had  been 
found  by  a  committee  invalid  because  of  bribery. 

At  the  conclusion  of  Mr.  Chandler's  speech,  on  the  same  day  (March  2,  1901), 
Mr.  James  K.  Jones,  of  Arkansas,  presented  these  credentials : ' 

In  the  Name  and  by  the  Authority  of  the  State  of  Montana. 

To  the  President  of  the  Senate  of  the  United  Slates: 

This  is  to  certify  that  on  the  16th  day  of  January,  1901,  William  Andrews  Clark  was  duly  chosen 
and  elected  by  the  legislature  of  the  State  of  Montana  a  Senator  from  said  State  to  represent  said  State 
in  the  Senate  of  the  United  States  for  the  term  of  six  years,  beginning  on  the  4th  day  of  March,  1901. 

In  testimony  whereof  I  have  hereunto  subscribed  my  name  and  caused  the  great  seal  of  the  State 
of  Montana  to  be  affixed  at  my  office,  at  Helena,  the  24th  day  of  January,  in  the  year  of  our  Lord  1901, 
and  the  one  hundred  and  twenty-fifth  year  of  the  independence  of  the  United  States  of  America. 

[seal.]  Joseph  K.  Toole,  Governor. 

By  the  Governor: 

George  M.  Hays,  Secretary  of  State. 

These  credentials  were  placed  on  file  in  accordance  with  the  custom  of  the 
Senate,  to  await  the  meeting  of  the  next  Congress. 

Soon  thereafter  the  Congress  ended. 

On  March  4,  1901,*  at  the  special  session  of  the  Senate  in  the  new  Congress 
Mr.  Clark  appeared  and  was  sworn  in  on  the  strength  of  the  credentials,  without 
challenge. 

696.  The  Senate  election  case  of  Lewis  V.  Bogy,  from  Missouri,  in 
the  Forty-second  Congress. 

A  memorial  to  justify  an  investigation  of  the  title  of  a  Senator  to  his 
seat  should  state  the  charges  and  indicate  with  certainty  the  character  of 
the  evidence. 

In  1873^  the  Senate  considered  the  case  of  Lewis  V.  Bogy.  March  4,  1873, 
Mr.  Bogy  took  his  seat,  having  been  elected  for  the  term  of  six  years  from  that 
date.  March  17  the  Vice-President  laid  before  the  Senate  a  memorial  of  members 
of  the  legislature,  accompanied  by  a  report  of  a  select  committee  of  the  legislature 
appointed  to  investigate  charges  of  bribery  and  corruption  in  the  Senatorial  elec- 
tion, praying  for  an  investigation  by  the  Senate  of  said  charges.  The  memorial 
was  referred  to  the  Committee  on  Privileges  and  Elections. 

The  report  of  the  committee,  submitted  on  March  25,  1873,  by  Mr.  Oliver  P. 
Morton,  of  Indiana,  was  as  follows: 

The  Committee  on  Privileges  and  Elections,  to  whom  was  referred  tlie  memorial  of  thirty-seven 
members  of  the  legislature  of  Missouri  in  regard  to  the  election  of  Lewis  V.  Bogy  to  the  Senate  of  the 
United  States  from  that  State,  have  had  the  same  under  consideration  and  submit  the  following  report: 

The  memorial  sets  forth  that  the  recent  examination  by  a  committee  appointed  by  the  house  of 
representatives  of  the  legislature  of  Missouri,  touching  the  corrupt  use  of  money  in  the  election  of  Mr. 
Bogy,  was  imperfect;  that  it  was  not  full  and  fair,  and  in  the  opinion  of  the  memorialists,  if  the  inves- 
tigation had  been  conducted  with  more  vigor  and  with  a  purpose  of  revealing  the  real  facts  of  the  case, 


'  Record,  p.  3436. 

^  First  session  Fifty-seventh  Congress,  Record,  p.  1. 

'Election  Cases,  Senate  Doc.  No.  11,  special  session  Fifty-eighth  Congress,  p. 


609. 


§  696 


PLEADINGS   IN    CONTESTED   ELECTIONS.  909 


other  and  more  important  evidence  would  have  been  produced  showing  that  tliere  was  corruption  in 
Mr.  Bogy's  election. 

The  memorial,  however,  does  not  state  what  additional  facts  can  be  proven,  nor  indicate  with  any 
certainty  the  character  of  the  new  evidence  thxit  may  he  produced. 

The  committee  understand  that  the  only  duty  which  they  have  upon  this  reference  is  to  report 
to  the  Senate  whether  the  memorial  presents  such  facts  as  would  justify  the  Senate  in  instituting  an 
examination  in  regard  to  the  election  of  Mr.  Bogy  and  are  of  the  opinion  that  it  does  not.  Such  a 
proceeding  is  of  a  grave  character  and  should  not  be  set  on  foot  without  such  a  statement  of  the  evidence 
that  could  probably  be  produced  as  would  appear  to  make  it  the  duty  of  the  Senate  to  proceed  to  an 
investigation. 

The  evidence  taken  by  the  committee  of  the  legislature  of  Missouri  also  accompanies  the  memorial 
and  has  been  examined  by  the  committee.  It  is  not  the  province  of  the  committee  upon  this  reference 
to  inquire  whether  the  judgment  pronounced  by  the  house  of  representatives  of  the  Missouri  legislature 
upon  this  evidence  was  correct;  but  they  express  the  opinion  that  the  evidence  is  not  of  a  character 
to  require  of  the  Senate  an  investigation. 

The  committee  therefore  ask  to  be  discharged  from  the  further  consideration  of  the  memorial  and 
the  evidence  touching  the  election  of  Lewis  V.  Bogy  to  the  Senate  of  the  United  States. 

The  recommendation  of  the  committee  was  agreed  to  by  the  Senate. 


Chapter  XXIIL* 

TESTIMONY  IN  CONTESTED  ELECTIONS. 


1.  Provisions  of  the  statutes.     Sections  697-706.' 

2.  Rules  of  Elections  Committee.     Section  707. 

3.  Early  method  of  taking  evidence.     Sections  708,  709.^ 

4.  Special  authorizations  to  take  evidence.     Sections  710-718.' 

6.  Questions  as  to  evidence  improperly  taken.     Sections  719,  721.* 

6.  Extension  of  time  for  taking.     Sections  722-728.* 

7.  Evidence  taken  ex  parte.     Sections  729,  730." 

8.  Production  of  ballots.     Sections  731-733. 


*  See  Volume  VI,  Chapter  CLXIV. 

'  As  to  the  signing  of  depositions,  section  54  of  this  volume. 

Informalities  in  depositions,  section  736. 

Number  of  places  in  which  testimony  may  be  taken  contemporaneously  not  limited,  section  1112 
of  Volume  II. 

Both  parties  may  take  testimony  at  the  same  time,  section  606. 

As  to  the  ofBcer  before  whom  testimony  is  taken,  sections  857, 1049, 1064, 1070,  and  1086of  Volume  II. 

Law  as  to  transmittal  held  to  be  directory,  section  736. 

As  to  whether  or  not  House  and  its  committee  are  bound  by  legal  rules  of  evidence,  sections  960 
and  1046  of  Volume  II. 

Incompetent  testimony  and  statements  by  counsel  not  to  be  included  in  record  of  case,  section 
1127  of  Volume  II. 

Testimony  should  be  confined  to  the  pleadings  (sees.  640  of  this  volume  and  855,  880,  1015,  and 
1107  of  Vol.  II);  but  irrelevant  testimony  has  been  admitted  (sees.  643  of  this  volume  and  850 and  1052 
of  Vol.  II). 

As  to  consideration  of  public  documents,  sections  353  and  608. 

Certified  transcripts  of  records,  section  322. 

Records  of  election  returns,  sections  472,  835,  and  839  of  this  volume  and  1013,  1014,  1022,  and 
1100  of  Volume  II. 

Historic  and  other  knowledge  in  lieu  of,  sections  924,  965,  969,  984, 1016, 1017,  1030, 1034,  and  1104 
of  Volume  II. 

-  House  appoints  committee  to  hear  testimony,  section  756. 

'  House  modifies  requirements  of  the  law,  sections  449  and  600  of  this  volume  and  1122  of  Volume 
II.     Forms  of  resolutions  therefor,  sections  814  and  815. 

Evidence  taken  under  House's  general  power  of  investigation,  sections  764,  793,  and  803  of  this 
volume  and  1018  of  Volume  II. 

■*  Admission  of  testimony  taken  improperly,  sections  32G,  525,  and  780  of  this  volume  and  920, 
1012,  and  1029  of  Volume  II.  Rejection  of  such  testimony,  sections  831  of  this  volume  and  1116  of 
Volume  II. 

Admission  of  testimony  taken  after  the  expiration  of  the  legal  time,  sections  977  and  1003  of 
Volume  II.     Rejection  of  such  testimony,  sections  900,  901,  905,  and  936  of  Volume  II. 

Testimony  taken  in  another  cause  admitted  by  the  House,  sections  607  and  624.  Rejected  by 
the  House,  section  685  of  this  volume  and  section  913  of  Volume  II.  Considered  by  the  Senate,  sec- 
tions 348  and  356. 

Motions  to  suppress  testimony,  section  425. 

*  Interpretation  of  law  limiting  time  of  taking,  section  936  of  Volume  II. 

House  permits  taking  of  testimony  after  expiration  of  the  legal  limit,  sections  505,  824,  and  830 
of  this  volume  and  sections  869,  875,  890,  956,  1062,  and  1095  of  Volume  II.  But  this  privilege  is  not 
granted  where  diligence  has  not  been  shown,  sections  606  and  837  of  this  volume  and  898,  1006,  1063, 
and  1100  of  Volume  II.     Privilege  also  granted  where  returns  were  rejected,  section  1019  of  Volume  II. 

'■Instances  of  admission  of  ex  parte  evidence,  sections  423,  624,  625,  646,  736,  and  812  of  this 
volume  and  1004,  1006,  and  1024  of  Volume  II.     Instances  of  rejection,  sections  321,  685,  834,  and  843  of 
this  volume  and  872,  927,  930,  1057,  1039,  and  1125  of  Volume  II. 
910 


§   697  TESTIMONY    IN    CONTESTED    ELECTIONS.  911 

697.  Ninety  days  are  allowed  for  taking  testimony  in  an  election 
case,  divided  between  the  parties. 

Testimony  in  an  election  case  must  be  taken  within  ninety  days  from 
the  service  of  the  answer  of  the  returned  Member. 

The  law  governing  the  service  of  notice  by  the  party  desiring  to  take 
a  deposition  in  an  election  case. 

Testimony  in  an  election  case  may  be  taken  at  tw^o  or  more  places  at 
the  same  time. 

The  statutes  provide: 

In  all  contested  election  cases  the  titne  allowed  fur  taking  testimony  shall  be  ninety  days,  and 
the  testimony  shall  be  taken  in  the  following  order:  The  contestant  shall  take  testimony  during  the 
first  forty  days,  the  returned  Member  during  the  succeeding  forty  days,  and  the  contestant  may  take 
testimony  in  rebuttal  only  diu"ing  the  remaining  ten  days  of  said  period.' 

By  the  act  of  ilarch  2,  1875,  it  is  provided  that  "section  107,  Revised  Statutes,  shall  be  con- 
strued as  requiring  all  testimony  in  cases  of  contested  election  to  be  taken  within  ninety  days  from 
the  day  on  which  the  answer  of  the  retiu^ned  Member  is  ser\ed  upon  the  contestant.  "  - 

The  party  desiring  to  take  a  deposition  under  the  provisions  of  this  chapter  shall  give  the  oppo- 
site party  notice,  in  writing,  of  the  time  and  place  when  and  where  the  same  will  be  taken,  of  the  names 
of  the  witnesses  to  be  examined,  and  their  places  of  residence,  and  of  the  name  of  any  officer  before 
whom  the  same  will  be  taken.  The  notice  shall  be  personally  served  upon  the  opposite  party,  or  upon 
any  agent  or  attorney  authorized  by  him  to  take  testimony  or  cross-examine  witnesses  in  the  matter 
of  such  contest,  if,  by  the  use  of  reasonable  diligence,  such  personal  service  can  be  made;  but  if,  by 
the  use  of  such  dOigence,  personal  ser\-ice  can  not  be  made,  the  service  may  be  made  by  leaving  a 
duplicate  of  the  notice  at  the  usual  place  of  abode  of  the  opposite  party.  The  notice  shall  be  served 
so  as  to  allow  the  opposite  party  sufficient  time  by  the  usual  route  of  travel  to  attend  and  one  day  for 
preparation,  exclusive  of  Sundays  and  the  day  of  service.  Testimony  in  rebuttal  may  be  taken  on 
five  days'  notice.' 

Testimony  in  contested  election  cases  may  be  taken  at  two  or  more  places  at  the  same  time.' 

698.  The  law  governing  the  application  for  issuing  of  subpcenas 
for  witnesses  in  an  election  case. — The  statutes  provide : 

When  any  contestant  or  returned  Member  is  desirous  of  obtaining  testimony  respecting  a  contested 
election  he  may  apply  for  a  subpoena  to  either  of  the  following  ofiicers  who  may  reside  within  the  Con- 
gress'onal  district  in  which  the  election  to  be  contested  was  held: 

First.  Any  judge  of  any  court  of  the  United  States. 

Second.  Any  chancellor,  judge,  or  justice  of  a  court  of  record  of  any  State. 

Third.  Any  mayor,  recorder,  or  intendant  of  any  town  or  city. 

Fourth.  Any  register  in  bankruptcy  or  notarj'  public* 

The  officer  to  whom  the  application  authorized  by  the  preceding  section  is  made  shall  thereupon 
issue  his  writ  of  subpoena,  directed  to  all  such  witnesses  as  shall  be  named  to  him,  requiring  their 
attendance  before  him  at  such  time  and  place  named  in  the  subpoena  in  order  to  be  examined  respect- 
ing the  contested  election.* 

In  case  none  of  the  officers  mentioned  in  section  110  are  residing  in  the  Congressional  district 
from  which  the  election  is  proposed  to  be  contested,  the  application  thereby  authorized  may  be  made 
to  any  two  justices  of  the  peace  residing  within  the  district,  and  they  may  receive  such  application 
and  jointly  proceed  upon  it.'' 


'  R.  S.,  sec.  107.  *  R.  S.,  sec.  110. 

- 18  Stat.  L.,  p.  338.  s  R.  S.,  sec.  111. 

'R.  S.,  sec.  109.  »R.  S.,sec.  112. 


912 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   699 


699.  The  law  allowing  the  parties  in  an  election  case,  by  consent  in 
writing,  to  waive  certain  formalities  in  taking  testimony.— The  statutes 
provide : 

It  shall  be  competent  for  the  parties,  their  agents,  or  attorneys  authorized  to  act  in  the  premises, 
by  consent  in  writing,  to  take  depositions  without  notice;  also,  by  such  written  consent,  to  take  depo- 
sitions (whether  upon  or  without  notice)  before  any  officer  or  officers  authorized  to  take  depositions  in 
common  law,  or  civil  actions,  or  in  chancery,  by  either  the  laws  of  the  United  States  or  of  the  State  in 
which  the  same  may  be  taken,  and  to  waive  proof  of  the  official  character  of  such  officer  or  officers. 
Any  written  consent  given  as  aforesaid  shall  be  returned  with  the  depositions.' 

700.  The  law  for  summoning  and  examining  witnesses  in  an  elec- 
tion case. 

The  law  relating  to  the  taking  and  certification  of  depositions  in  an 
election  case. 

The  statutes  provide: 

Each  witness  shall  be  duly  served  with  a  subpoena  by  a  copy  thereof  delivered  to  him  or  left  at 
his  \isual  place  of  abode  at  least  five  days  before  the  day  on  which  the  attendance  of  the  witness  is 

required. - 

No  witness  shall  be  required  to  attend  an  examination  out  of  the  county  in  which  he  may  reside 
or  be  served  with  a  subpoena.^ 

Any  person  who,  having  been  summoned  in  the  manner  above  directed,  refuses  or  neglects  to 
attend  and  testify,  unless  prevented  by  sickness  or  unavoidable  necessity,  shall  forfeit  the  sum  of 
twenty  dollars,  to  be  recovered  with  costs  of  suit  by  the  party  at  whose  instance  the  subpoena  was  issued, 
and  for  his  use,  by  an  action  of  debt,  in  any  court  of  the  United  States,  and  shall  also  be  liable  to  an 
indictment  for  a  misdemeanor  and  punished  by  a  fine  and  impris<:inment.'' 

Depositions  of  witnesses  residing  outside  of  the  district  and  beyond  the  reach  of  a  subpoena  may 
be  taken  before  any  officer  authorized  by  law  to  take  testimony  in  contested  election  cases  in  the  dis- 
trict in  which  the  witness  to  be  examined  may  reside.^ 

The  party  notified  as  aforesaid,  his  agent  or  attorney,  may,  if  he  sees  fit,  select  an  officer  (having 
authority  to  take  depositions  in  such  cases)  to  officiate  with  the  officer  named  in  the  notice  in  the  taking 
of  the  depositions;  and  if  both  such  officers  attend,  the  depositions  shall  be  taken  before  them  both, 
sitting  together,  and  be  certified  by  them  both.  But  if  any  one  of  such  officers  attend,  the  deposition 
may  be  taken  before  and  certified  by  him  alone. ^ 

At  the  taking  of  any  depositions  under  this  chapter  either  party  may  appear  and  act  in  person  or 
by  agent  or  attorney.^ 

All  witnesses  who  attend  in  obedience  to  a  subpoena  or  who  attend  voluntarily  at  the  time  and 
place  appointed,  of  whose  examination  notice  has  been  given,  as  provided  by  this  chapter,  shall  then 
and  there  be  examined,  on  oath,  by  the  officer  who  issued  the  subpoena,  or,  in  case  of  his  absence,  by 
any  other  officer  who  is  authorized  to  issue  such  subpoena,  or  by  the  officer  before  whom  the  deposi- 
tions are  to  be  taken  by  written  consent,  or  before  whom  the  depositions  of  witnesses  residing  outside 
the  district  are  to  be  taken,  as  the  case  may  be,  touching  all  such  matters  respecting  the  election 
about  to  be  contested  as  shall  be  proposed  by  either  of  the  parties  or  their  agents.* 

701.  The  law  relating  to  the  pertinency  of  testimony  in  an  election 
case. — The  statutes  provide: 

The  testimony  to  be  taken  by  either  party  to  the  contest  shall  be  confined  to  the  proof  or  disproof 
of  the  facts  alleged  or  denied  in  the  notice  and  answer  mentioned  in  sections  one  hundred  and  five  and 
one  hundred  and  six.' 

'  R.  S.,  sec.  113.  <>  R.  S.,  sec.  118. 

=  R.  S.,  sec.  114.  ■'R.S.,  sec.  119. 

=  R.  S.,sec.ll5.  8  R.  S.,  sec.  120. 

*R.  S.,sec.  116.  »R.  S.,  sec.  121. 
'R.  S.,  sec.  117. 


§   702  TESTIMONY   IX    CONTESTED   ELECTIONS.  913 

702.  The  law  for  the  transcribing  and  attestation  of  testimony  in  an 
election  case. — The  statutes  provide : 

The  officer  shall  cause  the  testimony  of  the  witnesses,  together  with  tlie  questions  proposed  by  the 
parties  or  their  agents,  to  be  reduced  to  writing  in  his  presence,  and  in  the  presence  of  the  parties  or  their 
agents,  if  attending,  and  to  be  duly  attested  by  the  witnesses  respectively.' 

703.  The  officer  presiding  at  the  taking  of  testimony  in  an  election 
case  has  the  power  to  require  the  production  of  papers. 

The  law  requires  the  testimony  taken  in  an  election  case  to  be  trans- 
mitted to  the  Clerk  of  the  House  by  the  officer  before  whom  it  was  taken. 

The  statutes  provide : 

The  officer  shall  have  power  to  require  the  production  of  papers;  or  on  the  refusal  or  neglect  of  any 
person  to  produce  and  deliver  up  any  paper  or  papers  in  his  possession  pertaining  to  the  election, 
or  to  produce  and  deliver  up  certified  or  sworn  copies  of  the  same  in  case  they  may  be  official  papers, 
such  persons  shall  be  liable  to  all  the  penalties  prescribed  in  section  one  hundred  and  sixteen.  All  papers 
thus  produced,  and  all  certified  or  sworn  copies  of  official  papers,  shall  be'transmitted  by  the  officer,  with 
the  testimony  of  the  witnesses,  to  the  Clerk  of  the  House  of  Representatives. - 

704.  The  taking  of  testimony  in  an  election  case  may  be  adjourned 
from  day  to  day. 

The  notice  to  take  depositions  and  a  copy  of  the  subpoena  are  attached 
to  the  depositions  in  an  election  case. 

A  copy  of  the  notice  of  contest  and  the  answer  in  an  election  case  are 
sent  to  the  Clerk  of  the  House  with  the  testimony. 

The  statutes  provide: 

The  taking  of  the  testimony  may,  if  so  stated  in  the  notice,  be  adjourned  from  day  to  day.' 

The  notice  to  take  depositions,  with  the  proof  or  acknowledgment  of  the  service  thereof,  and  a  copy 

of  the  supoena,  where  any  has  been  served,  shall  be  attached  to  the  depositions  when  completed. ■* 

A  copy  of  the  notice  of  contest,  and  of  the  answer  of  the  returned  Member,  shall  be  prefixed  to  the 

depositions  taken,  and  transmitted  with  them  to  the  Clerk  of  the  House  of  Representatives.' 

705.  The  law  prescribing  the  method  of  forwarding  to  the  Clerk  of 
the  House  the  testimony  in  an  election  case. 

Law  governing  the  duty  of  the  Clerk  of  the  House  as  to  the  printing 
of  testimony  in  an  election  case. 

The  law  governing  the  filing  of  contestant's  and  contestee's  briefs  in 
an  election  case,  and  the  printing  thereof. 

The  statutes  provide : 

All  officers  taking  testimony  to  be  used  in  a  contested  election  case,  whether  by  deposition  or  other- 
wise, shall,  when  the  taking  of  the  same  is  completed,  and  without  unnecessary  delay,  certify  and 
carefully  seal  and  immediately  forward  the  same,  by  mail  or  by  express,  addressed  to  the  Clerk  of  the 
House  of  Representatives  of  the  United  States,  Washington,  District  of  Columbia;  and  shall  also  indorse 
upon  an  envelope  containing  such  deposition  or  testimony  the  name  of  the  case  in  which  it  is  taken, 
together  with  the  name  of  the  party  in  whose  behalf  it  is  taken,  and  shall  subscribe  such  indorsement. 

The  Clerk  of  the  House  of  Representatives,  upon  the  receipt  of  such  deposition  or  testimony,  shall 
notify  the  contestant  and  the  contestee,  by  registered  letter  through  the  mails,  to  appear  before  him  at  the 

'  R.  S.,  sec.  122.  *  R.  S.,  sec.  125. 

-  R.  S.,  sec.  123.  ^  R.  S.,  sec.  126. 

'  R.  S.,  sec.  124. 
5994^voL  1—07 58 


914 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§    706 


Capitol,  in  person  or  by  attorney,  at  a  reasonable  time  to  be  named,  not  exceeding  twenty  days  from  the 
mailing  of  such  letter,  for  the  purpose  of  being  present  at  the  opening  of  the  sealed  packages  of  testimony 
and  of  agreeing  upon  the  parts  thereof  to  be  printed.  Upon  the  day  appointed  for  such  meeting  the  said 
Clerk  shall  proceed  to  open  all  the  packages  of  testimony  in  the  case,  in  the  presence  of  the  parties  or 
their  attorneys,  and  such  portions  of  the  testimony  as  the  parties  may  agree  to  have  printed  shall  be 
printed  by  the  Public  Printer,  under  the  direction  of  the  said  Clerk;  and  in  case  of  disagreement  between 
the  parties  as  to  the  printing  of  any  portion  of  the  testimony,  the  said  Clerk  shall  determine  whether  such 
portion  of  the  testimony  shall  be  printed;  and  tlie  said  Clerk  shall  prepare  a  suitable  index  to  be  printed 
with  the  record.  And  tlie  notice  of  contest  and  the  answer  of  the  sitting  Member  shall  also  be  printed 
with  the  record.' 

If  either  party,  after  having  been  duly  notified,  should  fail  to  attend  by  himself  or  by  an  attorney, 
the  Clerk  shall  proceed  to  open  the  packages,  and  shall  cause  such  portions  of  the  testimony  to  l)e  printed 
as  he  shall  determine. 

He  shall  carefully  seal  up  and  preserve  the  portions  of  the  testimony  not  printed,  as  well  as  the  other 
portions  when  returned  from  the  Public  Printer,  and  lay  the  same  before  the  Committee  on  Elections  at 
the  earliest  opportunity.  As  soon  as  the  testimony  in  any  case  is  printed  the  Clerk  shall  forward  by  mail, 
if  desired,  two  copies  thereof  to  the  contestant  and  the  same  number  to  the  contestee;  and  shall  notify  the 
contestant  to  file  with  the  Clerk,  within  thirty  days,  a  brief  of  the  facts  and  the  authorities  relied  on  to 
establish  his  case.  The  Clerk  shall  forward  l)y  mail  two  copies  of  the  contestant's  brief  to  the  contestee, 
with  like  notice. 

Upon  receipt  of  the  contestee's  brief  the  Clerk  shall  forward  two  copies  thereof  to  tlie  contestant, 
who  may,  if  he  desires,  reply  to  new  matter  in  the  contestee's  brief  within  like  time.  All  briefs  shall  be 
printed  at  the  expense  of  the  parties,  respectively,  and  shall  be  of  like  folio  as  the  printed  record;  and 
sixty  copies  thereof  shall  be  filed  with  the  Clerk  for  the  use  of  the  Committee  on  Elections.  - 

706.  The  law  regulating  the  fees  of  witnesses  and  officers  in  the 
preparation  of  an  election  case. — The  statutes  provide : 

Every  witness  attending  Ijy  virtue  of  any  subpoena  herein  directed  to  he  issued  shall  be  entitled 
to  receive  the  sum  of  seventy-five  cents  for  each  day's  attendance,  and  the  further  sum  of  five  cents 
for  every  mile  necessarily  traveled  in  going  and  returning.  Such  allowance  shall  be  ascertained  and 
certified  by  the  officer  taking  the  examination,  and  sliall  he  paid  by  the  party  at  whose  instance 
such  witness  was  summoned.^ 

Each  judge,  justice,  chancellor,  chief  executive  officer  of  a  town  or  city,  register  in  bankruptcy, 
notary  pulilic,  and  justice  of  the  peace,  who  shall  be  necessarily  employed  pursuant  to  the  provisions 
of  this  chapter,  and  all  sheriffs,  constables,  or  other  officers  who  may  be  employed  to  serve  any  sub- 
poena or  notice  herein  authorized,  shall  be  entitled  to  receive  from  the  party  at  whose  instance  the 
service  shall  have  been  performed  such  fees  as  are  allowed  for  similar  services  in  the  State  wherein  such 
service  may  be  rendered.* 

707.  Rules  of  the  Elections  Committees  for  hearing  a  contested  elec- 
tion case. — Committees  on  Elections  in  the  House  of  Representatives  have 
adopted  rules  to  govern  the  hearing  of  a  contested  case: 

1.  All  proceedings  of  the  Committee  on  Elections  shall  be  recorded  in  the  journal,  which  shall  be 
signed  daily  by  the  clerk. 

2.  No  paper  shall  be  removed  from  the  committee  room  without  the  permission  of  the  committee, 
except  for  the  purpose  of  being  printed  or  used  in  the  House. 

'  In  the  case  of  Arnold  r.  Lea  in  1830,  the  House  by  resolution  prescribed  a  similar  method  of  decid- 
ing what  portions  of  the  testimony  in  the  pending  case  should  be  printed  for  the  information  of  the  House 
during  the  discussion.  (First  session  Twenty-first  Congress,  pp.  119, 125.  Contested  Elections  (Clarke), 
pp.  606,  607.) 

^  Act  approved  March  2,  1887.     24  Stat.  L.,  p.  445. 

3R.  S.,  sec.  128. 

■•R.  S.,  sec.  129. 


§   708  TESTIMONY   IN    CONTESTED    ELECTIONS.  915 

3.  Oral  arguments  may  be  heard  for  such  time  as  Uie  committee  may  allow,  not  exceeding  one 
hour  and  a  half  on  each  side,  unless  otherwise  ordered 

4.  After  any  contested-election  case,  or  any  qiestion  pertaining  thereto,  has  been  argued  and 
submitted  to  the  committee  and  the  committee  is  ready  to  proceed  with  the  case  there  shall  be  allowed 
to  the  members  thereof  three  hours  for  debate,  at  the  expiration  of  which  time  a  vote  shall  be  taken 
upon  the  pending  proposition,  unless  otherwise  ordered.  The  time  allowed  for  debate  in  the  committee 
shall  be  divided  as  follows:  Those  favoring  the  proposition  shall  open  in  one  hour;  those  opposing  shall 
follow  in  one  hour  and  a  half;  and  the  former  shall  close  in  a  half  hour,  unless  otherwise  ordered. 

When  the  debate  has  been  closed  and  the  committee  is  ready  to  decide,  the  chairman  shall  take 
the  opinion  of  each  member  of  the  committee  separately.  Each  member  of  the  committee,  when  thus 
called  upon,  shall  announce  his  opinion. 

5.  No  person  shall  be  present  during  any  consultation  of  the  committee  except  the  members  and 
clerk. 

6.  All  papers  referred  to  the  committee  shall  be  entered  on  the  docket  by  the  House  docket  clerk 
according  to  the  number  of  the  packages,  and  they  shaU  be  identified  upon  the  docket. 

'!.  Nothing  contained  in  these  rules  shall  prevent  the  conmiittee,  when  Congress  is  in  session,  from 
ordering  briefs  to  be  filed  and  a  case  to  be  heard  at  any  time  the  committee  may  determine. 

8.  The  foregoing  rules  shall  not  be  altered  or  amended  except  by  a  vote  of  a  majority  of  all  the 
members  of  the  committee. 

708.  The  Georeria  election  case  of  Jackson  v.  Wayne  in  th.e  Second 
Congress. 

Instance  of  an  early  election  case  instituted  by  petition. 

Form  of  petition  instituting  an  early  election  case. 

In  1791  the  House,  by  resolution,  adopted  a  method  of  taking  evi- 
dence in  contested-election  cases. 

Reference  to  the  early  law  for  taking  evidence  in  election  cases  (foot- 
note) . 

On  November  1,  1791,'  Mr.  Anthony  Wayne  appeared,  produced  his  credentials 
as  a  Member-elect  from  Georgia,  and  took  his  seat. 

On  November  14,  1791,^  the  following  petition  was  presented  to  the  House  on 
behalf  of  James  Jackson : 

That  at  the  late  election  for  Members  to  represent  the  State  of  Georgia  in  your  honorable  House, 
for  the  present  Congress,  General  Anthony  Waj-ne  and  your  petitioner  were  candidates  for  the  lower 
or  eastern  district  of  said  State.  That  an  improper  and  undue  return  has  been  made  to  your  House  of 
the  said  election;  for  that  the  ceunty  election  of  Effingham,  in  favor  of  the  said  Anthony  Wa>-ne,  was 
illegal,  there  being  nine  more  votes  at  the  same  than  there  were  voters,  and  two  of  the  persons  presiding 
thereat  were  not  qualified  magistrates;  for  that  the  return  of  Glynn  County,  in  favor  of  your  petitioner, 
was  suppressed;  for  that  a  false  return  was  made  to  the  executive  of  the  State  for  the  county  of  Camden, 
exceeding  the  numbers  of  the  legal  poll,  which  amounted  to  25  votes,  by  the  number  of  64  votes,  all  of 
which  were  in  favor  of  the  said  Anthony  W'aj-ne,  and  added  together  with  the  legal  poU  very  far  exceeds 
the  whole  number  of  male  inhabitants  entitled  to  vote  therein;  and  for  that  an  illegal  or  pretended  poU 
was  held  after  the  legal  poU  was  closed,  and  on  which  illegal  poU  the  aforesaid  false  return  was  founded, 
and  the  legal  return,  after  being  duly  certified  by  the  proper  officer,  waa  either  suppressed  or  destroyed. 

On  October  31  ^  it  was: 

Resolved,  That  a  committee  be  appointed  to  report  a  regular  and  uniform  mode  of  proceeding 
in  cases  of  contested  elections  of  Members  of  this  House. 

'  First  session  Second  Congress,  Journal,  p.  445. 

-  First  session  Second  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  pp.  47-68;  House 
Journal,  p.  452. 

■"  Journal,  p.  444. 


916  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §     709 

Messrs.  Fisher  Ames,  of  Massachusetts,  Jonathan  Dayton,  of  New  Jersey, 
John  Brown,  of  Virginia,  Thomas  Fitzsimons,  of  Pennsylvania,  and  Thomas  Tudor 
Tucker,  of  South  Carohna,  were  appointed  of  tliis  committee. 

On  November  16,*  the  petition  of  Mi-.  Jackson  was  referred  to  this  committee, 
and  on  November  18  that  committee  reported. 

On  November  25  ^  the  report,  after  consideration,  was  agreed  to  as  follows : 

Resolved,  That  the  first  Monday  of  February  next  be  assigned  for  the  trial  of  the  articles  alleged 
in  the  said  petition,  against  the  said  return. 

Resolved,  That  the  evidence  which  may  be  offered,  on  the  part  of  the  petitioner,  shall  be  confined 
to  the  proof  of  the  articles  of  charge  exhibited  in  the  said  petition  against  the  validity  of  the  return 
of  the  said  election. 

Resolved,  That,  on  the  trial,  the  deposition  of  a  witness  shall  be  received,  which  shall  have  been 
taken  more  than  twenty-five  days  prior  to  the  day  assigned  for  the  trial,  before  any  justice  or  judge 
of  the  courts  of  the  United  States,  or  before  any  chancelor,  justice,  or  judge,  of  a  supreme  or  superior 
court,  mayor  or  chief  magistrate  of  a  city,  or  judge  of  a  county  court,  or  court  of  common  pleas  of  any 
of  the  United  States,  not  being  of  counsel  or  attorney  to  either  the  said  Anthony  Wayne  or  the 
petitioner. 

Provided,  That  a  notification  from  the  magistrate,  before  whom  the  deposition  is  to  be  taken, 
to  the  adverse  party,  to  be  present  at  the  taking  of  the  same,  and  to  put  inteiTogatories,  if  he  think  fit, 
shall  have  been  first  made  out  and  served  on  the  adverse  party,  or  his  attorney  especially  authorized 
for  the  purpose  as  either  may  be  nearest,  if  either  is  within  100  miles  of  the  place  of  such  caption, 
allowing  time  for  their  attendance,  after  notified,  not  less  than  at  the  rate  of  one  day,  Sundays  exclusive, 
for  every  20  miles  travel.  And  every  person  deposing  shall  be  carefully  examined  and  cautioned, 
and  sworn  or  affirmed  to  testify  the  whole  truth,  and  shall  subscribe  the  testimony  by  him  or  her  given, 
after  the  same  shall  be  reduced  to  writing,  which  shall  be  done  only  by  the  magistrate  taking  the 
deposition,  or  by  the  deponent  in  his  presence.  And  the  depositions  so  taken,  together  with  a  certifi- 
cate of  the  notice,  if  any,  given  to  the  adverse  party,  or  his  attorney,  shall  be  sealed  up  by  the  said 
magistrate,  and  directed  to  the  Speaker; 

Provided,  nevertlieless.  That  no  ex  parte  deposition  shall  be  used  on  the  trial  of  the  said  petition, 
which  shall  have  been  taken  at  any  time  before  the  26th  day  of  December  next; 

Provided,  also,  That  evidence  taken  in  any  other  manner  than  is  hereinbefore  directed,  and  not 
objected  to  by  the  parties,  may  with  the  approbation  of  the  House,  be  produced  on  the  trial. ^ 

709.   The  case  of  Jackson  v.  Wayne,  continued. 

In  1791  the  House  admitted  the  contestant  and  his  counsel  to  the  bar 
to  produce  testimony  in  an  election  case. 

The  House  declined  to  admit  as  evidence  in  an  election  case  the  deci- 
sion of  a  State  impeachment  court  on  a  related  subject. 

In  1791  the  House  declined  to  admit  as  evidence  in  an  election  case 
official  State  papers  under  seal. 

In  an  early  election  case  the  House,  having  ascertained  great  irregu- 
larities, unseated  the  returned  Member,  but  did  not  seat  contestant. 

'  Journal^  p.  455,  457. 

^  Journal,  p.  463. 

^  On  December  6,  1797  (Contested  Election  Cases,  Clarke,  p.  12),  the  House  discussed  a  series  of 
resolutions  providing  a  rule  for  taking  testimony  in  election  cases.  In  1798  (1  Stat.  L.,  p.  537)  a  law 
was  passed  providing  a  method  of  proceeding,  but  also  providing  that  it  should  be  in  force  no  longer 
than  the  end  of  the  first  session  of  the  Sixth  Congress.  In  1800  (2  Stat.  L.,  p.  39)  this  law  was  continued 
for  four  years  longer.  At  various  later  dates,  up  to  1830,  the  revival  of  this  or  a  similar  law  was  attempted, 
but  failed.  (Contested  Election  Cases,  Clai-ke,  pp.  16,  17.)  The  present  system  of  law  dates  from 
1851. 


§  709  TESTIMONY   IN    CONTESTED   ELECTIONS.  917 

A  seat  being  declared  vacant,  the  Speaker  was  directed  to  inform  the 
executive  of  the  State. 

On  November  18  '  Mr.  Ames  submitted  the  report  of  the  committee. 

On  February  6,  1792,^  a  petition  was  presented  from  James  Jackson,  prajang 
that  the  trial  of  the  case  be  postponed  "for  twenty  days,  in  conformity  to  the  tenor 
of  an  agreement  entered  into  between  the  attorneys  of  the  said  Anthony  Wayne 
and  the  petitioner,"  and  the  House  postponed  the  trial  for  twenty  days,  it  to 
take  place  at  the  end  of  that  time  "in  the  manner  prescribed  by  the  resolution 
of  this  House  of  the  25th  of  November  last." 

On  February  27,^  the  day  assigned  for  the  trial,  the  petitioner,  on  his  appUca- 
tion,  was  admitted  to  the  bar  of  the  House,  and  an  application  was  made  on  the 
part  of  the  sitting  Member  to  postpone  the  trial  further.  Both  the  sitting  Member 
and  the  petitioner  were  fully  heard,  and  then  the  House  voted  that  the  case  be 
postponed  until  the  second  Monday  in  March. 

On  March  12,^  the  case  being  taken  up,  the  sitting  Member  with  his  counsel, 
and  the  petitioner  were  present  within  the  bar  of  the  House.  Application  was 
made  by  the  counsel  for  sitting  Member  for  a  further  postponement,  which  the 
House  denied.  The  petitioner  then  proceeded  to  exhibit  and  read  his  proofs  in 
support  of  the  allegations  of  his  petition,  so  far  as  respected  the  first  article  therein 
contained.  This  presentation  of  petitioner's  case  continued  on  March  13  and  14. 
On  the  latter  day  ^  an  application  in  writing  was  made  by  the  petitioner  as  follows : 

That  the  decision  of  the  senate  of  the  State  of  Georgia,  on  the  impeachment  of  Judge  Osborne, 
so  far  as  respects  the  Camden  return  for  a  Member  to  represent  the  State  of  Georgia,  on  the  3d  day  of 
January,  1791,  he  received  as  evidence  in  the  present  trial  of  that  election,  to  establish  the  corruption 
of  Judge  Osborne. 

It  was  alleged "  by  the  petitioner  that  Judge  Osborne  had  been  presiding  officer 
at  Camden,  and  at  the  close  of  the  poll,  had  been  instrumental  in  a  manipulation 
of  the  returns,  and  in  the  suppression  of  the  retiu-n  of  Glynn  County.  In  offering 
the  decision  of  the  Georgia  senate  the  petitioner  declared  that  "  the  point  at  issue 
[in  the  impeachment  and  in  the  pending  case]  was  the  same,  whether  corruption 
had  or  had  not  taken  place  at  this  election."  It  is  to  be  inferred  from  the  debate, 
although  it  does  not  positively  appear,  that  Judge  Osborne's  conduct  at  Camden 
was  one  of  the  grounds  of  the  impeachment. 

The  counsel  for  the  sitting  Member  objected  to  the  decision  as  unconnected 
with  this  case,  and  ex  parte. 

The  question  being  taken  on  admitting  the  decision,  the  House  decided  not  to 
admit  it — yeas  20;  nays  41. 

The  petitioner  having  concluded  with  his  exhibits  and  proof,  the  sitting  Member 
by  his  counsel  entered  into  the  defense,  producing  exhibits  and  proofs  in  opposition. 
On  March  15,'  the  sitting  Member  having  concluded,  the  petitioner  was  heard  in 
reply.     After  this  the  parties  retired  from  the  bar. 

'  .lournal,  p.  457.  '  Journal,  p.  535. 

-  .Tournal,  p.  502.  ^  Annals,  pp.  463^67. 

^  Journal,  pp.  521,  522.  'Journal,  p.  536. 
■*  Journal,  pp.  534,  535. 


918  PRECEDENTS   OF   THE   HOUSE    OF   EEPKESENTATIVES.  §  710 

A  motion  was  then  made  and  seconded : 

That  certain  proceedings  of  the  house  of  representatives  of  the  State  of  Georgia,  accompanied  with 
other  papers,  transmitted  agreeable  to  their  resolution,  under  the  signature  of  the  governor  and  the  seal 
of  the  State,  relative  to  the  election  of  a  Member  to  represent  the  eastern  district  of  the  said  State  in  this 
House  be  received. 

As  to  this  motion  the  Journal  has  the  entry  that  it  was  lost  through  a  negativing 
of  the  previous  question.     By  the  usage  of  that  time  such  a  decision  defeated  the 

motion. 

On  March  16'  the  House  gave  decision.  The  grounds  of  the  contest  and  the 
attitude  of  the  House  as  to  the  various  specifications  do  not  appear  with  much  cer- 
tainty; but  by  a  xmanimous  vote  the  House  agreed  to  the  following  resolution, 
great  irregularities  being  shown : 

Resolved,  That  Anthony  Wayne  was  not  duly  elected  a  Member  of  this  House. 

It  was  then  moved : 

That  the  Speaker  do  transmit  a  copy  of  the  said  vote  to  the  executive  of  the  State  of  Georgia. 

On  March  19  ^  this  resolution  was  proposed: 

Resolved,  That  the  petitioner,  James  Jackson,  is  entitled  to  a  seat  in  this  House  as  a  Member  for  the 
lower  district  of  the  State  of  Georgia;  and  that  the  right  of  petitioning  against  the  election  of  the  said 
James  Jackson  be  reserved  to  all  persons  at  any  time  during  the  term  for  which  he  was  elected. 

This  resolution  was  debated  at  length  on  March  20  and  March  21.=  It  was 
urged  that  the  petition  had  related  only  to  the  right  of  Mr.  Wayne,  and  that  on  the 
case  so  far  as  made  up  the  House  was  authorized  only  in  finding  that  Mr.  Wayne 
was  not  elected.  It  was  not  for  the  House  to  decide  as  to  the  election  of  Mr.  Jackson, 
who  did  not  appear  with  any  credentials  from  the  State  of  Georgia.  On  the  other 
hand,  it  was  urged  that  the  one  having  the  greater  number  of  sound  votes  was  entitled 
to  the  seat,  and  that,  as  there  were  only  two  candidates,  Mr.  Jackson  should  be 
seated  to  fill  the  vacancy. 

The  question  being  taken,''  there  appeared  in  favor  of  the  resolution  to  seat  Mr. 
Jackson — yeas  29,  and  against,  nays  29.  The  Speaker  declared  himself  with  the 
nays. 

It  was  then — 

Resolved,  That  the  seat  of  Anthony  Wayne,  as  a  Member  of  this  House,  is,  and  the  same  is  declared 
to  be,  vacant. 

Resolved,  That  the  Speaker  transmit  a  copy  of  the  preceding  resolution,  and  of  this  order,  to  the 
executive  of  the  State  of  Georgia,  to  the  end  that  the  said  executive  may  issue  writs  of  election  to  fill 
the  said  vacancy. 

710.  The  House  has  issued  a  subpoena  duces  tecum  in  order  to  pro- 
cure election  returns  to  be  used  in  determining  election  cases. — On  June 
20,  1874,^  on  motion  of  Mr.  L.  Q.  C.  Lamar,  of  Mississippi,  by  direction  of  the  Com- 
mittee on  Elections,  the  House  agreed  to  the  following: 

Whereas  it  is  necessary  to  a  proper  determination  of  the  several  contests  from  the  Congressional 
districts  of  Louisiana,  now  pending  in  the  House,  that  the  Committee  on  Elections  should  be  in  possession 

'Journal,  p.  536.  ■'Journal,  pp.  542,  543. 

2  Journal,  p.  540.  'First  session  Forty-third  Congress,  Journal,  p.  1263;  Record,  p.  5316. 

^.\nnals,  pp.  475-479. 


§  711  TESTIMONY    IN    CONTESTED   ELECTIONS.  919 

of  the  original  election  returns  of  the  general  election  held  in  that  State  on  the  4th  day  of  November, 
1872;  and  whereas  those  returns  are  said  to  be  in  the  possession  of  John  McEnery,  and  said  McEnery 
being  unwilling  to  produce  said  returns  except  upon  order  of  said  committee:  Therefore, 

Be  it  resolved  by  this  House,  That  a  subpoena  duces  tecum  be  issued  to  said  McEnery,  requiring  him 
to  produce  in  person  before  said  committee  said  election  returns  on  or  before  the  first  Monday  in  Decem- 
ber, 1874;  and  also  that  subpoenas  be  issued  to  Archibald  Mitchell  and  WilliamWareper,  of  New  Orleans, 
requiring  them  to  be  and  appear  before  said  Committee  on  Elections  on  the  first  Monday  in  December, 
A.  D.  1874. 

711.  The  Maryland  election  case  of  Jackson  v.  Smith  in  the  Fifty- 
ninth  Congress. 

The  evidence  in  an  election  case  conducted  according  to  law  being 
insufficient,  the  House  authorized  its  committee  to  take  additional  testi- 
mony. 

On  June  28,  1906,'  Mr.  James  M.  Miller,  of  Kansas,  from  the  Committee  on 
Elections  No.  2,  submitted  the  following  resolution,  which  was  agreed  to  by  the 
House : 

^\'hereas  the  contested-election  case  of  William  H.  Jackson  v.  Thomas  A.  Smith,  from  the  First 
Congressional  district  of  Maryland,  was  referred  to  the  Committee  t)n  Elections  No.  2,  and  the  said 
committee,  after  careful  consideration  of  the  record  therein,  finds  that  the  evidence  already  taken  is  not 
sufficient  upon  which  to  base  a  conclusion  as  to  the  proper  determination  of  said  contest:  Now,  there- 
fore, be  it 

Resolved  by  the  House  of  Representatives,  That  the  Committee  on  Elections  No.  2  shall  be,  and  is 
hereby,  authorized  and  empowered  to  take  such  testimony  as  it  shall  deem  necessary  to  the  determination 
of  the  questions  of  fact  in  the  contested  case  of  Jackson  i'.  Smith,  from  the  First  Congressional  district 
of  Maryland,  and  shall  have  power  to  send  for  all  such  persons  and  papers  as  it  may  find  necessary  for 
the  proper  determination  of  said  controversy,  and  determine  the  time,  place,  and  manner  of  taking  said 
testimony,  which  may  be  taken  before  the  said  committee,  or  any  subcommittee,  or  any  person  selected 
by  said  committee  for  such  purpose,  and  that  the  expenses  incurred  in  taking  said  testimony  shall  be 
paid  from  the  contingent  fund  of  the  House  upon  the  order  of  said  Committee  on  Elections  No.  2. 

712.  The  Pennsylvania  election  case  of  Carrigan  v.  Thayer,  in  the 
Thirty-eighth  Congress. 

A  contestant  having  neglected  to  take  the  strictly  legal  means  pro- 
vided for  taking  testimony,  the  House  denied  his  application  for  new 
authority  to  compel  testimony. 

On  June  22,  1864,^  the  Committee  on  Elections  reported  in  the  case  of  Carrigan 
V.  Thayer,  of  Pennsylvania.  The  contestant  in  this  case  had  made  application  to 
the  committee  for  authority  from  the  House  to  summon  the  mayor  and  recorder 
of  Philadelphia,  the  legal  custodians  of  the  ballot  boxes  of  a  portion  of  this  district, 
to  bring  with  them  these  ballot  boxes  for  examination  either  before  the  committee 
or  some  competent  magistrate. 

The  reason  for  this  request  was  the  allegation  that  those  witnesses  had  failed 
to  obey  a  subpoena  duces  tecum  issued  by  two  justices  of  the  peace  dming  the  time 
prescribed  by  the  statute  of  1851  for  taking  testimony,  requiring  them  to  appear 
and  produce  the  said  ballot  boxes  for  examination. 

The  statute  of  1851  named  as  the  officers  authorized  to  issue  subpoenas  and 
examine  witnesses  "any  judge  of  any  covut  of  the  United  States,  or  any  chancellor, 

'  First  session  Fifty-ninth  Congress. 

^  First  session  Thirty-eighth  Congress,  House  Report  No.  126;  1  Bartlett,  p.  576;  Rowell's  Digest, 
p.  190. 


920  PKECEDENTS   OF   THE    HOUSE    OF   REPRESENTATIVES.  §   713 

judge,  or  justice  of  a  court  of  record  of  any  State,  or  any  mayor,  recorder,  or  intend- 
ant  of  any  town  or  city,  which  said  officer  shall  reside  within  the  Congressional 
district  in  which  said  contested  election  was  held." 

There  was  a  further  provision  of  this  act,  which,  with  the  construction  put 
upon  it,  is  thus  stated  by  the  committee: 

By  the  ninth  section  of  the  same  act  it  is  provided  that  "when  no  such  magistrate  as  is  by  the 
third  section  of  this  act  authorized  to  take  depositions  shall  reside  in  the  Congressional  district  from 
which  the  election  is  proposed  to  be  contested,  it  shall  be  lawful  for  either  party  to  make  application 
to  any  two  justices  of  the  peace  residing  within  the  said  district,  who  are  hereby  authorized  to  receive 
such  application  and  jointly  to  proceed  upon  it  in  the  manner  hereinbefore  directed. 

It  will  be  seen  that  two  justices  of  the  peace  have  jurisdiction  and  authority  only  when  there  are 
none  of  the  magistrates  mentioned  in  the  third  section  resident  in  the  district.  When  any  one  of  those 
magistrates  resides  in  the  district  the  two  justices  can  do  nothing.  Now  it  appeared  that  there  were 
resident  in  this  district,  during  the  whole  time  fixed  by  the  statute  for  taking  testimony  in  this  case, 
three  judges  of  the  court  of  common  pleas  of  the  State  of  Pennsylvania,  a  court  of  record.  The  two 
justices  of  the  peace  had  therefore  no  jurisdiction  or  authority  in  the  premises,  and  their  subpoena  was 
therefore  only  so  much  blank  paper,  which  no  one  was  bound  to  obey. 

It  follows  that  the  contestant  had  taken  no  legal  steps  to  procure  this  testimony  within  the  time 
fixed  by  law.  The  contestant  showed  no  good  reason  for  this  omission,  and  while  some  of  the  committee 
were  of  opinion,  for  the  reasons  stated  in  the  report  in  the  case  of  Kline  v.  Myers,  that  the  contestant  was 
not  entitled  to  this  testimony  without  first  showing  some  ground  of  suspicion  that  the  return  was  not 
correct,  all  of  the  committee  were  of  opinion  that,  for  the  reason  heretofore  stated,  the  contestant  having 
taken  no  legal  steps  to  procure  this  testimony,  and  showing  no  good  reason  for  the  omission,  he  is  not 
entitled  to  the  relief  prayed  for.     The  application  was  therefore  denied. 

Therefore  the  committee  reported  a  resolution  declaring  the  sitting  Member 
entitled  to  the  seat,  and  Mr.  Carrigan  not  entitled  to  it. 

On  June  24  '  the  report  was  considered  by  the  House,  a  protest  by  the  con- 
testant against  the  technical  rule  which  excluded  his  evidence  being  the  only  debate. 
The  resolutions  proposed  by  the  committee  were  agreed  to  without  division. 

713.  The  Missouri  election  case  of  Wagoner  v.  Butler  in  the  Fifty- 
seventh  Congress. 

The  House,  in  a  case  wherein  the  terms  of  the  law  would  prevent 
taking  testimony  in  an  election  case  in  time  for  decision,  provided  a 
method  by  resolution. 

Discussion  of  the  principle  that  the  House  is  not  bound  by  any  stat- 
ute in  exercising  its  prerogative  of  judging  the  elections  of  its  Members. 

On  December  6,  1902,  Mr.  Marlin  E.  Olmsted,  of  Pennsylvania,  from  the  Com- 
mittee on  Elections  No.  2,  submitted  a  report"  on  the  memorial  of  George  C.  R. 
Wagoner,  who  contested  the  seat  of  James  J.  Butler,  of  Missouri.  At  the  first  ses- 
sion of  this  Congress  Mr.  Butler  had  been  unseated,  and  at  a  subsequent  election 
had  been  again  returned.  The  preamble  and  resolutions  as  submitted  by  Mr.  Olm- 
sted in  a  supplemental  report^  state  the  facts  of  the  case: 

Whereas  James  J.  Butler  having  been  returned  as  elected  to  membership  in  this  Congress  from  the 
Twelfth  district  of  Missouri,  his  right  to  such  membership  was  contested  on  the  ground  of  gross  frauds 
in  his  election,  and  having  heard  said  contest  this  House,  on  the  28th  day  of  June,  1902,  declared  said 
Butler  not  to  have  been  elected;  and 

'Journal,  p.  892;  Globe,  p.  3243. 

^  Second  session  Fifty -seventh  Congress,  House  Report  No.  2780. 

'  Supplemental  Report  No.  3857. 


§  713  TESTIMONY   IN    CONTESTED   ELECTIONS.  921 

Whereas  an  election  having  been  held  November  4,  1902,  to  fill  the  vacancy  resulting  from  the 
said  action  of  this  House,  the  said  Butler  was  again  returned  as  elected  from  the  said  district,  took  the 
oath  of  office  December  1,  1902.  and  now  occupies  a  seat  in  this  House,  and  George  C.  R.  Wagoner  has, 
through  a  Member  of  the  House,  presented  a  memorial  or  petition  claiming  that  he,  and  not  the  said 
Butler,  was  duly  elected,  alleging  gross  frauds  in  the  election  and  showing  that  he  has  served  upon  said 
Butler  a  notice  of  contest;  and 

WTiereas  the  full  time  allowed  by  statute  for  the  taking  of  testimony,  filing  of  briefs,  etc.,  in  such 
cases  would  extend  beyond  the  term  of  the  present  House,  thus  preventing  it  from  judging  of  the  merits 
of  the  said  contest,  and  the  said  Wagoner  in  his  petition  prays  that  by  appropriate  action  such  time  shall 
be  so  shortened  as  that  the  controversy  may  be  determined  before  the  expiration  of  the  Fifty-seventh 
Congress;  and 

Whereas  Committee  on  Elections  No.  2,  to  which  said  petition  was  referred,  has  reported  that  it 
awarded  a  hearing  to  both  parties  and  that  the  said  Wagoner  declares  his  ability  to  take  the  testimony 
upon  his  side  in  fifteen  days,  and  the  said  Butler  making  no  estimate  of  the  time  that  will  be  required 
by  him,  and  denies  the  power  of  this  House  to  shorten  the  time  as  fixed  by  the  act  of  1851,  and  other 
statutes;  and 

■Whereas  it  is  the  sense  of  the  House  that  this  contest  should  be  heard  and  decided  at  this  session: 
Therefore 

Resolved,  That  in  the  contested  election  case  of  George  C.  R.  Wagoner  r.  James  J.  Butler,  from  the 
Twelfth  Congressional  district  of  Missouri,  the  contestee  shall  be  required  to  serve  upon  contestant  his 
answer  to  notice  of  contest  on  or  before  December  20,  1902,  and  that  the  time  for  taking  and  completing 
testimony  in  such  case  shall  be  limited  as  follows:  The  contestant  shall  be  allowed  from  December  15, 
1902,  until  and  including  January  3,  1903,  in  which  to  take  testimony;  the  contestee  shall  be  allowed 
from  Januarj'  3,  1903,  until  and  including  January  27,  1903,  for  the  taking  of  his  testimony,  and  the 
contestant  shall  be  allowed  from  January  27,  1903,  until  and  including  Febniary  1,  1903,  for  the  taking 
of  testimony  in  rebuttal.  As  soon  as  the  testimony  shall  have  been  received  by  the  Clerk  of  this  House 
it  shall  at  once  be  referred  to  the  Committee  on  Elections  No.  2,  and  the  said  committee  shall  proceed 
to  the  consideration  of  the  case;  and,  having  first  afforded  to  the  parties  an  opportunity  to  be  heard  as 
to  the  merits  of  the  same,  shall  report  to  this  House  its  conclusions  with  respect  to  such  case  in  time  to 
afford  to  the  House  an  opportunity  to  pass  upon  the  same  during  the  present  session  of  Congress.  Except 
BO  far  as  herein  otherwise  provided,  this  case  shall  be  governed  by  the  ordinary  rules  of  procedure  in 
contested  Congressional  election  cases. 

The  committee  had  concluded,  from  the  showing  made  by  the  contestant,  that 
his  contest  was  not  frivolous  and  not  without  reasonable  grounds. 

As  to  the  right  of  the  House  to  depart  from  the  terms  of  the  act  of  1851,  a  right 
which  sitting  Member  denied,  the  committee  in  their  first  report  cite  the  precedent 
of  Benoit  v.  Boatner;  and  in  their  supplemental  report  saj': 

We  have  no  hesitation  in  saying  that  there  is  no  statute  which  can  fetter  this  House  in  the  exercise 
of  the  high  privilege  and  important  duty  devolved  upon  it  by  the  constitutional  declaration  that  "each 
House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  members." 

The  first  legislative  action  upon  the  subject  was  taken  in  the  Fifth  Congress,  and  resulted  in  the 
act  which  was  approved  by  the  President  January  23,  1798.  That  bill  was  reported  to  the  House  by 
Mr.  Harper,  of  South  Carolina,  from  a  select  committee  of  five  appointed  for  the  purpose.  In  their  report 
the  committee  unanimously  conceded  that  the  provisions  of  such  a  statute  could  not  be  enforced  on  any 
future  House  of  Representatives,  and  that  its  only  proper  and  necessary  function  would  be  to  provide 
the  mode  in  which  testimony  should  be  taken  and  grant  the  powers  for  the  compelling  of  attending  of 
witnesses,  leaving  it  for  each  House  to  determine  when  testimony  thus  taken  should  be  presented, 
whether  it  would  receive  it  or  not,  "while  the  constitutional  rights  of  each  House  would  be  saved  by  its 
power  to  adopt  or  reject  the  rule  for  the  admission  of  the  testimony." 

In  the  Senate,  however,  an  amendment  was  inserted  as  the  result  of  which  the  act  expired  at  the 
end  of  the  first  session  of  the  Sixth,  or  next.  Congress.  Two  or  three  subsequent  attempts  were  made 
to  enact  legislation  upon  the  subject,  but  the  majority  of  the  House  seemed  to  have  considered  that  such 
legislation  would  be  wholly  unconstitutional,  and  from  that  time  until  1851  there  was  no  method  of 
taking  testimony  until  the  first  session  of  the  Congress  to  which  the  opposing  parties  claimed  to  have 
been  elected,  thus  in  ordinary  cases  deferring  for  more  than  a  year  even  the  commencement  of  a  contest. 


922  PRECEDENTS   OF   THE    HOUSE   OF   KEPKESENTATIVES.  §   713 

To  remedy  this  difficulty  Mr.  William  Strong,  of  Pennsylvania,  afterwards  a  justice  of  the  supreme 
court  of  that  State  and  later  of  the  Supreme  Court  of  the  United  States,  prepared  and  championed  to 
its  passage  the  act  of  1851.  To  the  argument  that  it  was  wholly  unconstitutional  because  infringing  upon 
the  privileges  of  the  House,  he  made  much  such  reply  as  was  embraced  in  the  report  made  by  Mr.  Har- 
per's committee  to  the  Fifth  Congress,  contending  that  the  act,  as  framed,  would  not  and  could  not  inter- 
fere with  the  constitutional  rights  of  any  subsequent  House,  because,  as  he  said,  "there  is  no  provision 
restraining  the  power  of  the  House  to  proceed  in  another  manner."     (Congressional  Globe,  p.  109.) 

In  the  Thirty-fifth  Congress,  in  the  case  of  Brooks  v.  Davis,  the  House  having  been  asked  to  depart 
from  the  provisions  of  the  act  of  18.51,  a  minority  of  the  committee  filed  a  report  in  favor  of  granting  the 
request.     In  said  report  they  said: 

"  If  it  is  claimed  that  the  act  of  1851  prevents  the  House  of  Representatives  from  pursuing  an  inves- 
tigation in  any  other  manner  than  prescribed  by  that  act,  it  would  then  be  wholly  inoperative,  coming 
into  conflict  with  the  fifth  section  of  the  first  article  of  the  Constitution  of  the  United  States,  which  pro- 
vides 'each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its  own  memlx-rs.' 
No  prior  House  of  Representatives  can  prescribe  rules  on  this  subject  of  binding  force  upon  its  successor, 
nor  can  the  Senate  interfere  to  direct  the  mode  of  proceeding;  the  House  of  Representatives  is  not  a  con- 
tinuing body,  each  body  of  Representatives  having  an  independent  and  limited  existence,  and  having 
the  clear  right  to  determine,  in  its  own  way,  upon  'the  elections,  returns,  and  qualifications  of  its  own 
members.'  A  like  authority  is  given,  and  in  similar  terms,  to  each  House  to  'determine  the  rules  of  its 
proceedings,  punish  its  members  for  disorderly  behavior,'  etc.;  and  no  member  will  pretend  that  a  gen- 
eral law,  passed  in  such  terms  as  the  act  of  1851,  would  restrain  any  House  from  acting  on  these  subjects 
independently  of  the  law." 

That  report  was  signed  by  four  noted  lawyers,  among  them  Mr.  L.  Q.  C.  Lamar,  of  Mississippi, 
afterwards  Attorney-General  under  President  Cleveland  and  by  him  appointed  a  justice  of  the  Supreme 
Court  of  the  United  States. 

See  also  the  decision  in  United  States  r.  Ballin  (141  U.  S.,  1),  unanimous  opinion  of  the  court 
written  by  Mr.  Justice  Brewer,  Mr.  Lamar  being  at  that  time  a  member  of  the  court. 

The  majority  report,  presented  by  Mr.  Boyce,  of  South  Carolina,  agreed  with  the  minority  as  to 
the  powers  of  the  House,  but  held  that  in  that  particular  case  it  was  inexpedient  to  depart  from  the  pro- 
visions of  the  statute  until  the  contestant  had  first  exercised  all  his  rights  thereunder. 

In  Williamson  r.  Sickles  (1  Bart.,  288)  Mr.  Dawes,  of  Massachusetts,  presented  the  report  of  the 
committee,  holding  that  the  act  of  1851  had  no  binding  force  upon  the  House.  The  minority  report 
raised  the  direct  issue  by  declaring  "that  it  is  not  competent  for  the  committee  to  recommend  any  action 
to  the  House  which  involves  a  violation  of  the  law  of  1851,  because  as  a  law  of  Congress  it  is  obligatory 
alike  upon  the  House,  the  committee,  and  the  contestant."  The  resolution  reported  by  the  majority 
was  adopted  by  the  House,  yeas  80,  nays  64. 

Other  cases  upon  the  subject  in  addition  to  Benoit  v.  Boatner  in  the  Fifty-fourth  Congress,  are 
Reader  v.  WTiitfield,  Dailey  v.  Morton,  Coffroth  v.  Koontz. 

The  Kentucky  cases  in  the  Fortieth  Congress,  Congressional  Globe,  first  session,  p.  546:  Bisbee  v. 
Finley,  2  Ells.,  172;  Jones  v.  Shelly,  2  Ells.,  681;  Rowell's  Digest,  394;  Fuller  v.  Dawson,  2  Bart.,  126; 
McGrorty  v.  Hooper,  2  Bart.,  211;  Thomas  v.  Arnell,  2  Bart.,  162;  Hunt  v.  Sheldon,  2  Bart.,  530;  Sheafe 
V.  Tillman,  2  Bart.,  907;  Kline  v.  Verree,  1  Bart.,  574;  Chapman  v.  Ferguson.  1  Bart.,  267;  Howard  v. 
Cooper,  1  Bart.,  275;  Vallandingham  v.  Campbell,  1  Bart.,  223;  Bell  v.  Snyder.  Smith,  247.  See  also 
Paine  on  Elections,  sections  996  and  1003. 

The  resolution  and  preamble  were  considered  in  the  House  on  December  11, 
1902,'  and  debated  at  length.  The  legal  proposition  of  the  committee  was  not  seri- 
ously disputed,  however.  An  amendment  extending  for  five  days  the  time  within 
which  sitting  Member  should  file  his  answer  to  the  notice  was  agreed  to  without 
objection.  A  substitute  proposed  by  the  minority  was  disagreed  to,  and  then  the 
resolution  was  agreed  to,  yeas  155,  nays  117. 


'  Journal,  pp.  39,  40;  Record,  pp.  231-245. 


§714 


TESTIMONY    IX    CONTESTED    ELECTIONS.  923 


714.  The  Alabama  election  case  of  Jones  v.  Shelley,  in  the  Forty- 
seventh  Congress. 

Instance  wherein  the  Elections  Committee,  on  the  strength  of  a  mem- 
orial from  contestant  and  general  knowledge,  recommended  taking  tes- 
timony more  expeditiously  than  provided  by  law. 

On  January  23,  1883,^  Mr.  A.  A.  Ranney,  of  Massachusetts,  from  the  Committee 
on  Elections,  submitted  the  report  of  the  majority  in  the  Alabama  case  of  Jones  v. 
Shelley,  in  the  matter  of  the  memorial  of  John  W.  Jones,  the  contestant.  The  report 
thus  states  the  case: 

The  committee  have  heard  the  parties  more  directly  interested,  examined  the  memorial,  and 
inquired  into  the  facts,  so  far  as  is  deemed  necessary  for  present  purposes.  The  House  is  asked  by  the 
petitioner,  in  a  pending  contest  for  the  seat  as  Representative  from  the  Fourth  Congressional  district  of 
Alabama,  to  fill  a  vacancy,  to  prescribe  another  and  more  summary  mode  of  procedure  than  that  provided 
for  by  the  acts  of  Congress  relating  to  contested  elections.  The  reason  is  that  the  time  allowed  the  parties 
under  such  acts  is  such  that  the  present  term  of  Congress  will  have  expired  long  before  the  contest  can  in 
regular  course  be  concluded.  It  is  perfectly  apparent  that  unless  the  House  does  what  is  asked  the 
contest  will  prove  futile.  That  the  House  has  authority  to  do  what  is  requested  does  not  admit  of  a  doubt. 
The  only  question  is  whether  there  is  time  now  before  the  end  of  the  session  to  accomplish  the  desired 
purpose,  or  whether  any  other  mode  of  procedure  which  is  reasonable  and  practicable  can  avail  anything. 
The  memorial  sets  forth  with  great  clearness  and  completeness  a  state  of  facts  which  calls  loudly  for  such 
action,  if  it  is  likely  to  be  of  any  use  commensurate  with  the  attendant  labor  and  expense  thereof. 

The  sitting  Member,  after  having  been  once  unseated  at  the  present  Congress,  has  been  again 
returned  with  a  new  certificate  in  hand  to  fill  the  vacancy.  He  was  unseated  because  the  certificate 
before  was  the  result  of  frauds  at  the  polls,  and  the  fruits  of  illegal  and  evil  practices  on  the  part  of  his 
partisan  friends.  His  present  certificate  is  alleged  to  have  been  induced  and  procured  by  the  same 
methods  in  repetition,  with  perhaps  some  variations  and  aggravations. 

If  this  is  so,  it  would  seem  that  there  is,  as  charged,  a  settled  determination  on  the  part  of  the  evil- 
disposed  persons  therein  that  no  candidate  of  the  dominant  party  in  the  district  in  question  shall  be 
counted  in  and  get  the  certificate  in  any  event. 

A  brief  statement  of  some  of  the  main  facts  alleged  will  suffice: 

A  contest  was  regularly  instituted  under  the  said  acts  of  Congress,  and  the  sitting  Member  has  served 
an  answer  to  the  same,  so  that  the  contest  is  now  pending.  The  ninety  days  allowed  for  the  taking  of  the 
evidence  will  extend  beyond  the  4th  day  of  March  next. 

The  sitting  Member  was  declared  elected  on  the  strength  of  a  vote  returned  of  only  6,752,  whereas 
the  claim  is  that  he  did  not  in  tnith  and  in  fact  get  over  about  5,000  votes.  Contestant  was  declared  and 
returned  to  the  State  board  of  canvassers  as  having  received  only  4,811,  whereas  he  in  truth  and  in  fact 
received  over  15,000  votes,  which  were  legally  cast,  counted,  and  returned  to  the  boards  of  county  can- 
vassers, but  10,000  of  which  were  there  counted  out  either  for  no  assignable  reason  or  because  of  certain 
pretended  informalities  in  the  returns  and  upon  frivolous  objections  which  were  resorted  to  only  as 
pretexts  in  an  earnest  search  for  some  real  or  plausible  excuse.  There  are  other  charges  of  fraud  of  a  more 
heinous  character,  which  deprived  contestant  of  many  votes  in  the  original  returns;  but  laying  those 
aside  and  taking  the  returns  as  made  from  the  voting  precincts  to  the  county  boards  the  contestant  is 
said  to  have  been  elected  by  about  G,000  majority;  the  reports  of  the  United  States  supervisors  give  him 
about  that  majority,  as  would  appear  by  certified-copies  furnished  the  committee.  It  will  appear  that 
the  vote  of  the  sitting  Member  (6,752)  is  less  than  one-third  of  the  votes  cast  for  both  candidates  according 
to  the  precinct  returns.  It  is  less  than  one-third  of  the  votes  cast  in  prior  elections  in  the  same  district 
for  Members  of  Congress,  as  appears  by  the  history  of  those  elections  as  read  from  the  records  of  this  House. 
It  is  less  than  one-fourth  of  the  voting  population  of  the  district,  aa  appears  by  the  last  census,  and  as 
shown  in  the  last  prior  contest  alluded  to. 

^  Second  session  Forty-seventh  Congress,  House  Report  No.  1886;  2  Ellsworth,  p.  081. 


924  PRECEDENTS   OF    THE   HOUSE    OF    REPRESENTATIVES.  §  714 

The  committee  refer  to  what  was  proven  in  the  prior  contest  for  this  seat,  and 
conclude  that  it  is  due  to  the  honest  electors  of  the  country  to  expedite  the  hearing. 
Accordingly  the  majority  recommended  the  following  resolution: 

Whereas  John  W.  Jones  claims  to  have  been  elected  as  Representative  from  the  Fourth  Congressional 
district  of  Alabama,  to  fill  a  vacancy,  and  has  instituted  proceedings  for  a  contest  under  the  provisions  of 
the  acts  of  Congress  relating  to  contested  elections;  and  whereas  there  is  not  sufficient  time  to  prosecute 
and  conclude  said  contest  under  the  provisions  of  said  acts  and  in  course  before  the  expiration  of  the 
present  term  of  Congress,  and  the  contest  must  be  abandoned  unless  some  other  more  speedy  mode  of 
procedure  be  prescribed :  Therefore, 

Resolved,  That  a  special  committee,  composed  of  three  Members  of  the  Committee  on  Elections, 
be  appointed,  witli  authority,  and  whose  duty  it  shall  be  to  proceed,  without  unnecessary  delay,  to  the 
Fourth  Congressional  district  of  Alabama,  and  there  take  the  evidence  which  may  be  adduced  by  either 
party  in  the  matter  of  the  pending  contest,  and  report  the  same  to  the  House  as  soon  as  may  be.  That 
the  committee  appointed  is  empowered  to  send  for  persons  and  papers  and  administer  oaths,  and  also  to 
employ  stenographers,  messengers,  and  a  sufficient  clerical  force,  at  the  usual  compensation,  the  expenses 
to  be  paid  out  of  the  contingent  funds  of  the  House,  upon  the  approval  of  the  chairman  of  said  committee. 

The  minority  views,  presented  by  Mr.  F.  E.  Beltzhoover,  of  Pennsylvania, 
contended  that  the  contestant,  by  beginning  his  testimony  thirty  days  earlier, 
might  have  expedited  his  case;  that  the  committee  would  not  have  time  to  take  the 
evidence  satisfactorily;  that  contestant's  party  had  manipulated  the  returns 
fraudulently,  and  concluded  that  the  ordinary  modes  should  not  be  departed  from 
on  such  insufficient  cause  shown.     They  say : 

The  report  of  the  majority  of  the  Committee  on  Elections  recommending  that  a  special  committee 
be  created  with  indefinite  and  arbitrary  powers  is  as  positive  and  dogmatic  in  its  findings  as  if  they  were 
sustained  by  facts.  The  report  rests  solely  on  the  mere  ex  parte  statement,  not  under  oath,  of  the  memo- 
rialist, whom  the  contestee  contradicts  in  every  material  allegation.  What  evidence  is  there  in  this 
memorial  which  any  court  would  regard  of  the  slightest  weight?  No  chancellor  would  grant  any  relief 
on  it  without  some  verification  of  its  allegations.  No  Committee  of  Elections  or  House  of  Representa- 
tives on  such  statements  alone  have  ever  characterized  the  citizens  and  sworn  officers  of  any  Congressional 
district  as  "evil-disposed  persons,"  etc.  No  committee  has  ever  based  a  finding  on  the  fact  that  the 
returned  candidate  had  received  less  than  one-third  of  the  votes  cast  at  the  previous  elections  or  less  than 
the  voting  population  of  the  district.  This  kind  of  evidence,  which  is  always  incompetent,  is  still  more 
unreliable  when  it  is  remembered  that  in  this  instance  the  election  was  to  fill  a  vancancy  of  only  a  few 
months,  and  there  was  no  general  interest  taken  in  the  result,  and  no  reason  for  a  full  vote  being  cast. 
But  in  order  to  support  their  report,  the  majority  resort  to  "all  advices  which  they  get  from  reputable  and 
honorable  men  of  the  district  and  who  appear  to  be  cognizant  of  the  facts."  What  are  these  "advices?" 
Who  are  they  from?  Is  Congress  to  solemnly  adjudicate  upon  the  right  of  a  Member  to  a  seat  on  the 
hearsay  and  rumor  which  Members  gather  in  their  private  communications  with  persons  unknown  and 
unsworn  and  of  whom  and  of  which  there  is  no  public  or  verified  knowledge? 

The  majority  of  the  Committee  on  Elections  further  bolster  their  remarkable  report  by  saying 
"that  the  facts  alleged  in  the  memorial,  confirmed  and  rendered  highly  probab'e  as  they  are  by  other 
well-known  facts  and  from  other  sources  outside,  entitle  the  contestant  to  the  relief  which  he  asks,"  etc. 

On  January  25  *  the  minority  obtained  leave  to  withdraw  their  views  in  order  to 
make  some  additions  to  it. 

Thereafter  the  subject  does  not  seem  to  have  again  been  taken  up  by  the  House. 


I 


'  Record,  p.  1580;  Journal,  p.  305. 


§   715  TESTIMONY    IN    CONTESTED    ELECTIONS.  925 

715.  The  Missouri  election  case  of  Coudrey  v.  Wood,  in  the  Fifty- 
ninth  Congress. 

Testimony  in  an  election  case  being  impeached  by  ex  parte  affidavits, 
the  House  gave  the  Elections  Committee  authority  to  send  for  persons 
and  papers  in  order  to  investigate  as  to  the  integrity  of  the  record. 

On  February  1,  1906/  Mr.  Marlin  E.  Olmsted,  of  Pennsylvania,  presented,  as  a 
pri-rileged  matter,  the  follo^ving  resolution  reported  from  the  Committee  on  Elections 
No.  2: 

Whereas  in  the  contested  election  case  of  Coudrey  v.  Wood,  from  the  Twelfth  Congressional  district 
of  Missouri,  which  was  referred  to  the  Committee  on  Elections  No.  2,  a  motion  has  been  made  to  sup- 
press the  testimony  of  contestant  on  the  ground,  among  others,  that  as  forwarded  to  the  Clerk  of  the 
House  and  printed  it  is  not  the  testimony  as  given  by  the  witnesses,  but  has  been  materially  altered  by 
leaving  out  certain  parts  thereof  and  by  adding  to  and  changing  other  parts  so  as  to  completely  destroy 
the  int^:rity  of  said  testimony;  and 

Whereas,  owing  to  the  conflicting  statements  contained  in  ex  parte  affidavits  filed  in  support  of  and 
in  opposition  to  said  motion,  it  is  impossible  to  ascertain  the  truth  of  the  matter:  Therefore,  be  it 

Resolved  by  the  House  of  Representatives,  That  Committee  on  Elections  No.  2  shall  be,  and  is  hereby, 
authorized  and  empowered  to  take  such  testimony  as  it  shall  deem  necessary  to  the  determination  of 
questions  of  fact  in  the  contested  election  case  of  Coudrey  v.  Wood,  from  the  Twelfth  district  of  Missouri, 
and  shall  have  power  to  send  for  all  such  persons  and  papers  as  it  may  find  necessarj-  for  the  proper 
determination  of  said  controversy  and  determine  the  time,  place,  and  manner  of  taking  said 
testimony,  which  may  be  taken  before  the  said  committee  or  any  subcommittee  or  any  person  selected 
by  said  committee  for  such  purpose,  and  that  the  expenses  incurred  in  taking  said  testimony  shall  be 
paid  from  the  contingent  fund  of  the  House  upon  the  order  of  .said  Committee  on  Elections  No.  2. 

The  resolution  was  agreed  to  without  division. 
In  explanation,  Mr.  Olmsted  said: 

Mr.  Speaker,  the  testimony  in  this  case,  as  printed  in  a  volume  of  1,409  pages,  has  been  submitted 
by  the  Clerk  of  the  House  to  the  committee,  and  also  the  originals  from  which  the  said  publication  was 
made.  Upon  the  face  of  these  papers  the  testimony  appears  to  have  been  regularly  taken,  signed  by  the 
witnesses,  and  certified  by  the  notaries  public  before  whom  it  was  taken,  and  to  be  regular  in  everv 
respect.  But  the  contestee  has  submitted  a  motion  to  suppress  all  the  contestant's  testimony  for  various 
reasons,  most  of  which  are  technical,  but  one  of  which  seems  to  the  committee  to  be  of  importance, 
namely:  That  the  testimony  as  returned  to  Washington  and  printed  by  the  Clerk  is  not  the  testimony 
given  by  the  witnesses,  but  that  the  same  has  been  altered,  some  parts  omitted,  some  things  added,  and 
some  portions  changed.  There  have  been  submitted  ex  parte  affidavits  of  two  stenographers  who  took 
the  testimony,  who  state  that  under  instructions  of  a  certain  gentleman  they  changed  certain  portions  of 
the  testimony.  That  gentleman  makes  affidavit  denj-ing  tneir  statements.  The  affidavits  of  ten  wit- 
nesses were  filed  to  the  effect  that  when  unon  the  witness  stand  they  were  cross-examined,  but  no  cross- 
examination  appears  in  the  report  of  their  testimony.  Against  that  there  is  the  affidavit  of  a  female 
stenographer,  who  says  that  under  the  direction  of  the  contestee  she  prepared  a  uniform  style  of  affidavit — 
blank  forma — in  which  these  ten  are  all  made,  and  that  the  persons  who  made  them  received  small  simis 
of  money  for  making  these  affidavits. 

That  is  denied  in  another  affidavit  on  behalf  of  the  contestee.  Other  ex  parte  affidavits  of  stenog- 
raphers have  been  submitted  to  the  effect  that  the  contestee  offered  the  affiants  money  to  make  false 
affidavits  to  the  effect  that  the  testimony  as  taken  down  by  them  had  been  changed.  On  the  other 
hand,  there  are  affidavits  to  the  effect  that  the  stenographers  who  made  those  affida\'its  offered  to  make 
affidavits  on  behalf  of  contestee,  but  demanded  money  for  so  doing.     There  is  some  testimony  tending  to 


'  First  session  Fifty-ninth  Congress,  Record,  pp.  1891,  1892. 


926  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  •§   716 

show  that  the  contestee  brought  suit  against  certain  persons  for  the  purpose  of  coercing  them  and  getting 
them  to  make  affidavits;  and  one  lady  says,  to  use  her  own  language,  "He  frightened  me  to  death,"  after 
which  she  made  an  affidavit.  There  is  also  the  testimony  of  one  stenographer  that  under  instructions  he 
changed  in  various  respects  answers  from  "no"  to  "yes"  in  material  parts  of  the  testimony. 

To  make  a  long  story  short,  these  ex  parte  affidavits  are  so  utterly  conflicting  in  their  character 
that  it  is  impossible  from  them  to  ascertain  the  truth  of  the  matter,  and,  believing  it  important  that  the 
question  of  the  integrity  of  this  testimony  shall  at  the  outset  be  determined,  the  committee  has 
unanimously  agreed  to  recommend  the  adoption  of  the  resolution  which  has  been  read  from  the  Clerk's 
desk. 

On  June  23,  1906/  Mr.  Olmsted  presented  the  report  of  the  committee,  which, 
without  assigning  reasons,  recommended  the  following  resolutions,  which  were 
agreed  to  by  the  House  without  debate  or  division: 

Resolved,  That  Ernest  E.  Wood  was  not  elected  to  membership  in  the  House  of  Representatives 
of  the  United  States  in  the  Fifty-ninth  Congress  and  is  not  entitled  to  a  seat  therein. 

Resolved,  That  Harry  M.  Coudrey  was  elected  to  membership  in  the  House  of  Representatives 
of  the  United  States  in  the  Fifty-ninth  Congress  and  is  entitled  to  a  seat  therein. 

716.  The  Missouri  election  case  of  Knox  v.  Blair,  in  the  Thirty-eighth 
Congress. 

Instance  wherein  the  returned  Member  presented  evidence  taken 
after  the  time  prescribed  by  law  and  asked  the  House  to  consider  it. 

The  House  received  but  prevented  the  use  of  testimony  taken  in  an 
election  case  in  disregard  of  the  law. 

On  March  11,  1864,^  Mr.  F.  P.  Blair,  jr.,  of  Missouri,  as  a  qiiestion  of  privilege, 
presented  testimony  taken  by  himself,  after  the  time  limited  by  law,  in  the  case  of 
Samuel  Knox,  contestant,  to  the  right  of  ]\Ir.  Blair  to  his  seat;  and  Mr.  Blair  further 
moved  that  the  evidence  be  referred  to  the  Committee  of  Elections,  to  be  considered 
by  the  committee  with  other  evidence  before  the  committee  taken  after  the  time 
provided  by  law. 

It  was  stated  that  the  testimony  in  question  was  not  strictly  ex  parte,  as  the 
contestant  had  been  notified  so  that  he  might  be  present,  but  it  was  taken  without 
authority  of  law. 

After  debate  the  House,  on  motion  of  Mr.  Thaddeus  Stevens,  of  Pennsylvania, 
amended  the  motion  by  adding: 

Provided,  That  this  resolution  shall  refer  only  to  affidavits  or  depositions,  and  that  all  such  illegally 
taken  shall  not  be  considered  by  the  committee. 

The  motion  as  amended  was  then  agreed  to. 

On  May  5,  when  the  committee  reported,^  they  stated  that  they  had  not 
considered  the  testimony  referred  on  motion  of  Mr.  Blair,  as  the  terms  of  the 
reference  precluded  such  consideration. 

717.  The  first  rule  for  the  examination  of  an  election  contest  before 
the  Elections  Committee. 

The  right  of  contestee  to  cross-examine  and  present  testimony  was 
conceded  in  the  first  election  case. 


'  Record,  p.  9036;  House  Report  No.  4999. 

2  First  session  Thirty-eighth  Congress,  Journal,  p.  372;  Globe,  p.  1058. 

^  House  Report  No.  66,  pp.  3  and  4. 


§  718  TESTIMONY   IN    CONTESTED   ELECTIONS.  927 

In  the  first  contested  election  case  decided  in  the  House,  that  of  David 
Ramsay  v.  WilHam  Smith,  of  South  Carolina,  the  Committee  on  Elections  reported 
and  the  House  adopted  a  resolution  directing  the  course  of  procedure  before  the 
cormnittee.  This  resolution,  reported  April  18,  1789,^  provided  that  the  com- 
mittee take  proofs,  and  that  "  Mr.  Smith  be  permitted  to  be  present,  from  time  to 
time,  when  such  proofs  are  taken,  to  examine  the  witnesses,  and  to  offer  counter 
proofs,  which  shall  also  be  received  by  the  committee,  and  reported  to  the  House." 

718.  Illustration  of  a  rule  prescribed  by  the  House  for  taking  testi- 
mony in  an  election  case  before  the  enactment  of  a  law  prescribing  a 
method. — On  January  23,  1850,"  on  report  from  the  Committee  on  Elections,  the 
House  agreed  to  the  following: 

Resolved,  That  the  parties  to  the  contested  election  from  the  First  Congressional  district  of  the 
State  of  Iowa  be,  and  they  are  hereby,  authorized  to  take  the  testimony  of  such  witnesses  as  either  of 
them  may  require,  by  depositions  in  conformity  with  the  laws  of  the  State  of  Iowa  in  force  at  the  time 
of  taking  the  testimony,  before  any  judge  of  the  supreme  court  or  of  the  district  courts  of  said  State, 
who  are  hereby  empowered  to  take  depositions  in  any  part  of  said  State,  or  before  a  clerk  or  clerks  of 
any  of  the  district  courts,  or  before  any  notary  public,  or  before  any  justice  of  the  peace  of  the  said 
State  within  the  county  in  which  such  clerk,  or  notary-  public,  or  justice  of  the  peace  may  reside:  Fro- 
vidiruj,  That  notice  of  the  time  and  place  of  taking  the  depositions  shall  be  given  by  the  party  taking 
the  same  to  the  opposing  party,  or  his  attorney,  at  least  ten  days  prior  to  taking  the  same,  and  one  day 
in  addition  for  every  thirty  mUes'  travel  from  the  place  of  taking  the  depositions  to  the  place  of  residence 
of  the  person  receiving  the  notice,  or  to  the  place  where  he  may  be  when  notice  shall  be  received  by 
him,  if  not  received  at  his  place  of  residence:  Provided,  aha,  That  the  parties  may,  by  agreement  in 
writing,  regulate  the  mode  of  giving  notice:  Provided,  also,  That  when  such  depositions  shall  have  been 
taken  they  shall,  together  with  the  agreements  and  notice  aforesaid,  be  sealed  up  by  the  officer  taking 
the  same  and  be  directed  to  the  Speaker  of  the  House:  Arid  provided  further,  That  all  the  testimony  in 
the  case,  to  be  taken  or  presented  by  either  party,  shall  be  returned  to  this  House  within  one  hundred 
days  from  the  passage  of  this  resolution. 

On  January  29^  the  House  agreed  to  a  similar  but  not  identical  resolution 
prescribing  the  method  of  taking  testimony  in  the  Pennsylvania  contested-election 
case. 

At  the  next  session  of  this  Congress  *  a  law  was  enacted  prescribing  the  mode 
of  taking  testimony,  one  object  being  to  prevent  delay  in  the  presentation  of  cases.* 

719.  The  South  Carolina  election  case  of  Stolbrand  v.  Aiken  in  the 
Forty-seventh  Congress. 

Instance  wherein  the  House  dismissed  an  election  case  because  the 
testimony  was  taken  before  an  oflacer  not  specified  by  law. 

Wliile  not  bound  by  the  law  governing  procedure  in  election  cases, 
the  House  does  not  unnecessarily  disregard  them. 

On  April  6,  1882,"  Mr.  G.  W.  Jones,  of  Texas,  from  the  Conunittee  on  Elections, 
submitted  the  following  report  in  the  South  Carolina  case  of  Stolbrand  v.  Aiken: 

All  the  testimony  in  the  case  was  taken  in  behalf  of  the  contestant  before  E.  W.  Stoeber,  United 
States  commissioner.     The  contestee,  at  the  threshold,  excepted  to  the  competency  of  the  officer. 


'  First  session  First  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  pp.  23,  24. 
-  First  session  Thirty-first  Congress,  Journal,  pp.  393.  394. 
^Journal,  p.  426. 

*  Second  session  Thirty-first  Congress,  Journal,  p.  324;  Globe,  p.  110. 

'This  law,  known  as  the  law  of  1851,  is  the  foundation  of  the  present  system  as  to  election  con- 
tests. 

"  First  session  Forty-seventh  Congress,  House  Report  No.  932;  2  Ellsworth,  p.  G03. 


928 


PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES. 


§  720 


The  following  are  the  statutory  provisions  applicable  to  the  question  raised  by  the  exception. 

Revised  Statutes,  page  19: 

"  Sec.  110.  When  any  contestant  or  returned  Member  is  desirous  of  obtaining  testimony  respecting 
a  contested  election,  he  may  apply  for  a  subpoena  to  either  of  the  following  officers  who  may  reside 
within  the  Congressional  district  in  which  the  election  to  be  contested  was  held: 

"  First.  Any  judge  of  any  court  of  the  United  States. 

"Second.  Any  chancellor,  judge,  or  justice  of  a  court  of  record  in  the  United  States. 

"Third.  Any  mayor,  recorder,  or  intendent  of  any  town  or  city. 

"Fourth.  Any  register  in  bankruptcy  or  notary  public. 

"Sec.  111.  The  officer  to  whom  the  application  authorized  by  the  preceding  section  is  made  shall 
thereupon  issue  his  writ  of  subpoena,  directed  to  all  such  witnesses  as  shall  be  named  to  him,  requiring 
their  attendance  before  him  at  some  time  and  place  named  in  the  subpoena,  in  order  to  be  examined 
respecting  the  contested  election. 

"Sec.  112.  In  case  none  of  the  officers  mentioned  in  section  one  hundred  and  ten  are  residing  in 
the  Congressional  district  from  which  the  election  is  proposed  to  be  contested,  the  application  thereby 
authorized  may  be  made  to  any  two  justices  of  the  peace  residing  within  the  district;  and  they  may 
receive  such  application  and  jointly  proceed  upon  it. 

"Sec.  113.  It  shall  be  competent  for  the  parties,  their  agents  or  attorneys  authorized  to  act  in  the 
premises,  by  consent  in  writing,  to  take  depositions  without  notice;  also,  by  such  written  consent,  to 
take  depositions  (whether  upon  or  without  notice)  before  any  officer  or  officers  authorized  to  take  depo- 
sitions in  common  law,  or  civil  actions,  or  in  chancery,  by  either  the  laws  of  the  United  States  or  of 
the  State  in  which  the  same  may  be  taken,  and  to  waive  proof  of  the  official  character  of  such  officer 
or  officers.     Any  written  consent  given  as  aforesaid  shall  be  returned  with  the  depositions." 

The  officers  authorized  to  take  testimony  are  specially  designated.  It  is,  however,  specially 
provided  that  "by  written  consent"  testimony  may  be  taken  before  certain  other  officers  mentioned. 
United  States  commissioners  are  not  mentioned  in  the  first  class,  and,  if  included  in  the  latter,  can  not 
act  without  the  written  consent  of  the  parties. 

It  is  apparent  that  the  exception  is  well  taken  and  must  be  sustained. 

It  is  insisted  that  the  House  of  Representatives,  in  judging  of  the  elections,  qualifications,  and 
retiu-ns  of  its  Members,  is  not  bound  by  the  rigid  rules  of  judicial  procedure.  This  is  true,  but  applies 
only  to  exceptional  cases,  not  provided  for  by  the  "rules  prescribed."  It  would  be  worse  than  idle  to 
prescribe  rules  if  they  may  be  willfully  and  unnecessarily  disregarded. 

This  view  is  decisive  of  the  case  and  renders  unnecessary  further  statement  of  it. 

We  recommend  the  adoption  of  the  following  resolution: 

Resolved,  That  C.  J.  Stolbrand  have  leave  to  withdraw  his  papers. 

The  resolution  was  agreed  to  without  division  or  debate.* 

720.  The  Alabama  election  case  of  Goodwyn  v.  Cobb  in  the  Fifty- 
fourth  Congress. 

A  question  as  to  the  validity  in  an  election  case  of  testimony  taken 
before  a  notary  public  outside  the  county  in  which  he  was  empowered  to 
act. 

A  question  as  to  the  introduction  during  an  election  case  of  evidence 
in  chief  during  time  of  rebuttal. 

The  official  certificate  of  a  State  officer  giving  the  returns  may  be 
introduced  at  any  stage  of  the  proof  in  an  election  case. 

A  question  as  to  whether  certain  copies  of  election  papers  certified  to 
by  public  officers  were  actually  evidence  or  not. 

Discussion  as  to  the  effect  of  an  alleged  unconstitutional  registration 
law  in  an  election  case. 


'  Journal,  p.  989. 


§  720  TESTIMONY   IN    CONTESTED   ELECTIONS.  929 

On  April  4,  1896,'  the  Committee  on  Elections  No.  1  reported  in  the  case  of 
Goodwyn  v.  Cobb,  from  Alabama.  This  case  involved,  besides  the  merits,  certain 
preliminary  questions: 

(1)  The  sitting  Member,  sustained  by  the  minority  of  the  committee,  urged 
that  a  notary  public  might  not  take  testimony  in  a  county  other  than  that  in  which 
he  was  empowered  to  act  by  the  law  of  the  State.  The  majority  of  the  conmiittee 
overruled  the  objections  on  the  same  grounds  that  were  adduced  in  the  case  of 
Aldrich  V.  Bobbins. 

(2)  The  sitting  Member,  sustained  by  the  minority  of  the  committee,  objected 
that  important  testimony  was  taken  in  Montgomery  County  before  a  notary  public 
who  resided  in  another  Congressional  district,  whereas  the  laws  of  the  United  States 
confined  the  power  to  take  testimony  to  an  officer  who  resides  in  the  district  of  the 
witness.     The  majority  of  the  committee  admit: 

The  notarj'  should  not  have  taken  evidence  beyond  the  limits  of  the  *  *  *  district  without 
consent.  But  as  to  the  five  witnesses  whose  testimony  was  taken  in  Montgomery  County,  the  objection 
of  want  of  authority  was  only  made  to  the  witness  Lynch,  and  his  evidence  has  not  been  considered  on 
this  occasion.  As  to  the  others,  the  absence  of  objection  warrants  the  inference  of  consent,  and  their 
evidence  is  legally  before  the  House. 

(3)  It  was  objected  on  the  part  of  the  sitting  Member  that  during  the  time 
allowed  the  contestant  under  the  law  for  rebuttal  only  he  had  introduced  evidence 
in  chief.  The  minority  of  the  committee  contended  that  this  evidence,  alleged  to 
be  introduced  improperly,  was  of  great  importance,  and  that  the  case  of  the  con- 
testant depended  on  it.  The  majority  of  the  committee  overnded  this  objection 
for  reasons  as  follows: 

(a)  A  portion  of  this  evidence  in  question  was  introduced  to  show  that  persons 
whose  names  were  on  the  poll  list  did  not  in  fact  vote.  The  minority  objected  that 
this  constituted  a  case  where  the  trial  court  made  up  its  judgment  on  rebuttal  evi- 
dence, entirely  cutting  off  from  hearing  the  party  against  whom  the  judgment  was 
rendered.  The  majority  of  the  committee,  on  the  other  hand,  declare  that  "similar 
proof  had  been  previously  taken,  and  there  can  be  no  reason  for  supposing  that  the 
contestee,  Mr.  Cobb,  was  specially  prejudiced  by  the  order  of  tliis  evidence,  for  it 
seems  to  have  been  beyond  his  power  of  contradiction."  In  debate  it  was  further 
explained  that  he  could  have  rebutted  it  only  by  the  election  officials  and  the  returns, 
which  were  already  discredited. - 

(&)  A  second  portion  of  this  evidence  in  chief  taken  during  the  time  for  rebuttal 
testimony  only  was  the  certificate  of  the  secretary  of  state  as  to  the  officially  returned 
vote  of  the  district.  The  minority  objected  that  this  was  a  "s-ital  part  of  the  case, 
and  that  it  was  improperly  presented  at  this  time.  The  majority  of  the  committee 
insisted  '  that  where  papers  of  this  kind  were  introduced  it  was  a  matter  of  no  con- 
sequence where  they  were  introduced  as  to  the  order  of  proof,  quoting  in  support  of 
this  principle  the  case  of  Vallandigham  v.  Campbell. 


'  First  session  Fifty-fourth  Congress,  House  Report  No.  119,2. 
2  Record,  p.  4239. 
'Record,  p.  4237. 

5994— VOL  1—07 59 


930  PBECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §  720 

(4)  The  contestant  had  introduced  as  evidence  the  copies  of  the  registration 
lists  and  the  poll  lists  certified  by  the  judges  of  probate  of  the  respective  counties. 
The  sitting  Member  objected  that  the  registration  copies  were  no  more  than  copies 
of  copies,  and  that  the  probate  judges  had  no  power  to  certify  the  copies  of  regis- 
tration and  poll  lists  so  as  to  make  them  evidence.  The  law  of  Alabama  required 
the  registrars  to  forward  true  copies  of  their  lists  to  the  judge  of  probate  of  the 
county,  who,  from  such  lists,  was  required  to  make  a  correct  alphabetical  list  of  the 
voters  so  registered,  by  precincts  and  wards,  and  certify  copies  of  these  alphabetical 
lists  to  the  precinct  inspectors  for  use  on  election  day.  The  majority  of  the  com- 
mittee find  that  when  the  judge  of  probate  "certified  to  a  copy  of  that  registration 
list  it  was  to  a  copy  of  his  own  list,  which  remains  in  his  office  as  a  part  of  its  per- 
manent papers  or  records."  The  committee  quote  the  law  of  Alabama  which  make 
"presumptive  evidence  in  any  civil  cause"  of  bonds,  instruments,  or  papers  "required 
to  be  kept  by  any  sworn  officer  of  the  State."  The  sitting  Member  denied  the  per- 
tinency of  this  section  because  the  law  had  not  declared  that  the  list  should  be  kept 
in  the  office  of  the  judge  of  probate.  But  the  committee  ruled  that  an  express 
direction  to  that  effect  was  not  necessary,  it  being  sufficient  that  the  statute  by 
implication  contemplated  that  one  of  the  lists  should  remain  in  the  office.  For 
the  law  provided  for  the  probate  judge  to  deliver  to  the  inspectors  one  of  the  lists 
made  by  him,  and  as  no  other  disposition  had  been  made  of  the  other,  it  must  remain 
where  it  was  found,  and  that  was  in  the  custody  and  office  of  the  probate  judge  as 
one  of  the  public  papers  or  records.  The  inspectors  of  election  were  also  required 
to  send  the  poll  list  of  the  election  to  the  judge  of  probate,  for  the  obvious  reason 
that  it  was  to  be  the  basis  of  the  final  and  official  canvass  of  the  votes;  and  that  in 
like  manner  became  a  paper,  in  the  language  of  the  statute,  to  be  kept  in  his  office, 
and  a  copy  of  wliich  he  could  make  presumptive  evidence  by  his  official  certificate. 

(5)  A  certified  statement  of  the  secretary  of  state  as  to  the  final  result  of  the 
canvass  was  objected  to  for  the  same  reason,  that  the  secretary  of  state  was  without 
authority  to  make  the  certificate  evidence.  The  committee,  however,  overrule  this 
objection  on  the  ground  that  "it  is  the  manifest  purpose  of  the  law  that  all  these 
returns  [which  are  forwarded  to  the  secretary  of  state  in  requirement  of  law]  shall 
become  records  in  these  public  offices,  to  be  preserved  and  maintained  as  evidence 
of  the  titles  of  the  various  officers  found  to  be  elected;  and  as  such  the  certificate  of 
the  custodian  thereof  that  it  is  a  true  copy  of  the  original  has  the  same  legal  effect  as 
if  the  original  were  produced  and  proved." 

(6)  It  was  urged  by  the  sitting  Member  that  the  secretary  of  state's  certificate 
was  formally  defective,  and  that,  after  the  committee  had  caused  the  contestant  to 
procure  certain  transcripts  from  the  secretary  of  state,  the  fact  was  made  apparent 
that  the  vote  of  one  whole  county  should  have  been  disregarded  because  the  returns 
were  not  signed  by  all  the  board  of  supervising  canvassers.  Therefore  the  minority 
of  the  committee  held  that  the  sitting  Member  should  have  been  allowed  to  go  into 
an  examination  of  the  votes  behind  this  county  return,  if  the  whole  return  was  not 
to  be  excluded.  The  majority  of  the  committee  held  that  the  objection  to  the 
original  certificate  did  not  require  its  exclusion;  and  that,  being  record  evidence,  it 
was  competent  for  the  committee  to  have  produced  further  and  more  formal  state- 
ments to  correct  informalities  in  the  proof  previously  made.     The  committee  further 


§  721  TESTIMONY   IN    CONTESTED   ELECTIONS,  931 

found  that  the  county  returns  which  were  not  signed  by  all  the  board  of  canvassers, 
were  yet  sufficient,  since  they  were  signed  by  a  majority. 

(7)  The  sitting  Member  objected  that  the  registration  law  of  Alabama  was 
unconstitutional,  and  therefore  that  the  evidence  touching  the  registration,  on  which 
contestant  much  relied,  should  be  suppressed.  Wliile  the  majority  of  the  committee 
do  not  in  express  terms  admit  the  unconstitutionality  of  the  law,  yet  it  seems  evident 
that  the  registration  law  required  the  completion  of  the  lists  of  each  precinct  about 
five  months  before  election  day,  whereas  the  constitution  provided  that  the  legis- 
lature should  not  require  a  residence  of  longer  than  three  months  in  the  precinct. 
The  law  prohibited  the  voting  of  any  person  not  registered,  imless  he  should  become 
21  years  of  age  after  the  completion  of  the  registration.  The  committee  make  the 
point  that  the  prohibition  could  therefore  affect  only  persons  becoming  residents 
after  the  close  of  the  registration  and  before  the  beginning  of  the  three  months  before 
election;  and  that  the  testimony  failed  to  show  any  such  persons  as  affected.  In 
the  debate'  it  was  urged  that  the  constitutional  question  was  of  no  effect,  since  the 
only  use  of  the  lists  was  to  determine  who  were  legal  and  honest  voters,  and  for  this 
purpose  it  was  not  essential  to  determine  the  constitutionality  of  the  law. 

(8)  An  objection  by  the  minority  of  the  committee  that  certain  testimony 
came  before  the  committee  without  proper  certificate  of  the  notary  public  before 
whom  it  was  taken,  was  in  the  debate,'  shoAvn  to  be  based  on  a  mistaken  readino'  of 
the  record  of  the  case.     Such  certificate  did  in  fact  exist. 

721.   Election  case  of  Goodwin  v.  Cobb,  continued. 

The  returns  of  a  county  being  wholly  unreliable,  and  the  conduct  of 
the  election  unfair,  the  returns  were  rejected. 

Certain  votes  in  a  county  being'  evidently  cast,  were  counted  accord- 
ing to  the  known  opinions  to  the  voters,  although  there  was  evidence  gen- 
erally of  great  frauds. 

Unfair  representation  on  the  election  board  of  a  precinct  and  disorder 
at  the  polls  were  held  not  to  justify  rejection  of  the  return  of  the  precinct. 

Passing  from  the  preliminary  questions  to  the  merits  of  the  case,  it  appeared 
that  the  corrected  official  returns  gave  to  the  sitting  Member  a  majority  of  508  votes. 
The  majority  of  the  committee  held — though  not  with  the  assent  of  the  minority — 
that  three  of  the  nine  coimties  of  the  district  were  distinctively  "black"  counties, 
inhabited  largely  by  colored  voters,  and  that  the  remaining  six  counties  were  dis- 
tinctively "white"  counties.  The  returns  from  the  so-called  white  counties  gave 
contestant  a  majority  of  .3,612  votes,  while  the  majority  for  sitting  Member  in  the 
three  "black"  counties  was  sufficient  to  overcome  the  majority  for  contestant  in 
the  "white"  counties  and  give  to  sitting  Member  a  majority  of  508  in  the  district. 

The  contestant  attached  the  returns  of  twelve  precincts  in  the  "black"  coun- 
ties, claiming  that  they  were  false  and  fraudulent,  and  that  they  returned  a  much 
larger  number  of  fraudulent  votes  than  the  majority  reported  for  the  contestee. 

The  majority  of  the  committee,  as  the  result  of  their  examination  of  the  testi- 
mony relating  to  the  twelve  precincts,  rejected  entirely  the  polls  of  five  of  them 
reduced  the  return  for  the  sitting  Member  in  six  of   them,  and  in  one  precinct 
allowed  the  return  to  stand  as  made. 

'  Record,  p.  4219. 


932  PKECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §   722 

(1)  As  to  the  five  rejected  polls,  it  appeared  to  the  committee  that  the  returns 
were  so  false  and  unreliable  that  there  was  no  way  of  determining  the  actual  vote. 
In  three  of  these  precincts  the  contestant  had  no  representatives  at  all  on  the  boards 
of  election  officers,  and  in  the  others  his  representatives  were  incompetent.  The 
poll  lists  showed  many  more  voters  than  were  seen  to  go  to  the  voting  places;  in 
one  precinct  names  had  been  added  to  the  registration  lists  to  an  extent  manifestly 
absurd;  men  appeared  as  voters  whose  names  were  not  known  in  the  precinct,  and 
who  could  not  be  found  by  an  officer  with  a  subpoena;  others  appeared  as  voting 
who  testified  that  they  did  not  vote,  and  some  men  who  appeared  as  voting  were 
shown  to  be  dead. 

(2)  In  six  precincts  there  was  evidence  generally  of  great  frauds,  but  the  testi- 
mony in  most  of  them  indicated  that  a  certain  number  of  men,  generally  known  to 
be  Democrats,  had  actually  voted.  Therefore  the  majority  of  the  committee 
assumed  that  these  had  voted  for  the  sitting  Member  and  allowed  them  on  his  poll, 
striking  off  the  fraudulent  surplus. 

(3)  In  one  precinct.  Day's  Beat  No.  5,  the  contestant  had  no  representative  on 
the  election  board  and  the  proceedings  were  disorderly  in  the  extreme.  "But  these 
facts,"  say  the  committee,  "alone  will  not  justify  a  reduction  in  the  vote,  although 
there  is  a  probability  that  it  was  not  genuine." 

In  all  these  precincts  the  minority  denied  the  sufficiency  of  the  testimony  to 
produce  the  results  reached  by  the  majority. 

On  April  21  and  22'  the  resolutions  of  the  committee,  unseating  the  sitting 
Member  and  seating  the  contestant,  were  debated  and  a  decision  was  reached.  By  a 
vote  of  ayes  47,  noes  109,  the  proposition  of  the  minority  to  confirm  the  title  of  the 
sitting  Member  was  disagreed  to.  Then  by  a  vote  of  yeas  60,  noes  1.31,  the  House 
disagreed  to  a  motion  to  recommit  the  report  with  instructions  to  the  Committee  on 
Elections  "to  report  a  resolution  authorizing  the  contestee  to  take  further  testi- 
mony in  rebuttal  of  evidence  in  the  record  taken  by  contestant,  which  is  evidence  ia 
chief,  during  the  last  period  of  ten  days  in  which  testimony  was  taken." 

The  resolution  declaring  sitting  Member  not  entitled  to  his  seat  was  agreed  to 
without  division. 

Then,  on  April  22,  the  resolution  seating  the  contestant  was  agreed  to — yeas 
145,  nays  55.     The  oath  was  then  administered  to  Mr.  Goodwyn. 

722.  The  Pennsylvania  election  case  of  Hudson  v.  McAleer  in  the 
Eifty-fifth  Congress. 

A  contestant  may  not  be  granted  more  time  to  take  testimony  on 
the  mere  declaration,  without  proof,  that  he  has  been  impeded  by  violence 
from  procuring  evidence. 

To  procure  an  extension  of  time  for  taking  testimony  a  contestant 
should  show  that  the  testimony  is  newly  discovered. 

On  February  5,  1898,'  Mr.  Lemuel  W.  Royse,  of  Indiana,  from  the  Committee 
on  Elections  No.  2  presented  a  report  in  the  Pennsylvania    case  of    Hudson    v. 

'Journal,  pp.  413,  414,  417;  Record,  pp.  4217-4243,  4271. 

'Second  eession  Fifty-fifth  Congress,  House  Report  No.  354;  Rowell's  Digest,  p.  558;  Journal,  p.  173. 


§  723  TESTIMONY   IN    CONTESTED   ELECTIONS.  933 

McAleer.  The  contestant  had  received  a  small  minority  of  the  votes  cast  at  the 
election,  according  to  the  official  returns.  The  committee  summarize  the  question 
presented  to  the  House  as  follows: 

On  the  3d  of  December,  189ti,  contestant  ser\-ed  upon  contestee  his  notice  of  contest,  and  on  the 
Slst  of  the  same  month  contestee  served  on  the  contestant  his  answer  to  said  notice. 

On  the  19th  and  20th  of  January,  1897,  testimony  was  taken  on  behalf  of  contestant,  when  the 
taking  of  further  testimony  was  abandoned  on  the  grounds,  as  alleged  by  the  contestant,  that  he  was 
prevented  from  proceeding  further  because  of  the  riotous  and  violent  conduct  of  certain  citizens  of  the 
district. 

Contestant  comes  before  your  committee  and  asks  for  further  time  in  which  to  take  testimony  in 
support  of  his  notice  of  contest,  and  that  a  subcommittee  be  sent  to  said  district  for  the  purpose  of  pro- 
curing said  further  testimony.  In  support  of  said  motion  he  files  with  us  his  own  affidavit,  in  which  he 
sets  forth  various  irregularities  and  frauds  in  the  holding  of  said  election,  and  in  counting  the  votes,  and 
in  making  returns  thereof,  and  that  witnesses  and  other  evidence  can  be  procured  which  sustain  all 
these  charges. 

It  is  nowhere  averred  in  the  affidavit  that  these  facts  and  the  evidence  to  sustain  them  have  been 
discovered  since  the  time  provided  by  the  statute  for  taking  testimony  has  expired.  On  the  contrary, 
the  affidavit  carries  upon  its  face  a  very  strong  inference  that  all  these  facts  were  known  to  the  contestant 
at  the  time  he  filed  his  notice  of  contest,  and  that  all  his  evidence  tending  to  support  the  same  was  then 
known  and  accessible  to  him. 

As  we  understand  contestant's  application,  it  is  not  based  upon  the  ground  that  the  evidence  he 
now  desires  leave  to  take  has  been  discovered  since  the  time  expired,  but  upon  the  reason  that  he  made 
every  possible  effort  to  procure  it,  but  was  prevented  by  the  riotous  and  violent  behavior  of  certain  citi- 
zens of  the  district  at  the  place  where  he  was  compelled  to  take  the  same. 

If  such  a  case  were  made  out,  we  would  have  no  hesitancy  in  recommending  that  contestant's 
application  be  granted.  The  honest  election  of  each  Member  of  this  House  is  a  matter  of  the  highest 
importance,  both  to  this  body  and  to  the  people  at  large.  When  a  question  is  raised  as  to  the  election 
of  one  of  its  Members,  this  House  should  stand  ready  to  make  a  thorough  investigation,  and  promptly 
expel  the  Member  whose  seat  was  obtained  by  fraudulent  or  dishonest  methods.  No  one  should  he 
permitted  to  prevent  or  impede  such  investigation.  Any  attempt  of  this  kind  should  be  promptly 
and  vigorously  rebuked.  It  can  not  be  assumed  that  such  an  investigation  has  been  hindered  or  pre- 
vented. Until  the  contrary  appears,  it  must  be  presumed  that  the  authority  of  Congress  and  the 
agencies  provided  to  make  such  inquiry  have  been  respected  and  obeyed. 

If  contestant  has  been  prevented  by  riot  and  violence  from  procuring  his  testimony,  such  fact 
should  be  shown  in  some  satisfactory  way,  and  that  contestant  was  in  no  way  to  blame  for  it.  Upon 
this  subject  the  affidavit  is  entirely  silent.  We  are  furnished  no  proof  of  this  but  the  unsworn  statement 
of  contestant's  counsel,  which  is  denied  by  counsel  for  contestee;  and  we  do  not  feel  that  this  is  suffi- 
cient. We  therefore  recommend  that  the  application  to  take  further  testimony  be  denied.  Contestant 
admitted  before  the  committee  that  he  was  not  elected  to  the  Fifty-fifth  Congress  from  this  district. 
The  utmost  of  his  contention  was  that  contestee  also  was  not  elected.  It  is  not  insisted  by  contestant 
that  this  is  shown  by  the  evidence  already  taken;  and  even  if  it  were  we  could  not  agree  with  him. 

The  committee  therefore  recommended  resolutions  declaring  the  sitting  Mem- 
ber elected  and  entitled  to  his  seat,  and  the  same  were  agreed  to  by  the  House 
without  debate  or  division. 

723.  The  Pennsylvania  election  case  of  Kline  v.  Myers  in  the  Thirty- 
eighth  Congress. 

It  was  held  in  1864,  although  by  a  divided  committee,  that  a  con- 
testant must  show  probable  fraud  in  order  to  have  the  House  order  a 
recount  of  votes. 


934 


PRECEDENTS   OF   THE    HOUSE    OF   EEPRESENTATIVES. 


§  723 


On  June  22,  1864,'  the  Committee  on  Elections  reported  in  the  case  of  Kline 
V.  Myers,  of  Pennsylvania.  The  committee  recommended  resolutions  declaring 
contestant  not  entitled  to  the  seat  and  declaring  Mr.  Myers  entitled  to  the  seat. 

The  committee  make  this  statement  of  facts  and  reasons — 

The  contestant,  by  his  own  acknowledgment,  has  failed  to  substantiate  the  specifications  or  charges 
contained  in  his  notice  of  contest  by  any  evidence  he  has  lieen  able  to  lay  before  the  committee,  and 
it  is  therefore  unnecessary  to  make  any  statement  of  the  facts  in  the  case.  He,  however,  furnishes 
satisfactory  evidence  that  he  had  made  an  unsuccessful  effort  to  procure  a  recount  of  the  ballots  within 
the  sixty  days  allowed  for  the  taking  of  depositions,  and  before  the  officers  selected  for  that  piupose. 
And  upon  his  showing  this  fact,  and  upon  his  further  suggestion  that  the  result  of  a  recount  might 
possibly  differ  from  the  first,  he  bases  an  application  for  an  order  from  this  House  to  send  for  the  boxes 
and  recount  the  votes. 

The  committee  were  of  the  opinion  that  such  an  application  should  be  founded  upon  some  proof, 
sufficient,  at  least,  to  raise  a  presumption  of  mistake,  irregularity,  or  fraud  in  the  original  count,  and 
ought  not  to  be  granted  upon  the  mere  suggestion  of  possible  error.  The  contestant  failed  to  furnish 
such  proof.  On  the  contrary,  so  far  as  appeared  by  the  evidence  presented  to  the  committee,  the 
election  was  conducted  with  perfect  good  order  and  fairness  throughout  the  day,  and  at  the  close  the 
votes  were  carefully  and  accurately  counted,  the  officers  participating  therein  being  nearly  equally 
divided  in  their  political  alliances.  The  list  of  voters,  tally  papers,  and  returns  were  properly  made 
out  and  disposed  of  according  to  law.  There  is  nowhere  in  the  evidence  a  reasonable  suspicion  of 
wrong.  To  adopt  a  nJe  that  the  ballot  boxes  should  be  opened  upon  the  mere  request  of  the  defeated 
candidate  would  occasion  more  fraud  than  it  could  possibly  expose. 

It  should  be  remembered  that  the  fact  sought  b  not  what  the  ballot  boxes  contain  six  months 
or  a  year  after  the  election,  but  what  they  did  contain  after  the  last  vote  was  deposited  on  the  day  of 
election.  Certainly  an  impartial,  accurate,  and  public  count,  then,  by  the  sworn  officers  of  the  law, 
would  be  better  evidence  of  that  fact  than  any  subsequent  count  not  more  impartial  and  not  presumed 
to  be  more  accurate  than  the  first,  and  after  boxes  had  been  long  exposed  to  the  tampering  of  dishonest 
partisans.  The  adoption  of  such  a  practice  would  be  equivalent  to  setting  aside  the  first  count  altogether, 
and  it  ought  on  that  principle  to  be  dispensed  with,  and  the  ballots  sent  to  this  house  instead  of 
certificates. 

The  rule  adopted  by  the  committee  is  in  accordance  with  the  universal  practice  of  courts  of 
justice,  where  a  new  trial  or  a  rehearing  is  never  granted  except  upon  proof  of  probable  error  in  the 
first,  in  accordance  with  the  rulings  in  several  contested  election  cases  decided  in  the  courts  of  the  State 
from  which  this  contest  comes,  and  believed  not  to  be  in  conflict  with  anj'  precedent  of  this  House. 

Messrs.  Henry  L.  Dawes,  of  Massachusetts,  and  Charles  Upson,  of  Michigan, 
at  the  time  the  report  was  made^  announced  that  they  did  not  concur  with  the 
majority  of  the  committee  in  the  ruling  by  which  the  contestant  was  denied  process 
to  summon  witnesses  to  prove  certain  allegations,  but  that  they  were  of  opinion 
that  when  a  party  had  confined  his  allegations  to  the  statute  he  was  entitled,  as 
of  right,  to  the  production  of  any  legal  testimony  that  would  tend  to  prove  such 
allegations.  Neither  the  law  nor  the  usage  of  the  House  required  him  to  first  show 
probable  cause  to  believe  that  his  allegations  were  true. 

On  June  24,  1864,^  the  House  considered  the  report  and  agreed  to  it  without 
division,  although  in  debate  there  was  dissent  from  the  decision  of  the  committee 
denying  the  contestant  the  right  to  have  the  boxes  opened,  the  only  means  whereby 
fraud  could  be  proven. 

>  First  session  Thirty-eighth  Congress,  House  Report  No.  127;  1  Bartlett,  p.  574;  Rowell's  Digest, 
p.  196. 

=  Globe,  p.  3179. 

3  Journal,  p.  891;  Globe,  p.  3242. 


§  724  TESTIMONY   IN   CONTESTED   ELECTIONS.  935 

724.  The  Virginia  election  case  of  Hoge  v.  Otey  in  the  Pifty-fourth 
Congress. 

No  suflacient  reasons  being  shown,  the  House  declined  to  reopen  an 
election  case  for  the  taking  of  further  testimony. 

On  April  29,  1896,*  Mr.  David  A.  De  Armond,  of  Missouri,  from  the  Committee 
on  Elections  No.  3,  submitted  the  following  report  in  the  case  of  Hoge  v.  Otey, 
from  Virginia: 

According  to  the  returns,  contestee  received  2,346  more  votes  than  contestant. 

The  record  contains  but  a  few  pages  of  testimony,  and  it  would  be  impossible  to  give  to  such 
testimony  any  effect  by  which  the  seat  in  controversy  could  be  awarded  to  the  contestant  or  could  be 
taken  from  the  contestee. 

Contestant  has  asked  that  the  case  be  opened  for  the  taking  of  further  testimony,  but  he  has  failed 
to  show  any  sufficient  reason  for  such  course.  Not  only  is  there  no  apparent  rea-son  for  making  an 
exception  in  this  case  to  a  fair  and  long-established  statutory  rule  fixing  the  time  for  the  taking  of 
testimony  in  contested  election  cases,  but,  from  contestant's  own  showing,  it  appears  that  if  the  case 
were  opened  the  result  of  the  contest  would  not  be  different. 

Accordingly,  the  usual  resolutions  confirming  sitting  Member's  title  to  the  seat 
were  presented,  and,  on  May  15,'  were  agreed  to  by  the  House. 

725.  The  Alabama  election  case  of  Mabson  v.  Gates  in  the  Forty- 
seventh  Congress. 

The  appeal  of  a  contestant  for  extension  of  time  to  take  testimony 
should  show  that  all  diligence  has  already  been  used  in  the  quest. 

Review  of  the  precedents  governing  the  granting  of  extension  of  time 
to  the  parties  to  collect  evidence  in  an  election  case. 

An  application  for  extension  of  time  to  take  testimony  in  an  election 
case  should  be  accompanied  by  an  affidavit  specifying  as  to  the  testimony. 

The  Elections  Committee  declined  in  1882  to  reopen  a  case  to  enable  a 
contestant  to  correct  his  procedure. 

On  April  7,  1882,^  Mr.  William  H.  Calkins,  of  Indiana,  from  the  Conunittee 
on  Elections,  submitted  the  report  of  the  majority  of  the  committee  in  the  Alabama 
case  of  Mabson  v.  Oates. 

This  case  was  examined  first  by  a  subcommittee,  and  the  report  of  this  sub- 
committee, which  was  presented  to  the  full  committee  by  Mr.  Gibson  Atherton,  of 
Ohio,  narrated  the  steps  taken  by  contestant  to  get  evidence  and  the  reasons  given 
by  him  for  asking  an  extension  of  time ;  and  then  gives  reasons  for  not  granting  the 
extension : 

The  first  question  presented  for  consideration  is  the  preliminary  one  of  granting  time  to  the  con- 
testant to  take  further  testimony,  or  of  appointing  a  commission  to  take  the  same. 

Touching  the  first  proposition,  has  the  contestant  shown  such  degree  of  diligence  as  to  induce  the 
House,  under  well-established  precedents,  to  grant  an  extension  of  time;  or  has  he  been  guilty  of  such 
want  of  diligence  that  his  application  should  be  denied?  In  the  report  of  the  contested  election  case 
of  Boles  V.  Edwards,  prepared  by  Mr.  Hazelton,  it  is  said: 

"To  say  nothing  of  the  terras  of  the  law  *  *  *  touching  the  extending  of  the  time  fixed  to 
allow  supplementary  evidence,  which  clearly  relates  to  cases  in  which  the  applicant  has  taken  some 
evidence — that  is  to  say,  has  made  some  use  of  the  time  given  him — the  policy  of  the  House  has  been 

'  First  session  Fifty-fourth  Congress,  House  Report  No.  1530;  Rowell's  Digest,  p.  537. 

^Journal,  p.  494. 

^  First  session  Forty-seventh  Congress,  House  Report  No.  938;   2  Ellsworth,  p.  8. 


936  PKECEDENTS   OF   THE   HOUSE    OF   EEPKESENTATIVES.  §   725 

adverse  to  granting  extensions.  Procrastination  in  these  cases  diminishes  the  object  of  investigation  and 
cheapens  the  value  of  the  final  decision.  The  law  i.s  intended  to  furnish  ample  opportunity  for  taking 
testimony.  Parties  should  be  held  to  a  rigid  rule  of  diligence  under  it,  and  no  extension  ought  to  be 
allowed  where  there  is  reason  to  believe  that  had  the  applicant  brought  himself  within  such  rule  there 
would  have  been  no  occasion  for  the  application."     (Smith's  Cont.  El.  Cas.,  18.) 

In  Giddings  v.  Clark  the  Committee  on  Elections,  in  a  report  prepared  by  Mr.  McCrary  (among 
other  things),  say: 

"That  no  such  extension  should  ever  be  granted  to  a  sitting  Member  unless  it  appears  that  by  the 
exercise  of  great  diligence  he  has  been  unable  to  procure  his  testimony,  and  that  he  is  able,  if  an  extension 
be  granted,  to  obtain  such  material  evidence  as  will  establish  his  right  to  the  seat,  or  that  by  reason  of 
the  fault  or  misconduct  of  the  contestant  he  has  been  unable  to  prepare  his  case."  (Smith's  Cont.  El. 
Cas.,  92-93.) 

In  the  contested  election  case  of  Vallandigham  v.  Campbell  it  was  held: 

"That  the  fact  that  the  sitting  Member  was  a  Member  of  the  previous  Congress,  and  attended  to 
his  duties  as  such  during  a  part  of  the  time  when  by  law  the  testimony  should  be  taken,  furnishes  no 
reason  why  further  time  should  be  granted."     (1  Bartlett,  p.  223.) 

As  to  rule  that  great  diligence  is  required  to  be  proved  to  entitle  the  party  to  an  extension  of  time, 
see  the  case  of  Howard  v.  Cooper  (1  Bartlett,  p.  275). 

Is  diligence,  within  the  rule,  shown  by  contestant?  He  allowed  almost  a  month  to  elapse  after 
the  answer  was  served  before  he  took  any  depositions.  He  applied  to  an  officer  or  two  to  take  his  depo- 
sition, who  refused  to  act,  and  he  neither  tried  to  prociu^e  others  nor  to  have  an  officer  of  his  own  political 
party  appointed  by  Federal  authority.  He  went  away  from  Washington  to  attend  to  affairs  not  so 
important  as  his  contest,  and  left  the  same  for  a  considerable  time,  without  giving  attention  thereto. 
Were  it  necessary  to  put  the  refusal  to  grant  an  extension  on  that  ground,  the  committee  believe  that 
the  contestant  has  been  guilty  of  such  laches  as  to  preclude  him  from  the  right  to  take  further  testimony. 

But  in  order  to  entitle  himself  to  an  extension  of  time  after  taking  testimony,  the  contestant  must 
state  what  witnesses  he  desires  to  examine,  give  their  names,  their  residence,  and  what  they  will  swear 
to,  or  a  sufficient  reason  why  the  same  is  not  done.  In  the  language  of  the  able  report  in  Giddings  v. 
Clark  (1  Bartlett,  91-94): 

"The  affidavits  relied  on  are  fatally  defective  in  this,  that  they  do  not  state  the  names  of  the 
witnesses  whose  testimony  is  wanted,  nor  the  particular  facts  which  can  be  proved  by  their  testimony." 

It  is  also  laid  down  as  a  rule,  in  the  same  case,  that  an  applicant  "should  produce  the  affidavit  of 
some  of  the  witnesses  themselves  *  *  *  stating  what  facts  are  within  their  own  knowledge."  (Same, 
p.  93.) 

But  in  this  case  the  affiant  makes  general  statements,  alleges  facts  not  within  his  personal  knowl- 
edge, does  not  state  the  names  of  witnesses,  their  residence,  or  what  particular  facts  he  proposes  to  prove 
by  any  of  them.  He  alleges  fraud  and  unfairness  in  general  terms,  and  does  not  pretend  it  is  the  same 
fraud  alleged  in  his  notice  of  contest,  and  the  committee  think  that  the  affidavit  is  fatally  defective, 
and  no  extension  should  be  granted  by  reason  of  anything  therein  stated. 

The  report  of  the  Senate  Committee  on  Privileges  and  Elections  in  the  Forty-third  Congress  is  not 
evidence.     It  relates  to  a  period  long  anterior  to  1880. 

It  is  not  a  judicial  determination,  and  is  not  to  be  considered  in  determining  the  application. 

In  Boles  v.  Edwards  (Smith  El.  Cas.,  58),  the  contestee  submitted  in  evidence  the  report  of  a  joint 
select  committee,  appointed  by  the  senate  and  house  of  representatives  of  Arkansas  to  investigate 
election  frauds,  and  it  was  rejected  as  simply  "views  of  certain  members  of  the  legislature  of  Arkansas." 
So  this  report,  if  it  related  to  the  very  election  in  question,  would  be  simply  the  views  of  certain  Members 
of  the  Senate  of  the  United  States,  and  could  not  bind  the  House  or  furnish  evidence  for  its  consideration. 
It  would  be  to  us  simply  hearsay  and  inadmissible,  as  laid  down  in  the  report  of  Speaker  Keifer  in  the 
case  of  Donnelly  v.  Washburn,  in  the  Forty-sixth  Congress. 

The  committee  concede  the  right  of  the  House  to  investigate  the  title  of  Gates  to  a  seat,  even  if 
Mabson  has  been  guilty  of  such  negligence  and  laches  as  to  preclude  him  from  contesting  for  the  seat, 
as  a  party  and  litigant.  But  does  his  affidavit  make  a  case  calling  on  the  House  to  institute  an  inquiry 
and  investigation  for  its  own  vindication,  or  to  purge  itself  of  a  Member  unelected,  in  fact? 

The  charges  of  fraud  and  illegality  are  general.  At  what  precincts  committed,  or  in  what  counties 
even,  is  not  alleged.  Of  what  particular  acts  they  consisted  is  not  stated.  No  witness  is  named  who 
will  furnish  testimony  of  particular  acts.     In  fact,  no  witnesses  are  named  at  all. 


i 


§  726  TESTIMONY   IX    CONTESTED   ELECTIONS.  937 

The  committee  are  not  put  in  possession  of  a  single  fact  of  fraud  or  illegality  or  furnished  with  the 
medium  of  e\-idence  by  which  the  same  may  even  seem  susceptible  of  proof.  No  case  is  therefore  made 
for  invoking  the  jurisdiction  of  the  House  to  investigate  in  order  to  protect  its  own  rights  and  dignity. 

After  this  report  had  been  submitted  to  the  full  committee,  the  contestant 
filed  a  supplemental  affidavit  covering  some  of  the  objections  pointed  out  in  the 
report  to  liis  former  application  and  asking  for  further  time  to  take  testimony  in 
the  district.     The  report  thus  deals  with  this  application: 

The  affidavit  having  been  read  to  the  full  committee,  it  was  held  by  a  majority  thereof  that  the 
application  came  too  late;  that  it  would  be  dangerous  to  establish  a  precedent  allowing  a  contestant  or 
contestee,  after  finally  submitting  their  cases,  to  ascertain  from  the  report  of  the  committee  the  grounds 
upon  which  he  had  been  overruled,  and  to  then  supplement  his  application  by  a  now  affidavit,  avoiding 
the  decision,  and  thus  open  up  the  case  again.  Such  a  practice  your  committee  think  would  lead  to  inter- 
minable delays,  and  would  transform  the  committee  into  mere  advisers  of  the  parties.  The  committee 
are  of  opinion  that  parties  should  be  bound  by  a  reasonable  degree  of  diligence,  and  that  there  should 
be  a  time  fixed  beyond  which  the  doors  for  the  reception  of  ex  parte  affidavits  or  evidence  should  be  shut. 
Inasmuch  as  there  was  no  application  to  file  additional  affidavits  before  the  subcommittee  until  after 
its  report  was  made,  the  committee  are  of  opinion  the  last  aflidavit  came  too  late,  and  should  not  be 
considered. 

The  minority  of  the  committee  held  that  contestant  had  used  due  dihgence  in 
endeavoring  to  procure  testimom^,  and  that  justice  demanded  that  he  be  given 
further  time  to  pursue  an  investigation,  and  recommended  a  resolution  granting 
an  extention  of  time  for  not  over  forty  days. 

The  majority  of  the  committee,  in  accordance  wath  their  conclusions,  but  with 
some  doubts  as  to  the  form  of  resolution,  recommended  the  following: 

Resolved,  That  the  contestant,  A.  A.  Mabson,  have  leave  to  withdraw  his  papers  without  prejudice. 

On  May  6 '  this  resolution  was  agreed  to,  without  debate  or  division. 

726.  The  Ohio  election  case  of  Vallandigham  v.  Campbell  in  the 
Thirty-fifth  Congress. 

The  returned  Member  was  denied  an  extension  of  time  to  take  testi- 
mony, although  he  pleaded  that  he  had  been  detained  by  his  duties  in  the 
House. 

The  law  for  taking  testimony  in  an  election  case  does  not  preclude 
both  parties  from  proceeding  at  the  same  time. 

A  discussion  as  to  the  power  of  the  House  to  disregard  the  provisions 
of  the  law  governing  election  contests. 

On  January  27,  1858,^  the  Committee  on  Elections  reported  on  the  application 
of  the  sitting  Member  for  leave  to  take  further  testimony  in  the  contested  election 
case  of  Vallandigham  v.  Campbell,  from  Ohio.  This  application,  made  under  a 
section  of  the  act  of  1851,  involved  also  a  construction  of  the  terms  of  that  act.  The 
majority  of  the  committee  reported  a  resolution  declaring  it  inexpedient  to  grant 
the  request  of  the  sitting  Member,  saying: 

The  grounds  upon  which  the  sitting  Member  seems  to  rest  his  application  for  leave  to  take  supple- 
mental testimony  seem  to  reduce  themselves  to  two,  viz: 

1.  That  the  sitting  Member,  having  been  a  Member  of  the  last  Congress  during  a  part  of  the  time, 
when  by  law  the  testimony  should  have  been  taken,  and  having  been  attending  to  his  duties  as  such 

'  Journal,  p.  1200;  Record,  p.  3687. 

=  First  session  Thirty-fifth  Congress,  1  Bartlett,  p.  223;  Rowell's  Digest,  p.  1.51;  House  Report  No. 
60;  Globe,  p.  452. 


I 


938  PEECEDENTS   OF   THE   HOUSE    OF   KEPKESENTATIVES.  §  726 

Member  he  should  be  exempted  from  the  operation  of  the  law  so  far  as  to  allow  him  time  for  taking 
supplemental  testimony. 

2.  That  the  contestant,  by  notices  served  upon  the  sitting  Member,  occupied,  or  proposed  to  occupy, 
the  entire  sixty  days  after  the  answer  of  the  sitting  Member  to  the  notice  of  contest  was  served,  and  that 
he  is  therefore  entitled  to  a  period  of  time  outside  of  the  sixty  days  to  complete  his  taking  of  testimony. 

Upon  the  first  point  your  committee  are  clear  that  the  fact  of  one  of  the  parties  being  a  Member  of 
Congress  for  the  time  being  can  in  nowise  affect  his  obligations  to  comply  with  the  law.  In  all  the  rela- 
tions of  life,  both  private  and  public,  circumstances  are  constantly  occurring  which  are  quite  as  impera- 
tive in  their  operation  as  those  connected  with  a  seat  in  Congress;  and  were  this  to  be  deemed  a  sufficient 
reason  for  a  noncompliance  with  the  law  it  would  at  once  take  from  its  operation  one-half  the  cases  which 
arise.  The  fact  that  the  law  expressly  provides  for  taking  testimony  by  the  parties  or  "their  agents" 
excludes  the  construction  that  it  was  intended  to  apply  only  when  the  parties  could  attend  in  person. 

Upon  the  second  giound  your  committee  are  equally  clear,  that  however  extensive  the  time  cov- 
ered by  one  pariy  in  proposing  to  take  testimony,  it  in  nowise  precludes  the  opposite  party  from  pro- 
ceeding at  the  same  time  to  take  it  in  his  own  behalf.  There  is  no  limitation  to  this  power  by  the  act  of 
1851,  except  "that  neither  party  shall  give  notice  of  taking  testimony  in  different  places  at  the  same 
time,  or  without  allowing  an  interval  of  at  least  five  days  between  the  close  of  taking  testimony  at  one 
place  and  its  commencement  at  another."  Under  this  provision,  yoiu-  committee  believe  full  power 
is  given  to  each  one  of  the  contesting  parties  to  proceed  with  taking  testimony,  but  limits  each  to  one 
place  at  a  time. 

Your  committee  are  of  opinion  that  if  either  party  to  a  case  of  contested  election  should  desire 
further  time,  and  Congress  should  not  be  then  in  session,  he  should  give  notice  to  the  opposite  party  and 
proceed  in  taking  testimony,  and  present  the  same  and  ask  that  it  be  received,  and,  upon  good  reason 
Toeing  shown,  it  doubtless  would  be  allowed;  but  it  seems  too  much  to  grant,  in  this  case,  for  either  of 
the  reasons  stated.  It  is  now  upward  of  fifteen  months  since  the  election,  and  nearly  one-half  of  the 
term  of  service  has  elapsed,  and  it  is  due  to  every  interest  concerned  that  the  rights  in  dispute  should 
be  settled. 

The  minority  argued  in  favor  of  granting  the  request  of  the  sitting  Member, 
alleging  that  the  contestant  had  violated  the  law  in  taking  testinaony  at  different 
places  at  the  same  time,  and  also  had  declined  to  make  a  mutual  agreement  for 
taking  testimony  after  the  time  allotted  by  law.  It  was  further  charged,  but  denied 
by  contestant,  that  the  latter  had  declined  to  attend  the  taking  of  testimony  by 
sitting  Member,  alleging  that  the  dates  conflicted  with  his  own  appointments. 

The  report  was  debated  on  February  3,  4,  and  5.'  In  the  course  of  this  debate  ^ 
Mr.  Israel  Washburn,  jr.,  of  Maine,  said: 

Sir,  I  do  not  believe  in  the  binding  authority  of  the  law  of  1851  upon  this  House  in  all  cases.  I 
believe,  sir,  that  it  is  directory,  and  not  absolutely  binding.  I  do  not  believe  that  the  Senate  of  the 
United  States,  in  conjunction  with  the  House  of  Representatives  in  one  Congress,  can  make  a  law  which 
is  to  bind  future  Houses  of  Representatives.  Not  so.  By  the  Constitution  of  the  United  States,  each 
House  is  made  the  judge  of  the  returns,  qualifications,  and  elections  of  its  own  Members,  and  each  House 
can  and  must  judge  for  itself  upon  those  questions.  The  law  of  Congress  of  1851  is  nothing  but  the  advice 
or  suggestion  of  reasonable  and  intelligent  and  just  men,  as  to  the  proper  course  to  be  taken — advice  given 
when  no  particular  case  was  before  them,  and  which  may  be  presumed  to  be  good  and  sound  advice  and 
counsel  in  reference  to  the  matter.  It  is  nothing  more.  The  law  is  not  binding  upon  us;  and  if  in  any 
case  it  is  oppressive,  and  there  is  reason  for  stepping  outside  of  it,  I  hold  that  we  have  a  right  to  do  it.  , 

On  May  5 '  an  amendment,  proposed  by  the  minority,  to  allow  both  parties  to  W 

take  supplementary  evidence  was  disagreed  to,  yeas  100,  nays  113.  g 

Then  the  resolution  declaring  it  inexpedient  to  allow  further  evidence  to  be 
taken  was  agreed  to,  yeas  113,  nays  101. 


'  Globe,  pp.  558,  .585,  591.  ■  Globe,  p.  562.  ^  journal,  pp.  302,  303. 


I 


§   727  TESTIMONY    IN    CONTESTED    ELECTIONS.  939 

727.  Tlie  Pennsylvania  election  case  of  Kline  v.  Verree  in  the  Thirty- 
seventh  Congress. 

Instance  wherein  an  extension  of  time  was  granted  for  taking  rebut- 
ting evidence  in  an  election  case. 

On  December  3,  1861/  the  House,  by  resolution,  allowed  to  the  sitting  Member 
in  the  contested  case  of  Kline  v.  Verree,  from  Pemisylvania,  twenty  days'  additional 
time  to  take  rebutting  testimony,  and  "that  said  testimony  be  taken  before  the 
recorder  of  the  city  of  Philadelphia,  and  that  the  sitting  Member  give  ten  days' 
notice  to  the  contestant  of  the  time  and  place  of  taking  said  testimony  and  the 
names  of  witnesses  to  be  examined." 

The  above  permission  was  given  because  the  contestant  had  occupied  nearly  the 
whole  time  allowed  by  law  for  taking  testimony. 

On  December  4  a  further  time  of  ten  days  was  granted  the  contestant  after  the 
expiration  of  the  additional  time  allowed  sitting  Member,  "said  testimony  to  be  con- 
fined to  such  as  may  rebut  the  testimony  taken  under  said  resolution,  and  to  be 
taken  before  the  same  magistrate  and  in  all  respects  in  the  manner  provided  by  said 
resolution." 

Both  resolutions  were  recommended  by  the  Committee  on  Elections. 

728.  The  election  case  of  Gallegos  v.  Perea,  from  the  Territory  of  New 
Mexico,  in  the  Thirty-eighth  Congress. 

A  contestant  having  neglected  to  appear  during  the  taking  of  testi- 
mony, the  House  declined  to  grant  an  extension  of  opportunity. 

On  April  6,  1864,^  the  Committee  on  Elections  reported  in  the  case  of  Gallegos 
V.  Perea,  from  the  Territory  of  New  Mexico.  This  case  involved  a  question  as  to 
extension  of  time  for  taking  testimony.  The  contestant,  in  his  notice,  stated  he 
would  take  the  testimony  of  witnesses  before  Hon.  Earby  Benedict,  chief  justice  of 
the  supreme  court  of  New  Mexico,  or,  in  the  event  of  his  absence,  before  Miguel  E. 
Pino,  probate  judge  of  the  coimty  of  Santa  Fe.  To  this  notice  of  contest  the  sitting 
Delegate  replied,  and,  after  notice  to  that  effect,  proceeded  to  take  testimony.  The 
contestant  omitted  to  take  any  evidence,  but  in  Ueu  thereof  petitioned  the  House 
for  a  further  time  to  examine  witnesses.  He  alleged,  as  a  reason  for  his  failure  to 
take  testimony,  that  Judge  Benedict  was  a  violent  poUtical  opponent.  The  other 
judge  of  the  district  or  supreme  court,  Joseph  G.  Knapp,  resided  in  a  part  of  the  Ter- 
ritory inconvenient  because  of  distance  and  hostile  Indians.  No  reason  was  alleged 
why  the  contestant  might  not  have  proceeded  before  the  judge  of  probate  named  in 
his  notice.  The  contestant  also  had  failed  to  appear  before  the  committee,  either  in 
person  or  by  attorney.  The  committee  therefore  recommended  that  further  time 
be  not  granted  to  Mr.  Gallegos  to  take  testimony. 

On  April  6  the  House,  without  debate  or  division,  agreed  to  the  report.^ 

729.  The  Ohio  election  case  of  William  Allen  in  the  Twenty-third 
Congress. 

Testimony  having  been  taken  ex  parte,  the  Elections  Committee  con- 
cluded that  it  shoiild  not  have  weight  and  reported  that  the  sitting  Mem- 
ber should  not  be  disturbed  therefor. 

'Second  session  Thirty-seventh  Congress,  Journal,  pp.  27,  28,  31. 

^ First  session  Thirty-eighth  Congress,  1  Bartlett,  p.  482;  Rowell's  Digest,  p.  188. 

^Journal,  p.  494;  Globe,  p.  1453. 


940  PRECEDENTS    OF    THE    HOUSE    OF    REPBESENTATIVES.  §   ^29 

Notices  of  taking  testimony  in  an  election  case  having  specified  such 
times  and  places  as  to  make  it  impossible  for  the  returned  Member  to 
attend,  the  Elections  Committee  held  the  testimony  taken  to  be  ex  parte. 

Instance  wherein  an  election  contest  was  instituted  by  various  citizens 
of  a  district,  presentation  to  the  House  being  by  memorial. 

On  December  11,  1833,'  the  Speaker  presented  a  memorial  of  Abraham  Hegler 
and  John  Mace,  on  behalf  of  themselves  and  others,  residents  of  the  Seventh  Con- 
gressional district,  in  the  State  of  Ohio,  complaining  of  illegality  in  the  election  and 
retimi  of  William  Allen  as  a  Member  for  said  district ;  and  declaring  that  Dimcan 
McArthm'  received  a  majority  of  the  legal  votes  in  said  district,  and  praying  that 
said  Dmican  McArthm-  may  be  declared  entitled  to  the  seat  now  held  by  said  Wil- 
ham  Allen.     This  memorial  was  referred  to  the  Elections  Committee. 

On  December  31,^  Mr.  Nathaniel  H.  Claiborne,  of  Virginia,  submitted  the  report 
of  the  committee,  which  found  that  the  retimis  of  the  election  in  question  had  been 
examined  as  required  by  law,  that  William  Allen  had  been  declared  elected  by  a 
majoritj'  of  1  vote,  and  that  a  certificate  had  been  issued  to  him.  The  report  then 
continues : 

It  appears  to  your  committee  that,  on  the  26th  day  of  October,  1832,  a  notice  was  served  on  said 
William  Allen  that,  "in  the  event  he  should  be  declared  elected,"  his  election  would  be  contested,  on 
grounds  specifically  set  forth  in  said  notice,  and  that  depositions  to  establish  the  objections  to  his  election 
would  be  taken. 

The  notice  fiu-ther  specified  the  times  and  places  for  taking  the  depositions. 
This  notice  was  served  by  Charles  Martin,  who  also  served  other  notices,  and  pro- 
ceeded to  take  testimony. 

William  Allen,  the  sitting  Member,  did  not  appear  in  person  or  by  attorney  in 
response  to  any  of  these  notices.     In  reference  to  this  the  report  says : 

It  could  not  escape  the  notice  of  the  committee  that  the  taking  of  the  depositions  spoken  of  in  the 
notices  was  dependent  upon  a  contingency,  to  wit,  the  declaration  of  the  election  of  said  Allen  by  the 
functionary  whose  duty  it  is  by  law  to  examine  and  count  the  votes  and  give  a  proper  certificate  to  him 
who  is  elected;  and  it  struck  the  committee  as  being  both  novel  and  irregular  to  notify  a  candidate  that 
in  the  event  of  his  f  utiu-e  election  his  right  to  a  seat  will  be  contested,  and  that  depositions  will  be  taken 
before  all  the  votes  have  been  counted  and  the  result  of  the  election  officially  proclaimed.  Yet  the 
committee  would  have  proceeded  to  the  examination  of  the  testimony  had  it  not  appeared  to  their  entire 
satisfaction  that  the  objects  of  requiring  notice  to  be  given  were  totally  defeated  by  the  course  pursued 
by  those  citizens  who  contested  the  return  of  Mr.  Allen.  The  notices  aforesaid  set  forth  sufficiently  the 
grounds  of  objection,  but  the  periods  of  time  and  the  distance  of  places  from  each  other,  selected  at 
which  the  testimony  was  taken  on  notices  signed  by  different  persons,  were  so  arranged  as  to  render  it 
morally  and  utterly  impossible  for  AUen  to  attend  and  cross-examine  the  witnesses  however  disposed 
so  to  do. 

Therefore  the  committee  concluded  the  testimony  offered  as  ex  parte,  and 
agreed  unanimously  to  these  resolutions: 

Resolved,  That  the  jaemorial  *  *  *  is  not  sustained,  and  that  the  testimony  they  have  exhib- 
ited can  not  be  admitted,  because  it  was  taken  under  such  circumstances  as  to  make  it  ex  parte  and  of  no 
effect,  as  it  was  impossible  for  Allen  to  have  attended  and  cross-examined  the  witnesses. 

Resolved,  That  William  Allen  has  been  returned  a  Member  to  the  House  of  Representatives  of  the 
United  States,  in  the  manner  and  form  prescribed  by  law  and  is  entitled  to  his  seat,  unless  it  should 
hereafter  be  shown  by  competent  testimony  that  he  has  not  received  the  majority  of  qualified  votes. 

'  First  session  Twenty-third  Congress,  Journal,  p.  49. 
-Journal,  p.  146;  House  Report  No.  110. 


§  730  TESTIMONY   IN    CONTESTED   ELECTIONS.  941 

The  report  was  ordered  printed  and  laid  on  the  table.  It  does  not  appear  that 
it  was  acted  on,  ilr.  Allen  of  course  retaining  his  seat.' 

730.  The  North  Carolina  election  case  of  O'Hara  v.  Kitchin  in  the 
Forty-sixth  Congress. 

Testimony  of  contestant  being  taken  after  the  legal  time  and  against 
contestee's  protest,  the  committee  reported  that  it  should  not  be  consid- 
ered and  that  sitting  Member's  title  should  be  confirmed. 

A  condemnation  by  the  Elections  Committee  of  oral  arrangements 
between  parties  to  an  election  case  for  taking  testimony  out  of  time. 

All  agreements  by  parties  to  an  election  case  in  contravention  of  the 
provisions  of  law  should  be  in  writing,  properly  signed,  and  made  a  part 
of  the  record. 

On  February  17,  1881,'  Mr.  Walbridge  A.  Field,  of  Massachusetts,  from  the 
Committee  on  Elections,  submitted  the  report  of  the  committee  in  the  North  Carolina 
contested  election  case  of  O'Hara  v.  Kitchin. 

In  the  record  of  the  case  there  appeared  no  return  of  the  service  of  notice  of 
contestant,  but  the  sitting  Member,  in  April,  1879,  served  his  answer  wherein  he 
objected  that  he  ought  not  to  be  called  upon  to  answer,  because  no  lawful  or  suf- 
ficient notice  had  been  served  upon  him.  The  contestant  stated  orally  to  the  com- 
mittee that  he  sent  seasonably  a  notice,  and  was  informed  by  the  messenger  that 
he  had  left  the  same  at  the  place  of  business  of  the  contestee,  but  no  affidavit  or 
deposition  of  the  messenger  was  presented  to  the  committee.  The  law  provided 
that  a  contestant  should  serve  liis  notice  within  thirty  days  after  the  determination 
of  the  result.  There  was  no  evidence  before  the  committee  to  enable  them  to  deter- 
mine when  the  result  of  the  election  was  determined.  Certain  legal  proceedings  in 
the  State  courts  relative  to  the  election  (O'Hara  v.  Powell,  80  N.  C,  103)  had  been 
brought  to  the  attention  of  the  committee,  and  made  uncertain  the  date  from  which 
the  thirty daj's  should  be  computed.     The  committee  say: 

The  contestant,  therefore,  has  not  proved  that  he  served  his  notice  of  contest  within  thiity  days 
after  the  result  oHhe  election  was  determined,  or  that  he  ever  served  it  at  all. 

A  copy  of  the  answer  of  the  contestee  was  served  upon  the  contestant  on  the  29th  day  of  April,  1879. 

Section  107  of  the  Revised  Statutes  is  as  follows: 

"In  all  contested-election  cases  the  time  allowed  for  taking  testimony  shall  be  ninety  days,  and  the 
testimony  shall  be  taken  in  the  following  order:  The  contestant  shall  take  testimony  during  the  first 
forty  days,  the  returned  Member  during  the  succeeding  forty  days,  and  the  contestant  may  take  testi- 
mony in  rebuttal  during  the  remaining  ten  days  of  said  period." 

Section  2,  chapter  119,  of  the  statutes  of  1875  is  as  follows: 

"That  section  107  of  the  Revised  Statutes  of  the  United  States  shall  be  construed  as  requiring  all 
testimonj'  in  cases  of  contested  election  to  be  taken  within  ninety  days  from  the  day  on  which  the  answer 
of  the  returned  Member  is  served  upon  the  contestant." 

In  this  case  the  earliest  testimony  taken  by  the  contestant  was  taken  on  the  7th  day  of  November, 
1879,  which  was  one  hundred  and  ninety-four  days  from  the  day  on  which  the  answer  of  the  returned 
Member  was  served  upon  the  contestant;  and  the  contestee  objects  now,  as  he  objected  through  his  counsel 
at  the  time  the  testimony  was  taken,  that  the  ninety  days  for  taking  testimony  had  expired  before  the 
testimony  was  taken. 

'  This  case  was  before  the  enactment  of  the  law  which  now  prescribes  the  method  of  taking  testi- 
mony in  election  cases. 

^  Third  session  Forty-sixth  Ck)ngress,  House  Report  No.  26.3;  1  Ellsworth,  p.  378. 


942 


PRECEDENTS   OF   THE    HOUSE   OP   REPBESENTATIVES. 


§  730 


The  contestant  seta  up  an  oral  argument,  as  he  alleges,  to  the  effect  that  within  the  ninety  days 
prescribed  by  law,  the  exact  time  of  which  he  does  not  fix,  he  and  the  contestee  agreed — 

"That  as  to  the  matter  alleged  in  contestant's  complaint  as  to  the  votes  thrown  out  and  not  counted 
for  contestant  in  the  counties  of  Edgecomb  and  Craven,  it  would  not  be  necessary  to  take  evidence,  as  he, 
said  Kitchin,  agreed  to  make  a  case  without  taking  testimony." 

And  on  the  23d  day  of  AprU,  1880,  he  filed  an  affidavit  to  that  effect,  as  a  foundation  for  a  motion 
that  the  time  for  taking  testimony  be  extended.  The  contestee  denies  that  any  such  oral  agreement  was 
made,  and  filed  his  affidavit  on  the  26th  day  of  May,  1880. 

The  committee  had  taken  no  action  to  extend  the  time;  and  the  report  con- 
demns the  practice  of  permitting  parties  by  agreement  among  themselves  to  extend 
the  time  of  taking  testimony  without  previous  authority  of  the  House  of  Repre- 
sentatives. "It  may  happen,  indeed,"  says  the  report,  "that  from  unforeseen 
causes  an  extension  of  time  may  be  necessary,  and  the  House  of  Representatives 
may  not  be  in  session,  and  therefore  no  previous  application  can  be  made  to  it,  but 
in  such  cases,  if  the  parties  agree  to  an  extension  of  time,  the  agreement  should  be 
in  wTiting,  signed  by  the  parties,  or  their  attorneys,  and  application  should  be  at 
once  made  to  the  House  of  Representatives,  when  in  session,  for  a  ratification  of  such 
agreement."     The  report,  continuing  on  tliis  subject,  says: 

In  any  case,  if  such  agreements  are  to  be  regarded,  they  should  be  in  writing,  and  signed  by  the 
parties  or  their  attorneys.  This  is  the  practice  of  courts  generally,  and  is  founded  on  sound  reasons.  If 
oral  agreements  are  recognized,  then  if  they  are  denied  by  either  of  the  parties  at  the  hearing,  testimony 
must  be  taken,  and  this  collateral  issue  be  first  determined,  and  as  the  decision  may  be  such  as  one  of 
the  parties  did  not  expect,  he  may  be  put  to  the  greatest  disadvantage  after  the  testimony  on  the  merits 
of  the  case  has  been  all  taken.  The  misunderstandings  that  often  honestly  arise  from  oral  agreements 
are  alone  sufficient  to  justify  courts  in  insisting  that  none  but  written  agreements  will,  if  questioned,  be 
recognized.  We  think  it  of  great  importance  in  election  cases  that  parties  should  understand  absolutely 
that  all  agreements  in  contravention  of  the  statutes  of  the  United  States,  in  regard  to  the  taking  of 
testimony,  to  be  considered  at  all,  should  be  in  writing,  properly  signed,  and  made  a  part  of  the  record 
itself.  Even  then  the  policy  of  the  law  requires  that  they  should  not  be  regarded  unless  it  appears  that 
they  were  bona  fide  entered  into  for  an  adequate  and  reasonable  cause  to  be  determined  by  the  House 
of  Representatives,  either  before  or  at  the  time  of  deciding  the  election  case. 

On  this  ground  the  committee  decline  to  determine  on  the  affidavits  the  question  whether  or  not 
any  such  oral  agreement  as  the  contestant  sets  up  was  ever  made,  and  consider  the  case  as  if  there  was 
no  such  agreement.  The  committee  might,  indeed,  in  a  case  where  testimony  had  been  taken  out  of 
time,  but  with  fiill  opportunity  to  the  other  party  to  cross-examine  the  witnesses  and  exhibit  evidence 
in  reply,  and  where  it  was  evident  that  this  had  been  fully  done,  recommend  to  the  House,  if  they  find 
sufficient  reason  therefor,  that  the  testimony  be  considered  as  if  taken  in  time;  but  such  is  not  this  case, 
and  the  only  all«^ed  ground  for  the  delay  in  this  case  is  that  the  dwelling  house  of  Mr.  O'Hara  was 
destroyed  by  fire,  as  well  as  all  memoranda,  facts,  and  information  in  writing  that  he  had  procured 
necessary  to  be  used  in  the  contest.  The  time  when  the  dwelling  house  was  destroyed  by  fire  is  not 
stated  in  any  of  the  papers,  but  it  is  said  to  have  happened  in  March,  1879,  and  before  the  answer  of 
the  contestee  was  served  on  the  contestant.  This  does  not  seem  to  the  committee  a  sufficient  ground 
for  admitting  testimony  taken  one  hundred  and  ninety-four  days  after  the  service  of  the  answer. 

The  committee,  therefore,  are  of  opinion  that  this  contest  should  be  dismissed,  on  the  ground  that 
the  testimony  was  not  taken  in  time. 

The  conmiittee  say,  however,  that,  even  if  considered,  the  testimony  was 
insufhcient  to  establish  contestant's  case,  and  conclude: 

It  has  been  stated  that  the  number  of  votes  received  by  Mr.  Kitchin  and  Mr.  O'Hara,  as  canvassed 
by  the  State  canvassing  board,  is  not  in  evidence.  In  the  Congressional  Director}',  which  is  not  evi- 
dence, Mr.  Kitchin  is  put  down  as  having  received  10,804  votes,  against  9,662  votes  for  Mr.  O'Hara.  li 
this  statement  be  true  as  a  statement  of  the  votes  as  canvassed  by  the  State  board  of  North  Carolina,  it 


§  731  TESTIMONY   IN   CONTESTED   ELECTIONS.  943 

•will  be  seen  that  Mr.  Kitchin's  plurality  is  1,142,  which,  is  greater  than  the  plurality  of  925  received  by 
Mr.  O'Hara  in  the  precincts  mentioned  in  Edgecombe  County,  which  were  not  counted  by  the  county 
canvassing  board.  So  that  if  these  were  all  admitted,  upon  which,  for  the  reasons  given  in  the  case  of 
Yeates  r.  Martin,  the  committee  do  not  agree,  there  is  no  reason  to  suppose  that  Mr.  O'Hara  would  be 
elected;  certainly  there  is  no  e\idence  that  he  would  be.  The  burden  of  proof  is  on  the  contestant,  and 
if  all  the  testimony  he  has  taken  were  admitted  and  considered  it  is  not  sufficient  to  enable  the  com- 
mittee to  determine  that  he  was  elected  Representative. 

No  testimony  has  been  taken  by  Mr.  Kitchin  whatever.  He  relied  on  his  objection  that  the  time 
for  taking  testimony  had  expired  when  Mr.  O'Hara  began  to  take  testimony.  He  had  a  right  to  rely  on 
this  objection  at  that  time,  and  even  if  the  House  should  determine  to  consider  testimony  in  this  case 
it  would  be  unfair  to  Mr.  Kitchin  to  do  so  until  after  an  opportunity  were  given  him  to  take  his  testimonv. 

It  is  manifest  from  the  notice  of  the  contest  and  the  answer  that  there  were  very  grave  and  important 
questions  in  dispute  in  this  election,  and  that  the  matters  in  dispute  concerned  a  far  greater  number  of 
votes  than  the  plurality  of  the  sitting  Member,  as  given  in  the  Congressional  Directory;  but  on  most  of 
these  questions  there  is  no  testimony  whatever,  one  way  or  the  other,  and  the  little  testimony  that  has 
been  taken  either  has  no  significance  at  all,  by  reason  of  a  want  of  testimony  to  connect  it  in  any  intelli- 
gent manner  with  the  questions  at  issue  or  from  some  other  cause,  or  the  testimony  taken  which  is  intel- 
ligible and  can  be  applied  to  the  case  does  not  establish  the  case  of  the  contestant.  The  committee 
repeat  that  in  their  opinion  the  evidence  in  this  case  should  not  be  considered. 

Therefore  the  committee  reported  resolutions  confirming  the  title  of  sitting 
Member  to  the  seat. 

On  Februarr  17  the  report  was  presented  to  the  House  for  printing.'  It 
does  not  appear  that  it  was  acted  on  by  the  House. 

731.  The  California  election  case  of  Kahn  v.  Livernash  in  the  Fifty- 
eighth  Congress. 

Instance  wherein  the  House  directed  the  issue  of  a  subpoena  duces 
tecum  to  procure  the  ballots  for  examination  in  an  election  case. 

Instance  wherein  the  House  authorized  a  subpoena  duces  tecum  by- 
registered  letter. 

Instance  wherein  the  House  authorized  the  Elections  Committee  to 
send  for  persons  and  papers  in  an  election  case  already  made  up. 

Form  of  resolution  authorizing  the  Elections  Committee  to  procure 
ballots  and  other  evidence. 

Discussion  as  to  what  constitutes  a  distinguishing  mark  on  an  Aus- 
tralian ballot. 

Discussion  of  the  doctrine  that  the  House  should  follow  decisions  of 
the  State  courts  construing  the  election  laws  of  a  State. 

On  December  18,  1903,"  Mr.  Joseph  H.  Gaines,  of  West  Virginia,  from  the 
Gommittee  on  Elections  No.  1,  submitted  the  folloAving  report  with  a  resolution, 
which  was  agreed  to  by  the  House: 

The  Committee  on  Elections  No.  1,  to  which  was  referred  the  contested  election  case  of  Julius 
Kahn,  contestant,  against  Edward  J.  Livernash,  contestee,  from  the  Fourth  Congressional  district  of 
California,  respectfully  reports  to  the  House  the  following  resolution,  approved  by  said  committee,  for 
approval  and  adoption  by  the  House,  with  the  recommendation  that  it  do  pass: 

Resolved,  That  Thomas  J.  Walsh,  r^istrar  of  voters  for  the  city  and  county  of  San  Francisco,  or 
any  successor  of  his  in  said  office,  be,  and  he  is  hereby,  ordered  to  be  and  appear  before  Elections 
Committee  No.  1  of  the  House  of  Representatives  forthwith,  then  and  there  to  testify  before  said  com- 

'  Record,  p.  1754.  -  Second  session  Fifty-eighth  Congress,  Record,  p.  389. 


944  PRECEDENTS   OF   THE   HOUSE   OF   EEPEESENTATIVES.  §  731 

mittee  or  such  commission  as  shall  be  appointed  touching  such  matters  then  to  be  inquired  of  by  said 
committee  in  the  contested  election  case  of  Julius  Kahn  v.  Edward  J.  Livemash,  now  before  said  com- 
mittee for  investigation  and  report;  and  that  the  registrar  of  voters  for  the  city  and  county  of  San 
Francisco  bring  with  him  all  the  ballots  and  packages  of  ballots  cast  in  every  precinct  in  the  said  Fourth 
Congressional  district  of  California  at  the  general  election  held  in  said  district  on  the  4th  day  of  Novem- 
ber 1902;  that  said  ballots  be  brought  in  the  packages  in  which  the  same  now  are;  that  said  ballots 
be  examined  and  counted  by  or  under  the  authority  of  such  Committee  on  Elections  in  said  case;  and 
to  that  end,  that  proper  subpoena  be  issued  to  the  Sergeant-at-Arms  of  this  House,  commanding  him  to 
summons  said  registrar  or  his  successor  in  office,  if  any,  to  appear  with  such  ballots  as  a  witness  in  said 
case-  that  service  of  said  subpoena  shall  be  deemed  sufficient,  if  made  by  registered  letter,  and  such 
service  shall  be  so  made  unless  otherwise  directed  by  said  Committee  on  Elections  No.  1;  and  that  the 
expenses  of  said  witness  and  all  other  expenses  under  this  resolution  be  paid  out  of  the  contingent 
fund  of  the  House;  and  that  said  committee  be,  and  hereby  is,  empowered  to  send  for  all  other  persons 
and  papers  as  it  may  find  necessary  for  the  proper  determination  of  said  controversy;  and  also  be,  and 
it  is,  empowered  to  select  a  subcommittee  to  take  the  evidence  and  count  said  ballots  or  votes,  and 
report  same  to  the  Committee  on  Elections  No.  1  under  such  regulations  as  shall  be  prescribed  for  that 
purpose;  and  that  the  aforesaid  expenses  be  paid  on  the  requisition  of  the  chairman  of  said  committee 
after  the  auditing  and  allowance  thereof  by  said  Elections  Committee  No.  1. 

On  March  18,  1904,'  Mr.  James  R.  Mann,  of  Illinois,  on  behalf  of  Mr.  Joseph  H. 
Gaines,  of  West  Virginia,  presented  from  the  Committee  on  Elections  No.  1  a  report 
in  the  California  election  case  of  Kalin  v.  Livemash.  This  report,  which  was 
concurred  in  by  the  entire  committee,  was  as  follows: 

At  the  last  general  election  the  official  returns  show  that  in  the  Fourth  Congressional  district  of 
California  Edward  J.  Livemash  received  a  plurality  of  146  votes.  The  total  number  of  votes  returned 
for  Livemash  was  16,146,  and  there  were  returned  for  Julius  Kahn,  the  contestant,  16,005  votes. 

There  is  no  allegation  of  fraud  in  the  case,  or  of  illegal  voting.  The  whole  claim  of  contestant 
is  that  a  largo  number  of  ballots  were  illegally  marked  and  improperly  counted  under  the  California 
laws  and  decisions.  Contestant  concedes  that  of  the  16,146  votes  returned  for  Livemash  13,809  were 
properly  returned,  but  claims  that  2,337  votes  were  improperly  counted  and  returned  for  oontestee. 

The  contestee,  in  his  turn,  objected  to  a  large  number  of  votes  returned  for  contestant.  The 
case  of  both  contestant  and  contestee  is  exceedingly  technical,  both  sides  having  been  induced  thereto 
by  the  unusual  and  peculiar  strictness  with  which  the  supreme  court  of  California  has,  in  the  language, 
at  least,  of  the  decisions,  held  that  all  provisions  relating  to  the  marking  of  a  ballot  by  the  voter  must 
be  complied  with. 

The  case  involves  only  the  question  what  ballots  were  lawfully  marked  and  should  be  counted, 
and  what  ballots  were  not  lawfully  marked  and  should  not  be  counted,  under  the  laws  of  California. 

The  laws  of  California  provide  for  an  official  ballot,  upon  which  are  printed  the  various  tickets, 
with  squares  after  the  names  of  the  candidates  whose  names  are  printed  on  it.  There  is  also  a  special 
blank  column,  with  a  space  in  which  to  write  the  name  of  any  person  for  any  office,  when  the  name 
of  such  person  is  not  printed  on  the  ticket.  There  were  also  at  this  election  in  California  several  con- 
stitutional amendments  submitted  for  the  vote  of  the  people;  and  there  were  squares  for  ratification 
and  squares  for  rejection  opposite  every  such  amendment.  The  method  prescribed  by  statute  for  the 
voter  to  designate  his  choice  is  to  place  a  cross  (X)  in  the  square  immediately  following  the  name  of 
each  candidate  for  whom  he  wishes  to  vote.  If  he  desires  to  vote  for  some  one  for  an  office  whose  name 
is  not  printed  upon  the  ballot  as  a  candidate  for  that  office,  the  voter  must  write  the  name  of  such 
person  in  the  space  on  the  blank  column  immediately  above  the  title  of  that  office  as  printed  in  the 
blank  form.  In  voting  upon  the  constitutional  amendments  the  method  prescribed  is  to  place  a  cross 
(X)  in  one  of  the  two  squares  following  the  amendment,  according  as  he  desires  to  vote  for  or  against 
the  amendment. 


'  Second  session  Fifty-eighth  Congress,  House  Report  No.  1739;  Record,  p.  3430. 


§731 


TESTIMONY   IN   CONTESTED   ELECTIONS,  945 


Section  1205  of  the  California  Code  prescribes  the  method  in  which  the  voter  shall  prepare  his  ballot. 
It  is  as  follows: 

"He  shall  prepare  his  ballot  by  marking  a  cross  after  the  name  of  the  person  or  persons  for  whom 
he  intends  to  vote,  or  by  writing  a  name  or  names  in  the  'blank  column,'  and  in  case  of  a  constitutional 
amendment  or  other  questions  submitted  to  the  vote  of  the  people,  by  marking  in  the  opposite  margin  a 
cross  (X)  against  the  answer  which  he  intends  to  give.  Such  marking  shall  be  done  only  with  a  stamp, 
which,  with  the  necessary  pads  and  ink,  shall  be  provided  by  the  officers." 

Section  1211  declares  that  certain  ballots  shall  not  be  counted,  and  is  in  the  following  language: 

"  1.  In  canvassing  the  votes  any  ballot  which  is  not  made  as  provided  in  this  act  shall  be  void  and 
shall  not  be  counted.  2.  If  a  voter  marks  more  names  than  there  are  persons  to  be  elected  to  an  office, 
or  if  for  any  reason  it  is  impossible  to  determine  the  voter's  choice  for  any  office  to  be  filled,  his  ballot 
shall  not  be  counted  for  such  office." 

Section  1215  relates  to  identification,  and  is  as  follows: 

"No  voter  shall  place  any  mark  upon  his  ballot  by  which  it  may  be  afterwards  identified  as  the 
one  voted  by  him." 

The  California  statute  also  provides  that  a  candidate's  name  shall  be  printed  but  once  upon  the 
ballot,  and  that  where  a  candidate  is  nominated  by  more  than  one  party  he  must  make  his  election  under 
which  party  designation  his  name  shall  appear  upon  the  ticket,  or,  if  he  fails  to  elect,  his  name  shall  be 
printed  thereon  as  of  that  party  which  has  first  certified  his  nomination;  and,  further,  that  on  the  ticket 
of  any  other  party  by  which  such  candidate  is  nominated  there  shall  be  printed  in  the  space  for  that 
office  the  words  "No  nomination." 

But  the  contestee  having  been  nominated  by  the  Union  Labor  party  and  by  the  Democratic  party 
also,  this  last  provision  was  held  by  the  supreme  court  of  California,  in  the  case  of  Murphy  v.  Curry  (137 
Cal. ,  479),  to  be  invalid,  and  by  mandamus  the  proper  officers  were  directed  to  print  the  name  of  Edward 
J.  Livemash  as  a  candidate  upon  the  ballot  in  the  Democratic  column  and  also  in  the  Union  Labor 
column,  and  the  ballots  were  so  made  up. 

This  was  the  first  time  the  same  name  had  appeared  twice  on  a  ballot  in  California.  Thereupon 
on  October  28,  1902,  the  board  of  election  commissioners  met  in  the  office  of  Thomas  J.  Walsh,  registrar 
of  voters  of  the  city  and  county  of  San  Francisco,  and  took  the  following  action,  as  appears  from  the 
minutes  of  the  meeting: 

The  matter  of  the  instructions  of  the  election  officers  in  relation  to  the  counting  of  ballots  where 
candidates'  names  appear  more  than  once  on  the  ballot  came  up  for  discussion. 

T.  D.  Riordan,  esq.,  and  Charles  Gildea,  esq.,  appeared  before  the  board. 

After  deliberation  Commissioner  Deasey  moved  that  where  crosses  were  marked  after  the  name  of 
the  same  candidate  for  the  same  office  in  two  different  columns  upon  a  ballot  it  shall  be  counted  as  one 
vote  for  such  candidate,  and  that  the  election  officers  be  so  instructed. 

Adopted  by  the  following  vote:  Commissioner  Boyle,  aye;  Voorsanger,  aye;  Deasey,  aye;  Everett, 
aye;  Kellogg,  aye. 

This  action  of  the  commissioners  was  widely  published  in  the  district. 

Attorneys  for  contestant  and  contestee  relied  solely  upon  the  defects  in  marking  the  ballots.  Their 
plan  of  procedure  in  making  up  the  case  for  consideration  of  the  committee  was  to  offer  the  ballots 
themselves  in  evidence,  the  attorney  offering  each  ballot  stating  at  the  time  of  the  offer  that  it  was 
marked  in  such  a  way  that  it  should  not  have  been  counted.  The  attorney  on  the  other  side  denied  that 
the  ballot  was  marked  in  any  such  way.  No  testimony  whatever  was  taken  as  to  the  condition  of  the 
ballots.  The  validity  of  the  marking  of  the  ballots  being  the  only  question,  your  committee  were 
compelled  either  to  send  for  the  ballots  or  not  to  try  the  case  at  all.  The  committee  entertained  great 
doubts  as  to  the  propriety  of  sending  for  the  ballots,  but  because  some  of  the  objections  made  might 
well  have  brought  the  ballots  to  which  they  related  within  the  operation  of  the  peculiar  and  unusual 
strictness  of  the  California  decision  and  were  such  that  they  could  not  have  been  determined  without  a 
personal  inspection  of  the  ballots,  the  committee  decided  to  send  for  all  the  ballots.  Having  obtained 
them,  your  committee  examined  every  one  of  the  ballots  objected  to  by  both  sides,  amounting  in  all  to 

ballots. 

5994— VOL  1—07 60 


946  PBECEDENTS   OF   THE   HOUSE   OF   EEPKESENTATIVES.  §  731 

Examination  disclosed  the  fact  that  there  were  752  ballots  which  had  been  voted  for  Livemaah  by 
placing  a  cross  ( X )  in  the  square  after  the  name  of  Livernash  printed  in  the  Democratic  column,  and  also  a 
cross  ( X )  in  the  square  after  the  name  of  Livernash  printed  in  the  Union  Labor  column.  This  objection 
to  the  ballots  was  the  one  principally  relied  on  by  counsel  for  the  contestant,  and  one  which  could  not 
be  met  by  simUar  objections  on  behalf  of  the  contestee  to  any  ballots  voted  and  counted  for  contestant. 

To  sustain  this  objection  the  case  of  the  People  ex  rel.  Bledsoe  v.  Campbell  was  relied  on.  In  thai 
case  the  ballot  had  a  candidate's  name  printed  in  a  party  column.  The  voter  had  marked  a  cross  ( X )  in 
the  voting  square  after  the  name,  and  had  written  the  same  candidate's  name  for  the  same  office  in  the 
blank  column.  The  supreme  court  of  California  held  that  this  unnecessary  writing  of  the  candidate's 
name  in  the  blank  column  was  an  identifying  mark  not  authorized.     The  California  statute  says: 

"No  voter  shall  place  any  mark  upon  his  ballot  by  which  it  may  be  afterwards  identified  as  the  one 
voted  by  him." 

We  are  asked  to  say  that  where  the  election  officers,  by  direction  of  the  supreme  court  of  the  State, 
printed  the  candidate's  name  in  two  columns,  and  the  voter  placed  a  cross  (x)  after  his  name  in  both 
columns,  and  after  general  notification  from  the  election  officers  that  ballots  so  marked  would  be  counted, 
a  case  is  presented  on  all-fours  with  one  where  the  voter  marked  a  cross  in  the  voting  square  after  the 
candidate's  name  and  also,  in  the  voter's  handwriting,  wrote  the  candidate's  name  in  the  blank  column. 
This  view  has  been,  perhaps,  induced  by  the  distinction  made  by  the  supreme  court  of  California  between 
identification  in  law  and  identification  in  fact. 

Your  committee  recognizes  no  such  distinction.  Either  marks  on  a  ballot  indentify  it  as  the  one 
voted  by  a  particular  voter  or  they  do  not.  Your  committee  are  aware  that  all  identifying  marks  do  not 
invalidate  a  ballot,  as,  for  instance,  where  the  voter  writes  in  his  own  handwriting  the  name  of  a  candi- 
date not  printed  on  any  ticket.  Where  this  is  done  in  good  faith  it  is  an  identifying  mark,  but  it  is  one 
authorized  by  law  and  does  not  invalidate  the  ballot.  Whether  such  writing  on  the  ballot  not  done  in 
good  faith  would  invalidate  the  ballot,  and  how  far  speculation  upon  good  faith  may  be  indulged  in  in 
such  cases,  are  questions  which  do  not  arise. 

An  actual  examination  of  these  752  ballots  shows  that  as  a  matter  of  fact  this  manner  of  marking  did 
not  and  could  not  identify  the  ballots.  They  were  honestly  cast,  so  far  as  any  evidence  in  this  case 
disclosed.  They  were  honestly  cast  by  qualified  electors  and  honestly  counted  by  the  returning  officer 
for  the  contestee.     And  your  committee  is  of  the  opinion  they  were  properly  counted  for  the  contestee. 

If  your  committee  were  disposed  to  follow  in  all  their  apparent  technicality  the  California  decisions, 
it  would  even  then  see  no  reason  for  rejecting  these  ballots.  In  the  case  of  Lynch  v.  Chalmers,  decided 
in  the  Forty-seventh  Congress  (Rowell,  p.  376),  the  committee,  while  upholding  the  undoubtedly  safe 
general  doctrine  that  decisions  of  the  highest  courts  in  a  State,  interpreting  the  statutes  of  that  State, 
when  well  considered  and  long  acquiesced  in,  should  be  followed,  uses  the  following  language: 

"Where  decisions  have  been  made  for  a  sufficient  length  of  time  by  State  tribunals  construing 
election  laws,  so  that  it  may  be  presumed  that  the  people  of  the  State  knew  what  such  interpretations 
were,  would  furnish  another  good  reason  why  Congress  should  adopt  them  in  Congressional  election  cases. 
But  this  reason  would  be  of  little  weight  when  the  election  had  been  held  in  good  faith  before  such 
judicial  construction  had  been  made,  and  where  there  was  a  conflict  of  opinion  respecting  the  true  inter- 
pretation of  a  statute  for  the  first  time  on  trial." 

In  regard  to  these  752  ballots  marked  with  a  cross  after  the  name  of  Livernash  in  the  Democratic 
column  and  also  in  the  Union  Labor  column  the  supreme  court  of  California  had  recently  by  mandamus 
directed  the  election  officers  to  make  up  the  ballot  by  printing  the  name  of  Livernash  in  both  columns, 
and  the  election  officers  themselves  had  given  the  widest  publicity  to  their  official  action,  declaring  that 
ballots  marked  for  Livernash  in  both  columns  should  be  counted.  The  action  of  the  supreme  court  itself, 
supplemented  by  the  action  of  the  board  of  election  commissioners,  might  well  have  induced  this 
number  of  persons  to  believe  that  marking  a  cross  after  the  name  of  Livernash  in  both  columns  was  a 
permissible  way  to  mark  the  ballot,  and  even  that  it  was  the  necessary  way  to  insure  the  counting  of  their 
ballot  for  Livernash  for  Congress. 

It  was  claimed  that  285  ballots  should  be  rejected  which  had  been  counted  for  the  contestant 
because  there  were  more  than  two  cross  marks  in  the  square  opposite  his  name;  and  it  was  claimed 
that  1,555  votes  which  were  counted  for  contestant  should  have  been  rejected  for  the  same  reason. 
An  inspection  of  these  ballots  satisfied  the  committee  that  the  objections  taken  were  not  well  founded, 
but  were  trivial  and  supertechnical  in  the  extreme. 


§  732  TESTIMONY  IN   CONTESTED   ELECTIONS.  947 

The  committee  resen-ed  for  personal  inspection  294  ballots  voted  and  counted  for  Livemash  and 
558  voted  and  counted  for  Kahn. 

Personal  inspection  of  all  the  ballots  heretofore  mentioned  convinced  your  committee  that  the 
manner  in  which  they  were  marked  did  not  identify  and  could  not  identify  the  ballots. 

In  addition  to  the  3,444  ballots  already  mentioned  there  were  laid  aside which  both  sidea 

agreed  should  be  rejected  under  the  California  decisions.  Those  so  agreed  by  the  parties  to  be  rejected, 
which  had  been  counted  for  Livemash,  exceeded  those  counted  for  Kahn  by  49.  If  all  these  votes 
should  be  rejected,  it  would  still  leave  a  majority  for  Livemash  of  97. 

It  has  been  already  stated  that  the  language  of  the  decisions  of  the  supreme  court  of  California 
was  extremely  technical  and  insisted  upon  a  verj'  strict  compliance  by  the  voter  with  the  provisions 
of  the  statutes  of  California  relative  to  the  preparation  of  his  ballot.  It  does  not  appear,  however,  that 
the  supreme  court  of  California,  in  the  application  of  the  law  to  the  facts  before  it,  has  rejected  ballots 
in  a  wholesale  manner  in  which  this  committee  has  been  urged  to  reject  ballots  in  this  case,  nor  can 
it  be  said  that  such  strictness  of  construction  as  the  supreme  court  of  California  has  adopted  in  lan- 
guage or  in  fact  has  been  so  acquiesced  in  as  to  become  a  settled  rule  of  law  in  that  State.  The  com- 
mittee can  not  possibly  know  all  the  circumstances  of  the  cases  before  the  California  court.  It  has 
not  been  made  positively  to  appear  to  the  committee  that  the  supreme  court  of  California,  applying 
its  own  rules,  would  have  rejected  such  a  vast  number  of  ballots.  The  apprehension  caused  in  the 
State  of  California  by  the  language  of  the  decisions  of  their  highest  court  has  led,  since  the  last  election, 
to  a  modification  of  the  California  statute  with  respect  to  the  marking  of  ballots. 

Your  committee  therefore  recommends  the  adoption  of  the  following  resolutions: 

Resolved,  That  Julius  Kahn  was  not  elected  a  Member  of  the  Fifty-eighth  Congress  from  the  Fourth 
Congressional  district  of  California,  and  is  not  entitled  to  a  seat  therein. 

Resolved,  That  Edward  J.  Livemash  was  elected  a  Member  of  the  Fifty-eighth  Congress  from 
the  Fourth  Congressional  district  of  California,  and  is  entitled  to  retain  his  seat  therein. 

The  House  agreed  to  these  resolutions  without  debate  or  division. 

732.  The  election  case  of  Cross  v.  McGuire,  from  the  Territory  of 
Oklahoma,  in  the  Fifty-eighth  Congress. 

Instance  wherein  the  Elections  Committee  declined  to  order  the  pro- 
duction of  ballots  and  decided  the  case  as  made  up  under  the  general  law. 

On  April  1,  1904, '  Mr.  Michael  E.  Driscoll,  of  New  York,  presented  the  report 
of  Elections  Committee  No.  3  in  the  election  case  of  Cross  v.  McGuire,  from  the 
Territory  of  Oklahoma. 

The  report  is  as  follows: 

The  said  election  took  place  on  the  4th  day  of  November,  1902.  Thereafter  the  votes  cast  at 
said  election  for  the  oflBce  of  Delegate  in  Congress  from  the  Territory  of  Oklahoma  were  counted  and 
canvassed,  and  as  a  result  of  said  count  and  canvass  Hon.  Bird  S.  McGuire,  the  contestee,  was  declared 
to  have  received  45,803  votes,  and  in  like  manner  the  Hon.  William  M.  Cross,  the  contestant,  was 
declared  to  have  received  45,409  votes;  and  in  pursuance  of  said  count  and  canvass  Hon.  Bird  S. 
McGuire  received  his  certificate  of  election  by  a  plurality  of  394  votes. 

A  notice  of  contest  was  served  by  the  contestant  on  the  contestee  within  the  time  specified  by 
law,  and  sets  forth  the  charges  and  allegations  on  which  this  contest  is  based,  and  which,  very  briefly 
stated,  are  substantially  as  follows: 

That  gross  frauds,  errors,  and  mistakes  were  made  in  the  manner  and  conduct  of  holding  said  elec- 
tion; that  illegal  votes  to  the  number  of  about  1,100  were  cast  for  the  contestee  by  various  persons  who 
were  not  naturalized  citizens  of  the  United  States;  that  legal  votes  to  the  number  of  about  3,958  which 
were  cast  for  the  contestant  were  thrown  out  as  mutilated  ballots,  and  that  gross  frauds  were  perpe- 
trated in  voting  precincts  of  the  Territory  of  Oklahoma  by  various  election  officials  thereof,  in  that 
the  tally  sheets  and  abstracts  of  the  votes  cast  in  said  various  election  precincts  were  fraudulently 
duplicated,  changed,  altered,  and  falsified,  so  that  said  tally  sheets  and  abstracts  were  fraudulent 

'  Second  session  Fifty-eighth  Congress,  Becord,  p.  4130;  House  Report  No.  2094. 


948  PRECEDENTS   OF   THE   HOUSE   OF   BEPBESENXAIIVES.  §  733 

and  contained  false  and  fraudulent  reports  of  the  votes  cast  at  said  election.  The  notice  concludes 
with  a  prayer,  that — 

"If  the  evidence  hereafter  to  be  taken  supports  the  allegations  contained  in  the  foregoing  speci- 
fications, then  the  House  of  Representatives  of  the  Congress  of  the  United  States  shall  award  to  him 
the  right  to  a  seat  as  the  Delegate  from  said  Oklahoma  Territory." 

In  due  time  the  contestee  filed  an  answer  to  the  notice  of  contest,  which  contains  a  general  denial 
of  the  material  allegations  in  the  notice  and  several  countercharges  of  bribery,  corruption,  etc.,  in 
the  interest  of  the  contestant. 

At  the  first  hearing  before  your  committee  the  contestant  filed  a  notice  of  motion  for  an  order 
and  proper  process,  requiring  the  county  clerks  of  certain  counties  in  Oklahoma  Territory  to  deliver 
up  packages  of  so-called  mutUated  ballots  and  to  produce  the  same  before  the  committee  for  examina- 
tion as  part  of  the  evidence  and  record  in  this  case,  to  the  end  that  it  may  be  determined  whether  the 
contestant  or  the  contestee  was  elected  to  the  office  of  Delegate  to  Congress  from  said  Territory  of 
Oklahoma  by  the  legal  voters  participating  in  said  election.  That  notice  of  motion  was  not  accom- 
panied or  supported  by  any  affidavits. 

The  motion  was  denied  by  your  committee,  Mr.  Frank  A.  McLain,  Mr.  C.  B.  Randell,  and  Mr. 
Joseph  T.  Johnson,  dissenting. 

Your  committee  unanimously  find  that  the  record  before  it  fails  to  establish  the  allegations  con- 
tained in  the  notice  of  contest,  and  recommends  the  adoption  of  the  following  resolutions: 

Resolved,  That  Hon.  William  M.  Cross  was  not  elected  Delegate  to  the  Fifty-eighth  Congress  from 
the  Territory  of  Oklahoma. 

Resolved,  That  Hon.  Bird  S.  McGuire  was  duly  elected  Delegate  to  the  Fifty-eighth  Congress  from 
the  Territory  of  Oklahoma  and  is  entitled  to  a  seat  therein. 

The  resolutions  were  agreed  to  \vithout  debate  or  division. 

733.  Form  of  resolution  returning  to  State  authorities  ballots  that 
had  heen  examined  in  an  election  case. — On  April  20,  1904,^  Mr.  Frank  D. 
Currier,  of  New  Hampshire,  from  the  Committee  on  Elections  No.  2,  submitted  a 
report  on  the  resolution  of  the  House  No.  306,  which  provided  for  returning  to 
Colorado  the  ballots  in  the  case  of  Bonynge  v.  Shafroth.     The  report  says: 

The  law  of  Colorado  requires  that  each  voter  desiring  to  vote  a  straight  party  ticket  shall,  upon 
receiving  from  the  proper  election  officer  an  official  ballot,  retire  to  the  booth  and  there  in  his  own 
proper  handwriting  insert  in  the  blank  space  at  the  head  of  the  ballot  the  name  of  the  political  party 
whose  straight  ticket  he  desires  to  vote. 

A  few  of  the  packages  were  opened  in  the  presence  of  this  committee,  and  it  became  at  once  apparent 
that  the  party  designation  upon  many  of  the  different  ballots  was  in  the  handwriting  of  the  same  person. 
As  the  ballots  from  the  29  precincts  numbered  over  8,000,  it  was  found  impossible  for  the  whole  com- 
mittee to  examine  them,  and  thereupon,  by  vote  of  the  committee,  a  subcommittee  was  appointed  for 
that  purpose,  said  subcommittee  consisting  of  Messrs.  Miller,  of  Kansas;  Currier,  of  New  Hampshire, 
and  Sullivan,  of  Massachusetts.  Subsequently,  in  pursuance  of  authority  conferred  by  resolution 
adopted  by  the  House,  Mr.  David  N.  Carvalho,  a  noted  expert  in  handwriting,  was  employed  to  examine 
and  report  upon  the  handwriting  upon  all  the  ballots  and  in  all  the  poll  books. 

The  respective  reports  of  the  subcommittee  and  of  the  expert  are  appended  and  made  part  hereof. 
From  them  it  appears  that  the  greater  number  of  the  ballots  from  the  29  precincts  are  in  the  handwriting 
of  some  eight  or  ten  different  persons,  and  that  some  of  the  poll  books  were  filled  out,  not  by  the  election 
officers,  as  the  law  required,  but  by  outside  parties. 

After  considering  these  reports  and  a  personal  investigation  of  some  or  all  of  the  ballots  and  poll 
books  by  himself  and  counsel,  the  contestee,  while  disclaiming  any  participation  in  or  knowledge 
prior  to  the  institution  of  the  contest  of  the  frauds  committed  in  connection  with  the  ballots  and  poll 
Ijooks,  frankly  acknowledged  that  their  extent  was  such  as  to  show  the  contestant  entitled  to  his  seat, 
from  which  he,  the  contestee,  voluntarily  retired  without  any  action  whatever  by  the  committee. 

'  Second  session  Fifty-eighth  Congress,  House  Report  No.  2705. 


§  733  TESTIMONY   IN    CONTESTED   ELECTIONS.  949 

Your  committee  is  advised  by  the  author  of  this  resolution  that  one  of  the  judges  of  the  second 
judicial  district  of  Colorado,  embracing  the  city  of  Denver,  has  summoned  a  special  grand  jury,  and 
directed,  inter  alia,  an  inquiry  into  the  frauds  perpetrated  in  connection  with  this  election,  and  that 
the  presence  of  the  ballots  and  poll  books  are  desirable  and  necessary  for  the  purposes  of  such  inquiry. 

These  ballots  and  poll  books  are  in  the  possession  and  custody  of  the  Clerk  of  the  House.  There  is 
no  occasion  for  retaining  them  here  and  there  can  be  no  objection  to  their  being  returned  to  Colorado  for 
such  use  as  the  interests  of  justice  may  require.  It  seems  that  under  the  law  of  Colorado  ballots  are 
required  to  be  preserved  for  one  year  only  from  the  date  of  the  election,  and  that,  more  than  that  period 
having  elapsed  since  the  Congressional  election  of  1902,  there  is  no  designated  officer  whose  duty  it  would 
be  to  preser\'e  these  ballots  and  poll  books  intact  should  they  be  returned  direct  to  them. 

Y'our  committee  thinks  it  would  be  proper  for  the  Clerk  of  the  House  to  hold  them  subject  to  the 
order  of  the  prosecuting  attorney  or  judges  of  the  court,  and  to  notify  them  promptly  that  they  are  at 
their  service. 

The  committee  also  submitted  in  this  connection  the  report  of  the  subcommittee 
who  examined  the  election  case  and  the  conclusions  of  the  expert  who  examined  the 
ballots. 

The  resolution  was  reported  amended  to  read  as  follows: 

Whereas  in  the  contested  election  case  of  Bonynge  against  Shafroth  from  the  First  Congressional 
district  of  the  State  of  Colorado  certain  ballots  and  poll  books  purporting  to  have  been  cast  and  used, 
respectively,  at  the  election  held  in  said  district  on  November  4,  1902,  were  under  stipulation  of  the 
parties  to  said  contested  election  case,  submitted  to  the  Committee  on  Elections  No.  2  of  the  House  of 
Representatives  as  part  of  the  record  in  said  case  and  for  the  purpose  of  examination  and  inspection 
by  said  committee;  and 

Whereas  the  examination  of  the  said  ballots  and  poll  books  by  a  subcommittee  of  said  Elections 
Committee  and  by  an  expert  in  handwriting,  employed  under  authority  of  a  resolution  of  this  House, 
established  the  fact  that  gross  frauds  and  crimes  were  committed  at  and  in  relation  to  the  said  election 
and  in  connection  with  the  said  ballots  and  poll  books;  and 

Whereas  the  said  ballots  and  poll  books  are  now  in  possession  of  the  Clerk  of  this  House;  and 

Whereas  the  House  is  informed  that  one  of  the  judges  of  the  second  judicial  district  of  Colorado  has 
directed  a  grand  jurj'  to  inquire  into  frauds  committed  at  and  in  relation  to  said  election,  in  the  prose- 
cution of  which  inquirj'  the  presence  of  the  said  ballots  and  poll  books  may  be  necessary;  and 

Whereas  the  said  ballots  and  poll  books  are  no  longer  necessary  for  the  use  of  the  said  Elections 
Committee  or  of  this  House:  Now,  therefore,  be  it 

Resolved,  That  the  Clerk  of  the  House  be,  and  he  hereby  is,  authorized  and  directed  to  hold  the 
said  ballots  and  poll  books  subject  to  the  order  of  the  district  attorney  of  the  second  judicial  district  of 
Colorado,  or  any  of  the  judges  of  the  court  of  the  said  district,  to  promptly  notify  the  said  district  attorney 
and  judges  that  he  does  so  hold  the  said  ballots  and  poll  books,  and  upon  receipt  of  a  request  to  that 
effect  from  the  said  district  attorney  or  any  of  the  said  judges  to  forward  the  .said  ballots  and  poU  books  by 
express  in  a  sealed  package  or  in  sealed  packages  to  the  said  district  attorney  or  judges,  as  the  case  may  be. 

On  April  21 '  the  resolution  was  called  up  in  the  House  by  Mr.  Martin  E. 
Olmsted,  of  Pennsylvania,  as  a  matter  of  privilege. 

After  debate  had  proceeded,  Mr.  John  S.  Williams,  of  Mississippi,  made  the 
point  of  order  that  the  resolution  was  not  privileged. 

The  Speaker^  held  that  the  point  of  order  came  too  late. 

After  debate  the  resolution  was  agreed  to. 

'  Record,  pp.  5277-5281. 

^Joseph  G.  Cannon,  of  Illinois,  Speaker. 


Chapter  XXIV.* 
ABATEMENT  OF  ELECTION  CONTESTS. 


1.  House  decides  as  to.     Sections  734-738. 

2.  Various  conditions  of.     Sections  739-766.' 


734.  The  Tennessee  election  case  of  Kelly  v.  Harris  in  the  Thirteenth 
Congress. 

Although  a  contestant  declined  to  prosecute  further,  the  House 
declined  to  let  the  case  abate  and  concluded  the  inquiry. 

On  May  31,  1813/  the  Committee  on  Elections  reported  in  the  contested- 
election  case  of  Kelly  v.  Harris,  from  Tennessee,  and  the  House,  acting  on  the 
suggestion  of  the  committee,  gave  the  sitting  Member  three  months  in  which  to 
procure  testimony. 

On  December  2,  the  contestant  having  declined  to  reappear  to  contest  the  case, 
the  House  determined  not  to  abate  the  inquiry  into  the  alleged  illegality  and  recom- 
mitted the  report  of  May  31,  with  such  new  evidence  as  might  be  offered,  to  the 
Committee  of  Elections. 

On  January  3,  1814,  the  committee  made  a  report  which,  after  quoting  the 
constitution  of  Tennessee  in  respect  to  the  qualifications  of  voters,  decided  that  a 
certain  vote  had  been  given  the  petitioner  in  violation  of  this  constitution,  and 
therefore  deducted  the  said  vote.  This,  with  the  deduction  of  a  vote  given  by  a 
minor,  led  the  committee  to  the  conclusion  that  the  sitting  Member  was  entitled  to 
his  seat. 

On  March  10,  1814,  the  House  concurred  in  this  report. 

735.  The  South  Carolina  election  case  of  Mackey  v.  O'Connor  in  the 
Forty-seventh  Congress. 

The  returned  Member  having  died  before  the  taking  of  testimony  in 
a  contest  was  completed,  the  House  held  that  the  contest  did  not  therefore 
abate. 

*  See  Volume  VI,  Chapter  CLXV. 

'  By  resignation  of  sitting  Member.     Section  805  of  this  volume.     Contest  not  abated  by  death 
of  contestant.     Section  1019  of  Volume  II. 

Contestant's  acceptance  of  State  office  made  incompatible  by  State  constitution  does  not  cause  to 
abate.     Section  1013  of  Volume  II. 

Form  of  resolution  permitting  contestant  to  withdraw.     Section  967  of  Volume  11. 

'  First  session  Thirteenth  Congress,  Contested  Elections  in  Congress,  from  1788  to  1834,  p.  260. 
950 


§    735  ABATEMENT   OF   ELECTION   CONTESTS.  951 

A  vacancy  in  a  contested  seat  being  filled  by  a  special  election,  the 
House  seated  the  new  Member  on  his  credentials,  but  held  that  his  final 
right  must  depend  on  the  issue  of  the  contest. 

On  April  10,  1882,'  Mr.  Samuel  H.  Miller,  of  Pennsylvania,  from  the  Committee 
on  Elections,  submitted  the  report  of  the  majority  of  the  committee  in  the  South 
Carolina  case  of  Mackey  v.  O'Connor. 

The  minority  views,  presented  by  Mr.  Samuel  W.  Moulton,  of  Illinois,  give  the 
following  statement  of  the  preliminary  facts : 

In  November,  1880,  E.  W.  M.  Mackey  and  M.  P.  O'Connor  were  opposing  candidates  for  Congress 
in  the  Second  Congressional  district  of  South  Carolina,  and  as  the  result  of  the  election  then  held  M.  P. 
O'Connor  was  declared  elected  by  the  State  board  of  canvassers,  and  received  the  usual  certificate  of 
such  election,  which  was  duly  filed  with  the  Clerk  of  the  House  of  Representatives.  Mr.  Mackey 
contested  the  election  of  Mr.  O'Connor  in  the  usual  form,  and  in  the  taking  of  testimony  in  such  contest, 
by  an  agreement  of  which  both  parties  availed  themselves,  all  limitations  as  to  time  were  expressly 
waived,  so  that  the  taking  of  the  testimony  was  protracted  over  a  much  longer  period  than  the  term 
allowed  by  the  statute,  and  before  the  taking  of  Mr.  O'Connor's  testimony  was  completed  he  died,  on 
April  26.  1881. 

The  majority  report  says: 

After  the  testimony  in  chief  of  Mr.  Mackey,  and  that  in  reply  of  Mr.  O'Connor  had  been  taken, 
Mr.  O'Connor  died. 

This  slight  difiFerence  between  the  two  statements  was  noticed  in  the  debate, 
but  did  not  figure  importantly. 

The  minority  statement  of  fact  goes  on — 

On  May  23,  1881,  the  governor  of  South  Carolina,  in  accordance  with  the  provisions  of  the  Con- 
stitution of  the  United  States,  issued  his  writ  of  election  to  fiU  the  vacancy  in  the  representation  in 
Congress:  and  at  the  election  held  thereunder,  on  June  9,  1881,  Samuel  Dibble  was  elected,  receiving 
his  credentials  June  22,  1881,  and  the  same  being  filed  with  the  Clerk  of  the  House  of  Representatives 
on  June  25,  1881. 

Mr.  Mackey,  the  contestant  of  the  late  Mr.  O'Connor,  did  not  serve  any  notice  of  contest  of  Mr. 
Dibble's  election;  but  proceeded  after  the  death  of  Mr.  O'Connor,  and  before  the  election  of  Mr.  Dibble, 
in  taking  testimony  Ln  the  case  of  Mackey  i'.  O'Connor;  and  the  record  as  now  filed  and  printed  embraces 
testimony  on  both  sides  so  taken  after  Mr.  O'Connor's  death  and  before  Mr.  Dibble's  election. 

On  December  5,  1881,  the  House  met,  and  Mr.  Dibble,  on  the  call  of  the  roU,  presented  himself  to 
be  sworn.  Objection  was  made  by  a  Member  of  the  Hoiise,  who  stated  to  the  House  the  general  circum- 
stances of  the  case,  and  after  calling  the  attention  of  the  House  to  the  fact  that  Mr.  Mackey  had  served 
no  notice  of  contest  upon  Mr.  Dibble,  oSered  the  following  resolution,  viz: 

"Resolved,  That  the  certificate  of  election  presented  by  the  Hon.  Samuel  Dibble,  together  with  the 
memorial  and  protest  and  all  other  papers  and  testimony  taken  in  the  case  of  the  contest  of  E.  W.  M. 
Mackey  r.  M.  P.  O'Connor,  now  on  file  with  the  Clerk  of  this  House,  be,  and  the  same  are  hereby,  referred 
to  the  Committee  on  Elections,  when  appointed,  with  instructions  to  report  at  as  early  a  day  as  practi- 
cable whether  any  vacancy  as  alleged  in  the  certificate  existed,  and  as  to  the  prima  facie  right  or  the 
final  right  of  said  claimants  to  the  seat  as  the  comjnittee  shall  deem  proper;  and  neither  claimant  shall 
be  sworn  until  the  committee  report." 

Whereupon  the  House,  after  discussion,  laid  the  resolution  on  the  table;  and  also  laid  on  the  table 
a  motion  to  reconsider  its  vote  thereon. 

Mr.  Dibble  then  presented  himself  at  the  bar  of  the  House,  and  was  sworn,  without  further  objec- 
tion, and  from  that  time  until  December  21,  1881,  occupied  his  seat  as  a  Member  of  the  House  without 
challenge  or  dispute. 

'  First  session  Forty -seventh  Congress,  House  Report,  No.  989;  2  EUswortb,  p.  561. 


952  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   735 

Two  preliminary  questions,  of  so  much  importance  as  to  obscure  largely  the 
merits  of  the  election  itself,  arose  in  considering  this  case — 

(1)  The  majority  report  so  states  the  first  question,  relating  to  the  validity  of 
the  contest  itself — 

At  the  commencement  of  the  hearing,  the  sitting  Member  protested  against  the  committee  taking 
any  action  whatever  upon  the  case,  on  the  ground  that  the  contest  of  Mackey  v.  O'Connor  abated  on 
the  death  of  Mr.  O'Connor,  and  that  the  House  had  no  longer  jurisdiction  of  that  case.  He  contended 
that  inasmuch  as  he  was  not  a  party  to  the  pleadings  or  proofs,  he  should  not  be  bound  or  affected  by 
either;  that  the  only  way  the  title  to  his  seat  could  be  assailed  was  by  commencing  proceedings  de  novo 
and  permitting  him  to  defend  Mr.  O'Connor's  claim. 

In  the  opinion  of  the  committee  this  position  is  utterly  untenable.  The  contestant,  Mr.  Mackey, 
bases  his  claim  upon  the  ground  that  he,  and  not  Mr.  O'Connor,  received  the  greatest  number  of  legal 
votes  at  the  general  election  held  November  2,  1880.  To  establish  his  claim,  the  provisions  of  the  stat- 
ute regulating  the  mode  and  manner  of  contesting  an  election  were  invoked  and  complied  with.  Notice 
of  contest  was  duly  served  upon  Mr.  O'Connor,  who,  in  turn,  put  in  an  answer  thereto,  and  upon  the 
issue  thus  made  up  a  large  mass  of  testimony,  as  heretofore  stated,  was  taken. 

The  right  of  the  contestant,  as  also  of  the  people  of  that  Congressional  district,  who,  after  all,  are 
the  real  parties  in  interest,  to  have  the  facts  of  that  election  inquired  into  and  adjudicated  by  the  House, 
can  not  be  changed  by  the  fact  of  the  death  of  the  contestee.  If  the  contestant  really  received  at 
that  election,  as  he  claims,  the  largest  number  of  legal  votes,  it  is  his  right  and  the  right  of  the  people 
of  that  district  that  he  be  awarded  the  seat  he  was  chosen  to  fill.  The  committee,  however,  are  of 
opinion  that  Mr.  Dibble,  if  elected  to  any  position,  was  elected  to  fill  the  vacancy  created  by  the  death 
of  Mr.  O'Connor,  and  for  his  unexpired  term. 

This  conclusion  is  emphasized  by  the  significant  language  used  in  the  proclamation  of  the  gov- 
ernor ordering  the  special  election  by  virtue  of  which  Mr.  Dibble  claims  the  seat.     It  is  as  follows; 

"State  of  South  Carolina,  Executive  Chamber, 

"Columbia,  S.  C,  May  2S,  1881. 
"  To  the  commissioners  of  election  and  the  managers  of  election  for  the  counties  of  Charleston,  Orangeburg,  and 
Clarendon,  composing  the  Second  Congressional  district  of  the  State  of  South  Carolina: 

"Whereas  a  vacancy  in  the  representation  of  the  said  Second  Congressional  district  in  the  House 
of  Representatives  of  the  United  States  of  America  has  happened  by  the  death  of  Michael  P.  O'Connor, 
who,  at  the  general  election  held  November  2,  A.  D.  1880,  was  chosen  a  Member  of  said  House  of  Repre. 
sentatives  for  said  Congressional  district  for  the  term  of  two  years  from  March  4,  A.  D.  1881;  and  whereas 
the  Constitution  of  the  said  United  States  in  such  cases  requires  the  executive  authority  of  the  State  to 
issue  a  writ  of  election  to  fill  such  vacancy : 

"Now,  therefore,  you  and  each  of  you  are  hereby  required  to  hold  an  election  in  accordance  with 
the  laws  for  holding  general  elections  for  a  Member  of  the  said  House  of  Representatives  for  the 
said  Congressional  district,  to  serve  for  the  remainder  of  the  term  for  which  the  said  Michael  P.  O'Connor 
was  elected;  the  polls  to  be  opened  at  the  various  places  of  election  in  the  said  counties  on  Thursday, 
the  9th  day  of  June,  A.  D.  1881,  by  the  various  sets  of  managers  for  those  places,  respectively. 

"Given  under  my  hand  and  the  seal  of  the  State  of  South  Carolina,  this  23d  day  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  eighty-one. 

"Johnson  Hagood,  Governor. 
"R.  M.  Sims,  Secretary  of  State." 

The  right  of  Mr.  Dibble  to  a  seat  in  the  House  depends  upon  the  title  of  Mr.  O'Connor.  By  the 
very  language  of  the  proclamation  he  was  a  candidate  "to  serve  for  the  remainder  of  the  term  for  which 
the  said  Michael  P.  O'Connor  was  elected;"  and  if  it  appears  from  the  proofs  that  Mr.  O'Connor  was 
not  elected,  then  there  was  no  vacancy  created  by  his  death,  no  remainder  of  a  term  to  be  filled,  and 
Mr.  Dibble  could  have  no  rights  to  be  prejudiced  by  any  pleadings  or  agreements  made  by  Mr.  O'Connor. 
In  consenting  to  be  a  candidate  to  serve  for  the  remainder  of  the  term,  for  which  Mr.  O'Connor  claimed 
to  have  been  elected,  Mr.  Dibble  rested  his  title  to  the  seat  in  dispute  upon  the  title  of  his  predecessor, 
and  he  must  be  bound  by  the  pleadings,  proofs,  and  decree  growing  out  legitimately  of  that  contest. 
To  insist  that  Mr.  Mackey  should  abandon  the  testimony  taken  in  the  case  prior  to  the  death  of  Mr. 


§   735  ABATEMENT    OF    ELECTION    CONTESTS.  953 

O'Connor — and  all  of  it  was  taken  prior  thereto  except  the  evidence  of  contestant  in  rebuttal,  and 
which  is  not  material  so  far  as  the  true  issue  is  concerned — and  commence  anew  a  contest  with  Mr.  Dibble, 
involving  the  same  specifications  of  contest,  is,  in  the  opinion  of  the  committee,  not  only  vain  but  in 
conflict  with  every  principle  of  law  and  equity. 

It  was  claimed  by  the  counsel  of  Mr.  Dibble  in  argument  that  if,  after  the  testimony  had  been 
taken  Mr.  O'Connor  had  resigned,  an  election  ordered  by  the  governor  to  fill  the  assumed  vacancy,  and 
a  successor  elected,  the  contest  between  the  original  parties  would  abate  as  fully  as  Lf  the  contestee  had 
died.  These  propositions  must  both  stand  or  fall  together.  If  such  was  the  law,  there  would  be  nothing 
to  prevent  a  contestee  from  abating  a  contest  at  any  time  at  his  own  volition.  If,  after  the  testimony 
had  been  taken,  the  contestee  should  be  forced  to  conclude  that  his  case  was  hopeless,  it  would  only  be 
necessary  for  him  to  resign,  have  the  governor  order  a  new  election,  again  be  a  candidate,  with  a  hope 
that  under  circumstances  more  favorable  to  him  and  his  party  he  might  succeed.  Assured  that  his 
former  certificate  was  proven  worthless  he  would  have  nothing  to  lose,  and  if  successful  in  receiving  a 
majority  at  the  second  election  he  would  be  enabled  thereby,  by  his  voluntary  resignation,  to  escape 
the  effect  of  the  frauds  perpetrated  by  him  or  his  partisan  supporters  at  the  first  election.  It  is  only 
necessary  to  state  the  proposition  to  make  manifest  its  fallacy. 

The  minority  argiied  at  length  against  the  conclusion  of  the  majority — 

But,  as  we  have  already  said,  we  think  Mr.  Dibble's  rights  are  not  to  be  affected  in  any  way  by 
this  record  in  the  case  of  Mackey  v.  O'Connor.  We  have  already  given  an  outline  of  the  facts  connected 
with  Mr.  Dibble's  admission  to  his  seat,  and  have  quoted  the  words  of  the  resolution  referring  the  creden- 
tials of  Dibble  and  the  record  of  the  case  of  Mackey  f.  O'Connor  to  the  Committee  on  Elections,  which 
was  laid  upon  the  table  by  the  House,  and  have  also  shown  that  the  House  laid  on  the  table  the  motion 
to  reconsider  the  vote  on  that  resolution. 

Let  us  apply  to  these  facts  the  principles  of  statute  and  parliamentary  law  which  appear  to  ua 
to  be  applicable  thereto.  And  in  this  connection  let  us  cite  from  our  own  recognized  parliamentary  com- 
pilation as  to  the  effect  of  the  motion  to  reconsider  and  lay  on  the  table.  Smith's  Digest,  page  292, 
concerning  the  motion  "to  lay  on  the  table,"  contains  this  language: 

"In  the  House  of  Representatives  it  is  usually  made  for  the  purpose  of  giving  a  proposition  or 
bill  its  'death-blow;'  and  when  it  prevails,  the  measure  is  rarely  ever  taken  up  again  during  the 
session.  If  the  motion  to  'reconsider  and  lie'  follow  this  motion,  and  be  carried,  it  can  only  be  taken 
from  the  table  by  the  unanimous  consent  of  the  House." 

And  again  (ibid.,  p.  293): 

"  If  a  motion  to  reconsider  be  laid  on  the  table,  the  latter  vote  can  not  be  reconsidered.  (Journals, 
3,  27,  p.  334;  1,  33,  p.  357.)" 

Mr.  Cushing,  in  his  "Law  and  Practice  of  Legislative  Assemblies,"  after  showing  the  distinction 
between  the  English  and  American  laws  on  the  subject  of  legislative  vacancies,  proceeds  as  follows: 

"If  it  [i.  e.,  a  vacancy]  occurs  before  the  sitting  or  in  a  recess,  and  the  new  election  takes  place 
without  the  previous  authority  of  the  assembly,  the  existence  of  a  vacancy  must  be  determined  upon 
when  the  Member  elected  presents  himself  to  take  his  seat." 

In  the  history  of  vacancies  in  Congress,  there  is  one  case  which  in  many  respects  resembles  the 
present.  In  May,  1867,  George  D.  Blakey  and  Elijah  Hise  were  opposing  candidates  for  Congress  in 
the  Third  Congressional  district  of  Kentucky,  and  four  days  after  the  election  Mr.  Hise  died.  Mr. 
Blakey  appeared  before  the  State  canvassing  board  and  claimed  to  have  been  elected.  The  board 
decided  that  Mr.  Hise  had  been  elected.  Congress  assembled  thereafter  on  July  3,  1867;  and  on  July  5, 
1867,  a  memorial  of  Mr.  Blakey  was  presented  to  the  House,  asking  admission  as  a  Member  from  the  said 
Congressional  district,  and  the  memorial  and  accompanying  papers  were  referred  to  the  Committee  on 
Elections,  who  were  instructed  by  the  House,  July  11,  1867,  in  relation  to  taking  evidence  in  regard 
to  the  same. 

On  July  20,  1867,  Congress  adjourned  until  November  21,  1867.  During  this  interval,  and  while 
the  Committee  on  Elections  had  under  consideration  the  claim  of  Mr.  Blakey  to  the  seat,  a  special 
election  was  held  in  the  Third  Congressional  district  of  Kentucky,  under  writs  of  election  issued  by  the 
governor  of  Kentucky,  to  fill  the  vacancy  occasioned  by  the  death  of  Mr.  Hise;  and  at  such  special 
election,  held  August  5,  1867,  Mr.  GoUaday  was  elected,  and  on  November  25,  1867,  presented  his 
credentials  to  the  House. 


954  PRECEDENTS   OF   THE    HOUSE   OF   BEPRESENTATIVES.  §   735 

An  extended  discussion  followed.  The  distinguished  chairman  of  the  Committee  on  Elections, 
Mr.  Dawes,  after  conceding  the  ordinary  rule  to  be  that  charges  touching  "the  legality  of  an  election  are 
matters  which  pertain  to  a  contest  in  the  ordinary  way,  and  should  not  prevent  a  person  holding  the 
regular  certificate  from  holding  his  seat,"  said: 

"I  do  not  see  how  it  is  possible  to  apply  the  rules  laid  down  there  to  this  case,  without  foreclosing 
Doctor  Blakey  from  any  further  investigation  of  the  question  of  a  vacancy  existing  at  that  time."  (Con- 
gressional Globe,  1,  40,  p.  783.) 

Other  Members  of  the  House  took  the  position  that  Mr.  GoUaday  should  be  seated  prima  facie,  and 
that  Mr.  Blakey  should  be  allowed  to  contest  with  him  the  right  to  his  seat. 

The  House  adopted  the  view  of  Mr.  Dawes,  and,  instead  of  allowing  Mr.  Golladay  to  be  sworn, 
referred  his  credentials  to  the  Committee  on  Elections.  Eight  days  afterwards  Mr.  Dawes  presented 
the  unanimous  report  of  the  Committee  on  Elections  declaring  that  Mr.  Golladay  was  entitled  to  the 
Beat.  (Congressional  Globe,  2,  40,  pp.  3,  56.)  This  report  was  adopted  by  the  House,  and  necessarily 
recognized  that  the  writs  of  election  issued  by  the  governor  of  Kentucky  for  the  special  election,  were 
valid,  even  though  the  House  had  under  consideration  the  question  of  the  existence  of  a  vacancy  at 
the  time.  For  had  the  writ  of  election  of  the  governor  of  Kentucky  been  prematurely  issued,  the  election 
would  have  been  without  legal  sanction,  and  therefore  invalid.  And  this  decision  of  the  House  was  not 
inadvertently  rendered,  for  Mr.  Blakey  not  only  mentions  in  his  memorial  to  the  House  that  he  had 
protested  before  the  State  authorities  against  the  holding  of  the  special  election,  but,  in  addition,  reiter- 
ates it  in  his  remarks  before  the  House.  But  the  House  refused  to  recommit  the  report  of  the  committee, 
ordered  the  previous  question  by  a  vote  of  102  to  22,  and  adopted  the  recommendation  of  the  committee 
without  a  division.     (Congressional  Globe,  2,  40,  pp.  57,  61.) 

Now,  to  recapitulate.  What  principles  are  involved  in  this  decision?  The  main  doctrine  is, 
that  the  right  and  duty  of  the  executive  of  a  State  to  issue  writs  of  election  to  fill  vacancies  in  the  House, 
derived  from  article  1,  sestion  2,  of  the  Constitution  of  the  United  States,  in  advance  of  any  adjudication 
by  Congress  on  the  question  of  vacancy  occasioned  by  death,  is  to  be  exercised  in  contested  cases  as  well 
as  in  ordinary  cases,  thus  applying  to  such  cases  the  same  principles  so  early  settled  in  the  cases  of 
Edwards  (Clark  &  Hall,  92),  Hoge  (Clark  &  Hall,  136),  and  Mercer  (Clark  &  Hall,  44).  And  while  as 
to  the  matter  of  practice  in  the  case  of  Golladay  there  was  a  difference  of  opinion  as  to  whether  the  cre- 
dentials ought  to  be  referred  to  the  Committee  on  Elections,  in  order  to  determine  finally  as  to  the 
existence  of  a  vacancy  before  seating  Mr.  Golladay,  who  held  the  certificate,  or  whether  Mr.  Golladay 
should  be  sworn  and  the  right  reserved  to  Mr.  Blakey  to  contest  his  seat,  there  was  no  dissent  from  the 
proposition  of  Mr.  Dawes,  that  if  Mr.  Golladay  were  sworn  in  without  such  reservation,  Mr.  Blakey 
would  be  foreclosed  "from  any  further  investigation  of  the  question  of  a  vacancy  existing  at  that  time." 

Now,  in  the  present  case,  not  only  was  there  no  reservation  of  the  right  to  contest  Mr.  Dibble's  seat 
when  he  was  sworn  in,  but  the  House,  by  a  very  decided  vote,  tabled  a  motion  to  refer  the  credentials  of 
Mr.  Dibble  and  the  papers  in  Mackey  v.  O'Connor  to  the  Committee  on  Elections,  and  tabled  a  motion 
to  reconsider  its  vote  thereon. 

We  do  not  mean  to  say,  nor  have  we  ever  understood  Mr.  Dibble  to  contend,  that  it  is  beyond  the 
power  of  the  House  to  make  inquiry  into  his  right  to  his  seat  by  such  means  at  it  may  see  fit  to  adopt 
in  an  investigation  de  novo.  Such  an  investigation  would  give  to  the  sitting  Member  the  opportunity, 
which  he  has  never  enjoyed,  of  defending  his  seat  by  pleadings  of  his  own  and  such  proofs  as  he  may  be 
disposed  to  offer  in  his  cause.  It  must  be  borne  in  mind  that  by  the  action  of  the  House  itself  Mr.  Dibble 
was  placed  in  full  possession  and  enjoyment  of  the  office  of  Member,  on  December  5,  1881.  This 
possession  was  clear  from  any  qualification,  reservation,  or  condition;  it  was  as  absolute  as  the  possession 
of  any  Member  on  the  floor.  Can  it  be  said  a  contest  was  pending  in  the  case  of  Mackey  v.  O'Connor? 
The  answer  is  that  the  House  had  decisively  given  "its  deathblow"  to  the  motion  to  make  Mr.  Dibble 
a  party  to  that  contest  before  he  was  sworn  in. 

It  is  premature  to  discuss  and  to  pass  judgment  upon  the  efiect  of  the  election  of  November,  1880, 
upon  the  special  election  of  June,  1881,  because  it  is  a  mere  speculative  inquiry,  until  by  some  order  of 
the  House,  which  order  has  never  yet  been  made,  the  sitting  Member  is  placed  in  the  position  of  a  party 
to  a  contest,  either  under  the  statute  or  under  a  special  order  of  the  House  adopted  for  the  specific  case. 

n  we  look  at  the  statute,  we  find  the  following  language: 

"Sec.  105.  Whenever  any  person  intends  to  contest  an  election  of  any  Member  of  the  House  of 
Representatives  of  the  United  States,  he  shall,  within  thirty  days  after  the  result  of  such  election  shall 


§   735  ABATEMENT    OF    ELECTION    CONTESTS.  955 

have  been  determined  by  the  officers  or  board  of  canvassers  authorized  by  law  to  determine  the  same, 
give  notice,  in  writing,  to  the  Member  whose  seat  he  designs  to  contest  of  his  intention  to  contest  the 
same,  and  in  such  notice  shall  specify  particularly  the  grounds  upon  which  he  relies  in  the  contest." 

Section  106  provides  for  an  answer  by  the  Member  thus  served  with  notice.  Section  107  provides 
for  the  taking  of  testimony,  and  incidentally,  but  without  doubt,  defines  the  term  "  Member"  to  mean 
"returned  Member." 

Now,  there  is  nothing  in  the  statute  to  limit  its  application  to  general  in  contradistinction  to  special 
elections.  "To  contest  an  election  of  any  Member"  is  broad  and  comprehensive;  and  in  this  category 
Mr.  Dibble,  as  a  "returned  Member,"  certainly  may  be  embraced.  Mr.  Dibble  was  certainly  elected 
at  an  election  regularly  held  according  to  law.  The  cases  of  Hoge  (Clark  &  Hall,  136),  Edwards  (Clark 
&  Hall,  92),  and  Mercer  (Clark  &  Hall,  44)  and  the  case  of  Blakey  v.  GoUaday  settle  that.  The  action 
of  the  House  in  seating  Mr.  Dibble  recognizes  the  fact  and  puts  it  beyond  dispute.  It  is  unnecessary  to 
cite  authorities  to  show  that  questions  concerning  the  legality  of  an  election  are  proper  matters  of  contest 
under  the  statute;  they  have  been  so  treated  in  numerous  cases. 

And  when  we  consider  that  Mr.  O'Connor,  the  "returned  Member"  of  the  November  election,  had 
a  right  to  a  seat  only  so  long  as  he  lived,  and  had  no  inheritable  or  transmissible  interest  to  be  affected 
after  his  death,  it  is  enough  to  state  that  a  contest  for  his  seat  after  his  death  is  a  contest  for  something  that 
had  ceased  to  exist.  The  only  relation  that  could  exist  between  himself  and  anyone  that  succeeded 
him  was  a  relation  of  time,  not  a  relation  of  privity.  It  can  not  be  said  that  because  Mr.  O'Connor  was 
elected  for  a  term  of  two  years  he  had  a  right  in  himself  and  his  privies  for  two  years,  whether  he  lived 
or  died.  He  only  had  a  right  for  two  years,  provided  he  should  live;  the  very  fact  of  his  death  creating 
a  vacancy  shows  that  his  right  was  absolutely  gone  at  his  death.  And  for  anyone  else  to  have  or  claim 
a  right  the  original  granting  power — i.  e.,  the  people — had  to  be  invoked,  and  they  alone  had  the  right 
to  bestow  the  remainder  of  the  term.  In  law  the  case  of  a  suit  against  a  life  tenant  is  analogous.  Can 
anyone  claim  that  where  one  of  two  litigants  of  a  close — the  one  in  possession — dies,  and  another  person 
enters  into  possession  of  the  disputed  territory  under  a  fresh  grant  from  the  sovereign,  the  tenant 
thus  entering  can  be  ousted  upon  the  proceedings  had  against  his  predecessor,  such  predecessor  being 
neither  his  ancestor  nor  grantor,  but  simply  a  life  tenant?  And  shall  the  right  of  a  Member  of  this  House 
to  his  seat,  a  right  held  to  be  a  right  of  property,  be  decided  on  principles  antagonistic  to  those  which 
govern  the  decisions  of  other  rights  of  property?    We  think  not. 

Recurring  to  the  statute,  we  think  it  a  reasonable  construction  of  the  same  when  we  come  to  the 
conclusion  that  Mr.  Dibble,  as  the  returned  Member  of  the  House,  was  entitled  to  the  notice  required 
thereunder,  in  like  manner  as  a  Member  elected  and  returned  at  a  general  election.  One  thing  is  certain 
that  it  was  in  the  power  of  Mr.  Mackey  to  serve  such  notice  and  to  state  as  his  grounds  the  same  reasons 
he  now  advances  for  contesting  the  election  of  Mr.  Dibble;  and  if  the  evidence  taken  in  the  previous 
contest  of  Mackey  v.  O'Connor  were  competent  in  the  new  case,  he  had  the  opportunity  of  submitting 
it  on  notice,  as  evidence  in  a  contest  against  Mr.  Dibble  thus  inaugurated,  and  we  fail  to  find  any  statutory 
means  by  which  Mr.  Dibble,  after  his  election,  could,  by  any  act  of  his,  become  a  party  to  the  case  of 
Mackey  v.  O'Connor. 

This  being  the  case,  and  the  House  having  seated  Mr.  Dibble,  is  there  any  precedent  in  law  or  in 
the  decisions  of  this  House  in  contested  cases  whereby  the  party  in  possession  of  his  seat  should  go  out  to 
hunt  an  adversary?  Is  he  to  be  the  actor  in  any  way?  We  fail  to  find  any  such  precedent,  and  can  only 
come  to  the  conclusion  that  Mr.  Mackey,  having  neglected  to  avail  himself  of  the  opportunity  afforded 
him  by  the  terms  of  the  statute,  whereby  he  could  have  inaugurated  a  contest  in  the  usual  form,  in  the 
first  instance  either  willfully  or  mistakenly  prevented  Mr.  Dibble  from  being  a  party  to  the  issues  he  is 
now  trying  to  force  upon  him. 

Failing  to  find  in  the  statute  any  mode  whereby  Mr.  Dibble  could  be  made  a  party  to  the  case  of 
Mackey  v.  O'Connor,  and  finding  in  it  a  mode  whereby  Mr.  Mackey  might  have  made  the  issues  with 
Mr.  Dibble  on  which  he  nows  invokes  the  judgment  of  the  House,  but  did  not  so  take  issue  with  Mr.  Dibble, 
we  can  not  come  to  the  conclusion  that  the  usual  resolution  of  reference  to  the  Committee  on  Elections 
of  contested  cases,  adopted  December  21,  1881,  operated  to  revive  the  case  of  Mackey  v.  O'Connor, 
which  had  received  "its  deathblow"  by  the  action  of  the  House  itself  over  two  weeks  previously  to 
that  time.  Such  resolution  certainly  did  not  make  Mr.  Dibble  a  party  to  the  case  of  Mackey  v.  O'Connor, 
and  we  faQ  to  find  any  action  of  the  House  which  at  any  time  had  that  effect.  It  therefore  seems  to  us 
that  if  the  case  is  within  the  statute,  then  Mr.  Mackey  has  neglected  to  give  the  notice  prescribed 


956  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   735 

by  the  statute  to  be  given  to  the  Member  whose  "election"  is  to  be  contested;  and,  on  the  other  hand, 
if  the  case  be  outside  of  the  statute,  the  House  has  never  taken  any  order  for  proceedings  in  the  matter 
against  Mr.  Dibble,  the  sitting  Member,  and  without  such  order  the  committee  are  without  jurisdiction 
to  act  concerning  Mr.  Dibble  in  the  premises,  having  neither  the  statute  nor  any  precedents  of  the  House 
on  which  to  support  such  claim  for  jurisdiction. 

Under  that  provision  of  the  Constitution  which  makes  the  House  of  Representatives  the  judge 
of  the  election,  returns,  and  qualifications  of  its  Members,  the  House  may  adjudicate  the  question 
of  right  to  a  seat  in  either  of  the  four  following  cases:  (1)  In  the  case  of  a  contest  between  a  contestant 
and  a  returned  Member  of  the  House,  instituted  in  accordance  with  the  provisions  of  title  2,  chapter 
8,  of  the  Revised  Statutes;  (2)  in  the  case  of  a  protest  by  an  elector  of  the  district  concerned;  (3)  in 
the  case  of  a  protest  by  any  other  person,  and  (4)  on  the  motion  of  a  Member  of  the  House.  The  pro- 
ceeding in  the  first  of  these  cases  is,  by  the  Revised  Statutes,  made  a  proceeding  inter  partes — a  suit 
or  action  in  which  the  contestant  is  plaintiff  and  the  returned  Representative  defendant. 

A  case  adjudicated  by  the  House  on  the  protest  of  an  elector,  or  other  person,  or  on  the  motion 
of  a  Representative,  is  not  an  action  inter  partes.  It  is  a  proceeding  under  the  Constitution,  and  not 
under  the  statute. 

The  action  inter  partes  provided  for  by  the  Revised  Statutes  abates  on  the  death  of  either  party. 
While  the  power  of  the  House  to  adjudicate  any  question  of  title  involved  in  that  action  survives,  the 
action  itself  abates  upon  the  death  of  either  party  thereto. 

It  follows  that  the  contest  of  Mackey  v.  O'Connor  abated  on  the  death  of  Mr.  O'Connor.  That 
contest  was  an  action  inter  partes.  It  was  the  technical  action  specially  provided  for  in  the  Revised 
Statutes. 

If  the  House  shall  hereafter  adjudicate  any  of  these  questions,  in  a  proceeding  against  Mr.  Dibble, 
it  wQl  have  the  power,  under  the  Constitution,  to  provide  the  rules  for  such  adjudication. 

When  the  House  undertakes  the  adjudication  of  the  right  of  a  Member  to  his  seat  on  the  protest 
of  an  elector  or  other  person,  or  on  the  motion  of  a  Representative,  it  does  not  look  to  the  statutes  for 
its  rules  of  procedure;  it  prescribes  its  own  rules,  in  the  exercise  of  its  unquestionable  constitutional 
power.  If  it  finds  any  of  the  rules  prescribed  by  law  for  technical  contests  available  and  useful  in  the 
case,  it  adopts  them.  Such  rules  then  have  force,  not  because  found  in  the  statutes,  but  because  adopted 
by  the  House.  But  this  constitutional  power  of  the  House  to  prescribe  the  rules  for  such  adjudica- 
tions is  not  an  absolute  or  undefined  power  to  be  arbitrarily  exercised  by  the  House.  Like  every  other 
constitutional  power  of  the  House  it  is  to  be  exercised  in  subordination  to  those  principles  of  justice 
which  lie  at  the  root  of  the  Constitution  and  send  their  influences  through  all  its  provisions.  For  an 
adjudication  made  on  the  protest  of  an  elector  or  other  person,  or  on  motion  of  a  Representative,  the 
House  has  no  constitutional  right  to  prescribe  any  rules  which  shall  bind  the  sitting  Member  by  plead- 
ings or  averments  which  he  never  made,  by  the  testimony  of  witnesses  whom  he  never  had  an  oppor- 
tunity to  examine  or  cross-examine,  by  stipulations  or  admissions,  or  waivers  which  he  never  made, 
or  by  laches  which  he  never  incurred.  The  House  has  no  right  to  make  the  title  of  a  Representative 
to  his  seat  subject  to  the  acts  or  omissions,  the  diligence  or  laches,  the  wisdom  or  folly,  of  another  man. 
But  if  it  were  conceivable  that  the  contest,  which  is  by  the  Revised  Statutes  so  clearly  made  a 
proceeding  inter  partes,  could  survive  one  of  the  parties,  it  would,  nevertheless,  be  certain  that  when 
the  House  seated  Mr.  Dibble  on  his  credentials  that  contest  was  dismissed  and  passed  from  the  juris- 
di(  tion  of  the  House.  From  the  time  when  Mr.  Dibble  took  his  seat,  in  pursuance  of  the  resolution 
of  the  House,  it  was  his  right  to  that  seat  which  was  to  be  assailed  by  any  contestant,  or  claimant,  or 
protestant.  Since  that  time  Mr.  O'Connor's  right  has  been  a  question  for  the  adjudication  of  the  House, 
not  because  it  was  once  involved  in  the  contest  of  Mackey  v.  O'Connor,  but  because  it  is  now  involved 
in  the  question  of  Mr.  Dibble's  right  to  the  seat  which  he  occupies.  When  the  House  admitted  Mr. 
Dibble  to  the  seat  without  condition  or  reservation,  it  invested  him  with  the  right  which  belongs  to 
other  sitting  Members  under  the  Constitution  and  the  law  to  receive  due  notice  of  any  proposed  con- 
test, to  have  the  opportunity  to  answer,  to  examine  his  own  witnesses,  to  cross-examine  those  of  hia 
opponents,  and  to  be  concluded  by  no  acts,  omissions,  stipulations,  laches,  or  waivers  except  his  own. 
It  may,  perhaps,  be  suggested  that  the  contest  of  Mackey  v.  O'Connor  was  revived  and  reff  rred 
to  the  committee  by  the  resolution  which  was  adopted  December  22,  1881,  in  the  following  words: 

"Resolved,  That  all  of  the  testimony  and  all  other  papers  relating  to  the  rights  of  Members  to  hold 
seats  on  this  floor  in  contested  cases  now  on  file  with  the  Clerk  of  this  House  or  in  his  possession,  and 
all  memorials,  petitions,  and  other  papers  now  in  the  possession  of  this  House,  or  under  its  control, 


§  736  ABATEMENT   OF   ELECTION   CONTESTS.  957 

relating  to  the  Bame  subject  not  otherwise  referred,  be,  and  the  same  hereby  are,  referred  to  the  Com- 
mittee on  Elections,  and  ordered  to  be  printed." 

But  the  answer  is  obvious.  The  resolution  did  not  refer  to  the  committee  papers  which  related 
to  abated  contests,  but  only  those  which  related  to  pending  contests.  It  did  not  revive  dead  suits. 
It  only  referred  to  the  committee  papers  which  related  to  existing  suits.  An  order  of  reference  places 
a  paper  before  the  committee  for  what  it  is  worth.  It  imparts  no  ni  w  legal  character  or  quality  to  the 
paper.  It  does  not  transform  an  answer  in  the  case  of  Mackey  v.  O'Connor  into  an  answer  in  the  case  of 
Mackey  v.  Dibble.  It  does  not  transform  illegal  evidence  into  legal  evidence.  It  does  not  transform 
a  witness  for  or  against  Mr.  O'Connor  into  a  witness  for  or  against  Mr.  Dibble.  It  does  not  transform  an 
admission,  stipulation,  or  waiver  by  Mr.  O'Connor  into  an  admission,  stipulation,  or  waiver  by  Mr. 
Dibble.  It  does  not  transform  a  dead  suit,  to  which  the  papers  relate,  into  a  revived  and  pending 
action. 

The  first  and  only  notice  of  contest  of  his  seat  ever  served  on  the  sitting  Member,  Mr.  Dibble, 
by  Mr.  Mackey,  was  not  served  until  January  4,  1882.  Thereupon  Mr.  Dibble  filed  with  the  committee 
a  protest  against  the  committee's  proceeding  to  consider  and  act  upon  the  case  of  Mackey  v.  O'Connor, 
because  it  was  evident  from  the  notice  served  by  Mr.  Mackey  that  it  was  the  intention  of  the  contestant 
to  assaQ  his  right  to  his  seat  by  means  of  a  case  to  which  he  was  not  a  party.  But  a  majority  of  the 
committee  decided  to  proceed  with  the  case,  and  overruled  the  protest  of  the  sitting  Member.  For 
the  reasons  already  set  forth,  we  are  of  the  opinion  that  the  protest  should  have  been  sustained. 

We  can  not  concur  in  establishing  as  a  precedent  that  a  Member  of  this  House,  duly  admitted 
to  his  seat,  can  be  rightfully  removed  therefrom  without  any  opportunity  of  defending  his  title  thereto, 
either  by  pleading  his  defense,  or  by  introducing  evidence  in  his  behalf.  Nor  can  we  subscribe  to  the 
opinion  that  the  Committee  on  Elections,  under  its  ordinarj-  powers,  can  summon  a  Member  of  this 
House  to  defend  a  cause  in  which  he  is  not  the  contestee,  in  which  he  is  in  no  way  named  as  a  party, 
and  in  which  the  House  has  not  only  not  required  him  to  appear,  but  has  by  its  action  declined  to  make 
him  a  party.  If  such  a  precedent  is  to  be  established,  it  will  be  giving  to  the  Committee  on  Elections 
jurisdiction  to  act  outside  of  the  statute,  and  to  inquire  as  to  the  seat  of  any  Member  on  the  floor  at 
its  discretion,  and  without  the  order  of  the  House. 

736.   The  case  of  Mackey  v.  O'Connor,  continued. 

Discussion  as  to  informalities  in  the  preparation  of  depositions  in 
an  election  case. 

The  law  governing  the  method  of  transmitting  the  testimony  in  an 
election  case  to  the  Clerk  of  the  House  was  held  to  be  directory  merely. 

Instance  wherein  ex  parte  affidavits  were  received  as  to  a  secondary 
question  arising  in  an  election  case. 

The  House  rejected  a  return  of  State  election  officers  on  the  evidence 
of  the  returns  of  United  States  supervisors  of  elections. 

(2)  As  to  the  validity  of  the  testimony. 

The  testimony  was  taken  by  E.  W.  Hogarth,  notary  public  and  stenographer, 
and  sitting  Member  produced  before  the  committee  an  ex  parte  affidavit  of  Hogarth 
setting  forth  the  following  facts: 

That  he  was  employed  by  E.  W.  M.  Mackey,  esq.,  as  stenographer  and  notary  public  in  the  con- 
test between  E.  W.  M.  Mackey  and  M.  P.  O'Connor  for  a  seat  in  the  Forty-seventh  Congress  of  the 
United  States,  and  that  deponent  acted  as  stenographer,  and  sometimes  notary  public,  in  Orangeburg 
County  on  behalf  of  the  Hon.  M.  P.  O'Connor.  That  deponent  took  the  testimony  on  the  part  of  E.  W.  M. 
Mackey,  esq.,  in  the  counties  of  Charleston,  Orangeburg,  and  Clarendon,  with  the  exception  of  one  or 
two  depositions.  That  all  of  the  testimony  so  taken  by  deponent  as  stenographer  was  transcribed  from 
his  stenographic  notes  in  deponent's  own  handwriting,  and  testimony  taken  on  behalf  of  E.  W.  M. 
Mackey,  esq.,  was  turned  over  to  him  in  deponent's  own  handwriting,  and  such  taken  on  behalf  of  the 
Hon.  M.  P.  O'Connor  was  turned  over,  in  deponent's  own  handwriting,  to  Robert  Chisolm,  jr.,  esq. 
This  ended  his  (deponent's)  connection  with  said  testimony,  except  that  afterwards,  at  various  times, 
he  (deponent)  signed  certificates  which  were  tendered  to  deponent  by  E.  W.  M.  Mackey,  esq.,  and 


958  PKECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES,         §  736 

also  jurate  at  the  foot  of  depositions;  these  deponent  signed  without  comparison  with  his  said  steno- 
graphic notes,  taking  it  for  granted  that  said  testimony  was  the  same  as  furnished  by  deponent  to  said 
E.  W.  M.  Mackey,  esq.  That  the  said  certificates  were  often  presented  to  deponent  for  signature  by  said 
E.  W.  M.  Mackey,  esq.,  when  deponent  was  otherwise  employed,  and  that  deponent  did  not  have  his 
stenographic  notes  at  hand  when  he  so  certified  said  testimony. 

That  deponent  also  certified  the  testimony  taken  on  behalf  of  Hon.  M.  P.  O'Connor  in  instances 
whete  deponent  acted  as  notary  public. 

That  deponent  did  not  forward  any  of  said  testimony  to  the  Clerk  of  the  House  of  Representa- 
tives, but  turned  same  over  to  the  respective  parties  named  above,  and  deponent  knows  nothing  of  hie 
personal  knowledge  concerning  the  forwarding  of  the  same. 

Sitting  Member  also  produced  the  afl&davit,  also  ex  parte,  of  one  G.  Smith, 
who  swore  that  he  was  employed  by  contestant  to  write  out  the  testimony  taken 
in  his  behalf,  and  that  in  writing  it  out  made  material  changes,  destroying  the 
originals  (i.  e.,  the  copy  furnished  by  the  stenographer,  but  not  the  stenographer's 
notes,  which  were  retained  by  Hogarth). 

Several  other  ex  parte  affidavits  were  produced  by  sitting  Member  tending  to 
confirm  this  testimony  as  to  the  alteration  of  the  affidavits. 

It  also  appeared  in  the  record  of  the  case  '  that  in  a  similar  manner  the  testi- 
mony taken  by  Mr.  O'Cormor  was  delivered  to  the  latter's  son,  who,  assisted  by 
Mr.  Mackey,  went  over  it  to  make  corrections. 

It  also  appeared  that  there  had  subsisted  between  the  original  parties  to  the 
contest  an  agreement,  signed  by  Mr.  Mackey  and  by  the  attorney  of  Mr.  O'Connor, 
providing,  among  other  things,  that  in  all  cases  where  "a  deposition  is  not  sub- 
scribed to  by  the  party  making  the  same  the  signature  of  such  witness  is  hereby 
waived."  ^ 

The  law  of  the  United  States  in  regard  to  the  duties  of  the  officer  taking  testi- 
mony in  a  contested  election  case  provided : 

Sec.  122.  The  officer  shall  cause  the  testimony  of  the  witnesses,  together  with  the  questions  pro- 
posed by  the  parties  or  their  agents,  to  be  reduced  to  writing  in  his  presence  and  in  the  presence  of  the 
parties  or  their  agents,  if  attending,  and  to  be  duly  attested  by  the  witnesses  respectively. 

Sec.  127.  All  oflScers  taking  testimony  to  be  used  in  a  contested  election  case,  whether  by  deposi- 
tion or  otherwise,  shall,  when  the  taking  of  the  same  is  completed,  and  without  unnecessary  delay, 
certify  and  carefully  seal  and  immediately  forward  the  same  by  mail  addressed  to  the  Clerk  of  the 
House  of  Representatives  of  the  United  States,  Washington,  D.  C. 

It  appeared  that  the  evidence  was,  moreover,  transmitted  to  the  House  by 
express,  and  not  by  mail.' 

The  minority  attacked  the  depositions  and  demanded  their  suppression  on  two 
grounds: 

(a)  Because  the  depositions  were  not  reduced  to  writing  in  the  presence  of  the 
notary. 

Quoting  the  judiciary  act  of  1789 — 

And  every  person  deposing  as  aforesaid  shall  be  carefully  examined  and  cautioned  and  sworn  or 
aflBrmed  to  testify  the  whole  truth,  and  shall  subscribe  the  testimony  by  him  or  her  given  after  the 
same  shall  be  reduced  to  writing,  which  shall  be  done  only  by  the  magistrate  taking  the  deposition,  or 
by  the  deponent  in  his  presence.  And  the  depositions  so  taken  shall  be  retained  by  such  magistrate 
until  he  deliver  the  same  with  his  own  hand  into  the  court  for  which  they  are  taken,  or  shall,  together 

'  Record,  Appendix,  p.  359.  '  See  Record,  p.  4372.  '  Record,  p.  4346. 


I   736  ABATEMENT    OF    ELECTION    CONTESTS.  959 

with  a  certificate  of  the  reasons  as  aforesaid  of  their  being  taken,  and  of  the  notice,  if  any,  given  to  the 
adverse  party,  be  by  him,  the  said  magistrate,  sealed  up  and  directed  to  such  court  and  remain  under 
his  seal  until  opened  in  court — 

the  minority  contended  that  it  was  analogous  to  the  law  governing  taking  testi- 
mony in  contested  election  cases,  and  that  the  decisions  in  relation  to  it  sustained 
their  contention.  They  quoted  at  length  from  Bell  v.  Morrison  (1  Peters,  351), 
United  States  v.  Smith  (4  Day,  121),  Edmonston  v.  Barrett  (2  Cranch  C.  C,  228), 
and  other  decisions  to  show  that  a  deposition  was  not  admissible  if  it  was  not 
shown  that  it  was  reduced  to  writing  in  the  presence  of  the  magistrate.  The 
minority  conclude : 

But  it  is  argued  that  the  original  stenographic  notes  were  written  out  in  the  presence  of  the  notary 
public,  and  that  this  was  a  compliance  with  the  statute.  The  authorities  already  cited  are  not  consist- 
ent with  this  position.  The  object  is  the  authentication  of  the  testimony  now  on  file  with  the  Clerk 
of  the  House.  And  the  agreement  of  the  parties  only  extended  to  the  substitution  of  the  longhand 
transcript  of  the  stenographic  notes,  and  did  not  waive  anything  but  the  signatures  of  the  witnesses 
thereto.  The  parties  made  no  agreement  that  the  depositions  in  longhand  should  be  afterwards  recopied 
by  the  contestant  and  his  agents  out  of  the  presence  of  the  notarj',  and  that  these  papers  should  be 
forwarded,  and  the  longhand  depositions  made  by  the  notarj'  should  be  destroyed.  The  part  of  the 
agreement  bearing  upon  this  matter  is  as  follows: 

"Fourth.  That  inasmuch  as  both  parties  intend  to  have  the  depositions  of  many  of  the  witnesses 
taken  in  shorthand  by  a  stenographer,  which  will  render  it  impossible  for  such  witnesses  to  subscribe 
to  their  depositions  until  the  same  shall  be  written  out,  which,  in  many  instances,  can  not  be  done  for 
eome  time  after  such  depositions  shall  have  been  taken;  and  inasmuch  as  the  signatiu'es  of  the  witnesses 
in  such  cases  could  only  be  procured  by  requiring  a  second  attendance  of  such  witnesses  at  considerable 
inconvenience  and  expense  to  all  parties  interested;  therefore,  in  all  cases  where  a  deposition  is  not 
Bubscribed  to  by  the  party  making  the  same  the  signature  of  such  witness  is  hereby  waived." 

The  contestant,  Mr.  Mackey,  states  that  this  rewriting  of  the  depositions  was  done,  not  by  agree- 
ment of  the  parties,  but  by  agreement  between  the  notary,  Hogarth,  and  himself.  But  to  our  minds 
this  conduct  of  a  public  officer  was  a  violation  of  his  plain  duty  under  the  statute,  to  retain  the  testimony 
in  his  own  custody  untU  forwarded,  and  this  was  aggravated,  not  excused,  by  collusion  between  the 
officer  and  one  of  the  parties  without  the  knowledge  or  consent  of  the  other  party. 

We  think,  therefore,  that  the  depositions  substituted  by  the  contestant  and  his  agents  for  the  orig- 
in&b  written  by  Hogarth  should  be  suppressed. 

The  majority,  who  denied,  as  a  matter  of  fact,  that  the  affidavits  had  been 
materially  or  harmfully  altered,  and  who  insisted  that  fourteen  affidavits  on  which 
the  decision  of  the  case  turned  could  not  be  impeached  successfully,  say: 

It  was  further  charged  that  the  technical  requirements  of  the  statute  in  reference  to  taking  testi- 
mony in  contested  elections  had  not  been  complied  with,  either  in  the  transcribing  of  the  depositions 
in  their  attestation  or  in  the  manner  of  their  being  forwarded  to  the  Clerk  of  the  House.  To  meet  the 
first  and  really  only  serious  charge  the  contestant  filed  the  affidavits  of  83  of  the  94  witnesses  examined 
by  him,  each  of  whom  deposed  that  he  had  carefully  read  his  deposition,  as  contained  in  the  printed 
record,  and  that  the  same  was  in  every  particular  the  deposition  made  by  him  before  the  notary  public, 
and  that  there  had  been  no  garbling  or  alteration  in  or  addition  thereto,  and  they  each  again  made  oath 
to  the  truth  of  the  matters  and  things  therein  contained.  The  notary  who,  by  agreement  of  Mr.  Mackey 
and  Mr.  O'Connor,  took  the  testimony  stenographically,  also  made  oath  that  in  the  limited  time  given 
him  he  had  compared  with  his  stenographic  notes  the  depositions  of  14  witnesses  as  printed  in  the  record, 
and  that  the  depositions  as  printed  correspond  in  every  particular  with  the  original  stenographic  notes 
of  such  depositions. 

The  majority  further  say: 

The  affidavits  submitted  by  the  contestant  in  answer  to  Mr.  Dibble's  protest  are  uncontradicted 
by  any  affidavit  filed  by  the  latter,  and  they  establish  the  fact  that  the  testimony,  as  found  in  the  printed 


960 


PRECEDENTS   OF   THE   HOUSE   OF   KEPRESENTATIVES. 


§736 


record,  is  in  every  particular  the  testimony  actually  given  by  the  witnesses,  and  taken  stenographically 
by  the  notary,  and  afterwards  transcribed  by  his  direction.  It  is  not  controverted  that  the  evidence 
was,  by  the  agreement  of  Mr.  Mackey  and  Mr.  O'Connor,  taken  stenographically  by  the  notary.  These 
stenographic  notes  are  the  original  evidence  of  what  the  witnesses  deposed.  They  were  taken  neces- 
sarily in  the  notary's  presence,  who  was  also  the  stenographer.  They  were  really  the  depositions  in 
the  cause.  By  the  stipulations  it  was  agreed  that  these  stenographic  notes  should  be  afterwards  tran- 
scribed. The  manner  in  which  they  were  transcribed,  and  by  whom  transcribed,  is  amatterof  no  impor- 
tance, providing  they  were  transcribed  correctly,  since  the  notary  public  accepted  the  work  as  performed 
bv  the  copyists,  and  certified  to  the  same  as  being  the  depositions  taken  by  him.  The  fact  that  the 
contestant  assisted  in  making  transcripts  of  this  evidence  does  not  detract  from  its  correctness. 

(&)  The  minority  insisted  that  the  evidence  should  have  been  transmitted  to 
the  House  by  the  notary,  and  until  so  transmitted  must  remain  in  his  custody. 
The  majority  say: 

The  provisions  of  the  statute  in  regard  to  the  form  and  manner  of  taking  and  forwarding  testimony 
in  contested  election  cases  are  merely  directory,  and  therefore  the  only  question  which  the  committee 
has  deemed  it  necessary  to  consider  upon  this  point  has  been  whether  the  essential  provisions  of  the  law 
had  been  complied  with;  that  is,  had  the  testimony  of  the  witnesses  been  correctly  reported  by  the 
notary  and  stenographer,  and  had  that  testimony  been  forwarded  to  the  House.  If  Mr.  Dibble  had 
shown  by  the  proper  evidence  that  the  depositions  before  the  committee  were  not  the  depositions  of 
the  witnesses  (and  he  could  have  done  this  by  the  ex  parte  affidavit  of  the  stenographer,  if  such  was 
the  case)  he  would  have  disclosed  a  matter  fatal  to  their  consideration. 

This  question  as  to  the  validity  of  the  affidavits  received  the  most  attention 
during  the  debate,  and  was  the  point  on  which  the  minority  apparently  rested 
their  defense  with  most  confidence. 

(3)  As  to  the  merits  of  the  case. 

The  majority  report  says: 

Under  the  election  laws  of  South  Carolina  the  governor  of  the  State,  prior  to  each  general  election, 
appoints  for  each  county  in  the  State  three  commissioners  of  elections.  These  commissioners  of 
elections  appoint  for  each  poll  in  their  respective  counties  three  managers  of  elections.  (Rev.  Stat., 
Title  II,  chap,  viii,  sec.  2.)  By  the  managers  so  appointed  the  election  at  each  poU  is  conducted, 
and  at  its  close  the  votes  counted  and  a  return  thereof  made  to  the  commissioners  of  elections  (15  Stat., 
171),  who,  on  the  Tuesday  next  following  the  election,  meet  and  organize  as  a  board  of  county  can- 
vassers, and  from  the  returns  made  to  them  by  the  managers  they  count  or  canvass  the  votes  of  the 
county  and  make  such  statements  thereof  to  the  State  board  of  canvassers  as  the  nature  of  the  election 
requires,  making  for  Representative  in  Congress  "separate  statements  of  the  whole  number  of  votes 
given  in  such  county."  (Rev.  Stat.,  Title  II,  chap,  viii,  sees.  15-18.)  From  these  statements  of  votes 
made  by  the  county  canvasser  the  board  of  State  canvassers  determine  and  certify  the  number  of  votes 
cast  for  the  different  candidates  for  the  various  offices  voted  for  and  declare  what  persons  have  been 
by  the  greatest  number  of  votes  duly  elected  to  such  offices.     (Ibid.,  sees.  24-26.) 

Acting  upon  the  returns  made  by  the  county  canvassers  of  Charleston,  Orangeburg,  and  Clarendon, 
the  counties  composing  the  Second  Congressional  district  of  South  Carolina,  the  State  board  of  can- 
vassers certified  and  declared  that  at  the  election  held  November  2,  1880,  the  vote  cast  for  Representa- 
tive in  Congress  from  the  said  district  was  as  follows  (Rec,  p.  11): 


M.  P.  O'Con- 
nor. 

E.  W.  M. 
Mackey. 

Charleston 

11,429 
3,627 
2,513 

8.112 
2,712 
1.473 

Total 

17,569 
12,297 

12,297 

Majority  for  O'Connor 

5,272 

§  737  ABATEMENT    OF   ELECTION   CONTESTS.  961 

Although  the  vote  certified  by  the  State  board  of  canvassers  is  a  correct  aggregate  of  the  vote 
returned  to  it  by  the  county  boards  of  canvassers,  it  is  not  a  true  statement  of  the  result  of  the  election, 
becatise  the  returns  made  to  the  State  board  of  canvassers  by  the  county  canvassers  of  Charleston  and 
Orangeburg,  upon  which  the  State  board  acted,  were  not  full  and  correct  statements  of  the  vote  cast 
in  those  counties.  Had  the  county  canvassers  in  the  three  counties  in  the  district  counted  the  vote  aa 
returned  to  them  by  the  managers  of  the  election  of  the  several  precincts  in  the  several  counties,  the 
result  would  have  been  a  majority  of  879  for  Mr.  Mackey.  These  managers  in  every  instance  and 
at  every  poU  in  the  district  were  of  the  same  political  faith,  and  were  the  partisan  supporters  of  Mr. 
O'Connor.  The  majority  certified  for  Mr.  O'Connor  by  the  county  board  of  canvassers,  all  of  whom 
were  Democrats,  was  obtained  by  entirely  reversing  the  vote  of  one,  Haut  Gap,  and  leaving  out  in  the 
final  count  seven  precincts  in  Charleston  County,  to  wit.  Black  Oak,  Strawberry,  Calamus  Pond, 
Biggin  Church,  Brick  Church,  Ten  Mile  Hill,  and  Enterprise,  and  four  in  Orangeburg  County,  to  wit. 
Fogies,  Fort  Motte,  Lewisville,  and  Bookhardts. 

The  majority  discuss  the  twelve  precincts  briefly  and  show  that  the  actual 
vote  cast  at  them  is  proven  by  the  testimony  of  United  States  supervisors,  some- 
times corroborated  by  testimony  of  the  State  election  officers. 

The  minority  objected  to  the  returns  of  the  United  States  supervisors  as 
evidence  and  discussed  their  status  somewhat. 

The  minority  did  not  concede  that  the  majority  for  O'Connor  was  destroyed. 

The  majority,  after  arguing  that  there  were  great  frauds  in  the  district  beyond 
what  they  had  thought  it  necessary  to  show,  recommended  the  following  resolutions: 

Resolved,  That  the  Hon.  Samuel  Dibble  is  not  entitled  to  hold  the  seat  now  occupied  by  him  in 
this  House  as  a  Representative  from  the  Second  district  of  South  Carolina  in  the  Forty-seventh  Congress. 

Resolved,  That  the  Hon.  E.  W.  M.  Mackey  was  duly  elected  as  a  Representative  from  the  Second 
Congressional  district  of  South  Carolina  in  the  Forty-seventh  Congress,  and  is  entitled  to  a  seat  in  this 
House. 

The  report  was  debated  at  length  from  May  29  to  May  31,'  and  on  the  latter 
day  the  resolutions  of  the  majority  were  agreed  to,  yeas  150,  nays  3,  the  minority 
refraining  from  voting. 

Mr.  Mackey  then  appeared  and  took  the  oath. 

737.  The  Virginia  election  case  of  Walker  v.  Bhea,  of  Virginia,  in 
the  Fifty-seventh  Congress. 

The  death  of  the  contestant  after  the  beginning  of  an  election  case 
did  not  prevent  the  continuation  of  the  case  to  a  decision. 

A  ballot  complicated  and  unfair  but  not  shown  to  be  issued  in  pursu- 
ance of  any  conspiracy  was  not  considered  as  a  reason  for  discarding  the 
return. 

The  fact  that  fewer  votes  were  returned  for  contestant  than  for  the 
head  of  his  party  ticket  was  held  not  to  justify  a  conclusion  of  fraud. 

On  April  8,  1902,^  Mr.  Edgar  Weeks,  of  Michigan,  from  the  Committee  on 
Elections  No.  3,  reported  in  the  case  of  Walker  v.  Rhea,  of  Virginia.  On  the  face 
of  the  retmns  the  returned  member  received  a  majority  of  1,751  votes.  After  the 
contest  was  begiui  the  contestant  died,  but  this  did  not  prevent  the  further 
progress  of  the  case. 

'  Record,  pp.  4329,  4334,  4372-4398,  Appendix,  p.  357;  Journal,  pp.  1377-1380. 
-  First  session  Fifty-seventh  Congress,  House  Report  No.  1504. 

5994— VOL  1—07 61 


962  PRECEDENTS   OF   THE    HOUSE    OF   EEPRESENTATIVES.  §  737 

The  contest  was  based  substantially  on  the  following  allegations  and  charges,  viz: 

First.  That  the  official  ballots  printed  and  used  in  several  of  the  counties  were 
so  complicated  and  unfair  that  it  was  very  difficult,  if  not  impossible,  for  voters  to 
read  mark,  and  prepare  them  within  the  time  of  two  and  one-half  minutes  allowed 
by  law  for  that  purpose;  that  many  of  the  electors  who  intended  and  tried  to  vote 
for  contestant  were  disfranchised  by  reason  of  said  unfair  ballots,  and  that  such 
ballots  were  so  arranged  and  printed  by  the  political  friends  of  contestee  with  a 
fraudulent  intent,  and  were  calculated  to  deceive  and  mislead. 

Second.  That  the  returned  member's  majority  over  contestant  of  1,751,  while 
McKialey's  majority  over  Bryan  was  1,509  in  the  same  district,  is  conclusive  proof 
that  the  returns  on  their  face  were  not  an  honest  expression  of  the  will  of  the  voters 
at  that  election  and  that  the  contestant  was  defrauded  and  cheated. 

Third.  That  the  electoral  boards  and  other  election  officers  were  guilty  of  fraud 
and  dishonest  practices  in  the  interest  of  contestee,  which  accomplished  contestant's 
apparent  defeat. 

Those  charges  and  allegations  were  severally  denied  by  the  returned  member 
and  other  pleas  and  explanations  were  interposed  in  his  behalf. 

The  committee  criticise  the  election  laws  of  Virginia  as  conducive  to  fraud; 
but  their  conclusions  as  to  the  merits  of  contest  were  as  follows: 

The  Virginia  election  law  provides  that  the  official  ballot  shall  be  a  white  paper  ticket  containing 
the  names  of  persons  who  have  complied  with  the  provisions  of  that  act  and  the  titles  of  the  offices  for 
which  they  are  candidates,  printed  in  plain  roman  type  not  smaller  than  that  known  as  "pica."  WhQe 
the  letter  of  the  statute  may  have  been  complied  with,  several  of  the  ballots,  notably  that  in  Scott 
County,  if  legal,  were  very  unfair.  On  those  ballots  were  the  names  of  six  candidates  for  President  and 
Vice-President,  the  names  of  the  electors  for  each,  their  residences,  and  the  names  of  the  contestant 
and  contestee,  with  the  titles  of  the  offices  for  which  they  were  candidates.  No  regard  for  order  was 
observed  in  the  form  of  the  ballot  or  the  arrangement  of  that  matter,  and  the  names  of  the  Congressional 
candidates  especially  appear  in  unexpected  and  unlooked-for  positions.  They  were  necessarily  very 
misleading  and  confusing. 

To  say  that  the  elector  of  ordinary  intelligence  and  education  would  find  it  very  difficult  to  examine, 
mark,  and  prepare  that  ballot  in  the  two  and  one-half  minutes  allowed  by  law  is  a  mild  expression  of  a 
manifest  truth.  Under  the  law  those  official  ballots,  not  only  throughout  the  district,  but  throughout 
the  whole  State,  could  and  should  have  been  uniform  and  so  arranged  and  printed  as  to  assist  rather 
than  confuse.  And  if  the  object  in  preparing  them  were  not  to  take  unfair  advantage,  then  the  printers 
and  members  of  the  electoral  boards  who  supervised  the  work  were  guilty  of  gross  negligence  or  incom- 
petency. However,  your  committee  is  not  disposed  to  predicate  its  judgment  on  suspicion  merely, 
or  on  facts  or  circumstances  from  which  contrary  inferences  may  be  fairly  drawn.  It  is  not  convinced 
that  those  unfair  ballots  were  the  result  of  a  common  purpose,  or  that  they  emanated  from  a  common 
source,  or  that  the  contestee  advised  or  approved  of  the  use  of  such  ballots,  but,  on  the  contrary,  suggested 
that  the  ballots  be  made  as  plain  as  possible.     Therefore  this  charge  is  dismissed. 

The  fact  that  on  the  face  of  the  returns  contestee  received  1,751  more  votes  than  contestant  and 
McKinley  1,509  more  than  Bryan  is  not,  in  the  judgment  of  your  committee,  sufficient  reason  to  justify 
the  conclusion  that  such  result  was  accomplished  by  fraud.  After  a  careful  examination  of  the  record 
your  committee  does  not  find  such  affirmative  and  positive  evidence  of  fraud  or  mistakes  on  the  part 
of  the  election  officers  as  will  overcome  contestee's  certified  majority  or  justify  it  in  setting  aside  the 
election. 

Therefore  the  committee  reported  that  the  contestant  was  not  elected,  and 
that  the  sitting  Member  was  entitled  to  the  seat. 

On  May  21 '  the  House,  without  division,  concurred  in  the  report  of  the  com- 
mittee. 


'  Record,  p.  5756. 


§   ''^^  ABATEMENT   OF   ELECTION    CONTESTS.  963 

738.  The  North  Carolina  election  case  of  Moody  v.  Gudger  in  the 
Fifty-eighth  Congress. 

An  election  contest  does  not  necessarily  abate  by  reason  of  the  death 
of  contestant  during  the  taking  of  testimony. 

Hearsay  evidence  as  to  declarations  of  voter  as  to  how  he  had  voted 
or  would  vote  was  held  incompetent. 

Evidence  as  to  the  party  affiUations  of  voters  is  inconclusive  as  proof 
of  how  they  cast  their  ballots. 

Hearsay  evidence  as  to  declarations  of  voters  that  they  had  been 
bribed  is  unsatisfactory  and  dangerous  evidence. 

On  March  18,  1904,'  Mr.  H.  O.  Young,  of  Michigan,  from  the  Committee  on 
Sections  No.  1,  submitted  the  report  of  the  committee  in  the  North  Carolina 
election  case  of  Moody  v.  Gudger. 

At  the  outset  of  this  case  the  committee  dispose  of  a  preliminaiy  question  as 


foil 


ows: 


test^nf  mJ^^T  P''^^i"^,^=^^^  been  completed  and  a  part  of  the  testimony  had  been  taken  the  con- 
testant, Maj  James  M.  Moody,  died,  and  it  is  strongly  uiged  by  contc^tee  that  the  proceedings  were 
thereby  abated.     He  says,  however:  ^ 

"The  constitutional  right  of  the  House  of  Representatives  to  inquire  into  and  pass  upon  the  title 
o  any  Member  to  the  seat  occupied  by  him  is  not  questioned.  The  Constitution,  Article  I  section  5 
plainly  makes  the  House  the  sole  judge  of  the  election  returns  and  qualifications  of  its  Member  Ite 
jurisdiction  and  power  under  this  section  is  sole  and  supreme.  In  such  manner  as  it  may  deem  advis- 
able It  may  exercise  this  constitutional  prerogative  and  no  one  may  question  its  action,  but  the  exer- 
cise of  this  power  must  originate  with  the  House.  By  resolution  or  other  original  affim^ative  action  it 
must  declare  its  purpose  to  investigate  and  adjudge." 

Your  committee  are  of  the  opinion  that  when  the  House  of  Representatives  referred  this  contest 
to  your  committee  it  took  such  affirmative  action  and  clothed  your  committee  with  jurisdict^  to  h^ 
and  report  upon  the  ca.e.  This  doctrine  is  not  without  precedent.  In  the  case  of  Mickey  r  ^Conn^ 
decided  in  the  Forty-seventh  Congress,  an  abstract  of  which  appears  upon  page  387  of  Rowell's  Digest 

or  MrSibl  Iho  r;°;     "  r^r^  :'  *'^  P^-^lngs.     it  was  there  contended  by  the  atto^mj 

for  Mr^  Dibble  who  had  been  elected  to  the  vacancy  caused  by  Mr.  O'Connor's  death,  that  the  contest 

had  abated  and  that  it  would  be  nece^arj^  for  contestant  to  begin  a  new  contest  againsi  the  then  siS 

Member,  but  the  majority  of  the  committee  thought  otherwise     They  said  •  ^ 

"The  nght  of  contestant,  as  also  of  the  people  of  that  Congressional  district,  who,  after  all    are 

tl  Tl  r T  "  !,  K 't '  ?  ^"'"  '^'  ^^"^  "^  '^"'  ^^^^'"'^  '°''"^^^d  i°t»  ^°d  adjudicated  by  the  House 
can  not  be  changed  by  the  fact  of  the  death  of  the  contestee. " 

The  minority  of  the  committee  dissented,  but  the  House  agreed  with  the  majority  of  thecom- 
Kuttee  and  being  satisfied  that  upon  the  merits  of  the  case  conte:Snt  wa.  duly  elected,  he  wa^^eated 
The  exercise  of  this  power  did  not  onginate  with  the  House,  but  with  the  contestant,  and  the  HoLe 
took  no  other  affirmative  action  to  declare  its  purpose  to  investigate  and  adjudge  than  the  reference  ol 
the  contest  to  the  Committee  on  Elections.  'cicreuce  oi 

In  the  later  case  of  Dantzler  v.  Stokes,  from  South  Carolina,  in  the  Fifty-seventh  Congress  Stokes 

Sr'  t  :  •     .\l"""''  "^"^  "^  '';'°  '''''''''  '"  ^"  ''''  ^'^-°'^>'  thus  caused,  wa.,  permittfdl' de^enl 
the  contest,  and  the  case  proceeded,  though  no  final  action  was  taken  thereon  by  the  House 

Contestee  attempts  to  draw  a  distinction  between  the  case  of  the  death  of  contestant  and  that  of 
contestee,  but  your  committee  is  satisfied  that  such  distinction  is  not  well  founded.  The  oriSnll 
jurisdiction  of  Congress  is  as  perfect  in  one  case  as  in  the  other.  The  people  of  the  (LnJS^fl 
district  as  wa.  said  in  the  case  of  Ma.key  ..  O'Comior,  "are  the  real  parties  in  interesTandTe 
as  much  concerned  in  not  being  misrepresented  by  a  man  they  have  defeated  at  the  polls  a^th^v 
^e  m  being  represented  by  a  man  they  have  elected.  If  an  election  contest  be  re^S  merely 
a.  a  personal  action  it  will  abate  by  the  death_o^dthe^part3^_IUs^nlv^bec^^ 

'  Second  session  Fifty-eighth  Congress,  House  Report  No.  1738:  Record,  p.  5430. 


964 


PRECEDENTS   OF    THE   HOUSE   OF   REPRESENTATIVES. 


§738 


personal  action  but  one  in  which  the  people  of  the  Congressional  district  are  interested,  and  because 
the  House  has  a  right  of  its  own  motion  to  investigate  the  election  of  its  own  Members,  that  the  contest 
may  proceed  after  the  death  of  either  party.  Congress  can  not  be  ousted  of  its  jurisdiction  to  turn  from 
its  doors  an  interloper  by  the  fact  that  the  person  really  elected  has  died. 

As  to  the  merits  of  the  case,  the  committee  found: 

Upon  the  face  of  the  returns  contestee  received  12,700  votes  and  contestant  received  12,517  votes, 
giving  contestee  an  apparent  majority  of  183  votes.  Contestant  in  his  notice  of  contest  alleges  that 
this  apparent  majority  was  olitained  by  bribery  and  fraud  in  South  Waynesville  precinct  of  Haywood 
County,  and  by  misconduct  of  the  registration  and  election  boards  in  Tryon  and  Shields  precincts  of 
Polk  County,  where  duly  qualified  electors  were  denied  the  right  to  vote,  and  large  numbers  of  illegal 
votes  were  received  in  gross  violation  of  law.  He  asks  that  the  returns  from  these  precincts  be  rejected. 
He  also  alleges  similar  frauds  and  misconduct  in  other  precincts  of  said  district,  but  he  has  offered  no 
proof  thereof,  and  your  committee  therefore  disregards  said  allegations.  He  also  alleges  specifically 
that  large  numbers  of  illegal  votes  were  cast,  counted,  and  returned  for  contestee,  naming  the  precincts 
in  which  they  were  thus  cast  and  the  number  of  said  votes  cast  in  each  precinct.  These  aggregate 
nearly  900  votes.  He  also  alleges  in  the  same  specific  manner  that  about  60  legal  votes  were  attempted 
to  be  cast  for  contestant  and  they  were  arbitrarily  and  illegally  rejected  by  the  registration  an  delection 
boards. 

Contestee  in  reply  denies  all  the  allegations  of  contestant  above  set  forth,  and  further  answering 
allies  in  the  same  specific  manner  pursued  by  contestant  that  some  1,500  illegal  votes  were  cast, 
counted,  and  returned  for  contestant. 

It  was  conceded  upon  the  argument  by  the  attorneys  for  both  parties  that  the  individual  votes 
cast,  counted,  and  returned  for  contestant  and  those  which  were  cast,  counted,  and  returned  for  con- 
testee that  were  proven  to  be  illegal  would  substantially  lialance  each  other  and  would  in  no  way 
affect  the  result.  The  committee,  being  satisfied  that  this  is  a  fact,  enters  into  no  discussion  of  the 
nearly  2,400  separate  and  distinct  issues  raised  by  these  individual  cases  and  agrees  with  the  attorneys 
in  the  case  that  the  case  must  be  determined  by  the  final  disposition  to  be  made  of  the  votes  returned 
from  the  precincts  of  South  Waynesville,  Tryon,  and  Shields,  and  from  the  county  of  Buncombe. 
In  these  the  vote  was  as  follows: 


Gudger. 

Moody. 

Majority 
Gudger. 

3,029 
150 
119 
266 

2,690 
60 
49 

147 

339 
90 
70 

119 

Shields 

Total 

3,564 

2,946 

618 

It  will  be  readily  seen  that  if  the  county  of  Buncombe  be  thrown  out  the  result  of  the  election 
would  be  changed;  the  same  result  would  follow  if  the  precinct  of  South  Waynesville  and  either  of  the 
precincts  of  Tryon  or  Shields  should  be  discarded;  but  the  rejection  of  the  two  precincts  of  Tryon  and 
Shields  alone,  or  the  rejection  of  South  Waynesville,  would  still  leave  contestee  a  majority. 


BUNCOMBE    COUNTY. 


The  contestant  in  his  notice  of  contest  only  asked  for  the  rejection  of  certain  votes  in  the  county 
of  Buncombe,  but  the  attorney  for  contestant  in  his  brief  and  in  his  oral  argument  before  the  committee 
demands  the  rejection  of  the  entire  vote  of  the  county.  Contestee  objects  that  this  contention  is  not 
open  to  contestant  as  it  is  not  contained  in  his  notice  of  contest.  Your  committee  expresses  no  opinion 
upon  this  question,  as  their  conclusion  upon  an  examination  of  the  facts  renders  a  decision  unnecessary. 

The  constitution  of  North  Carolina  provides  that  only  legally  registered  voters  shall  be  permitted 
to  vote,  and  then  follows  this  section: 

"Every  person  presenting  himself  for  registration  shall  be  able  to  read  and  write  any  section  of 
the  constitution  in  the  English  language,  and  before  he  shall  be  entitled  to  vote  he  shall  have  paid,  on 


§   738  ABATEMENT   OF   ELECTION    CONTESTS.  965 

or  before  the  1st  day  of  May  in  the  year  he  proposes  to  vote,  his  poll  tax  for  the  previous  year,  as  pre- 
scribed by  article  5  of  the  constitution,  section  1."     (Constitution  of  North  Carolina,  art.  6,  sec.  4.) 

The  statute  of  North  Carolina  based  upon  this  constitutional  provision  provides  that — 

"Everj-  person  liable  for  such  poll  tax  shall,  before  being  allowed  to  vote,  exhibit  to  the  r^istrar 
his  poll-tax  receipt  for  the  previous  year,  issued  under  the  hand  of  the  sheriff  or  tax  collector  of  the 
county  or  township  where  he  then  resided,  and  unless  such  poll-tax  receipt  shall  bear  date  on  or  before 
the  1st  day  of  May  of  the  year  in  which  he  offers  to  vote  such  person  shall  not  be  allowed  to  vote: 
Provided,  That  in  lieu  of  such  poll-tax  receipt  it  shall  be  competent  for  the  registrar  and  judges  of  election 
to  allow  such  person  to  vote  upon  his  taking  and  subscribing  to  the  following  oath:  'I  do  solemnly  swear 
(or  affirm)  that  on  or  before  the  1st  day  of  May  of  this  year  I  paid  my  poll  tax  for  the  previous  year,  as 
required  by  article  6,  section  4,  of  the  constitution  of  North  Carolina.'  "     (Record,  p.  5.) 

It  is  made  the  duty  of  the  sheriff  to  file  a  list  of  all  persons  who  have  paid  their  poll  tax  in  time  to 
qualify  them  as  voters.  Under  the  laws  of  North  Carolina,  however,  all  male  persons  over  50  years  of 
age  are  exempt  from  the  payment  of  the  poll  tax,  and  all  male  citizens  who  are  under  21  years  of  age  on 
June  1  of  the  year  previous  to  that  in  which  the  election  was  held  would  owe  no  poll  tax  on  the  May  1 
next  preceding  the  election,  and  so  could  have  no  receipt  and  would  not  appear  upon  the  sheriff's  list 
uf  those  who  had  paid  their  poll  tax.  No  claim  was  made  that  any  of  these  statutes  or  constitutional 
provisions  are  invalid.  Contestant  shows  that  some  500  men  voted  in  Buncombe  County  whose  names 
are  not  on  the  sheriff's  list  of  those  who  had  paid  their  poll  tax  in  time  to  qualify  them  as  voters.  He 
claims  that  this  was  owing  to  a  conspiracy  to  issue  fraudulent  tax  receipts  and  exemptions  after  the 
time  fixed  by  law  for  said  purpose,  and  that  said  conspiracy  was  so  largely  carried  out  as  to  throw  doubt 
and  discredit  on  the  entire  vote  of  the  county  and  render  it  impossible  to  determine  how  the  honest 
vote  of  the  county  was  cast. 

Your  committee  finds  the  evidence  of  this  conspiracy  inconclusive.  If  it  existed  at  all  it  was 
abortive  of  results,  for  the  testimony  clearly  shows  that  the  list  of  those  who  voted  without  being  on 
the  sheriff's  list  is  largely  made  up  of  those  who  were  too  old  or  too  young  to  be  liable  for  the  poll  tax, 
and  of  those  who  were  not  conclusively  shown  to  have  been  entitled  to  vote,  at  least  as  many  were  shown 
to  have  voted  for  contestant  as  for  contestee.  The  committee  desires  to  call  attention  to  the  incompetent 
and  inconclusive  character  of  much  of  the  testimony  as  to  how  individuals  voted.  This  consisted  in 
a  very  large  number  of  cases  of  the  statement  of  some  third  party  that  the  voter,  who  was  not  himself 
called  as  a  witness,  had  said  that  he  should  vote  or  had  voted  for  contestant  or  contestee,  as  the  case 
might  be.     It  is  needless  to  say  that  this  is  hearsay. 

Another  class  of  testimony  relied  on  w.-^s  that  certain  voters  were  Republicans  or  Democrats,  from 
■which  the  inference  wus  sought  to  be  drawn  that  they  had  voted  their  party  ticket  for  Member  of  Congress. 
That  such  testimony,  if  admissible  at  all,  is  inconclusive  and  of  little  weight  wUI  be  conceded  by  every 
lawyer.  But  whether  you  allow  to  this  testimony  all  the  force  that  is  sought  to  be  given  it  by  either  of 
the  parties  or  reject  it  altogether,  the  result  is  the  same.  In  either  case  contestant  has  received  at  least 
as  many  illegal  votes  as  contestee.  Your  committee  therefore  can  not  find  any  valid  reason  for  rejecting 
the  vote  of  Buncombe  County. 

SHIELDS   PRECINCT,  POLK   COUNTY. 

The  contestant  alleges  that  legal  voters  were  denied  registration  in  Shields  precinct  of  Polk  County, 
and  that  the  ballot  box  was  stuffed  with  illegal  ballots.  The  evidence  to  sustain  the  latter  charge  is  too 
puerile  for  consideration.  There  is  no  evidence  tending  to  prove  that  more  than  one  legal  voter  was 
denied  registration,  and  there  is  other  evidence  just  as  credible  tending  to  show  that  this  one  legal  voter 
did  not  apply  for  registration  at  all,  and  so  could  not  have  been  rejected.  The  vote  of  this  precinct  also, 
in  the  opinion  of  your  committee,  should  be  counted  as  cast  and  returned. 

TRYON  PRECINCT,  POLK  COUNTY. 

The  contestant  claims  that  the  votes  of  Tryon  precinct,  in  Polk  County,  should  be  rejected  because 
of  the  refusal  of  the  registration  officers  to  register  a  large  niunber  of  qualified  voters.  Your  committee 
can  find  no  evidence  tending  to  show  that  more  than  one  legal  voter  was  refused  registration.  A  few 
illegal  votes  seem  to  have  been  cast,  but  this,  in  the  opinion  of  your  committee,  was  the  result  of 
accident  rather  than  design,  and  the  illegal  votes  are  easily  eliminated  and  do  not  affect  the  result.  In 
the  opinion  of  your  committee  the  vote  of  this  precinct  should  not  be  rejected. 


966  PRECEDENTS    OF    THE    HOUSE    OF    REPBESEKTATIVES.  §    739 

This  disposes  of  the  case,  as  the  precinct  of  South  Waynesville,  in  Haywood  County,  even  if 
rejected,  would  not  alter  the  result,  but  as  much  stress  has  been  laid  upon  this  precinct  in  the  argument 
of  coimsel  your  committee  thinks  best  to  report  the  facts  relative  to  the  election  therein  as  it  finds  them. 

SOUTH   WAYNESVILLE   PRECINCT,  HAYWOOD   COUNTY. 

All  the  testimony  tends  to  show  that  this  precinct  was  normally  Democratic  from  200  to  250 
majority.  At  the  election  in  question  it  was  carried  by  nearly  all  the  Democratic  candidates  by  majori- 
ties of  over  200.  It  was  the  home,  however,  of  contestant.  He  was  popular  there.  Two  years  before 
he  had  carried  the  precinct  by  a  majority  of  26  gainst  the  Democratic  candidate,  Mr.  Crawford.  At 
that  time  there  was  disaffection  in  the  Democratic  ranks,  and  some  of  the  most  prominent  Democratic 
workers  were  supporting  contestant.  These  same  men  in  1902  were  supporting  contestee.  The  result 
of  that  election  was  a  majority  of  119  for  contestee,  who  ran  fully  100  behind  the  average  of  his  ticket. 
Contestant  claims  that  this  result  was  brought  about  by  wholesale  bribery  of  voters  by  contestee,  with- 
out which  contestant  would  have  carried  the  district  by  as  large  a  majority  as  he  had  done  two  years 

previously. 

It  is  evident,  however,  that  the  conditions  had  materially  changed.  In  1900  contestant  was 
opposed  by  a  divided  Democratic  party;  in  1902  by  a  united  Democratic  party.  There  is  considerable 
testimony  to  the  effect  that  it  was  "common  talk,"  "generally  understood,"  "whispered  about,"  and 
"a  matter  of  common  knowledge "  that  money  was  being  used  by  the  friends  of  both  contestant  and  con- 
testee for  the  purpose  of  influencing  voters.  There  is  also  some  testimony  that  a  few  men  who  had 
voted  at  the  election  told  the  witness  that  they  had  been  offered  money  and  in  some  cases  that  they  had 
received  money  for  their  votes.  Testimony  of  this  kind  is  sometimes  received  in  election  cases  from 
the  difficulty  of  obtaining  direct  evidence  of  bribery,  but  at  its  best  it  is  inconclusive,  unsatisfactory, 
and  dangerous.  It  is  a  most  significant  fact,  however,  that  nearly  all  the  active  workers  for  both 
contestant  and  contestee  were  witnesses  in  the  case,  and  each,  while  disclaiming  any  knowledge 
of  the  improper  use  of  money  by  persons  other  than  himself,  when  asked  as  to  his  own  conduct,  put 
himself  upon  his  constitutional  right  and  refused  to  answer  questions  which  might  criminate  himself. 
The  above  is  a  fair  statement  of  all  the  testimony  tending  to  show  the  improper  use  of  money  by 
the  supporters  of  the  contestee. 

There  is  no  evidence  to  show  that  contestee  used  any  money  himself  or  was  cognizant  of  the  use  of 
any  money  by  his  supporters  in  this  precinct  in  his  behalf,  properly  or  improperly.  On  the  contrary, 
there  is  strong  direct  testimony  of  the  most  positive  nature,  from  those  in  a  position  to  know,  that  he 
contributed  no  money  whatever  to  be  used  in  aid  of  his  election  in  this  precinct.  No  single  voter  is 
pointed  out  who  was  bribed  to  vote  for  contestee.  For  these  reasons  your  committee  think  the  vote  of 
South  Waynes viUe  precinct  should  not  be  rejected. 

It  follows  from  these  conclusions  that  in  the  opinion  of  your  committee  the  contestant  has  not 
made  out  his  case,  and  they  therefore  recommend  the  adoption  of  the  following  resolution: 

"Resolved,  That  James  M.  Moody  was  not  elected  a  Member  of  the  Fifty-eighth  Congress  from  the 
Tenth  district  of  North  Carolina. 

"  Resolved,  That  James  M.  Gudger,  jr.,  was  elected  aMember  of  the  Fifty-eighth  Congress  from  the 
Tenth  district  of  North  Carolina,  and  is  entitled  to  retain  his  seat  therein." 

The  House  agreed  to  the  resolutions  without  debate  or  division. 

739.  The  Maryland  election  case  of  Stewart  v.  Phelps  in  the  Fortieth 
Congress. 

Instance  of  the  withdra'wral  of  an  election  contest  by  letter  from,  the 
contestant. 

On  July  5,  1867/  Mr.  Charles  E.  Phelps,  of  Maryland,  whose  seat  had  been 
contested  by  Charles  J.  Stewart,  presented  a  communication  from  Mr.  Stewart, 
addressed  to  the  House,  in  which  he  stated  that  he  had  proceeded  to  take  testimony 
in  support  of  the  allegations  in  his  notice  of  contest;  but,  finding  the  testimony 
insufficient  to  entitle  him  to  the  seat,  he  hereby  withdrew  his  claim.  This  conunu- 
nication  with  accompanying  papers  was  referred  to  the  Committee  on  Elections. 

'  First  session  Fortieth  Congress,  Journal,  p.  165;  Globe,  p.  500. 


§   740  ABATEMENT   OF   ELECTION    CONTESTS.  967 

740.  The  Illinois  election  case  of  Durborow  v.  Lorimer,  in  the  Fifty- 
eighth  Congress. 

Instance  of  abandonment  of  a  contest  by  notification  from  contestant 
to  the  committee. 

On  April  20, 1904,'  Mr.  Marlin  E.  Olmsted,  of  Pemisylvania,  from  the  Committee 
on  Elections  No.  2,  presented  the  following  report: 

At  the  regular  Congressional  election  in  1902  the  returns  showed  WUliam  Lorimer,  Republican, 
to  have  received  16,540  votes;  Allan  C.  Durborow,  Democrat,  15,555  votes;  H.  P.  Kuesch,  Socialist,  536, 
and  Eugene  W.  Chapin,  Prohibitionist,  667.  Mr.  Lorimer,  having  an  apparent  plurality  of  985,  received 
the  usual  certificate  of  election  and  is  the  present  sitting  Member  from  that  district.  Within  the  statu- 
tory period,  however,  Mr.  Durborow  served  a  notice  of  contest,  claiming  to  have  been  rightfully  elected 
to  the  said  seat. 

The  contest  seems  to  have  been  conducted  mostly  in  the  circuit  court  of  Cook  County,  111.,  upon 
questions  arising  over  the  right  to  have  the  ballots  produced  and  recounted.  This  privilege  having  been 
finally  granted  by  the  court  and  the  ballots  investigated  and  recounted,  it  developed  that  there  had 
been  cast  for  Mr.  Lorimer  16,495  votes  and  for  Mr.  Diwhorow  15,501,  the  recount  thus  increasing  Mr. 
Lorimer's  plurality  9  votes. 

From  that  point  Mr.  Durborow  appears  to  have  abandoned  the  contest.  Neither  printed  record 
nor  brief  has  been  submitted  to  the  committee,  and  the  opportunity  afforded  for  oral  argument  was  not 
embraced.  Mr.  Durborow,  however,  has  said  to  the  chairman  of  the  committee  that,  although  he 
commenced  the  contest  in  good  faith,  he  does  not  care  to  proceed  with  it  further,  and  is  willing  that 
appropriate  resolutions  shall  be  adopted  sustaining  Mr.  Lorimer's  title  to  the  seat.  Your  committee 
therefore  recommends  the  adoption  of  the  following  resolutions: 

"Resolved,  That  Allan  C.  Durborow  was  not  elected  to  membership  in  the  House  of  Representatives 
of  the  United  States  in  the  Fifty-eighth  Congress  and  is  not  entitled  to  a  seat  therein. 

"Resolved,  That  William  Lorimer  was  duly  elected  to  membership  in  the  House  of  Representatives 
of  the  United  States  in  the  Fifty-eighth  Congress  and  is  entitled  to  a  seat  therein." 

The  resolutions  were  agreed  to  without  division. 

741.  The  Kentucky  election  cases  of  Edwards  v.  Hunter  and  White 
V.  Hunter,  in  the  Fifty-eighth  Congress.— On  December  6,  1904,=  the  Speaker 
laid  before  the  House  the  following  communication;  which  was  referred  to  the 
Committee  on  Elections  No.  2 : 

Clerk's  Office,  House  of  Representatives, 

Washington,  D.  C,  December  6,  1904. 
Sir:  I  have  the  honor  to  lay  before  the  House  of  Representatives  the  contested-election  cases  of 
Edwards  v.  Hunter  and  WTiite  v.  Hunter,  of  the  Eleventh  Congressional  district  of  Kentucky,  notices 
of  which  have  been  filed  with  the  Clerk  of  the  House,  and  transmit  herewith  all  original  testimony, 
papers,  and  documents  relating  thereto. 

On  June  24,  1904,  copies  of  the  printed  record  were  sent  to  the  contestants,  with  notices  to  file 

brief  of  the  facts  and  authorities  relied  on  to  establish  their  case.     August  24,  1904,  D.  C.  Edwards,  one 

of  the  contestants,  filed  his  brief,  copies  of  which  were  sent  to  W.  Godfrey  Hunter,  contestee,  and  to 

John  D.  White,  contestant,  with  notice  to  file  reply  brief,  but  no  reply  brief  has  been  received  to  date. 

Very  respectfully, 

A.  McDowell, 
Clerk  House  of  Representatives. 
Hon.  Joseph  G.  C.^snon, 

Speaker  Eovse  of  Representatives. 

This  case  was  heard  by  the  committee,  but  no  report  was  made  to  the  House, 
and  Mr.  Htmter  retained  the  seat. 

'  Second  session  Fifty-eighth  Congress,  House  Report  No.  2687;  Record,  p.  5186. 
'Third  session  Fifty-eighth  Congress,  Record,  p.  38. 


9gg  PRECEDENTS   OF   THE   HOUSE    OF    REPRESENTATIVES.  §   742 

742.  The  Colorado  election  case  of  Bonynge  v.  Shafroth  in  the  Fifty- 
eighth  Congress. 

Instance  wherein  returned  Member,  while  a  contest  was  pending  in 
committee,  stated  to  the  House  that  he  was  not  elected. 

Beturned  Member  having  acknowledged  to  the  House,  before  the 
decision  of  the  committee,  that  contestant  was  elected,  the  House  pre- 
ferred to  adopt  the  usual  resolutions  before  seating  contestant. 

Resolutions  to  seat  a  contestant  are  privileged,  even  though  the  case 
may  still  be  pending  in  committee. 

On  February  15,  1904/  Mr.  John  F.  Shafroth,  claiming  the  floor  for  a  question 
of  privilege,  said: 

Mr.  Speaker,  in  the  contested  election  case  of  Robert  W.  Bonynge  against  John  F.  Shafroth  it  waa 
stipulated  and  agreed  by  contestant  and  contestee  that  the  ballots  cast  at  that  election  in  the  twenty- 
nine  contested  precincts  should  be  brought  before  the  Committee  on  Elections  of  this  House  and  opened 
for  the  first  time  in  the  presence  of  its  Members.  The  ballots  were  those  cast  at  the  general  election  in 
1902  for  State  officers  and  Representative  in  Congress.  The  object  was  that  the  original  arrangement, 
form,  and  condition  of  the  ballots  should  first  be  seen  by  the  committee.  The  ballots  were  shipped  to 
the  Clerk  of  the  House  of  Representatives  at  the  joint  expense  of  contestant  and  contestee. 

At  the  first  meeting  of  the  committee  for  the  hearing  of  this  case  the  ballots  were  presented  for 
inspection.  A  subcommittee  was  appointed  to  ascertain  how  many  illegal  ballots  were  contained 
therein.  It  was  agreed  that  in  order  to  facilitate  their  work  their  sessions  should  be  secret.  The  sub- 
committee opened  the  ballots  from  three  precincts,  and  finding  that  it  took  one  week  to  examine  them, 
asked  the  House  for  authority  to  employ  an  expert,  which  was  granted.  Since  that  time  the  expert 
has  been  examining  the  ballots,  and  on  Thursday  last  made  his  report  to  the  committee.  The  committee 
then  ordered  that  each  of  the  parties  should  have  one  week's  time  in  which  to  examine  the  ballots,  and 
if  then  either  of  us  desired  to  send  for  the  expert  for  the  purpose  of  examining  him  that  we  should  have 
that  privilege.     After  that  the  case  was  to  be  set  for  argument  before  the  committee. 

On  Thursday  afternoon  I  commenced  examining  the  ballots,  and  continued  doing  so  during  Thurs- 
day, Friday,  and  Saturday.  I  do  not  believe  that  2,792  Qlegal  votes  were  cast  (that  being  my  majority 
as  returned),  yet  my  examination  disclosed  the  fact  that  the  assurances  which  I  had  received  as  to  the 
regularity  of  the  votes  in  many  of  the  precincts  were  not  true,  and  that  there  were  illegal  votes  therein 
which  tainted  the  polls,  and  the  polls  so  tainted  gave  me  a  greater  plurality  than  my  returned  majority 
in  the  district. 

The  fact  was  a  bitter  disappointment  to  me,  but  nevertheless  true. 

The  law  is  that  when  a  poll  is  tainted  by  fraud  and  it  is  impossible  to  purge  the  poll  of  the  fraud- 
ulent votes,  the  vote  of  the  entire  precinct,  legal  and  illegal,  must  be  thrown  out. 

The  committee  has  given  me  every  opportunity  to  ascertain  the  illegal  vote  so  as  to  save  the  valid 
vote  in  those  precincts.  Until  I  saw  the  ballots  last  Thursday,  I  thought  the  illegal  vote  could  be 
detected  and  separated  from  the  legal  vote,  but  I  must  confess  that  my  inspection  has  convinced  me 
that  it  is  impossible  to  do  so  in  this  case. 

The  law  being  as  I  have  stated  and  the  number  of  precincts  tainted  containing  majorities  for  me 
greater  than  my  returned  majority,  I  must  say  that  if  I  were  a  judge  upon  the  bench  considering  this 
case  I  would  be  compelled  to  find  against  myself,  and  as  the  vote  in  the  contested  precincts  aggregates 
less  than  one-tenth  of  the  vote  in  the  Congressional  district,  I  would  be  compelled  to  find  that  according 
to  law  Mr.  Bonynge  is  entitled  to  the  seat.     [Applause.] 

I  did  my  best  to  have  an  honest  election.  My  law  partner,  with  my  approval,  organized  a  citizens' 
committee  composed  of  both  Republicans  and  Democrats  who  desired  a  fair  election.  The  head- 
quarters of  that  committee,  as  shown  by  the  evidence  in  this  case,  were  in  the  law  offices  of  Rogers, 
Shafroth  &  Gregg,  Denver,  Colo. 

'  Second  session  Fifty-eighth  Congress,  Record,  pp.  1986,  1988. 


§  743  ABATEMENT   OF   ELECTION    CONTESTS.  969 

I  have  always  been  in  favor  of  pure  politics,  and  when  the  test  is  applied  to  an  election  at  which 
I  was  voted  for  as  one  of  the  candidates  upon  the  ticket  I  should  not  shirk  my  duty  or  change  my  con- 
victions concerning  honest  elections. 

I  therefore  will  say  to  the  Committee  on  Elections  Xo.  2  and  to  the  Members  of  this  House  that 
they  can  seat  Mr.  Bonynge  at  their  earliest  convenience. 

As  this  is  the  last  time  I  will  have  the  opportunity  of  addressing  the  House,  I  want  to  thank  the 
Committee  on  Elections  No.  2,  and  particularly  the  chairman,  Mr.  Olmsted,  and  the  subcommittee, 
Mr.  Miller,  Mr.  Currier,  and  Mr.  Sullivan,  for  the  fair  and  impartial  manner  in  which  they  proceeded 
to  investigate  this  case.     Every  suggestion  which  I  made  as  to  the  investigation  was  readily  concurred  in. 

I  wish  also  to  say  that  I  appreciate  the  repeated  declarations  of  Mr.  Bonj-nge  in  the  record  that  I 
was  not  a  party  to  or  in  any  manner  connected  with  any  of  the  frauds  or  irregularities  charged.  I  also 
desire  to  thank  the  Members  of  this  House  for  the  uniform  coiutesy  and  evidences  of  respect  which  I 
have  received  during  the  eight  years  of  my  service  in  Congress.  I  have  formed  friendships  here  upon 
both  sides  of  the  Chamber  which  I  shall  cherish  through  life.  I  fully  appreciate  the  high  character  of 
the  men  who  compose  this  body,  but  it  is  only  when  I  am  about  to  leave  that  I  fuUy  realize  the  dis- 
tinguished honor  it  is  to  serve  as  a  Member  in  the  greatest  legislative  body  on  the  face  of  the  globe. 
Wishing  you  all  a  happy  and  prosperous  futiu-e,  I  will  say  good-bye.     [Loud  applause.] 

Mr.  Speaker.  I  will  ask  the  chairman  of  the  committee,  if  he  is  ready,  to  present  the  usual  resolu- 
tions in  a  case  of  this  kind. 

Mr.  Marlin  E.  Olmsted,  of  Pennsylvania,  chairman  of  Elections  Committee 
No.  2,  asked  unanimous  consent  that  Mr.  BomTige,  the  contestant,  be  sworn  in. 

Mr.  Sereno  E.  Payne,  of  New  York,  objected  that  this  should  not  be  done  with- 
out a  resolution  from  the  committee.  [The  committee  had  not  reported  on  the 
case.] 

Later  Mr.  Olmsted  asked  unanimous  consent  for  the  consideration  of  the 
following  resolutions : 

WTiereas  John  F.  Shafroth,  a  Member  of  this  House  returned  as  elected  from  the  first  district  of 
Colorado,  and  whose  seat  is  contested  by  Robert  \V.  Bonynge,  has  this  day  in  a  frank  and  honorable 
manner,  very  creditable  to  himself,  informed  the  House  that  after  a  consideration  and  examination  of 
the  ballots  he  is  convinced  that  Robert  W.  Bonynge  is  entitled  to  the  seat:  Therefore 

Resolved,  That  John  F.  Shafroth  was  not  duly  elected  and  is  not  entitled  to  a  seat  in  this  House. 

Resolved,  That  Robert  W.  Bonynge  was  duly  elected  and  ia  entitled  to  a  seat  in  this  House. 

The  Speaker '  saif  1 : 

In  the  opinion  of  the  Chair  the  resolution  is  privileged. 

Thereupon  the  resolution  was  agreed  to. 

743.  The  New  York  election  case  of  Chesebrough  v.  McClellan,  from 
New  York,  in  the  Fifty-fourth  Congress. 

It  being  demonstrated  to  the  Elections  Committee  that  contestant  had 
withdrawn,  the  House  confirmed  the  title  of  sitting  Member. 

On  January  15,  1896,"  the  Committee  on  Elections  No.  2  reported  in  the  case 
of  Chesebrough  v.  McClellan,  from  New  York.  The  contestant,  in  his  notice  of  con- 
test, had  alleged  as  his  groimds  the  casting  of  illegal  votes  at  the  election;  and  that 
dm-ing  the  political  canvass  preceding  the  election,  the  sitting  Member  had  instigated 
the  issue  of  a  circular  falsely  charging  him  with  opposing  the  passage  of  a  State 
law  for  the  benefit  of  cyclers;  and  that  because  of  that  circular  many  electors  were 

'  Joseph  G.  Cannon,  of  Illinois,  Speaker. 

'First  session  Fifty-fourth  Congress,  House  Report  No.  48:  Rowell's  Digest,  p.  513. 


970  PKECEDENTS  OF  THE  HOUSE  OF  REPRESENTATIVES.         §  744 

prejudiced  to  vote  against  contestant.  The  sitting  Member  replied  to  the  notice 
of  contestant,  denying  the  casting  and  counting  of  illegal  votes,  denying  that  he 
had  instigated  the  issuing  or  circulation  of  the  circular,  but  alleging  it  to  be  a  fact 
that  the  contestant  had  in  fact  signed  his  name  to  a  petition  in  May,  1887,  remon- 
strating against  the  legislation  in  question. 

After  serving  the  notice  of  contest  the  contestant  had  addressed  to  sitting 
Member  a  letter  agreeing  to  withdraw  from  the  contest  if  the  sitting  Member  would 
exhibit  to  him  the  petition  in  question.  The  petition  was  duly  exhibited;  and 
later  contestant  notified  sitting  Member  that  he  withdrew  from  the  contest,  and 
requested  the  return  of  the  notice  of  contest. 

Afterwards,  in  February,  1895,  the  notice  of  contest  and  answer  were  filed 
with  the  Clerk  of  the  House,  together  with  the  affidavit  of  contestee  that  no  evi- 
dence had  been  taken  in  the  case.  The  committee  examined  these,  as  well  as  the 
letters  of  the  contestant,  found  that  no  testimony  had  been  taken  in  the  case,  and 
reported  that  the  contestant  had  withdrawn  from  the  contest. 

Therefore  they  reported  resolutions  declaring  the  contestant  not  elected  and 
the  sitting  Member  entitled  to  his  seat. 

On  January  15'  the  House  agreed  to  the  resolutions  without  division. 

744.  The  Illinois  election  case  of  Belknap  v.  McGann  in  the  Fifty- 
fourth  Congress. 

Instance  wherein  the  sitting  Member  appeared  before  the  Elections 
Committee  and  orally  conceded  the  election  of  contestant. 

The  sitting  Member  having  announced  that  he  conceded  the  election 
of  contestant,  the  House  passed  the  usual  resolutions  for  seating  the 
contestant. 

On  December  27,  1895,^  the  Committee  on  Elections  No.  1  reported  in  the 
case  of  Belknap  v.  McGann,  of  Illinois,  that  the  sitting  Member  had  appeared  before 
the  committee  and  orally  conceded  the  election  of  the  contestant.  The  committee 
complimented  the  action  of  Mr.  McGann,  and  the  House  agreed  to  the  usual  resolu- 
tions declaring  Mr.  McGann  not  elected  and  Mr.  Belknap  elected  and  entitled  to 
the  seat.     Mr.  Belknap  was  thereupon  sworn  in. 

745.  The  Alabama  election  case  of  Comer  v.  Clayton  in  the  Fifty-fifth 
Congress. 

Instance  wherein,  during  the  taking  of  testimony,  a  contestant  put 
in  an  attested  notice  of  his  withdrawal. 

The  contestant  having  withdrawn,  the  House  passed  a  resolution  con- 
firming the  title  of  sitting  Member. 

On  January  19,  1898,="  Mr.  Romulus  Z.  Linney,  of  North  CaroUna,  from  the 
Committee  on  Elections  No.  1,  submitted  a  report  in  the  case  of  Comer  v.  Clayton, 
from  Alabama.  The  committee  state  that  the  contestant  formerly  withdrew  after 
the  taking  of  testimony  had  proceeded  for  some  time,  and  consequently  the  testi- 
mony had  not  been  printed  or  opened  by  the  committee.  As  part  of  their  report 
the  committee  present  contestant's  notice  of  withdrawal,  which  was  duly  attested. 

'Journal,  p.  117. 

2  First  session  Fifty-fourth  Congress,  House  Report  No.  5;  Journal,  pp.  79,  80. 

^  Second  session  Fifty-fifth  Congress,  House  Report  No.  195;  Rowell's  Digest,  p.  554;  Journal,  p.  113. 


§  746  -\BAIEMENT   OF   ELECTION   CONTESTS.  971 

The  committee  presented  resolutions  confirming  the  title  of  contestee  to  the 
seat,  which  were  agreed  to  by  the  House  without  debate  or  division. 

746.  The  Kentucky  case  of  Hunter  v.  Rhea  in  the  Fifty-fifth 
Congress. 

A  contestant  having  withdrawn  his  contest  and  accepted  an  office 
incompatible  with  membership,  the  House  confirmed  the  title  of  sitting 
Member. 

Instance  wherein  a  contestant  went  before  the  Elections  Committee 
and  announced  his  withdrawal  from  the  contest. 

The  Elections  Committee  asserted  that  it  might  proceed  with  an  elec- 
tion case  after  the  withdrawal  of  the  contestant. 

On  May  17,  1898,'  Mr.  S.  A.  Davenport,  of  Pennsylvania,  from  the  Committee 
on  Elections  No.  1,  submitted  a  report  m  the  case  of  Hunter  v.  Rhea,  from  Kentucky, 
as  follows: 

By  the  official  returns  the  contestee  was  given  a  majority  of  337;  the  contestant  claimed,  on  his 
theory  of  the  case,  to  be  elected  by  a  majority  of  468. 

The  issues  relate  chiefly  to  questions  involving  the  qualifications  of  certain  voters,  upon  which 
differences  of  opinion  naturally  arise  among  honest  judges  of  election  and  good  lawyers. 

The  testimony  in  the  ca.se  was  printed  and  briefs  were  filed  with  the  committee.  Before  the  case 
was  set  for  hearing  the  contestant  appeared  before  the  committee  and  declared  that  he  no  longer  desired 
to  prosecute  his  contest;  that  since  he  began  the  same  he  had  been  appointed  by  the  President  minister 
of  the  United  States  to  Guatemala.     He  has  entered  upon  and  is  now  discharging  the  duties  of  that  office 

Your  committee  is  of  opinion  that  it  does  not  lose  jurisdiction  of  the  case  by  reason  of  this  announced 
purpose  of  contestant  to  desist  from  the  contest,  but  can  proceed,  if  it  so  desires,  to  hear  and  report  upon 
it  as  in  other  cases. 

But  in  the  absence  of  any  suggestion  of  collusion  between  the  parties,  in  view  of  the  character  of 
the  issues  raised,  and  aided  by  the  facts  already  recited,  we  do  not  deem  it  necessary  to  examine  in  detail 
the  voluminous  record  in  the  case,  and  deem  it  our  duty  to  confirm  contestee's  title  to  the  seat  he  now 
holds. 

In  accordance  with  these  conclusions  the  committee  reported  a  resolution  con- 
firming the  title  of  sitting  Member  to  the  seat,  and  the  same  was  agreed  to  by  the 
House  without  debate  or  division. 

747.  The  Alabama  election  case  of  Clark  v.  Stallings  in  the  Fifty- 
fifth  Congress. 

Instance  wherein  a  contestant  appeared  before  the  Elections  Commit- 
tee and  withdrew  his  case. 

On  January  IS,  1898,=  Mr.  R.  W.  Tayler,  of  Ohio,  from  the  Committee  on 
Elections  No.  1,  submitted  a  report  in  the  case  of  Clark  v.  Stallings,  from  Alabama, 
which  was  merely  an  announcement  that  the  contestant  took  no  steps  after  filing 
his  notice  of  contest,  and  appeared  before  the  committee  on  January  14,  1898,  and 
stated  that  he  had  no  desire  to  further  press  his  contest.  The  committee  therefore 
presented  resolutions  confirming  the  title  of  the  sitting  Member  to  his  seat,  and  the 
House  agreed  to  the  same  without  debate  or  division. 


'Second  session  Fifty-fifth  Congress,  House  Report  No.  1356;  Rowell's  Digest,  p.  557;  Journal 
p.  565.  '  ' 

^Second  session  Fifty-fifth  Congress,  House  Report  No.  188;  Howell's  Digest,  p.  554;  Journal, 


972  PRECEDENTS   OF   THE   HOUSE    OF   KEPKESENTATIVES.  §   748 

748.  The  Delaware  election  case  of  Willis  v.  Handy  in  the  Fifty-fifth 

Congress. 

The  contestant  having  announced  to  the  committee  his  abandonment 
of  the  contest,  the  House  confirmed  the  title  of  sitting  Member. 

On  April  30,  1898,'  Air.  R.  W.  Tayler,  of  Ohio,  from  the  Committee  on  Elections 
No.  1,  submitted  a  report  in  the  Delaware  case  of  Willis  v.  Handy,  saying: 

The  contestee,  by  the  official  returns,  received  15,407  votes  and  the  contestant  11,159.  A  notice 
of  contest  was  served  on  the  contestee,  but  the  contestant  took  no  further  formal  action.  He  appeared 
before  your  committee  and  declared  his  opinion  that  tlie  contestee's  seat  could  not  be  successfully 
attacked  and  that  he  had  abandoned  the  contest. 

Therefore  the  committee  recommended  resolutions  confirming  the  sitting  Mem- 
ber in  his  seat,  which  were  agreed  to  by  the  House  without  debate  or  division. 

749.  The  election  case  of  Lyon  v.  Bates,  from  Arkansas  Territory,  in 
the  Seventeenth  Congress. 

A  contestant  having  procured  no  testimony  in  support  of  his  petition, 
the  Elections  Committee  recommended  his  withdrawal. 

On  December  19,  1821,^  in  the  contested  election  case  of  Lyon  v.  Bates,  from 
Arkansas  Territory,  the  Committee  on  Elections  recommended  that  the  petitioner 
have  leave  to  withdraw,  since  he  had  produced  no  testimony  in  support  of  his 
allegations  that  the  retimis  on  which  the  sitting  Member  obtained  the  seat  were  to 
a  fatal  extent  improper  and  illegal. 

750.  The  Louisiana  election  case  of  Smith  v.  Robertson  in  the  Forty- 
seventh  Congress. 

A  contestant  having  failed  to  prosecute  his  case  according  to  law  or 
to  take  testimony,  the  House  dismissed  the  contest. 

On  March  4,  1882,''  Mr.  Samuel  H.  Miller,  of  Pennsylvania,  from  the  Committee 
on  Elections,  presented  this  report: 

That  after  hearing  argument,  and  after  a  full  examination  of  the  papers,  it  was  unanimously  agreed 
by  the  subcommittee  having  the  case  in  charge  that  the  contestant  had  not  prosecuted  his  case  accord- 
ing to  law;  that  he  failed  to  take  evidence  to  substantiate  his  charges  of  contest;  and  therefore  recom- 
mend that  the  contest  be  dismissed;  which  the  full  committee,  upon  due  consideration,  concluded  to 
recommend.     The  committee  therefore  report  the  following: 

Resolved.  That  the  contest  of  Alexander  Smith  v.  E.  W.  Robertson,  in  Sixth  Louisiana  district,  be 
dismissed  without  prejudice. 

The  House  agreed  to  the  resolution  without  debate  or  division.'' 

751.  The  Louisiana  election  case  of  Merchant  and  Herbert  v.  Acklen 
in  the  Forty-sixth  Congress. 

A  contestant  having  failed  to  file  the  brief  required  by  law,  the  Elec-  |'  j 

tions  Committee  notified  him  to  appear  and  show  cause  why  his  case  >- 

should  not  be  dismissed.  I 


'Second  session  Fifty-fifth  Congress,  House  Report  No.  1239;  Rowell's  Digest,  p.  557;  Journal,  ' 

p.  519.  '■; 

2  First  session  Seventeenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  372. 
^  First  session  Forty-seventh  Congress,  House  Report  No.  631;  2  Ellsworth,  p.  284. 
*  Journal,  p.  728;  Record,  p.  1610. 


§   752  ABATEMENT    OF    ELECTION    CONTESTS.  973 

The  contestant  having  failed  to  respond  to  a  notice  to  appear,  the 
House  dismissed  the  case. 

On  March  7,  1881,'  Mr.  William  M.  Springer,  of  Illinois,  from  the  Committee 
on  Elections,  submitted  the  report  of  the  committee  in  the  cases  of  Merchant  and 
Herbert  v.  Acklen,  from  Louisiana.     The  report  was  as  follows: 

That  the  notices  of  contest  and  answers  thereto  were  referred  to  the  Committee  on  Elections  and 
filed  with  the  clerk  of  said  committee  on  the  13th  day  of  April,  1879.  Evidence  taken  in  the  above 
cases  was  printed  on  the  15th  day  of  January,  1880,  and  copies  of  the  same  were  sent  to  the  contestants, 
as  required  by  the  rules  of  the  committee,  by  the  clerk  of  said  committee,  with  an  official  notice  to  pre- 
pare briefs  within  twenty  days  from  the  25th  day  of  January,  1880,  to  which  no  attention  was  given  by 
said  contestants. 

On  the  21st  day  of  May,  1880,  the  clerk  of  the  committee  was  directed  by  resolution  to  telegraph  to 
Messrs.  Merchant  and  Herbert  to  appear  before  the  committee  either  in  person  or  by  attorney  on  the  29th 
day  of  May,  1880,  and  show  cause  why  their  cases  should  not  be  dismissed  on  at'count  of  the  failure  to 
file  briefs  as  directed.  No  attention  was  given  to  these  dispatches,  and  the  parties  neither  appeared  in 
person  nor  by  attorneys,  as  notified.  The  said  contestants  were  again  notified  by  registered  letters,  on 
the  22d  day  of  December,  1880,  to  appear  before  the  Committee  on  Elections  on  the  11th  day  of 
January,  1881,  and  show  cause  why  the  cases  should  not  be  dismissed,  and  to  this  no  reply  was  made. 

We  therefore  respectfully  recommend  the  adoption  of  the  following  resolution: 

Resolved,  That  Joseph  H.  Acklen  was  duly  elected  and  is  entitled  to  a  seat  in  this  House  as  a  Repre- 
sentative in  the  Forty-sixth  Congress  from  the  Third  Congressional  district  of  the  State  of  Louisiana. 

Resolved,  That  Robert  O.  Herbert  and  W.  B.  Merchant  have  leave  to  withdraw  their  papers  of 
contest  in  this  case. 

The  House  agreed  to  the  resolutions  at  once,  without  debate  or  division.- 

752.  The  Indiana  election  case  of  McCabe  v.  Orth  in  the  Forty-sixth 
Congress. 

A  contestant  having  failed,  through  a  series  of  adverse  incidents,  to 
produce  testimony,  the  House,  on  account  of  the  lateness  of  the  session, 
gave  him  leave  to  withdraw  and  confirmed  the  title  of  sitting  Member. 

A  contestant  having  by  aflB.davit  given  his  reasons  for  asking  further 
time  to  take  testimony,  the  Elections  Committee  framed  a  resolution 
allowing  the  time. 

On  February  15,  1881,^  Mr.  William  H.  Calkins,  of  Indiana,  from  the  Committee 
on  Elections,  submitted  the  report  of  the  committee  on  the  Indiana  election  case  of 
McCabe  v.  Orth. 

The  sitting  Member  had  been  returned  by  an  official  majority  of  98  votes. 

The  report  states  the  preliminary  facts: 

On  the  1st  day  of  November,  1878,  Mr.  Orth  received  his  certificate  in  due  form  from  Hon.  James 
D.  Williams,  then  governor  of  Indiana.  Within  thirty  days  thereafter,  and  on  the  12th  day  of  Novem- 
ber, 1878,  Mr.  McCabe  served  notice  of  contest  upon  Mr.  Orth,  specifying,  as  is  alleged,  the  grounds  of 
contest  particularly,  therein.     This  notice  never  came  into  the  possession  of  your  committee. 

On  the  5th  day  of  December  thereafter  it  is  alleged  that  Mr.  Orth  fully  answered  each  ground  and 
specification  of  contest  and  served  the  same  on  that  day  on  Mr.  McCabe. 

It  is  alleged  by  Mr.  McCabe  in  a  memorial  presented  to  your  committee,  duly  verified  by  him, 
that  he  did  not  take  any  testimony  to  support  the  several  allegations  in  his  notice  of  contest  during  the 

'  Third  ses,sion  Forty-sixth  Congress,  House  Report  No.  382;  1  Ellsworth,  p.  345. 

2  Record,  p.  2286. 

^  Third  session  Forty-sixth  Congress,  House  Report  No.  260;  1  Ellsworth,  p.  320. 


974  PKECEDEKTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   752 

time  allowed  by  law,  for  the  reason,  among  others,  that  there  was  a  contest  pending  between  other 
contestants,  which  was  in  process  of  trial  before  the  proper  tribunal  in  the  county  of  Montgomery,  which 
would,  and  which  did,  develop  substantially  the  evidence  relied  upon  by  him  to  overturn  the  declared 
result. 

Contestant  further  urged  illness  in  his  family  as  a  reason  for  not  taking  testi- 
mony within  the  time  prescribed  by  law. 

He  further  alleged  that  as  early  as  February,  1879,  he  discovered  evidence 
tending  to  support  an  allegation  of  bribery,  which,  if  sustained,  would  destroy  the 
official  majority  of  sitting  Member. 

Of  tliis  memorial  the  report  says: 

This  petition  or  memorial  was  presented  to  your  committee  on  the  10th  day  of  June,  1879.  There 
were  two  other  affidavits  subsequently  filed  by  Mr.  McCabe,  signed  by  Mr.  Dobblebower  and  Mr. 
Paterson,  in  which  affidavits  each  of  the  affiants  testified  that,  on  information  and  belief,  facts  tending 
to  establish  the  bribery  aforesaid  might  be  elicited  if  time  were  given  to  take  depositions. 

In  answer  to  this  memorial  supported  by  the  affidavits  of  Mr.  McCabe  and  the  two  witnesses 
aforesaid,  Mr.  Orth  promptly  filed  his  own  affidavit  with  your  committee,  denying  generally  the  speci- 
fications in  Mr.  McCabe's  memorial  and  affidavit  so  far  as  it  affected  his  right  to  a  seat  in  Con- 
gress, and  specifically  denying  any  connection  with  or  knowledge  of  the  bribery  alleged  by  Mr.  McCabe. 
Numerous  affidavits  are  also  filed  in  support  of  Mr.  Orth's  claim. 

An  issue  being  thus  made,  your  committee  were  called  upon  to  decide  whether  under  the  circtim- 
stances  additional  time  should  be  given  the  contestant  to  take  testimony,  and  the  contestee  to  rebut, 
when  it  was  decided  on  the  23d  day  of  March,  1880,  to  grant  time,  and  the  following  resolution  was 
adopted ; 

"Resolved,  That  James  McCabe,  contesting  the  right  of  the  Hon.  Godlove  S.  Orth  to  a  seat  in  this 
House  as  a  Representative  from  the  Ninth  Congressional  district  of  the  State  of  Indiana,  be,  and  he  is 
hereby,  authorized  to  serve  upon  the  said  Orth  within  ten  days  after  the  passage  of  this  resolution  a 
particular  statement  of  the  grounds  of  said  contest,  and  that  the  said  Orth  be,  and  he  is  hereby,  required 
to  serve  upon  the  said  McCabe  his  answer  thereto  in  twenty  days  thereafter,  and  that  both  parties  be 
authorized  and  required  to  proceed  within  ten  days  after  the  adjournment  of  this  session  of  Congress  to 
take  evidence  in  the  case,  in  the  manner  and  subject  to  all  provisions  of  law  now  in  force  applicable  to 
the  taking  of  evidence  in  contested  election  cases,  the  same  as  if  the  contestant  had  heretofore  proceeded 
in  time  to  take  evidence  in  support  of  his  claim  to  the  seat." 

By  some  inadvertence  this  resolution  was  never  reported  to  the  House,  and  the  House  consequently 
never  acted  upon  it. 

No  testimony  having  been  taken  during  the  time  allowed  by  law,  and  the  resolution  not  having 
reached  the  House,  whereby  testimony  might  be  taken  under  the  order  of  the  House,  the  case  again 
came  up  at  a  meeting  of  the  committee  at  this  session  of  Congress,  during  last  December.  Your  com- 
mittee took  the  case  up  for  consideration,  and  it  being  deemed  unnecessary  to  report  the  aforesaid 
resolution  to  the  House  for  action,  because  there  did  not  remain  sufficient  time  for  the  taking  and  certi- 
fying of  testimony,  or  for  the  action  of  the  committee  of  the  House  during  the  remaining  time  of  this 
Congress,  your  committee  reconsidered  its  former  action,  and  on  the  11th  day  of  January,  1881,  passed 
the  following  resolution: 

"Resolved,  That  in  view  of  the  short  time  remaining  before  the  adjournment,  and  the  improba- 
bility of  taking  evidence  under  the  statute,  the  resolution  heretofore  passed  March  23,  1880,  in  reference 
to  the  contest  in  the  case  of  McCabe  v.  Orth,  be,  and  is  hereby,  rescinded,  and  the  contest  be,  and  is 
hereby,  discontinued." 

In  view,  therefore,  of  all  the  circumstances,  your  committee  recommend  the  passage  of  the  following 
resolution: 

"Resolved,  That  the  contestant,  James  McCabe,  contesting  the  right  of  the  Hon.  Godlove  S.  Orth, 
from  the  Ninth  Congressional  district  of  Indiana,  to  a  seat  in  the  Forty-sixth  Congress,  have  leave  to 
withdraw  his  papers  in  said  contest,  and  that  the  Hon.  Godlove  S.  Orth's  title  to  his  seat  in  the  said 
Congress  be,  and  the  same  hereby  is,  confirmed." 


§  753  ABATEMENT   OF   ELECTION   CONTESTS.  975 

On  February  15,  1881/  the  House  agreed  to  the  resolution  without  debate  or 
division. 

753.  The  Florida  election  case  of  Witherspoon  v.  Davidson  in  the 
Forty-seventh  Congress. 

A  contestant  having  failed  to  make  up  his  case  legally,  filed  an  affi- 
davit explaining  his  failure  and  asked  a  special  investigation  by  the 
House. 

A  contestant  being  apparently  unable  to  perfect  his  case,  the  commit- 
tee recommended  that  he  have  leave  to  ■writhdraw  his  contest  without 
prejudice. 

On  June  6,  1882,-  Jklr.  A.  A.  Ranney,  of  Massachusetts,  from  the  Committee  on 
Elections,  submitted  the  report  of  the  committee  in  the  Florida  case  of  Wither- 
spoon  V.  Davidson. 

This  was  a  case  where  no  notice  of  contest,  no  answer,  and  no  legally  taken 
evidence  came  before  the  committee.  Contestant  appeared  and  produced  an  affi- 
davit charging  gross  irregularities  and  frauds  in  the  election,  stating  that  he  caused 
notice  to  be  duly  served  of  a  contest,  and  further  setting  forth — 

That  he  employed  as  his  attorney  T.  W.  Brevard,  esq.,  and  paid  him  $125  as  a  retaining  fee  to 
prosecute  his  case  against  his  opponent,  the  said  Davidson,  and  that  the  said  Brevard  utterly  failed  to 
do  so,  and  betrayed  him  and  sacrificed  all  his  interests  in  the  contest,  and  your  deponent  ha-s  reason  to 
believe  and  does  believe  that  the  said  Brevard  entered  into  collusion  with  and  conspired  with  Davidson 
for  the  purpose  of  defeating  him,  deponent,  in  his  contest.  He  took  from  him,  and  declined  and  refused 
to  return  to  your  deponent,  his  notice  of  contest,  the  answer  thereto,  and  other  valuable  papers  and 
evidences  essential  to  the  successful  prosecution  of  the  case. 

He  further  deposes  and  says  that  his  witnesses  were  intimidated  and  prevented  from  appearing  to 
testify  in  his  behalf  by  threats  of  violence,  and  of  being  discharged  from  labor,  and  of  being  ejected  from 
rented  lands  and  houses,  and  by  refusals  of  stock  and  implements  to  cultivate  and  gather  their  crops, 
and  other  threats  of  persecution  and  proscription  if  they  should  attempt  to  testify  in  behalf  of  your 
deponent. 

In  proof  of  these  facts  your  deponent  cites  particularly  a  riot  instigated  in  Madison  County  by  the 
supporters  and  partisans  of  the  Democratic  party  for  the  purpose  of  intimidating  witnesses,  at  which 
riot  one  Patterson  was  killed,  on  account  of  which  many  arrests  were  made  and  the  parties  cast  into  jail, 
which  had  the  effect  of  intimidating  a  large  number  of  deponent's  witnesses  to  an  extent  which  made  it 
impossible  to  induce  them  to  testify  in  his  behalf. 

He  further  deposes  and  says  that  in  some  cases  (that  of  Christie  particularly),  the  officers  of  the  law 
before  whom  appointments  were  made  to  take  testimony,  and  where  witnesses  had  been  secured  at  great 
trouble  and  expense,  the  officer  failed  or  refused  to  attend  and  hear  testimony  taken.  By  these  and 
other  methods  only  known  to  the  lawless  and  mob-ridden  communities  of  the  South  your  deponent  was 
defrauded  out  of  his  election  and  denied  the  right  of  exposing  and  proving  the  fraud,  under  the  act  of 
Congress  made  and  provided  in  such  cases.  Therefore  he  prays  that  a  committee  be  appointed  with 
authority  to  proceed  to  Congressional  district  aforesaid  and  make  a  thorough  investigation  and  report 
on  the  conduct  and  result  of  said  election,  with  the  view  of  ascertaining  and  determining  who  was  law- 
fully elected  as  Representative  in  the  Forty-seventh  Congress  of  the  United  States  from  said  first  district 
of  the  State  of  Florida. 

Sitting  Member  filed  a  counter  affidavit  denying  the  charges. 
The  report  says: 

The  committee  caused  a  notice  to  be  sent  and  delivered  to  the  counsel  named  in  contestant's 
affidavit,  asking  him  to  produce  the  papers  in  his  hands,  but  he  has  omitted  and  declined  to  do  so,  he 
having  taken  no  notice  of  the  letter  sent  him,        «    »    «    gave  to  acknowledge  the  receipt  of  same. 

'  Record,  p.  1604. 

^  First  session  Forty-seventh  Congress,  House  Report  No.  1278;  2  Ellsworth,  p.  163. 


976 


PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES. 


§754 


Oontestee  exhibited  to  the  committee  the  copies  of  the  notice  of  contest  served  upon  him  and  his 
answer  thereto,  together  with  a  replication  and  amended  notice,  copies  of  which  are  annexed 
(Exhibits  A,  B^  C),  and  moved  to  dismiss  the  proceedings.  It  was  claimed  and  it  appears  that  the 
notice  of  contest  was  insufficient  and  inadequate.  It  alleges  certain  frauds  very  generally,  but  does 
not  set  up  or  allege  that  contestant  was  elected.  The  replication  enlarges  the  notice,  however,  and 
obviates  some  if  not  all  of  the  objections. 

The  committee  are  of  the  opinion  that  contestant's  failure  to  prosecute  his  contest  arose  from  the 
causes  which  he  sets  forth  in  his  affidavit.  But  they  see  no  way  of  procuring  the  papers,  or  of  investi- 
gating the  case  further,  unless  the  House  take  the  matter  in  hand  and  do  it  in  their  own  way,  either  by 
Eending  a  special  committee  to  Florida  to  take  the  evidence  or  otherwise. 

There  is  nothing  which  implicates  contestee  in  any  of  the  wrongful  proceedings  referred  to. 

The  committee  report  the  facts,  and  recommend  that  the  contestant  have  leave  to  withdraw  his 
contest  without  prejudice. 

This  report  was  submitted  to  the  House  on  June  6.'  It  was  stated  that  a 
member  of  the  committee  would  file  minority  views,  but  this  does  not  appear  to 
have  been  done.  Neither  does  it  appear  that  the  report  was  ever  acted  on  by  the 
House. 

754.  The  Mississippi  election  cases  of  Newman  v.  Spencer,  RatclifE 
V.  Williams,  and  Brown  v.  Allen,  in  the  Fifty-fourth  Congress. 

Contestant  not  having  filed  any  testimony,  the  House  confirmed  the 
title  of  sitting  Member. 

The  Elections  Committee  declined  to  consider  an  allegation  that  an 
election,  otherwise  unimpeached,  was  invalid  because  the  constitution  of 
the  State  was  void. 

On  April  30,  1896,''  Mr.  Samuel  W.  McCall,  of  Massachusetts,  from  the  Com- 
mittee on  Elections  No.  ,3,  submitted  reports  in  the  Mississippi  cases  of  Newman  v. 
Spencer,  Ratcliff  v.  Williams,  and  Brown  v.  Allen.  These  cases  involved  a  single 
question,  and  the  reports  are  very  nearly  identical.  The  first  report  presents  the 
whole  of  each  case: 

In  this  case  no  testimony  has  been  presented  to  the  committee.  It  is  alleged  that  some  was  taken, 
but  nothing  has  been  filed  with  the  Clerk  of  the  House.  The  contestant,  however,  contends  that 
section  241  of  article  12  of  the  constitution  of  the  State  of  Mississippi,  adopted  in  1892,  is  in  contravention 
of  the  Constitution  of  the  United  States  and  of  the  act  of  Congress  of  February  23,  1870,  entitled  "An 
act  to  admit  Mississippi  to  representation  in  the  Congress  of  the  United  States,"  and  has  filed  a  brief 
in  support  of  his  contention.  He  claims  that  the  above-named  section  of  the  State  constitution  is  void, 
and  that  therefore  no  valid  election  was,  or  could  be,  held  in  the  Seventh  Congressional  district  of  the 
State  of  Mississippi. 

As  the  committee  is  of  the  opinion  that  a  decision  that  the  constitution  of  the  State  of  Mississippi 
was  invalid  would  not  necessarily  deprive  the  State  of  representation  in  Congress,  it  does  not  attempt 
to  decide  that  question,  and  in  absence  of  any  testimony  on  behalf  of  the  contestant  it  recommends 
the  adoption  of  the  following  resolutions:     [Here  followed  resolutions  in  the  usual  form.] 

The  resolutions,  which  confirmed  the  titles  of  the  sitting  Members  to  the  seats, 
were  agreed  to  by  the  House  on  the  same  day  the  reports  were  presented. 

'Journal,  p.  1420;  Record,  p.  4577. 

^First  session  Fifty-fourth  Congress,  House  Reports  Nos.  1536,  1537,  and  1538;  Rowell's  Digest, 
p.  541;  Journal,  p.  440. 


§  755  ABATEMENT   OF   ELECTION   CONTESTS.  977 

755.  The  Texas  election  case  of  Davis  v.  Culberson  in  the  Fifty-fourth 
Congress. 

A  contestant  having  failed  to  produce  testimony  or  respond  to  noti- 
fication from  the  Elections  Committee,  the  House  confirmed  the  title  of  the 
returned  Member. 

On  Januarys  30,  1896,'  Mr.  Samuel  W.  McCall,  of  Massachusetts,  from  the  Com- 
mittee on  Elections  No.  3,  submitted  a  report  in  the  case  of  Davis  v.  Culberson,  of 
Texas.     The  report  says: 

The  record  in  this  case  consists  of  the  notice  of  contest,  the  answer,  and  an  affidavit  of  David  B. 
Culberson,  all  of  which  were  filed  by  the  contestee.  Since  the  filing  of  the  notice  of  contest  the  con- 
testant appears  to  have  done  nothing  in  prosecuting  his  claim  to  the  seat.  He  has  not  produced  any 
testimony,  and,  although  twice  notified  by  letter,  directed  to  his  place  of  residence,  he  has  not  appeared 
before  the  committee. 

In  view  of  these  facts,  the  committee  did  not  believe  the  right  of  sitting  Member 
to  his  seat  should  longer  remain  in  question  and  so  recommended  resolutions 
confirming  his  title. 

These  resolutions  were  agreed  to  on  the  same  day. 

'  First  session  Fifty-fourth  Cbngress,  House  Report  No.  180;  Journal,  p.  163;  Rowell's  Digest,  p.  529. 
5994— VOL  1—07 62 


Chapter  XXV. 

GENERAL  ELECTION  CASES,  1789  to   1840. 


1.  Cases  in  the  First,  Third,  and  Fourth  Congresses.     Sections  756-764.' 

2.  Cases  in  the  Eighth,  Eleventh,  Thirteenth,  and  Fourteenth  Congresses.     Sections 

765-773.^ 

3.  Cases  from  the  Sixteenth  to  the  Nineteenth  Congresses.     Sections  774-777.' 

4.  Cases  in  the  Twenty-first,  Twenty-second,  and  Twenty-fourth  Congresses.     Sections 

778-786.* 
6.  The  Senate  cases  of  Smith,  Winthrop,  Phelps,  and  Cass.     Sections  787-790. 


756.  The  election  case  of  the  New  Jersey  Members  in  the  First 
Congress. 

In  the  First  Congress  an  inquiry  as  to  an  election  was  instituted  on  a 
memorial  of  citizens  of  the  State. 


'Additional  cases  in  this  period,  classified  in  different  chapters,  are: 
First  Congress:  Smith,  of  South  Carolina.     (Sec.  420.) 
Second  Congress:  Jackson  v.  Wayne,  Georgia.     (Sec.  708.) 
Third  Congress:  White,  Southwest  Territory.     (Sec.  400.) 
^  Third  Congress:  Duvall,  Maryland.     (Sec.  565.) 
<-  Third  Congress:  Edwards,  Maryland.     (Sec.  567.) 
Fourth  Congress:  Morris  !'.  Richards,  Pennsylvania.     (Sec.  554.) 
Seventh  Congress:  Hunter,  Mississippi.     (Sec.  401.) 
Seventh  Congress:  Fearing,  Northwest  Territory.     (Sec.  402.) 
Seventh  Congress:  Van  Ness.     (Sec.  486.) 

^Additional  cases: 

Eighth  Congress:  McFarland  v.  Purviance.     (Sec.  320.) 

Eighth  Congress:  Hoge,  Pennsylvania.     (Sec.  517.) 

Ninth  Congress;  Spaulding  v.  Mead,  Georgia.     (Sec.  637.) 

Tenth  Congress:  Key,  Maryland.     (Sees.  432,  441.) 

Tenth  Congress:  McFarland  v.  Culpepper.     (Sec.  321.) 

Tenth  Congress:  McCreery,  Maryland.     (Sec.  414.) 

Eleventh  Congress:  Turner  v.  Baylies,  Massachusetts.     (Sec.  646.) 

Thirteenth  Congress:  Williams,  jr.,  v.  Bowers,  New  York.     (Sec.  647.) 

Thirteenth  Congress:  Kelly  v.  Harris,  Tennessee.     (Sec.  734.) 

Fourteenth  Congress:  WiUoughby  v.  Smith,  New  York.     (Sec.  648.) 

Fourteenth  Congress:  Root  v.  Adams,  Now  York.     (Sec.  650.) 

Fifteenth  Congress:  Mumford,  North  Carolina.     (Sec.  497.) 

Fifteenth  Congress:  Earle,  South  Carolina.     (Sec.  498.) 

Fifteenth  Congress:  Hammond  v.  Herrick,  Ohio.     (Sec.  499.) 

(See  page  979  for  notes  3  and  4.) 

978 


§  756  GENER.Uv  ELECTION   CASES,  1789  TO  1840.  979 

In  the  First  Congress  the  House  required  its  Elections  Committee  to 
hear  testimony  and  arguments  on  both  sides  of  the  case,  and  to  report  facts 
only  to  the  House. 

On  March  23,  April  1  and  13,  1789,'  the  Members-elect  from  New  Jersey 
appeared  and  took  their  seats.  On  April  8 '  all  the  Members  of  the  House  who  had 
so  far  attended,  including  all  but  one  of  the  New  Jersey  delegation,  took  the  oath 
prescribed  by  a  rule  which  had,  vnth  other  rules,  been  adopted  for  governing  the 
proceedings  of  this,  the  first  House  of  Representatives.'  No  objection  was  made 
to  swearing  in  the  New  Jersey  Members-elect. 

On  April  28  •*  the  Speaker  laid  before  the  House  a  letter  from  Matthias  Ogden, 
referring  to  sundry  petitions  annexed  thereto,  from  a  number  of  citizens  of  New 
Jersey,  complaining  of  illegaUty  in  the  late  election  of  Representatives  for  that 
State.  Other  petitions  of  a  similar  purport  were  presented  at  various  times.  These 
petitions  were  referred  on  May  14  to  the  Committee  on  Elections,  mth  instructions 
to  examine  the  matter  thereof,  and  report  the  same  with  their  opinion  thereupon 
to  the  House. 

On  May  25^  the  committee  reported  "that  it  will  be  proper  to  appoint  a  com- 
mittee, before  whom  the  petitioners  are  to  appear,  and  who  shall  receive  such  proofs 
and  allegations  as  the  petitioners  shall  judge  proper  to  offer  in  support  of  their  said 
petition,  and  who  shall,  in  like  manner,  receive  all  proofs  and  allegations  from  per- 
sons who  may  be  desirous  to  appear  and  be  heard  in  opposition  to  the  said  petition, 
and  to  report  to  the  House  all  such  facts  as  shall  arise  from  the  proofs  and  allega- 
tions of  the  respective  parties." 

The  House  agreed  to  this  report  and  referred  the  matter  to  the  Committee  on 
Elections. 

On  August  18  °  Mr.  George  Clymer,  of  Pennsylvania,  from  the  Committee  on 
Elections,   reported  six  facts  which  they  had   ascertained  from  the  proofs.     It 

(See  p.  978  for  references  to  notes  3  and  4. ) 
'  Additional  cases: 

Sixteenth  Congress;  Guyon,  jr.,  v.  Sage,  N^w  York.    (Sec.  649.) 
Seventeenth  Congress:  Colden  v.  Sharpe,  New  York.    (Sec.  638.) 
Seventeenth  Congress:  Lyon  i'.  Bates,  Arkansas.     (Sec.  749.) 
,,Eighteenth  Congress:  Bailey,  Massachusetts.     (Sec.  434.) 
.^Eighteenth  Congress:  Forsyth,  Georgia.     (Sec.  433.) 
Eighteenth  Congress:  Biddle  t'.  Richard,  Michigan.     (Sec.  421.) 
Nineteenth  Congress:  Sergeant,  Pennsylvania.     (Sec.  555.) 

*  Additional  cases: 

Twenty-first  Congress:  Wright,  jr.,  v.  Fisher.     (Sec.  650.) 
Twenty-third  Congress:  Letcher  v.  Moore,  Kentucky.    (Sec.  53.) 
Twenty-third  Congress:  Allen,  Ohio.     (Sec.  729.) 

Twenty-fifth  Congress:  Doty  v.  Moore,  Wisconsin,  as  to  prima  facie  right,  section  569;  as  to 
final  right,  section  403. 
'First  session,  First  Congress,  Journal,  pp.  5,  6,  12. 
^Journal,  p.  11. 

'  The  House  adopted  rules,  chose  officers,  and  participated  in  the  count  of  the  electoral  vote  before 
the  Members  were  sworn,  Journal,  pp.  6-10. 

*  Journal,  pp.  23,  33,  35. 
^Journal,  p.  41. 
•Journal,  p.  83. 


980  PBECEDENTS   OF    THE   HOUSE    OF   KEPEESENTATIVES.  §   757 

appeared  from  these  findings  that  the  returns  of  the  election  were  canvassed  by  the 
governor  and  council,  a  majority  of  whom  decided  to  certify  the  election  of  the 
Members-elect  already  seated.  Three  members  of  the  council  protested  against 
this  act,  offering  their  protest  in  writing.  The  grounds  of  this  protest  did  not 
appear  in  the  report,  nor  did  the  Committee  on  Elections  make  any  recommenda- 
tion or  depart  in  any  waj'  from  a  statement  of  facts. 

On  July  1 4 '  the  committee  made  a  further  report  stating  that  certain  allega- 
tions in  the  petitions  required  the  testimony  of  some  witnesses  which  the  committee 
did  not  consider  themselves  authorized  to  collect;  and  that  they  requested  the 
direction  of  the  House  in  the  manner  of  proceeding  with  respect  to  that  testimony, 
and  also  with  respect  to  the  request  of  the  petitioners  that  they  might  be  heard  by 
coimsel  on  the  floor  of  the  House. 

757.   Case  of  the  New  Jersey  Members,  continued. 

In  the  First  Congress  the  House,  after  a  committee  had  reported  the 
facts,  decided  an  election  case  without  further  hearing  on  the  floor. 

In  the  First  Congress  the  House  did  not  think  it  necessary  to  hear 
petitioners  in  an  election  case  on  the  floor  by  counsel. 

A  returned  Member,  whose  seat  w^as  contested  in  the  First  Congress, 
debated  the  question  as  a  matter  of  right. 

Reference  to  the  force  which  should  be  given  to  the  law  of  Parlia- 
ment by  the  House  of  Representatives. 

On  July  15^  the  report  was  argued  on  the  floor  of  the  House.  Mr.  Elias  Bou- 
dinot,  one  of  the  sitting  Members  from  New  Jersey,  taking  the  floor  without  objection 
as  to  his  right  so  to  do,  submitted  that  the  certificate  of  the  executive  of  New  Jersey 
was  not  the  best  evidence  that  the  nature  of  the  case  required,  and  that  it  would 
be  unnecessary  to  send  a  commission  to  New  Jersey  to  take  testimony,  which  would 
have  to  be  ex  parte  because  of  the  inconvenience  of  having  the  opposite  party  attend 
to  cross-examine.  Furthermore  the  precedent  would  be  dangerous  because  if 
followed  as  to  more  remote  States,^  like  Georgia,  commissions  would  have  to  be  sent 
there,  and  the  House  would  be  precluded  from  viva  voce  testimony,  which  was  the 
most  satisfactory.  It  seemed  that  the  evidence  already  before  the  House,  and  such 
as  might  be  further  advanced  by  the  petitioners  by  viva  voce  evidence,  would  be 
sufficient  for  a  decision. 

Mr.  Richard  Bland  Lee,  of  Virginia,  urged  that  the  report  should  be  recommitted 
and  that  the  committee  be  authorized  to  send  for  evidence,  papers,  and  records, 
and  report  a  special  state  of  facts.  He  said  it  was  the  custom  of  the  British  House 
of  Commons,  upon  similar  occasions,  to  leave  the  whole  business  to  a  committee; 
and  Mr.  Lee  further  observed  *  that  the  experience  of  so  old  and  experienced  a 
legislative  body  could  be  followed  with  safety  and  propriety.  On  the  other  hand, 
Mr.  Samuel  Livermore,  of  New  Hampshire,  lu-ged  that  the  committee  be  discharged 
and  that  a  day  be  appointed  to  hear  the  parties. 

'Journal,  p.  60;  Annals,  p.  637. 

'Journal,  p.  61;  Annals,  pp.  638-642. 

'  The  Congress  at  this  time  was  sitting  in  New  York  City. 

*  Annals,  p.  641. 


§   758  GENERAL   ELECTION    CASES,   1789   TO   18-10.  981 

A  motion  was  made  that  the  parties  be  permitted  to  be  heard  by  coimsel  and 
was  favored  generally  by  those  who  favored  a  trial  before  the  House.  Mr.  James 
Madison,  of  Virginia,  favored  the  admission  of  coimsel;  but  the  motion  was  with- 
drawn without  decision. 

The  report  was  considered  again  on  September  1  and  2,'  and  on  the  latter  day, 
without  having  heard  coimsel  or  taken  other  evidence,  the  House  agreed  to  this 
resolution : 

Resolved,  That  it  appears  to  the  House,  upon  full  and  mature  consideration,  that  James  Schureman, 
Lambert  Cadwalader,  Elias  Boudinot,  and  Thomas  Sinnickson  were  duly  elected  and  returned  to  serve 
as  Representatives  for  the  State  of  New  Jersey  in  the  present  Congress  of  the  United  States. 

758.  The  Delaware  election  case  of  Latimer  v.  Patton  in  the  Third 
Congress. 

The  State  law  having  prescribed  a  form  of  ballot  and  voting,  the 
House  rejected  ballots  cast  in  different  form. 

The  returned  Member  being  unseated  by  rejection  of  informal  ballots, 
the  House  seated  the  contestant. 

Discussion  in  1793  as  to  propriety  of  seating  a  petitioner  after  the 
unseating  of  the  returned  Member. 

An  early  election  case  instituted  by  petition  and  tried  before  the 
House. 

On  December  4,  1793,'  the  petition  of  Henry  Latimer,  of  the  State  of  Delaware, 
was  presented  to  the  House  and  read,  complaining  of  an  imdue  election  and  return 
of  John  Patton,  to  serve  as  a  Member  of  the  House  from  Delaware.  This  was  later 
referred  to  the  Committee  on  Elections. 

On  December  13^  Mr.  Patton  appeared  and  took  the  oath. 

On  February  10,  1794,*  the  committee  reported.  It  appeared  from  this  report 
that  the  law  of  Delaware  provided  ' '  that  every  person  coming  to  vote  for  a  Eepre- 
sentative,  agreeably  to  the  direction  of  the  said  act,  shall  deliver,  in  writing,  on  one 
ticket,  or  piece  of  paper,  the  names  of  two  persons,  inhabitants  of  the  State,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  county  with  himself,  to  be 
voted  for  as  Representative." 

The  returns  of  the  election  gave  John  Patton  2,273  votes  and  Henry  Latimer 
2,243  votes,  a  majority  of  30  votes  for  Patton. 

It  appeared  from  the  evidence  taken  by  the  committee  that  in  some  voting 
places  double  votes  were  rejected,  and  in  others  single  votes  were  received,  which 
led  the  committee  to  this  conclusion: 

That,  agreeably  to  the  election  law  of  Delaware,  the  4  votes  in  Kent  County  containing  the  names 
of  Henry  Latimer  and  George  Truit  which  were  rejected  ought  to  have  been  received  and  counted  for 
Henry  Latimer;  and  the  68  single  votes  in  Sussex  County  which  were  received  and  counted  for  the  said 
John  Patton  ought  to  have  been  rejected;  that  if  the  aforesaid  4  votes  in  Kent  County  had  been  received, 
and  the  aforesaid  68  votes  in  Sussex  County  had  been  rejected,  as  was  required  by  law,  the  said  Henry 

'  Journal,  p.  95;  Annals,  pp.  834,  835. 

-First  session  Third  Congress,  Journal,  p.  9. 

'Journal,  p.  15. 

*  Journal,  p.  59;  Contested  Election  Cases  (Clarke),  p.  69. 


982  PEECEDENTS   OF   THE   HOUSE   OF   KEPRESENTATIVES.  §  759 

Latimer  would  have  had,  after  deducting  the  9  single  votes  received  and  counted  for  him  in  Sussex 
County,  a  majority  of  33  votes.  The  committee  are,  therefore,  of  opinion  that  John  Fatten  is  not  entitled 
to  a  seat  in  this  House;  they  are  also  of  opinion  that  Henry  Latimer  is  entitled  to  a  seat  in  this  House  an 
a  Representative  of  the  State  of  Delaware. 

This  report,  accompanied  by  certain  written  observations  thereon  by  the 
sitting  Member,  tending  to  controvert  the  reasoning  and  conclusions  of  the  report, 
was  referred  to  the  Committee  of  the  Whole  House,  where  it  was  considered  on 
February  13,'  after  which  the  House  agreed  to  the  following: 

Resolved,  That  the  Committee  of  the  Whole  House  be  discharged  from  proceeding  thereon,  and 
that  the  hearing  on  the  trial  of  the  said  contested  election  be  now  proceeded  on  in  the  House,  Mr.  Speaker 
in  the  chair. 

The  House  then  proceeded  to  hear  the  depositions  and  other  exhibits,  as  well  as 
the  written  observations  of  the  sitting  Member. 

On  February  14"  the  reading  of  the  depositions  was  concluded,  and  the  parties 
retired  from  the  bar. 

Thereupon  the  House  agreed  to  this  resolution,  apparently  without  division: 

Resolved,  That  John  Fatten  is  not  entitled  to  a  seat  in  this  House. 

The  following  resolution  was  then  proposed : 

Resolved,  That  Henry  Latimer  is  entitled  to  a  seat  in  this  House  as  the  Representative  of  the  State 
of  Delaware. 

Mr.  John  Page,  of  Virginia,  antagonized  this  resolution."  He  said  that 
in  the  case  of  Jackson  v.  Wayne,  where  corruption  was  shown,  he  had  favored 
the  seating  of  the  contestant,  who  had  a  majority  of  sound  voters,  but  the  House 
had  decided  to  keep  itself  free  from  partiality  and  had  declined  to  admit  the  peti- 
tioner. In  this  case  no  corruption  was  alleged.  If  the  68  freemen  of  Sussex  had 
violated  the  law,  he  nevertheless  did  not  think  that  the  violation  was  of  such  a 
nature  as  to  deprive  them  of  the  right  of  suffrage.  There  was  no  doubt  that  the 
majority  voted  for  Mr.  Patton,  and  he  should  not  vote  to  force  on  the  electors  a 
Representative  for  whom  a  majority  did  not  vote.  Hence  he  should  oppose  the 
pending  resolution. 

The  resolution  was  agreed  to,  yeas  57,  nays  31. 

Mr.  Latuner  thereupon  appeared  and  took  the  oath. 

759.  The  New  York  election  case  of  Van  Rensselaer  v.  Van  Allen  in 
the  Third  Congress. 

The  major  part  of  the  votes  in  a  district  being  honestly  given  and 
duly  canvassed,  the  person  having  a  plurality  of  such  major  part  was 
held  to  be  elected. 

An  early  decision  that  corruption  in  a  small  fraction  of  the  votes 
should  not  vitiate  an  election. 

No  fraud  being  shown,  votes  were  counted,  although  the  box  was 
for  a  time  irregularly  in  the  custody  of  sitting  Member. 

A  question  as  to  whether  the  House  should  reject  votes  for  irregulari- 
ties not  sufficient  to  cause  their  rejection  under  State  law. 

1  Journal,  p.  62.  ^  Journal,  p.  63.  '  Annals,  p.  454. 


§  759  GENERAX,   ELECTION    CASES,  1789   TO   1840.  983 

The  committee  in  1793  declined  to  permit  a  ballot  to  be  impeached  by 
the  testimony  of  the  voter  after  the  act  of  voting. 

On  December  6,  1793,'  a  petition  was  presented  to  the  House  on  the  part  of 
Henry  K.  Van  Rensselaer,  complaining  of  the  undue  election  and  return  of  John  E. 
Van  Allen,  as  a  Member  from  the  State  of  New  York,  and  giving  the  follo^\^ng 
grounds  therefor: 

1.  That  in  Stephentown,  which  is  comprehended  within  the  election  district 
from  which  the  said  Jolm  E.  Van  Allen  is  returned,  there  were  more  votes  actually 
given  for  the  petitioner  than  appear,  from  the  return  of  the  committee  who  were 
appointed  by  law  to  canvass  and  estimate  the  votes,  to  have  been  canvassed  and 
counted. 

2.  That  in  the  town  of  Hosack,  also  included  in  the  said  district,  the  ballot 
box  was  not  locked  agreeably  to  law,  but  was  only  tied  with  tape. 

3.  That,  at  the  time  of  the  election,  the  said  Jolm  E.  Van  Allen,  who  was 
not  an  inspector  of  the  election,  had  in  liis  possession  the  ballot  box  of  the  town 
of  Rensselaerwick,  which  is  also  comprehended  in  the  said  district. 

On  December  9  and  18  '  the  Committee  on  Elections  reported  the  following: 

It  appeals  to  your  committee  that  the  allegations  in  regard  to  Stephentown,  viz,  "that  the 
petitioner  had  a  greater  number  of  votes  in  the  said  town  than  was  returned  to  be  estimated  and 
canvassed,"  even  if  proved,  would  not,  consistently  with  the  law  of  the  State  of  New  York,  be  sufficient 
to  set  aside  the  votes  given  at  the  election  in  the  said  town;  that  even  should  the  irregularities  complained 
of  with  respect  to  the  elections  of  the  towns  of  Hosack  and  Rensselaerwick,  be  sufficient  to  set  aside  the 
votes  given  in  the  said  towns,  still  it  appears  that  the  said  John  E.  Van  Allen  has  a  majority  of  the 
remaining  votes  of  the  district  composed  of  the  counties  of  Rensselaer  and  Clinton. 

On  December  20,^  Mr.  Richard  Bland  Lee,  of  Virginia,  speaking  for  the  Elections 
Committee,  stated  the  following  summary  of  the  questions  arising: 

1.  Whether  irregularities  not  deemed  by  the  law  of  New  York  sufficient  to  nullify  the  votes  given 
shall  be  regarded  by  the  House  of  Representatives  as  having  that  effect?  None  of  the  irregularities 
were  regarded  by  the  law  of  New  York  as  sufficient  to  vitiate  the  returns  of  votes  made  by  the  inspectors, 
who  are  sworn  officers,  and  subject  to  pains  and  penalties  for  failure  of  duty.  If  the  law  of  New  York 
is  to  be  observed  as  a  sovereign  rule  on  this  occasion,  the  allegations  do  not  state  any  facts  so  material 
as  to  require  the  interference  of  the  House  of  Representatives. 

2.  Whether,  setting  aside  this  first  principle,  mere  irregularities  not  alleged  to  have  proceeded 
from  corruption  shall  nullify  the  return  of  sworn  officers;  and  whether  the  House  of  Representatives 
ought  to  countenance  and  inquire  into  the  mere  implications  of  such  serious  crimes  as  perjury  and 
corruption,  or  should  require  such  charges  to  be  expressly  and  specifically  made? 

3.  Whether  it  is  or  not  an  indispensable  requisite  to  the  existence  of  a  representative  government 
that  at  every  election  a  choice  should  be  made? 

4.  Whether,  to  insure  such  choice,  it  is  not  necessary  that  this  principle  should  be  established: 
That  a  majority  of  legal  votes,  legally  given,  should  decide  the  issue  of  an  election? 

5.  Whether,  therefore,  partial  corruption  should  be  deemed  sufficient  to  nullify  an  election,  or 
only  sufficient  to  vitiate  the  votes  given  under  such  corruption,  leaving  the  election  to  be  decided  by 
the  sound  votes,  however  few? 

6.  Whether,  if  partial  corruption  should  [not]  be  deemed  sufficient  to  nullify  an  election,  such 
corruption  should  not  extend  to  the  major  part  of  the  votes  given,  and  if  the  major  part  of  the  votes 
be  deemed  sound,  the  fate  of  the  election  should  not  depend  on  the  plurality  of  votes  in  such  major  part? 

'  First  session  Third  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  73;  Journal, 
p.  13. 

^  Journal,  pp.  14,  17. 
'  Annals,  p.  146. 


984  PRECEDENTS   OF   THE   HOUSE   OF   EEPEESENTATIVES.  §  760 

Mr.  Lee  declared  that  the  last  was  the  opinion  of  the  committee,  and  finding 
a  major  part  of  the  votes  duly  given  and  canvassed,  and  that  Mr.  Van  Allen  had  a 
plurality  of  such  major  part,  they  had  determined  that  he  was  duly  returned. 

Objection  was  made  that  the  House  possessed  the  exclusive  right  to  judge  of 
the  elections  and  returns  of  its  own  Members,  and  that  the  law  of  New  York  should 
not  operate  to  exclude  from  the  knowledge  of  the  House  the  full  amount  of  the 
number  of  votes  given.  The  House  should  ascertain  with  precision  the  actual 
state  of  the  polls.  If  the  votes  of  citizens  could,  under  any  pretext,  be  suppressed 
the  essential  rights  of  suffrage  were  at  an  end. 

On  behalf  of  the  committee  it  was  stated  that  the  action  of  the  returning  officers 
of  towns  in  rejecting  some  votes  given  in  for  petitioners  was  in  accordance  with 
the  law  of  New  York.  The  petitioner  stated  that  numbers  of  persons  had  sworn 
that  they  had  voted  for  petitioner,  although  it  appeared  that  their  votes 
were  not  coimted.  The  committee  did  not  consider  tliis  allegation  proper  to 
engage  their  attention,  and  it  was  presumed  that  the  House  of  Representatives 
would  never  institute  an  inquiry  into  such  a  species  of  evidence.  It  was  extremely 
difficult  for  a  man  to  swear  that  he  had  positively  voted  by  ballot  for  a  particular 
candidate,  since  it  was  well  known  that  persons  sometimes  became  confused  and 
cast  the  wrong  ballot.  The  law  of  New  York  justifying  the  rejection  of  the  votes 
had  been  passed  under  the  sanction  of  the  Constitution. 

It  was  also  urged  against  the  report  that  corruption  should  not  be  considered 
by  weight  and  measure,  and  that  admitted  irregularities  should  vitiate  an  election. 

The  committee  felt  that,  in  a  district  of  ten  towns,  irregularities  in  two  towns 
should  not  vitiate  the  election,  when  the  voters  in  those  two  towns  did  not  amount 
to  a  majority  of  the  whole  number  of  votes  in  the  district. 

With  respect  to  the  deposit  of  a  box  containing  a  part  of  the  votes  in  the 
house  of  sitting  Member,  the  committee  did  not  give  it  weight,  since  it  had  not  been 
shown  that  the  votes  were  tampered  with,  and  the  petitioner  had  not  charged 
that  sitting  Member  was  accessory  to  any  unfair  practices. 

On  December  24,'  the  House  refused  to  recommit  the  report,  and  then  agreed  to 
the  following: 

Resolved,  That  the  allegations  of  the  petition  do  not  state  corruption  nor  irregularities  of  sufficient 
magnitude,  under  the  law  of  New  York,  to  invalidate  the  election  and  return  of  John  E.  Van  Allen  to 
serve  as  a  Member  in  this  House,  and  that  therefore  the  said  John  E.  Van  Allen  is  duly  elected. 

760.  The  Virginia  election  case  of  Trigg  v.  Preston  in  the  Third 
Congress. 

The  House,  overruling  its  committee,  declined  to  invalidate  a  close 
election  because  of  an  interference,  not  shown  definitely  to  have  been 
effective,  by  a  body  of  United  States  troops. 

The  negativing  of  a  resolution  declaring  a  sitting  Member  not  elected 
left  him  undisturbed  in  his  seat. 

An  early  election  case  instituted  by  petition  and  tried  before  the 
House. 

'Journal,  p.  20. 


§     761  GENERAL   ELECTION    CASES,  1789   TO   1840.  985 

In  1794'  the  seat  of  Francis  Preston,  of  Virginia,  was  contested  by  Abraham 
Trigg,  whose  petition  was  presented  December  26,  1793,'  and  referred  to  the  Com- 
mittee on  Elections. 

The  committee's  examination  of  the  case  showed  that  the  sheriff  holding  the 
election  in  one  countj-  had  exercised  a  discretionary^  power,  given  him  by  the  law 
of  Virginia,  of  closing  the  poll  at  any  time  of  day,  after  three  proclamations  and  no 
voters  appearing.  In  another  county  the  sheriff  exercised  the  same  discretionary 
power,  vested  in  him  by  the  law  of  the  State,  to  adjourn  the  election  m  consequence 
of  rain. 

These  facts,  which  militated  in  favor  of  the  sitting  Member,  were  not,  however, 
the  portion  of  the  case  most  in  controversy.  In  Montgomery  County  the  election 
had  been  disturbed  by  a  body  of  United  States  troops,  not  showTi  to  have  been  under 
arms,  but  marched  about  under  command  of  Capt.  WilUam  Preston,  their  officer 
and  brother  and  election  agent  of  the  sitting  Member,  and  who  was  armed  with 
sword  and  dagger.  The  committee  were  unable  to  ascertain,  from  the  conflicting 
testimony,  that  any  voter  was  actually  prevented  from  voting,  yet  there  was 
reasonable  ground  to  believe  that  some  were,  and  that  the  election  was  imduly 
biased  by  the  soldiers.  As  the  petitioner  lost  his  election  by  only  10  votes,  the 
committee  concluded  that  the  result  had  been  changed,  and  that  Mr.  Preston  was 
not  entitled  to  his  seat.  The  committee  stated  that  the  soldiers  were  not  disfranchised 
of  the  right  of  votmg,  but  that  their  votes,  which  were  for  the  sitting  Member,  were 
kept  separately  and  afterwards  were  rejected  by  the  returning  officers. 

After  debate  the  House,  without  division,  decided  in  the  negative  this  resolution: 

Resolved,  That  Francis  Preston  is  not  duly  elected  a  Member  of  this  House. 

This  decision  confirmed  the  sitting  Member,  no  question  apparently  being 
made  as  to  the  effect  of  the  vote.^ 

This  election  case  was  tried  before  the  House  after  the  forms  in  the  cases  of 
Jackson  v.  Wayne  and  Latimer  v.  Pat  ton.  ^ 

761.  The  Vermont  election  case  of  Lyon  v.  Smith  in  the  Fourth 
Congress. 

Notices  of  election  having  failed  to  reach  two  towns  in  a  district,  and 
no  votes  being  cast  in  those  towns,  the  House  declined  to  aflirm  sitting 
Member's  title  without  direct  evidence  as  to  the  numbers  of  voters  in  the 
towns. 

The  House  declined  to  reverse  a  return  on  the  possibility,  but  not  the 
probability,  that  the  voters  of  two  towns  accidentally  not  included  in 
the  notice  of  election  might  have  changed  the  result  had  they  voted. 

On  December  8,  1795,^  a  petition  was  presented  to  the  House  from  Matthew 
Lyon,  complaining  of  an  undue  election  and  return  of  Israel  Smith,  to  serve  as  a 

'  First  session  Third  Congres!?,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  78. 

'^Journal,  p.  21. 

'Journal,  p.  134;  Annals,  p.  G13. 

<  Journal,  pp.  133,  134. 

'  First  session  Fourth  Congress,  Journal,  p.  369. 


986 


PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES. 


§761 


Member  from  the  State  of  Vermont.  This  petition  was  referred  to  the  Committee 
on  Elections.  On  December  25 '  the  Speaker  laid  before  the  House  a  letter  from 
Matthew  Lyon  transmitting  further  testimony,  which  was  referred  to  the  Committee 
on  Elections. 

On  January  27,  1796,^  Mr.  Abraham  Venable,  of  Virginia,  submitted  the  report 
of  the  committee,  which  showed  that  the  first  election  in  the  district  in  question  did 
not  result  in  a  choice.  Thereupon  a  new  election  was  ordered,  and  warrants  were 
issued  for  a  new  election.  The  sheriff  of  the  coimty  of  Addison  failed  to  deliver  the 
warrant  to  the  towns  of  Kingston  and  Hancock,  which  in  the  first  election  had  given 
votes  as  follows:  Kingston,  12  for  Israel  Smith;  Hancock,  3  for  Matthew  Lyon.  At 
the  second  election  in  the  district  the  vote  returned  was:  For  Israel  Smith,  1,804; 
Matthew  Lyon,  1,783.     Therefore  the  committee  concluded: 

That  as  it  does  not  appear  to  the  satisfaction  of  the  committee  that  there  was  a  sufficient  number 
of  freemen  in  those  two  towns  to  have  altered  the  state  of  the  election,  fifteen  only  having  voted  on  the 
first  occasion,  they  are  of  opinion  that  Israel  Smith  is  entitled  to  take  his  seat  in  this  House. 

On  February  4^  Mr.  Uriah  Tracy,  of  Connecticut,  moved  that  the  report  be 
recommitted  in  order  that  the  petitioner  might  have  the  opportunity  to  bring  for- 
ward legal  testimony.  It  appeared  that  all  of  petitioner's  testimony  had  been  taken 
ex  parte,  and  therefore  had  not  been  considered  by  the  committee,  which  had  based 
its  conclusions  on  the  returned  votes  of  the  two  towns  at  the  preceding  election. 

On  February  11,  12,  and  15*  the  motion  to  recommit  was  debated  at  length. 
It  was  urged  that  the  petitioner  should  have  sent  competent  testimony,  and  that  it 
was  not  the  business  of  the  House  to  hunt  up  evidence.  On  the  other  hand,  it  was 
urged  that  the  House  had  adopted  no  regulations  concerning  the  taking  of  testimony, 
and  the  petitioner  had  no  power  to  take  anything  but  ex  parte  testimony.  It  was 
also  intimated  that  the  sheriff  acted  with  fraudulent  intent.  The  consideration  of 
the  subject  was  finally  postponed  until  March  29. 

On  February  16,^  however,  Mr.  James  Hillhouse,  of  Connecticut,  proposed  a 
rule  for  taking  testimony  in  election  cases,  with  a  view  to  its  applicability  to  the 
pending  contest,  but  the  matter  was  postponed. 

On  February  17"  the  House  reconsidered  its  decision  to  postpone  the  case  of 
the  petitioner,  and  recommitted  the  report. 

On  March  29'  the  petitions  of  sundry  electors  and  citizens  of  the  towns  of 
Kingston  and  Hancock,  stating  that  they  had  been  deprived  of  their  right  of  voting, 
etc.,  were  received  and  referred  to  the  Committee  on  Elections. 

On  May  13'  Mr.  Venable  submitted  the  second  report  of  the  Committee  on 
Elections.     This  report  was  as  follows: 

That  it  appears  by  the  deposition  of  the  town  clerk  of  Hancock  that  there  were  17  persons  in  the 
said  town  who  were  entitled  to  vote ;  12  of  whom  are  stated  to  have  been  admitted  in  that  town  and  5  in 
other  towns 

That,  by  a  like  deposition  of  the  clerk  of  Kingston,  it  appears  that  there  were  in  that  town  19  persons, 
17  of  whom  had  been  qualified  in  that  town,  and  2  in  other  towns. 

'Journal,  p.  386.  'Journal,  p.  444;  Annals,  p.  331. 

^Journal,  p.  429;  Contested  Election  Cases,  Clarke,  p.  102.     "Journal,  p.  446;  Annals,  p.  338. 
'  Annals,  p.  295.  ^  Journal,  d.  486. 

••  Annals,  pp.  315-328. 


"Journal,  pp.  555, 597;  Annals,  p.  1497. 


I   762  GENEEAL   ELECTION    CASES,   1789   TO   1840.  987 

That  it  does  not  appear  that  the  warrants  were  withheld  from  the  said  towns  by  the  sheriff  from 
any  fraudulent  intention,  but  the  failure  was  accidental  as  to  the  town  of  Kingston,  and  the  warrant  was 
not  sent  to  the  town  of  Hancock  because  the  sheriff  believed  they  had  not  voted  at  the  first  meeting. 

On  May  31 '  the  following  resolution  was  proposed: 

Resolved,  That  as  there  appears  to  have  been  a  suflBcient  number  of  qualified  voters  in  the  towns 
of  Kingston  and  Hancock  to  have  changed  the  state  of  the  election,  Israel  Smith  was  not  duly  elected. 

This  was  advocated  on  the  grounds  that  there  were  voters  enough  in  the  two 
towns  to  have  changed  the  election,  and  also  because  the  principle  should  be  estab- 
lished that  every  to^vn  should  have  notice  of  election. 

On  the  other  hand,  the  possibility,  but  not  the  probability,  that  the  36  voters 
in  the  two  towns  would  have  changed  the  election,  was  admitted.  Against  his, 
however,  was  balanced  the  vote  in  the  previous  election,  and  the  fact  that  Mr.  Lyon 
could  only  bring  twenty  to  declare  that  they  would  vote  for  him.  Had  those  twenty 
voted  for  him,  and  none  for  Mr.  Smith,  the  latter  would  have  a  majority  of  one  vote. 
But  seven  had  made  affiadavit  that  they  would  have  voted  for  Mr.  Smith. 

The  House  disagreed  to  the  resolution,  yeas  28,  nays  41.     Then  it  was: 

Resolved,  That  Israel  Smith  is  entitled  to  a  seat  in  this  House  as  one  of  the  Representatives  from 
the  State  of  Vermont. 

762.  The  Virginia  election  case  of  Bassett  v.  Clopton  in  the  Fourth 
Congress. 

The  House  having  deducted  from  the  returns  the  number  of  votes 
cast  by  disqualified  persons,  awarded  the  seat  to  the  candidate  receiving 
the  highest  number  of  votes  cast  by  qualified  voters. 

On  January  IS,  1796,^  the  Committee  on  Elections  reported  as  follows  in  the 
Virginia  contested  election  case  of  Bassett  v.  Clopton,  holding: 

That,  upon  an  estimate  of  all  the  polls  taken  at  the  several  elections,  John  Clopton  had  432  votes, 
and  Burwell  Bassett  422. 

That,  out  of  the  number  of  persons  who  voted  for  John  Clopton,  37  were  unqualified  to  vote;  and 
of  those  who  voted  for  Burwell  Bassett,  33  were  also  unqualified  to  vote. 

Whereupon,  your  committee  are  of  opinion  that  John  Clopton,  who  has  the  highest  number  of 
votes,  after  deducting  the  before-mentioned  defective  votes  from  the  respective  polls,  is  entitled  to  a 
seat  in  this  House. 

In  this  report  the  House  concurred. 

763.  The  Massachusetts  election  case  of  Joseph  Bradley  Varnuna  in 
the  Fourth  Congress. 

Instance  of  an  election  case  instituted  by  memorial  from  sundry  citi- 
zens and  electors  of  the  district. 

In  an  election  case  where  it  is  alleged  that  votes  have  been  cast  by 
persons  not  qualified,  the  names  of  such  persons  should  be  given  in  the 
notice  of  contest. 

In  an  election  case  an  allegation  that  a  certain  number  of  votes  were 

'Journal,  p.  597;  Annals,  p.  1497. 

'  First  session  Fourth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  101. 


988  PEECEDENTS    OF    THE   HOUSE    OF    KEPEESENTATIVES.  §   763 

cast  by  proxy  was  conceded  suflaciently  certain  without  specification  of  the 

names. 

The  House  declined  to  assist  sundry  petitioners  in  a  district  to  col- 
lect testimony  in  proof  that  the  seat  of  a  returned  Member  should  be 
declared  vacant. 

Certain  petitioners  against  the  right  of  a  returned  Member  to  his  seat 
having  impugned  his  personal  conduct  in  the  election,  the  House  rendered 
a  decision  thereon. 

On  February  25  and  26,  1796,*  memorials  were  presented  from  sundry  citizens 
and  electors  of  the  Second  middle  district  in  Massachusetts,  whose  names  were 
thereunto  subscribed,  complaining  of  an  undue  election  and  return  of  Joseph  Bradley 
Vamum,  returned  as  a  Member  of  the  House  from  the  said  district,  and  praying,  for 
certain  reasons  stated  in  the  memorials,  that  the  seat  be  declared  vacant.  These 
memorials  were  referred  to  the  Committee  on  Elections.  On  March  9,-  Mr.  Theodore 
Sedgwick,  of  Massachusetts,  presented  certain  testimony  in  the  case,  which  was  also 
referred. 

On  March  15^  Mr.  Abraham  Venable,  of  Virginia,  submitted  the  report  of  the 
committee.  The  report  stated  that  Aaron  Brown,  a  petitioner,  had  filed  a  paper 
making  the  following  specifications: 

1.  That  185  votes  were  returned  by  the  selectmen  of  Dracut,  and  counted  by  the  governor  and 
council. 

2.  That,  of  those,  60  were  illegal  and  bad,  55  ballots  or  votes  being  received  and  certified  by  the 
selectmen  or  presiding  officers,  of  whom  Joseph  Bradley  Varnum,  esq.,  was  one,  which  were  given  by 
proxy;  that  is,  from  persons  who  were  not  present  at  the  meeting,  but  from  other  persons  who  pretended 
to  act  for  them;  and  5  votes  were  received  and  certified  by  the  said  presiding  officers,  which  were  given 
by  persons  by  law  not  qualified  to  vote  at  said  meeting. 

3.  If  Mr.  Vamum  does  propose  to  examine  the  proceedings  at  the  meetings  of  any  other  towns  in 
the  district,  the  petitioners  wish  to  reserve  liberty  of  showing  that  votes  given  for  Mr.  Varnum  in  any 
other  town  in  the  district  were  illegal. 

The  petitioners  expect  to  prove  that  the  above  60  illegal  votes  were  received  by  the  selectmen,  by 
showing  that  the  whole  number  of  legal  voters  was  not  more  than  225,  of  which  number  100  did  not  attend 
the  meeting  on  the  23d  day  of  March  last;  and  a  part  of  those  who  did  attend  and  vote  were  not  legally 
qualified  to  vote. 

The  committee  also  reported  that  there  was  a  requisition  of  the  sitting  Member 
that  the  petitioners  be  held  to  a  specification  of  the  names  of  the  persons  objected  to, 
and  the  objection  to  each,  and  a  notification  thereof  to  the  sitting  Member  before  he 
should  be  compelled  to  take  evidence  concerning  the  matters  alleged,  or  make  aay 
answer  thereto.  Therefore,  the  committee  asked  the  instructions  of  the  House  as  to 
the  kind  of  specifications  to  be  demanded  of  the  petitioners,  and  the  manner  in  which 
the  evidence  should  be  taken. 

This  report  was  debated  at  length  in  Committee  of  the  Whole.  It  was  urged 
that  as  Mr.  Vamum  had  a  majority  of  only  1 1  votes,  the  election  would  be  invalidated 
if  23  of  the  60  votes  charged  to  be  illegal  were  really  proven  to  be  so.  It  had  been 
impossible  to  get  the  names  of  the  illegal  voters  in  Dracut,  as  the  town  clerk  had 

'  First  session  Fourth  Congress,  Journal,  pp.  450,  451. 

^Journal,  p.  468. 

=  Journal,  pp.  471,  472;  Contested  Election  Cases,  Clarke,  p.  112;  Annals,  p.  823. 


§  764  GENEEAL   ELECTION    CASES,   1789   TO   1840.  989 

refused  to  give  certified  copies  of  his  records,  and  the  inhabitants  of  the  town  would 
not  give  information  against  Mr.  Varnum. 

On  the  other  hand  it  was  argued  that  to  give  the  power  to  take  testimony  would 
be  to  make  the  House  a  party  to  a  search  for  testimony,  a  practice  which  would 
result  in  harassment  to  Members. 

Mr.  Varnum  was  heard  as  a  matter  of  course  during  the  debate. 

The  Committee  of  the  Whole  agreed  to  and  reported  the  following  resolutions, 
which  were  agreed  to  by  the  House  on  that  day:' 

Resolved,  That  the  allegation  of  Aaron  Bro\vn,  agent  of  the  petitioners,  as  to  55  votes  given  by  proxy 
is  sufficiently  certain. 

Resolved,  That  the  allegations  of  said  Aaron  Brown,  as  to  persons  not  qualified  to  vote,  is  not  suffi- 
ciently certain:  and  that  the  names  of  the  persons  objected  to  for  want  of  sufficient  qualifications,  ought 
to  be  set  forth,  prior  to  the  taking  of  testimony. 

Mr.  Sedgwick  had  proposed  in  Committee  of  the  Whole  a  resolution  providing 
that  the  Committee  on  Elections  should  prescribe  a  method  of  taking  testimony  in 
this  case,  but  it  was  not  acted  on." 

On  January  19,  1797,'  at  the  next  session,  the  committee  reported: 

That  none  of  the  petitioners  or  their  agents  have  appeared  at  the  present  session  to  prosecute,  nor 
have  they  transmitted  any  evidence  to  support  their  allegations. 

That  the  sitting  Member  has  produced  evidence  to  show  that  the  election  in  the  town  of  Dracut, 
where  the  irre^larities  were  suggested  to  have  been  committed,  was  conducted  with  the  utmost  fairness 
and  propriety,  especially  as  it  relates  to  his  conduct.  That,  although  some  little  irregularity  was 
practiced,  it  was  in  other  towns,  in  favor  of  another  candidate,  and  chiefly  by  those  persons  who  have 
since  been  the  active  agents  of  the  petitioners. 

Your  committee  are  therefore  of  opinion  that  Joseph  Bradley  Varnum  was  duly  elected,  and  that 
the  attempt  to  deprive  him  of  his  seat  was  rather  the  effect  of  malevolence  than  a  desire  to  promote 
the  public  good. 

On  January  25,"  by  a  vote  of  yeas  44,  nays  28,  the  last  clause  of  the  last 
paragraph,  characterizing  the  attempt  as  the  effect  of  malevolence,  was  stricken 
out  and  the  following  inserted: 

and  that  the  charges  contained  in  the  said  petitions  against  the  sitting  Member  are  wholly  unfounded, 
and  that  the  conduct  of  the  sitting  Member  appears  to  have  been  fair  and  unexceptionable  throughout 
the  whole  transaction. 

On  January  26'  the  report  as  amended  was  agreed  to. 

764.  The  Pennsylvania  election  case  of  David  Bard  in  the  Fourth 
Congress. 

A  failure  of  the  canvassing  board  to  meet  within  the  time  required  by 
law  being  satisfactorily  explained,  was  held  by  the  House  not  to  affect  the 
Member's  title. 

Instance  of  an  inquiry  into  a  Member's  title  to  his  seat  by  the  Elec- 
tions Committee  under  authority  of  general  investigations. 

In  the  earlier  practice  the  credentials  of  Members  were  passed  on  by 
the  Elections  Committee  (footnote). 

'  Jouraal,  p.  487.  4  Journal,  pp.  659,  660. 

=  Annals,  p.  823.  5  Journal,  p.  661. 

'  Second  session  Fourth  Congress,  Journal,  p.  650. 


990  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  765 

On  March  18, 1796/  the  Committee  on  Elections,  who  had  investigated  ex  officio 
the  credentials  ^  of  David  Bard,  of  Pennsylvania,  found  that  the  Member's  title  was 
not  invalidated  by  reason  that  the  county  judges,  who  were  required  by  State  law 
to  meet  November  15  to  canvass  the  vote,  had  actually  not  met  until  May  1  follow- 
ino'.  This  informality  was  occasioned  by  the  delay  of  a  return  of  the  soldier  votes 
of  one  county  and  by  failure  of  one  county  judge  to  be  informed  as  to  a  change 
of  the  law  providing  for  the  meeting  of  the  judges.  The  committee  sent  for  and 
canvassed  the  coimty  returns  on  which  the  district  return  had  been  based,  and 
reported  to  the  House  the  result,  showing  the  election  of  Mr.  Bard. 

The  House  agreed  to  the  report,  confirming  the  title  of  Mr.  Bard. 

765.  The  Virginia  election  case  of  Moore  v.  Lewis  in  the  Eighth 
Congress. 

The  House  having  deducted  from  the  returns  the  number  of  votes 
cast  by  disqualified  persons,  awarded  the  seat  to  the  candidate  receiving 
the  highest  number  of  votes  cast  by  qualified  voters. 

The  House  in  1803  permitted  a  contestant  in  an  election  case  to  be 
heard  by  counsel  at  the  bar  of  the  House. 

On  February  24,  1803,^  on  the  subject  of  the  contested  election  of  Moore  v. 
Lewis,  from  Virginia,  the  Committee  on  Elections  made  a  report  containing  the 
following  summary: 

That  all  the  persons  who  voted  for  Thomas  Lewis  in  the  several  counties  aforesaid,  which  compose 
the  western  district  of  the  State  of  Virginia,  were  1,004,  and  that  all  the  persons  who  voted  for  Andrew 
Moore  in  the  said  counties  were  832. 

It  further  appears,  on  a  deliberate  scrutiny,  that  of  the  above  votes  355  persons  voted  for  Thomas 
Lewis  who  were  unqualified  to  vote  and  that  124  voted  for  Andrew  Moore  who  were  unqualified  to 
vote;  and  that,  by  deducting  the  unqualified  votes  from  the  votes  given  for  each  of  the  parties  at  the 
elections,  Thomas  Lewis  has  649  good  votes  and  Andrew  Moore  has  708  good  votes,  being  59  votes  more 
than  Thomas  Lewis. 

Therefore  the  committee  were  of  the  opinion  that  Thomas  Lewis  was  not 
elected  and  not  entitled  to  his  seat,  and  that  Andrew  Moore,  who  had  the  highest 
number  of  votes  after  deducting  the  unqualified  votes,  was  duly  elected  and  entitled 
to  the  seat. 

The  House  on  March  1  confirmed  the  first  proposition  of  the  committee  by 
a  vote  of  yeas  68,  nays  39.  The  second  proposition  was  also  agreed  to;  yeas  64, 
nays  41. 

Mr.  Moore  thereupon  took  his  seat.* 
. 1 

'  First  session  Fourth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  116;  Journal, 
pp.  474,  475. 

-  The  credentials  of  Members  were  referred  and  examined  at  this  time  by  the  Elections  Committee 
under  authority  of  a  resolution  usually  adopted  at  the  first  of  each  Congress,  and  for  this  Congress  in 
form  as  follows: 

Resolved,  That  a  standing  Committee  on  Elections  be  appointed,  whose  duty  it  shall  be  to  examine 
and  report  upon  the  certificates  of  election  or  other  credentials  of  the  Members  returned  to  serve  in  this 
House,  etc.     (First  session  Fourth  Congress,  Journal,  p.  366.) 

'  First  session  Eighth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  128. 

*  Leave  was  granted  to  the  memorialist  and  sitting  Member  to  be  heard  by  counsel  at  the  bar  of 
the  House.     (Journal,  pp.  609,  615.) 


§  766  GENERAL   ELECTION   CASES,   1789   TO   1840.  991 

766.  The  election  case  of  Randolph  v.  Jennings,  from  Indiana  Terri- 
tory, in  the  Eleventh  Congress. 

The  House,  overruling  its  committee,  declined  to  unseat  a  returned 
Delegate  because  in  calling  the  election  the  governor  had  exercised 
doubtful  authority. 

On  January  12,  1810,'  the  House  came  to  a  decision  in  the  contested  election 
case  of  Randolph  v.  Jennings,  from  the  Territory  of  Indiana. 

It  was  alleged  in  this  case  that  there  were  informalities  in  the  return  of  the  vote, 
that  two  districts,  by  fault  of  a  sheriff,  did  not  vote,  and  finally  that  the  authority 
under  which  the  election  was  called  by  the  governor  was  defective.  The  committee 
reported  only  on  the  last  objection,  which  they  conceived  to  be  fundamental,  and 
they  found  that,  by  reason  of  defective  legislation  of  Congress,  the  governor  did  not 
have  full  authority  to  do  what  he  had  assumed  to  do.  The  committee  state  the 
case  thus: 

If  the  governor  of  the  Indiana  Territory,  instead  of  exercising  the  legislative  authority  of  Congress 
on  what  he  supposed  a  liberal  construction  of  the  law,  had  represented  the  case  to  Congress  at  the  last 
session  the  defect  would  have  been  supplied  and  the  Territory  now  legally  represented  in  Congress. 
It  can  not  be  admitted  that  the  governor  of  a  Territory  may,  by  his  own  authority,  supply  a  want  or 
defect  of  a  law  of  Congress  on  his  own  opinion  of  a  liberal  construction,  expediency,  or  necessity.  To 
sanction  such  an  assumption  of  power  by  a  vote  of  this  House  would  set  a  dangerous  precedent.  On 
this  view  of  the  subject  the  committee  submit  the  following  resolution: 

Resolved,  That  the  election  held  for  a  Delegate  to  Congress  for  the  Indiana  Territory,  on  the  22d  of 
May,  1809,  being  without  authority  of  law,  is  void,  and  consequently  the  seat  of  Jonathan  Jennings,  as  a 
Delegate  for  that  Territory,  hereby  declared  to  be  vacant. 

A  motion  in  the  House  to  strike  out  the  words  "being  without  authority  of 
law,"  was  negatived,  51  to  45. 

The  House,  after  debate,  nonconcurred  in  the  report  of  the  committee,  by  a 
vote  of  83  to  30. 

A  resolution  was  then  proposed  declaring  Mr.  Jennings  entitled  to  his  seat. 

The  motion  was  withdrawn  after  debate. 

Mr.  Jennings  therefore  retained  the  seat. 

767.  The  first  election  case  of  Taliaferro  v.  Hungerford,  from  Vir- 
ginia, in  the  Twelfth  Congress. 

The  House,  overruling  its  committee,  concluded  to  decide  an  election 
case  as  made  up  without  giving  sitting  Member  time  for  further 
investigation. 

The  House,  having  corrected  the  returns  by  an  ascertainment  of  the 
qualifications  of  certain  voters,  seated  the  contestant  in  accordance  with 
the  findings. 

On  November  21,  1811,^  the  Committee  on  Elections  reported  on  the  Virginia 
contested  election  case  of  Taliaferro  i\  Hungerford.  The  committee  found  that 
according  to  the  laws  of  Virginia  the  land  list  of  the  year  prior  to  the  election  was 
prima  facie  evidence  of  all  the  freeholders  in  the  county.  A  correction  of  the  poll 
in  accordance  with  the  land  list  was  made  by  the  committee,  and  resulted  in  such 

'  Second  session  Eleventh  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  240; 
Journal,  pp.  171,  172;  Annals,  p.  1199. 

^  First  session  Twelfth  Congress,  Contested  Election  Cases  in  Congress,  from  1789  to  1834,  p.  246. 


992  PKECEDENTS    OF    THE    HOUSE    OF    BEPBESENTATIVES.  §   768 

changes  that  in  the  district  the  majority  of  six  votes  for  the  sitting  Member  was 
changed  to  a  majority  of  121  for  Mr.  Tahaferro. 

The  committee,  however,  conceived  that  a  longer  time  should  be  given  the 
sittino-  Member  to  investigate  the  facts,  the  land-hst  test  not  being  considered  con- 
chisive.  The  contestant  had  filed  notice  of  contest  in  ample  time;  but  his  purpose 
to  follow  up  the  notice  with  actual  steps  to  contest  had  not,  the  committee  thought, 
been  developed  in  time  to  allow  the  sitting  Member  to  complete  his  case. 

The  House,  by  a  vote  of  46  to  65,  disagreed  to  the  recommendation  of  the 
committee. 

Then,  by  a  vote  of  67  to  29,  Mr.  Hungerford  was  declared  not  entitled  to  the 
seat;  and  by  a  vote  of  66  to  19,  Mr.  Taliaferro  was  declared  entitled  to  the  seat. 
Mr.  Taliaferro  thereupon  appeared  and  qualified. 

768.  The  second  election  case  of  Taliaferro  v.  Hungerford,  from  Vir- 
ginia, in  the  Thirteenth  Congress. 

The  House,  overruling  its  committee,  declined  to  reject  returns 
because  of  irregular  making  up  of  poll  books  and  returns,  no  fraud  being 
charged. 

On  June  10,  1813,'  the  Committee  on  Elections  reported  in  the  second  contest  of 
Taliaferro  v.  Hungerford,  from  Virginia.  The  committee  in  this  report  found  that 
the  election  was  illegal  and  John  P.  Hungerford  was  not  entitled  to  the  seat,  because 
of  neglect  on  the  part  of  certain  election  officers  to  comply  with  the  law  of  Virginia, 
which  directed  that  "the  clerks  of  the  polls  shall  enter  in  distinct  columns,  under  the 
name  of  the  person  voted  for,  the  name  of  each  elector  voting  for  such  person."  The 
law  further  directed  that  "the  clerks  of  the  polls  having  first  signed  the  same  and 
made  oath  to  the  truth  thereof,  a  certificate  of  which  oath,  under  the  hand  of  the 
magistrate  of  the  county,  shall  be  subjoined  to  each  poll,  shall  deliver  the  same  to 
the  sheriff,"  etc. 

The  committee  found  numerous  deviations  from  this  law,  in  one  county  the 
names  of  the  voters  being  all  entered  in  one  column,  while  figures  were  placed  under 
the  names  of  the  candidates  to  show  for  whom  each  person's  vote  was  given.  In 
another  county  the  names  of  the  voters  were  entered  in  the  same  way,  straight  marks 
instead  of  figures  being  carried  into  the  columns  under  the  names  of  the  candidates. 
In  other  counties,  four  in  all,  no  certificate  was  found  of  any  oath  administered  to 
the  clerks  of  the  polls.  In  one  county  the  Christian  name  of  the  candidate  was  not 
written  on  the  poll,  the  initial  only  being  given. 

The  sitting  Member  contended  that  these  deviations  were  sanctioned  by  long 
practice. 

The  committee,  however,  were  sensible  that  trivial  errors  of  officers  conducting 
elections  should  not  deprive  any  class  of  citizens  of  representation.  But  "to  pre- 
serve the  elective  franchise  pure  and  unimpaired,  the  positive  commands  and 
requirements  of  the  law,  in  respect  to  the  time,  place,  and  manner  of  holding  elec- 
tions, ought  to  be  observed.  To  enter  the  names  of  the  voters  promiscuously  in 
one  margin  of  the  poll  book,  when  the  law  positively  directs  them  to  be  'entered  in 
distinct  columns'  and  'under  the  name  of  the  candidate  voted  for,'  is  as  manifest  a 

'  First  session  Thirteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  250. 


§  769  GENERAL   ELECTION    CASES,   1789   TO   1840.  993 

departure  from  the  law  as  the  selection  of  another  time  or  another  place  than  that 
mentioned  in  the  law.  Nor  can  the  committee  conceive  that  the  prefixing  the  initial 
only  of  the  Christian  name  to  that  of  the  family  or  surname  of  the  voter  is  a  fair  com- 
pliance with  the  spirit  and  intent  of  the  law." 

The  House,  by  a  vote  of  78  to  82,  refused  to  agree  to  the  recommendation  of  the 
committee,  and  on  June  16,  the  report  was  recommitted. 

On  June  28  the  committee  again  reported,  in  this  case  their  report  dealing 
with  the  comparison  of  the  poll  with  the  land  list;  but  the  committee  concluded 
that  this  land  list  was  not  a  conclusive  test  of  the  legahty  of  the  poll  under  the 
Virginia  law,  and  that  testimony  might  be  admitted  to  impeach  it.  Therefore 
they  held  that  in  this  respect  the  petitioner  had  not  sustained  his  contention. 

On  July  31,  1813,  the  case  was  postponed  imtil  the  next  session  of  Congress, 
when  it  was  again  referred  to  the  Committee  on  Elections.  On  January"  10,  1814, 
the  committee  reported  that  after  mature  consideration  they  had  come  to  the 
conclusion — 

That  this  election  is  void,  and  ought  to  be  set  aside,  because  it  was  conducted  in  an  irregular 
manner,  contrary  to  the  law  of  Virginia  prescribing  the  manner  of  conducting  such  elections,  as  is 
more  particularly  set  forth  in  the  first  report. 

The  committee  therefore  proposed  that  the  "said  election  was  illegal  and 
ought  to  be  set  aside;"  and  "that  John  P.  Himgerford  is  not  entitled  to  a  seat  in 
this  House." 

On  February  1,  1814,  the  Committee  of  the  Whole  reported  their  disagreement 
to  these  propositions,  and  on  February  17  the  House  concurred  vriih  the  Committee 
of  the  Wliole.     So  Mr.  Hungerford  retained  the  seat. 

769.  The  Virginia  election  case  of  Bassett  v.  Bayley  in  the  Thir- 
teenth Congress. 

Form  of  resolution  confirming  the  title  of  sitting  Member  to  his  seat. 

A  sheriff  having  adjourned  an  election  for  a  reason  not  specified  as  a 
cause  of  adjournment,  the  Elections  Committee  rejected  votes  cast  after 
such  adjournment. 

On  February-  11,  1814,'  the  House,  in  the  contested  election  case  of  Bassett  v. 
Bayley,  of  Virginia,  agreed  to  the  following  resolution,  reported  from  the  Committee 
on  Elections  on  February  2 : 

Resolved,  That  the  sitting  Member  is  entitled  to  his  seat. 

The  committee  arrived  at  this  result  by  deducting  from  the  vote  as  originally 
returned  those  votes  illegally  given,  a  process  which  still  showed  a  majority  for  the 
sitting  Member. 

The  largest  deduction  was  one  of  53  votes  from  the  total  of  the  sitting  Member. 
This  deduction  represented  the  votes  cast  on  the  second  and  tliird  days  of  the 
election  in  Accomac  County.  The  law  of  Virginia  allowed  the  continuance  of  a 
poll  by  the  officer  in  charge  beyond  the  first  days  in  cases  where  a  rain  had  fallen, 
where  there  had  been  a  rise  of  the  water  courses,  or  where  more  electors  attended 
than  could  vote  in  one  day.     The  committee  found  that  none  of  these  conditions 


'  First  session  Thirteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  2.54. 
5994 — VOL  1 — 07 6.3 


994 


PRECEDENTS   OF    THE   HOUSE    OF   KEPEESENTATIVES. 


§   770 


prevailed  and  that  the  action  of  the  sheriff  was  illegal.  Therefore  they  recom- 
mended the  deduction  of  the  votes  cast  on  the  second  and  third  days.  But  such 
deduction  was  not  sufficient  to  destroy  the  majority  of  the  sitting  Member. 

This  case  had  first  been  reported  June  3,  1813,  when  a  further  examination 
of  evidence  was  recommended.  The  House  recommitted  the  report,  with  the 
result  that  the  subject  went  over  to  the  next  session. 

770.  The  Virginia  election  case  of  Porterfield  v.  McCoy  in  the  Four- 
teenth Congress. 

Having  deducted  from  the  poll  all  the  votes  illegally  given,  the  House 
confirmed  the  title  of  sitting  Member,  who  had  a  majority  of  legal  votes. 

In  a  report  sustained  by  the  House,  the  Elections  Committee  declined 
to  reject  testimony  not  taken  according  to  the  practice  established  by 
State  laws. 

No  fraud  or  injury  being  alleged,  the  Elections  Committee  declined 
to  reject  a  poll  because  of  neglect  of  the  election  ofiicers  to  take  the 
required  oath. 

The  Elections  Committee,  in  a  sustained  case,  declined  to  reject  a  poll 
because  of  informalities  in  the  poll  books  and  return. 

On  February  19,  1816,'  the  Committee  on  Elections,  to  whom  was  referred  the 
Virginia  contested  election  case  of  Porterfield  v.  McCoy,  reported  that  after  deduct- 
ing from  the  poll  on  both  sides  the  votes  illegaly  given,  they  found  that  the  sitting 
Member  had  a  majority  of  75  over  the  petitioner. 

In  the  determination  of  this  case  the  committee  made  certain  rulings,  which 
they  reported  to  the  House. 

The  sitting  Member  had  objected  to  the  testimony  of  the  petitioner  on  the 
ground  that  it  had  not  been  taken  within  the  period  limited  for  that  purpose  in 
contested  elections  for  members  of  the  Virginia  legislature,  and  because  the  peti- 
tioner had  made  the  unreasonable  delay  of  four  months  in  conmmecing  investiga- 
tion.    The  committee  overruled  these  objections  and  admitteed  the  testimony. 

The  petitioner  objected  that  the  clerks  appointed  by  the  sheriff  to  keep  the 
poll  were  not  sworn  previous  to  the  commencement  of  the  voting,  but  on  the  next 
day  examined  and  subscribed  the  poll  and  made  affidavit  to  its  truth  and  correct- 
ness. The  committee  overruled  tliis  objection,  the  testimony  showing  that  the 
clerks  conducted  the  election  under  the  impression  that  they  would  be  sworn  at  the 
close,  in  accordance  with  the  custom  of  the  county. 

The  petitioner  further  objected  that  the  names  of  the  voters  were  not  written 
under  the  names  of  the  candidates,  but  in  a  single  column,  with  the  votes  carried 
forward  and  marked  under  the  names  of  the  candidates.  The  committee  overruled 
this  on  the  gromid  of  prevailing  custom. 

771.  The  case  of  Porterfield  v.  McCoy,  continued. 

An  agreement  of  parties  as  to  the  admissibility  of  votes  was  over- 
ruled by  the  Elections  Committee  on  the  ground  that  the  elective  franchise 
might  not  be  qualified  by  such  agreement. 

The  Elections   Committee,   in   a   sustained  case,  ruled  that  all  votes 


'  First  session  Fourteenth  Congress,  Contested  Elections  (Clarke),  p.  267. 


§   772  GENERAL   ELECTION    CASES,  l^SO   TO   1840.  995 

recorded  on  the  poll  lists  should  be  presumed  good  unless  impeached  by 
evidence. 

In  a  sustained  case,  the  Elections  Committee  admitted  as  proof  of  his 
title  to  vote  the  voter's  properly  taken  affidavit. 

The  committee  also  overniled  the  request  of  the  sitting  Member  that  he  be 
allowed  to  avail  himself  of  an  agreement  entered  into  ^\^th  the  petitioner  as  to  the 
admissibihty  of  certain  votes,  the  committee  being  of  opimon  that  an  agreement 
of  parties  could  not  diminish  or  enlarge  the  elective  franchise. 

The  committee  further  decided — 

1.  That  aU  votes  recorded  on  the  poU  lists  should  be  presumed  good  unless  impeached  by  evidence. 

2.  That  certified  copies  of  the  commissioner's  books  or  land  lists  should  be  read  in  evidence,  and 
deemed  satisfactorj' as  to  the  qualification  or  disqualification  of  voters,  unless  corrected  by  other  evidence- 
and  ' 

3.  That  the  affidaNnt  of  the  voter  taken  before  competent  authority  in  pursuance  of  regular  and 
sufficient  notice,  should  be  read  in  evidence  to  prove  his  title  to  vote. 

The  committee  reported  these  rules  to  the  House  with  the  case. 

On  April  19  the  House  confirmed  ilr.  McCoy  in  his  seat. 

772.  The  election  case  of  Easton  v.  Scott,  from  the  Territory  of  Mis- 
souri, in  the  Fourteenth  Congress. 

The  House  in  1817  held  that  it  was  competent  to  examine  the  qualifi- 
cations of  voters,  although  they  had  voted  by  a  secret  ballot  and  might 
be  compelled  to  disclose  their  votes. 

The  House  may  investigate  a  contested  election  of  a  Delegate  as  of  a 
Member. 

The  Elections  Committee  declined  to  favor  giving  a  petitioner  prima 
facie  title  to  a  seat  because  a  partial  investigation  showed  a  majority  for 
him. 

In  1816  and  1817  the  House  considered  at  length  the  contested  election  case  of 
Easton  V.  Scott  from  the  Territory  of  Missouri,  on  which  the  Committee  on  Elections 
reported  in  favor  of  seating  the  petitioner.  The  charges  of  irregularities  were  numer- 
ous, and  although  the  report  of  the  committee  was  once  recommitted,  the  House  did 
not  arrive  at  any  conclusion  as  to  the  merits  of  the  case  as  between  the  contestant 
and  contestee;  but  adopted,  on  January  12,  1817, '  aresolution  that  the  election  had 
been  illegally  conducted,  and  that  the  seat  of  the  Delegate  from  the  Territory  was 
vacated. 

During  the  examination  of  the  case  certain  principles  of  procedure  were  discussed 
and  determined,  some  by  the  committee  alone  and  some  by  the  committee  and 
House. 

The  law  of  the  Territory  requiring  "that,  in  all  elections  to  be  held  in  pursu- 
ance of  this  act,  the  electors  shall  vote  by  ballot"  the  committee  held  that  a  secret 
ballot  was  intended,  and  that  there  existed  no  authority  to  compel  a  voter  to  disclose 
for  whom  he  voted.  Therefore  it  would  be  impossible  to  inquire  into  the  quahfica- 
tions  of  electors  ^\-ith  a  view  to  purge  the  polls.     But  on  January  3,  ISl?,^  when  the 

'  Second  session  Foiuteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834  p  272 
2  Annals,  pp.  414,  418. 


996  PKECEDENTS    OF    THE    HOUSE    OF    KEPRESENTATIVES.  §   773 

report  was  considered  in  the  House,  Mr.  Daniel  Webster  made  the  criticism  that 
qualifications  of  the  voters  had  not  been  considered,  and  moved  that  the  report 
be  recommitted  to  the  Committee  of  Elections  with  instructions  "to  receive 
evidence  that  persons  voting  tor  either  candidate  were  not  entitled  to  vote  on 
the  election."  On  this  motion  a  wide  debate  took  place  as  to  whether  or  not  votes 
given  by  ballot,  and  of  course  secretly,  could  be  afterwards  ascertained,  or  the  voter 
be  required  to  declare  for  whom  he  voted.  Other  points  were  also  touched  on  in  this 
debate,  which  resulted,  on  January  4,  in  an  affirmative  action  on  the  motion  to  recom- 
mit with  the  instructions,  by  a  vote  of  86  yeas  to  50  nays. 

On  January  4/  also,  the  question  was  raised  on  the  floor  of  the  House  that  Dele- 
gates could  not  be  considered  Members  of  the  House,  and  therefore,  that  the  House 
could  not  be  the  judge  of  their  election  and  return.  Mr.  Samuel  R.  Betts,  of  New- 
York,  who  raised  this  point,  moved,  therefore,  that  the  subject  be  indefinitely  post- 
poned. In  opposition  to  this  it  was  argued  that  in  1809  the  House  had  considered 
such  a  case,  and  the  people  of  the  Territories  were  authorized  under  the  law  to  have 
Delegates,  and  therefore  had  a  right  to  be  represented  correctly.  If  the  House  could 
not  examine  in  such  a  case,  the  returning  officer  became  absolute  judge;  and  the 
returning  officer  might  return  two  Delegates.  What  would  the  House  do  then? 
The  motion  to  postpone  indefinitely  was  decided  in  the  negative  by  a  large  majority. 

In  their  first  report  the  committee  rejected  the  votes  in  the  township  of  Cote 
Sans  Dessein  for  a  variety  of  reasons,  including  the  fact  that  the  result  of  the  voting 
was  sent  to  the  governor  in  an  irregular  manner.  The  rejection  of  this  township — 
which,  however,  was  only  one  of  many  places  yet  to  be  examined  where  irregularities 
were  charged — left  a  majority  of  7  votes  for  the  petitioner.  Therefore  !Mr.  Easton 
claimed  that  the  rejection  of  the  irregular  return  of  Cote  Sans  Dessein  would  change 
the  figures  on  which  the  governor's  return  had  been  made  so  as  to  require,  under  the 
law,  the  issuance  of  a  certificate  to  himself  instead  of  Mr.  Scott.  Thus  he  claimed 
that  the  decision  of  the  committee  showed  that  the  prima  facie  right  to  the  seat 
belonged  to  him  rather  than  to  Mr.  Scott;  and,  citing  the  parliamentary  law  of  Eng- 
land in  support  of  his  contention,  asked  that  he  be  made  the  sitting  Member,  and  that 
Mr.  Scott  be  put  in  the  place  of  contestant.  The  committee  decided  that  this 
request  should  not  be  granted,  and  proceeded  with  the  investigation. 

773.   The  case  of  Easton  v.  Scott,  continued. 

When  the  law  requires  a  vote  by  ballot,  an  election  viva  voce  is  not 
permissible  and  is  a  reason  for  rejection  of  the  returns. 

Where  electors  are  objected  to  for  want  of  qualifications,  their  names 
should  be  set  forth  in  the  notice  of  contest. 

A  requirement  of  law  that  the  number  of  votes  given  shall  be  "  set 
down  in  writing  "  on  the  poll  book  is  fulfilled  by  the  use  of  numerals. 

There  being  no  time  to  collect  the  evidence  needed  to  determine  the 
right  to  a  seat,  the  House,  on  a  showing  unfavorable  to  sitting  Delegate, 
declared  the  seat  vacant. 

The  seat  of  a  Delegate  being  declared  vacant,  the  Speaker  was  directed 
to  inform  the  governor  of  a  Territory. 

'  Annals,  pp.  415-417. 


§  774  GENER.\L   ELECTION    CASES,   1789   TO   1840.  997 

The  committee,  in  rejecting  the  votes  of  Cote  Sans  Dessein,  did  so  for  a  variety 
of  causes,  as:  The  election  was  held  viva  voce,  when  the  law  prescribed  ballot; 
neither  the  judges  (two  where  tliree  were  required)  nor  clerk  were  sworn  as 
required  by  law. 

The  committee  also  ruled  that  a  requirement  of  the  law  that  "the  number  of 
votes  given  to  each  person  shall  be  set  down  in  writing  at  the  foot  of  the  poll  book" 
was  sufficiently  complied  with  by  the  following  entrj':  "For  Rufus  East  on,  16 — 
For  John  Scott,  107." 

The  committee  also  established  the  rule,  taking  for  precedent  the  case  of  Joseph  . 

B.  Varnum  in  the  Fourth  Congress,  that  the  names  of  the  electors  objected  to  for 
want  of  sufficient  qualifications  ought  to  be  set  forth  prior  to  the  taking  of  testi- 
mony.    The  committee  said  in  reference  to  this  decision: 

If  the  House  concur  with  the  committee  in  this  opinion,  it  follows  that  no  evidence  has  been  sub- 
mitted by  either  party  enabling  the  committee  to  investigate  the  qualifications  of  the  electors.  The 
committee  are  further  of  opinion  that  evidence  can  not  be  procured  in  season  to  enable  the  committee 
to  investigate  the  qualifications  of  the  electors  during  the  present  Congress. 

Therefore  they  asked  to  be  discharged  from  the  consideration  of  the  subject  of 
qualifications. 

On  Januarj'  12,  1817,  the  House  rejected  an  amendment  declaring  Mr.  Easton 
entitled  to  the  seat;  and  finally  agreed  to  the  following: 

Resolved,  That  the  election  in  the  Territorj'  of  Missouri  has  been  illegally  conducted  and  the 
seat  of  the  Delegate  from  that  Territory  is  vacant;  that  the  Speaker  inform  the  governor  of  that  Terri- 
tory of  the  decision  of  this  House,  that  a  new  election  may  be  ordered. 

774.  The  Vermont  election  case  of  Mallary  v.  Merrill  in  the  Sixteenth 
Congress. 

The  House  is  not  confined  to  the  conclusions  of  returns  made  up  in 
strict  conformity  to  State  law,  but  may  examine  the  votes  and  correct  the 
returns. 

No  fraud  being  alleged,  the  House  counted  returns  transmitted  in 
an  unsealed  package,  although  the  State  law  required  the  package  to  be 
sealed. 

The  House  counted  votes  rejected  by  a  State  canvassing  board  because 
returned  by  error  for  persons  not  candidates  for  Congress. 

The  House  counted  votes  duly  certified  but  not  delivered  to  the  State 
canvassers  because  of  negligence  of  a  messenger. 

On  January  5,  1820,'  the  Committee  on  Elections,  who  had  been  considering 
the  case  of  Mallarv*  v.  Merrill,  of  Vermont,  reported  that  in  their  opinion  Orsamus 

C.  Merrill  was  not  entitled  to  the  seat,  and  that  RoUin  C.  Mallar}'  was  entitled  to  it. 

Under  the  law  of  Vermont  the  returns  of  the  towns  were  transmitted  to  a  can- 
vassing committee  chosen  by  the  general  assembly,  and  in  accordance  with  the 
findings  of  that  committee  the  governor  of  the  State,  in  accordance  with  the  law, 
executed  credentials  to  Mr.  Merrill. 

'  First  session  Sixteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  328. 


998 


PRECEDENTS   OF   THE    HOUSE    OF    REPEESENTATIVES. 


§774 


But  the  Committee  on  Elections,  going  behind  the  governor's  certificate  and 
the  result  ascertained  by  the  canvassmg  committee,  found  the  following  facts: 

That  the  canvassing  committee  had  rejected  the  legally  given  votes  of  the  town 
of  Fairhaven  because  the  election  officers  of  that  town  had  transmitted  the  certificate 
of  votes  to  the  canvassing  committee  in  an  unsealed  packet,  while  the  law  required 
the  packet  to  be  sealed.  The  committee,  holding  that  the  House  of  Representa- 
tives had  not  been  accustomed  to  allow  votes  legally  given  to  be  defeated  by  the 
mistake  or  negligence  of  a  returning  officer,  were  of  the  opinion  that  the  votes  of 
Fairhaven  should  be  allowed  to  the  contestant. 

That  the  canvassing  committee  had  rejected  the  legally  given  votes  of  the 
town  of  Plymouth  because  the  certificate  of  the  presiding  officer,  while  complete 
and  definite,  was  not  in  the  exact  form  prescribed  by  the  statute  of  the  State. 
The  Committee  on  Elections  were  of  the  opinion  that  the  prescribed  form  had  been 
substantially  adhered  to  and  that  the  votes  should  be  counted. 

That  the  canvassing  committee  had  rejected  the  return  of  the  town  of  Wood- 
bury because  the  votes  actually  given  for  Congressmen  had,  through  the  mistake 
of  the  presiding  officer,  been  returned  for  certain  gentlemen  who  were  candidates 
for  State  councilors,  and  in  whose  favor  not  one  vote  was  given  for  Representatives 
in  Congress.  The  record  made  in  the  town  clerk's  office,  in  accordance  with  law, 
showed  the  correct  result.  The  Committee  on  Elections  concluded  that  this  error 
should  be  corrected  and  the  legally  given  votes  be  recorded. 

That  the  legally  given  votes  of  the  town  of  Goshen  were  certified  in  due  form, 
but  the  messenger  provided  by  law  to  deliver  the  votes  to  the  canvassing  committee 
failed  to  do  so.  The  Committee  on  Elections  considered  that  this  failure  should  not 
be  allowed  to  keep  from  the  poll  the  votes  of  the  town. 

These  corrections  gave  a  majority  to  the  petitioner,  Mr.  Mallary. 

The  arguments  of  contestant  and  sitting  Member,  which  were  submitted  in 
writing  to  the  committee  and  published  as  part  of  the  report,  practically  assumed 
the  correctness  of  the  committee's  deductions,  but  joined  issue  as  to  the  right  of  the 
House  to  go  behind  the  determination  of  result  arrived  at  by  State  authority. 

The  contestant  argued  that,  as  the  House  was  the  judge  of  the  election  of  its 
owTi  Members,  State  authority  might  not  create  an  intervening  obstacle.  It  would 
be  unreasonable  to  say  that  the  House  should  be  bound  by  laws  never  intended 
to  operate  on  its  privileges,  and  if  intended  so  to  operate  must  be  nugator}'.  It 
could  not  be  inferred,  because  the  canvassing  conmiittee  were  required  to  receive 
the  certificate  of  a  town  clerk  or  constable  as  evidence,  the  Congress  was  to  receive 
no  other.  The  precedents  of  the  House  showed  that  the  qualifications  of  the  elect- 
ors had  been  frequently  examined  by  the  House.  In  the  Georgia  case  of  1804  the 
House  had  gone  behind  the  State  return. 

The  sitting  Member  contended  that  the  settled  order  of  business  prescribed  by 
the  election  law  of  a  State  was  binding  on  the  House  regarding  the  election  of  its 
Members  unless  "the  Congress,  by  law,  have  altered  such  regulations."  If  State 
laws  were  agreeable  to  the  Constitution  and  the  requisites  of  the  laws  were  regarded, 
the  proceedings  of  the  freemen  and  the  decisions  of  the  State  tribunes  were  in 
good  faith  to  be  recognized  and  accredited.  While  the  Congress  might  modify  a 
State  law  on  this  subject,  the  House  alone  could  hardty  assume  to  do  so.     The  pro- 


§   775  GENERAL   ELECTION    CASES,   1789   TO   1840.  999 

ceedings  in  a  State,  done  conformably  to  law,  were  of  more  than  prima  facie  effect. 
''I  strenuously  and  boldly  urge,"  he  said,  "that  the  power  of  the  House  of  Repre- 
sentatives, and  its  committee,  as  judges  of  the  election,  returns,  and  qualification 
of  its  Members  are  limited  to  the  law  of  the  State  and  the  Constitution;  they  are  to 
inquire  and  decide  whether  either  have  been  infringed,  and  whether  all  proceedings 
have  been  done  in  good  faith.  They  are  not  authorized  to  step  behind  a  constitu- 
tional statute,  except  to  see  whether  its  provisions  have  been  regarded.  The  statute 
is  the  act  of  the  freemen  and  is  the  expression  of  their  will,  and  it  is  as  vitally  im- 
portant to  them  as  the  deposit  of  their  ballots.  The  House  of  Representatives, 
without  the  cooperation  of  the  other  branch  of  Congress,  can  not  pass  behind  the  law 
of  Vermont,  to  alter  or  contradict  it,  without  the  exercise  of  imconstitutional  and 
dangerous  power." 

The  report  of  the  committee  was  debated  in  the  House  on  Januarj-  11,  especiallv 
with  reference  to  the  issue  joined  in  the  arguments  of  the  parties,  and  on  January 
13,  by  a  vote  of  116  to  47,  Mr.  Mallary  was  declared  to  be  entitled  to  the  seat. 

775.  The  Maryland  election  case  of  Reed  v.  Causden,  in  the  Seven- 
teenth Congress. 

The  Constitution  requires  election  of  Representatives  by  the  people, 
and  State  authorities  may  not  determine  a  tie  by  lot. 

The  decision  of  elections  oflicers  that  ballots  were  fraudulently  folded 
was  reviewed  and  reversed  by  the  House. 

The  House  reviewed  and  reversed  the  decision  of  elections  officers  in 
admitting  a  ballot  not  conforming  to  the  State  law. 

Opinions  of  the  Elections  Committee  as  to  investigating  qualifications 
of  voters  who  have  voted  by  secret  ballot. 

The  House,  overruling  its  Speaker,  held  that  a  negative  decision  on  a 
resolution  declaring  a  contestant  not  elected  was  not  equivalent  to  affirm- 
ative affirmation. 

The  Committee  on  Elections,  on  March  11,  1822,'  reported  in  the  contested 
election  case  of  Reed  t\  Causden.  This  case  involved  both  a  question  of  the  con- 
stitutionality of  the  act  of  the  governor  and  council  of  Maryland,  and  a  question  of 
fact  as  to  the  votes  actually  given. 

The  returns  of  the  election,  as  made  to  the  governor  and  council,  showed  that 
the  contestant  and  sitting  Member  had  an  equal  number  of  votes,  and  that  neither 
had  the  "greatest  number  of  votes"  as  by  the  constitution  of  the  State  was  required 
to  constitute  an  election.  In  this  situation,  the  governor  and  council  of  Mar^-land, 
acting  under  the  State  law  of  1790,  proceeded  by  lot  to  decide  between  the  two 
candidates,  and  decided  in  favor  of  Jeremiah  Causden.  The  Committee  on  Elections 
expressed  the  belief  that  the  law  of  1790  had  been  repealed  by  a  subsequent  law; 
but  dismissed  this  point  as  unessential  in  view  of  the  constitutional  question  involved. 
The  Constitution  of  the  United  States  provided  that  "the  House  of  Representatives 
shall  be  composed  of  Members  chosen  every  second  year  by  the  people  of  the  several 
States,"  and  that  "each  House  shall  be  the  judge  of  the  elections,  returns,  and 

'First  session  Seventeenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  353; 
House  Report  No.  64. 


1000 


PRECEDENTS   OF   THE    HOUSE    OF   KEPEESENTATIVES. 


§775 


qualifications  of  its  own  Members."  If  the  people  of  Maryland  failed  to  make  a 
choice,  no  other  authority  of  the  State  could  make  good  this  defect.  If  the  electors 
had  failed  to  attend  the  election  it  would  not  be  contended  that  the  State  executive 
authority  could  appoint  a  Representative  in  Congress  for  the  district. 

In  relation  to  the  question  of  fact  the  committee,  after  examination  of  testi- 
mony, concluded  that  two  votes  given  for  the  contestant  in  one  of  the  districts  of 
Kent  County,  and  rejected  because  folded  together  in  contravention  of  law  had 
been  improperly  rejected  by  the  judges,  and  that  a  vote  allowed  to  him  in  Cecil 
County  should  be  deducted,  as  being  illegal  in  form.  These  additions  and  the 
deduction  left  a  majority  of  one  vote  for  the  contestant. 

The  law  of  Maryland  provided: 

If  upon  opening  any  of  the  said  ballots  there  be  found  any  more  names  written  or  printed  on 
any  of  them  than  there  ought  to  be,  or  if  any  two  or  more  of  such  ballots  or  papers  be  deceitfully  folded 
together,  or  if  the  purpose  for  which  the  vote  is  given  is  not  plainly  designated  as  within  directed, 
such  ballots  shall  be  rejected  and  not  counted. 

The  report  of  the  committee  indicated  a  belief  that  the  two  ballots  rejected 
because  folded  together  were  not  "deceitfully  folded  together,"  evidence  being 
quoted  to  show  that  the  footing  of  the  poll  lists  indicated  this. 

The  illegal  vote  in  Cecil  County  contained  the  name  of  the  memorialist, 
together  with  the  names  of  five  other  persons,  without  any  other  designation  than 
the  words  for  "Congress."     The  law  of  Maryland  provided: 

Every  voter  shall  deliver  to  the  judge  or  judges  *  *  *  a  ballot,  on  which  shall  be  written  or 
printed  the  name  or  names  of  the  person  or  persons  voted  for,  and  the  purpose  for  which  the  vote  is 
given  plainly  designated. 

Therefore  the  committee  considered  that  the  sitting  Member  could  not,  under 
the  Constitution,  retain  his  seat,  and  that  the  contestant  was  elected.  The  com- 
mittee embodied  their  views  in  these  resolutions: 

Resolved,  That  Jeremiah  Causden  is  not  entitled  to  a  seat  in  this  House. 
Resolved,  That  Philip  Reed  is  entitled  to  a  seat  in  this  House. 

On  March  15  and  19  '  the  report  was  considered  in  Committee  of  the  Whole 
and  the  House. 

The  resolution  that  Jeremiah  Causden  was  not  entitled  to  the  seat  was  agreed. 

But  over  the  second  resolution  there  was  a  contest.  The  Committee  of  the 
Whole  amended  it  by  inserting  the  word  "not"  so  as  to  provide  that  Philip  Reed 
was  not  entitled  to  the  seat.  This  amendment  was  concurred  in  by  the  House  by 
a  vote  of  73  to  71.  A  motion  to  reconsider  failed,  as  did  also  a  motion  to  amend 
by  inserting  the  explanatory  words  so  the  resolution  would  read : 

Resolved,  That  Jeremiah  Causden  and  Philip  Reed  having  an  equal  number  of  votes,  Philip  Reed 
is  not  entitled  to  a  seat  in  this  House. 

The  question  recurring  on  agreeing  to  the  second  resolution  as  amended  by 
inserting  "not,"  there  appeared  yeas  75,  nays  75.  So  the  resolution  was  deter- 
mined in  the  negative.  The  Speaker  (Mr.  Barbour)  was  one  of  those  votmg  in  the 
aflirmative. 


'Journal,  pp.  367-371. 


§  776  GENERAL   ELECTION    CASES,   1789   TO   1840.  1001 

The  Speaker '  decided  =  that,  as  the  House  had  negatived  a  motion  declaring 
PhiHp  Reed  not  entitled  to  a  seat,  the  converse  of  the  proposition  was  affirmed,  and 
that  Philip  Reed  was  entitled  to  a  seat. 

An  appeal  having  been  taken,  the  House  overruled  this  decision. 

Thereupon  the  following  resolution  was  offered  and  agreed  to — yeas  82,  nays  72: 

Resolved,  That  Philip  Reed  is  entitled  to  a  seat  in  this  House  as  one  of  the  Representatives  from 
Maryland. 

Air.  Reed  thereupon  qualified  and  took  his  seat. 

The  committee  also  comment  on  certain  charges  that  illegal  votes  were  given 
by  certain  named  persons.  The  inference  is  that  the  votes  were  objected  to  because 
of  alleged  disqualifications  of  the  persons  castmg  them.  "On  the  propriety  of 
entering  mto  an  investigation  of  this  kind,  when  elections  are  by  ballot,  the  com- 
mittee entertams  serious  doubt."  The  committee  refers  to  the  case  of  Easton  and 
Scott,  but  doubts  whether  it  should  be  viewed  as  establishing  a  precedent. 

776.  The  New  York  election  case  of  Adams  v.  Wilson  in  the  Eight- 
eenth Congress. 

Instance  wherein  the  House  seated  a  contestant  shown  to  be  elected 
by  a  plurality  of  one  vote. 

Being  unable  to  insnect  a  ballot  the  committee  and  House  accepted 
the  judgment  of  the  election  judges  that  "it  was  intended  for  a  blank. 

The  House  followed  a  State  law  in  rejecting  ballots  folded  together; 
but  considered  evidence  tending  to  show  fraud  before  doing  so. 

On  December  30,  1823,'  the  Committee  on  Elections  reported  in  the  New  York 
contested  election  case  of  Adams  v.  Wilson,  in  which  the  face  of  the  returns  showed 
the  following  result:  Isaac  Wilson  had  2,093  votes;  Parmenio  Adams  had  2,077  votes. 

The  committee  found  from  the  testimony  that  in  the  towTi  of  China  22  more 
votes  were  returned  for  the  sitting  Member  than  he  actually  received. 

They  also  found  that  in  the  town  of  Attica  5  votes  were  returned  for  the  con- 
testant more  than  he  actually  received. 

These  deductions  being  made  the  poll  stood:  For  Isaac  Wilson,  2,071  votes; 
for  Parmenio  Adams,  2,072  votes. 

The  sitting  Member  claimed  further,  however,  that  in  the  town  of  Middleboro 
the  local  inspectors  had  improperly  rejected  as  a  blank  ballot  a  ballot  whereon 
the  name  of  the  sitting  Member  had  been  impressed,  but  had  been  defaced  by  one 
stroke  of  a  pen  over  the  name  without,  however,  affecting  the  distinctness  and 
legibility  of  the  letters.  The  committee  reported  that  all  the  inspectors  of  election 
agreed  in  the  opinion  that  it  had  been  the  intention  of  the  elector  who  presented 
it  to  have  it  considered  a  blank.  The  Committee  on  Elections  announce  the  con- 
clusion that  they  could  not  with  safety  judge  of  the  ballot  from  the  description  of  it, 
and  that  the  judgment  of  the  board  of  inspectors— whom  the  law  of  the  State 
constituted  judges — should  not  be  questioned. 

The  committee  also  disregarded  the  claim  of  the  sitting  Member  that  certain 
votes  be  counted  for  him  in  the  town  of  Stafford.     The  law  of  the  State  provided 

'  Philip  P.  Barbour,  of  Virginia,  Speaker. 

^  Journal,  p.  369,  Annals,  p.  1322. 

3  First  session  Eighteenth  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  373. 


1002  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   777 

that  "if  any  two  or  more  ballots  are  found  folded  or  rolled  up  together,  none  of  the 
ballots  so  folded  or  rolled  shall  be  esitmated."  The  votes  in  question  were  folded 
to"-ether  and  a  reference  to  the  poll  lists  showed  that  more  ballots  were  received 
than  there  were  names  on  the  list. 

The  committee  commended  the  honesty  of  tne  inspectors  in  the  district  so  far 
as  the  inquiries  extended,  and  expressed  the  opinion  that  their  testimony  was 
competent  and  ought  to  be  received  to  correct  any  mistakes  in  the  return. 

On  January  6,  1824,  the  House,  concurred  with  the  Committee  on  Elections, 
in  adopting  a  resolution  declaring  Mr.  Wilson  not  entitled  to  the  seat. 

To  the  other  resolution,  declaring  Mr.  Adams  entitled  to  the  seat,  an  amend- 
ment was  offered  declaring  the  seat  vacant  because  of  the  doubt  as  to  who  should 
have  been  returned.     This  amendment  was  in  form  as  follows: 

It  is  doubtful,  from  the  evidence,  who  ought  to  have  been  returned  the  Member  to  the  present 
Congress  from  the  Twenty-ninth  Congressional  district  in  the  State  of  New  York;  and  believing  that 
no  man  ought  to  exercise  the  high  and  honorable  station  of  Representative  of  the  people  by  virtue  of 
a  vote  short  of  a  clear  majority  of  those  given  at  the  polls;  and  believing  also  that  the  people  of  that 
district  are  competent  and  ought  of  right  to  judge  of  and  correct  the  return,  therefore — 

Resolved,  That  the  seat  of  Isaac  Wilson,  who  was  returned  as  the  Member  from  the  Twenty-ninth 
Congressional  district  of  New  York,  is  vacant. 

Resolved,  That  a  writ  of  election  do  forthwith  issue  to  supply  the  aforesaid  vacancy,  occasioned 
by  the  improper  return  of  Isaac  Wilson  to  a  se&^t  in  this  House. 

This  proposition  was  decided  in  the  negative,  as  was  also  an  amendment  to 
insert  the  word  "not,"  so  as  to  provide  a  declaration  that  Mr.  Adams  was  not 
entitled  to  the  seat. 

The  House  then,  by  a  vote  of  116  yeas  to  85  nays,  agreed: 

Resolved,  That  Parmenio  Adams  is  entitled  to  a  seat  in  this  House. 

Thereupon  Mr.  Adams  took  his  seat. 

777.  The  election  case  of  Biddle  and  Richard  v.  Wing,  from  Michigan 
Territory,  in  the  Nineteenth  Congress. 

A  board  of  Territorial  canvassers  having  heard  evidence  on  the  merits, 
the  Elections  Committee  decided  that  neither  party  should  be  prejudiced 
thereby. 

The  Elections  Committee  declined  to  consider  intimidation  at  a  poll 
unless  it  seemed  to  have  destroyed  the  fairness  of  the  whole  proceeding. 

Where  the  election  had  been  by  ballot,  the  Elections  Committee 
declined  to  investigate  qualifications  of  voters  to  the  extent  of  violating 
the  secrecy  of  the  ballot. 

Instance  wherein,  without  violating  the  secrecy  of  the  ballot,  the 
Elections  Committee  by  computation  rectified  a  poll. 

On  February  13,  1826,'  the  Committee  on  Elections  reported  in  the  contested 
election  case  of  Biddle  and  Richard  v.  Wing  the  following  resolution: 

Resolved,  That  Austin  E.  Wing  is  entitled  to  a  seat  in  this  House  as  a  Delegate  from  the  Territory 
of  Michigan. 

'  First  session  Nineteenth  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  504; 
Journal,  p.  368. 


§   777  GENER.VL   ELECTION    CASES,   1789   TO   1840.  1003 

On  March  20  the  report  was  considered  in  Committee  of  the  Whole,  but  not 
concluded.  It  does  not  appear  to  have  been  taken  up  again,  and  Mr.  Wing  con- 
tinued in  his  seat.  Therefore  the  reasoning  of  the  committee  did  not  receive  the 
positive  approval  of  the  House,  although  a  negative  approval  may  be  inferred. 

The  returns  of  the  local  inspectors  of  the  Territory  showed  the  following  sum- 
mary of  results  in  the  various  polling  places: 

Votes. 

John  Biddle 731 

Austin  E.  Wing 724 

Gabriel  Richard 710 


But  the  Territorial  canvassing  board,  having  met  imder  the  law  to  ascertain 
the  aggregate  of  votes  and  determine  the  person  elected,  decided  to  hear  evidence 
as  to  alleged  corruption  at  Sault  Ste.  Marie,  where  the  returns  showed  3  votes  cast 
for  Austin  E.  Wing  and  58  votes  for  John  Biddle. 

As  a  result  of  that  investigation,  and  the  return  made  by  the  canvassers  to  the 
governor,  the  certificate  of  election  was  issued  to  Mr.  Wing,  he  having  the  greatest 
number  of  votes  as  required  by  the  law  for  an  election. 

The  committee  expressed  the  opinion  that  the  board  of  canvassers  in  holding 
this  investigation  exceeded  the  authority  given  them  by  law,  and  that  neither  party 
should  be  prejudiced  thereby  in  an  investigation  by  the  committee  of  the  original 
and  intrinsic  merits  of  the  case.  An  illegal  assumption  of  power  by  one  description 
of  officers  could  not  justify  an  illegal  assumption  by  another  description.  The 
testimony  before  the  canvassers  was  ex  parte,  but  the  committee  conceive  that,  as 
ex  parte  testimony  was  admitted  in  rebuttal  also,  no  well-founded  objection  could 
be  made  by  contestant. 

Mr.  Richard  rested  his  claim  on  the  charge  that  his  vote  had  been  affected  by 
intimidation  practiced  by  sheriffs  at  Detroit,  but  the  committee  conceive  that  they 
can  not  enter  into  an  examination  of  such  charges,  especially  when  the  return  shows 
that  Mr.  Richard's  friends  were  most  numerous  at  Detroit,  except  the  corruption 
appears  sufficient  to  destroy  all  confidence  in  the  purity  and  fairness  of  the  whole 
proceeding.  The  inspectors  being  judges  of  election,  the  committee  feel  that  they 
were  required  to  do  no  more  than  examine  who  had  the  greatest  number  of  legal 
votes  actually  given. 

Mr.  Richard's  claim  being  thus  dismissed,  by  the  unanimous  opinion  of  the 
committee,  the  committee  proceeded  to  test  the  case  between  Messrs.  Biddle  and 
Wing.  In  this  aspect  of  the  case  the  committee  reached  a  conclusion,  although  not 
with  unanimity. 

After  examining  the  inspector's  returns,  and  after  adding  to  Mr.  Wing's  poll 
4  votes  which  the  committee  considered  wrongfully  rejected,  the  poll  stood: 

Votes. 

For  John  Biddle 732 

For  Austin  E.  Wing 728 

The  committee  refer  to  the  fact  that  when  an  election  turns  on  the  reception  of 
illegal  votes  given  by  ballot  much  difficulty  exists,  it  not  being  proper  to  discover 
who  threw  the  ballots  by  an  investigation  which  would  violate  the  secrecy  of  the 
ballot. 


1004  PBECEDENTS   OF   THE   HOUSE    OF    REPKESENTATIVES.  §  778 

But  in  this  case  it  was  possible  to  reach  a  result,  because  the  question  turned 
on  the  poll  at  Sault  de  Ste.  Marie,  where  the  poll  stood: 

Votes. 

For  Austin  E.  Wing ^ 

For  John  Biddle ^^ 

The  committee  found  the  proceedings  at  Sault  de  Ste.  Marie  defective  under 
the  law.  Thus,  four  persons,  not  qualified  electors,  presided  as  inspectors.  Of  the 
61  votes  cast  51  must  be  considered  illegal  by  reason  of  nonpayment  of  required 
taxes;  in  addition  to  which  12  of  the  number  were  discharged  soldiers  (not  citizens) , 
3  aliens,  and  3  nonresidents.  Without  setting  aside  the  whole  election,  the  com- 
mittee deduct  from  Mr.  Biddle' s  poll  the  12  soldiers,  3  aliens,  and  3  nonresidents,  18 
in  all,  leaving  him  714  votes.  They  also  deduct  all  of  Mr.  Wing's  3  votes  on  the 
supposition  that  they  may  have  been  illegal.     This  still  left  Mr.  Wing  11  plurality 

on  the  poll. 

Thus  the  committee  arrived  at  their  conclusion  that  Mr.  Wing  was  elected. 
778.   The  Tennessee  election  case  of  Arnold  v.  Lea  in  the  Twenty-first 

Congress. 

Although  the  allegations  of  the  petitioner  in  an  election  case  were 
vague  and  indefinite,  the  Elections  Committee  proceeded  to  examination. 

Form  of  a  petition  in  an  election  case  deemed  too  general  and  indefinite 

in  its  charges. 

No  fraud  being  shown,  irregularities  in  the  receiving  and  custody  of 
ballots  were  not  held  sufiBcient  to  justify  the  rejection  of  the  returns. 

Failure  of  election  oficers  to  be  sworn,  no  fraud  damaging  to  the  peti- 
tioner being  shown,  was  apparently  considered  not  sufScient  to  justify 
rejection  of  the  returns. 

Participation  of  relatives  of  a  contestant  as  election  oflScers  was  not 
held  fatal  to  the  return,  although  the  State  constitution  might  seem  to 
imply  a  prohibition  of  such  participation. 

Where  the  electors  comply  with  the  statutes  the  House  should  not 
reject  their  votes  because  returning  oflB.cers  have  not  been  equally  careful. 

On  December  29,  1829,^  the  Committee  on  Elections  reported  in  the  contest  of 
Arnold  v.  Lea,  from  Tennessee.     The  contestant  had  petitioned,  alleging: 

That  perjury  and  subornation  of  perjury  were  resorted  to;  that  bribery,  direct  and  indirect,  was 
resorted  to;  and,  in  short,  to  insure  the  defeat  of  your  memorialist,  the  laws  of  Tennessee,  which  pre- 
scribe in  a  special  manner  the  mode  of  holding  elections,  were  completely  prostituted  and  trampled  under 
foot  by  the  official  authorities  who  conducted  the  election,  and  their  own  partial,  prejudiced,  and  malig- 
nant passions  substituted  in  place  of  the  laws  of  the  land. 

Although  the  general  and  indefimte  character  of  these  allegations  were  objected 
to  by  the  sitting  Member,  the  committee  decided  to  proceed  to  an  examination. 

They  found  no  evidence  of  perjury  or  subornation  of  perjury,  or  bribery  or 
corruption,  so  that  part  of  the  petition  hardly  figures  in  the  case,  except  in  so  far  as 
the  proceedings  had  failed  to  comply  with  the  law. 

'  First  session  Twenty-first  Congress,  Contested  Elections  in  Congress  from  1789  to  1834,  p.  601. 


§  778  GENER.\L   ELECTION    CASES,   1789   TO   1840.  1005 

No  return  of  the  votes  in  the  district  was  made  to  the  committee,  the  petitioner 
showino;  no  evidence  to  impeach  particular  votes.  The  sitting  Member's  majority 
appeared  to  be  217. 

The  decision  of  the  case  turns  on  the  question  whether  or  not  the  conduct  of  the 
election  was  fatally  at  variance  with  the  following  provisions  of  the  constitution  and 
law  of  Tennessee: 

No  judge  shall  sit  in  the  trial  of  any  cause  where  the  parties  shall  be  connect(^d  with  him  by 
affinity  or  consangunity,  except  by  consent  of  parties.     (Sec.  8  of  constitution.) 

That  the  sheriffs  or  returning  officers  shall,  on  the  day  and  at  the  place  for  holding  each  respective 
election,  bo  pro\-ided  with  one  box  for  receiving  the  ballots  for  governor  and  members  of  the  general 
assembly;  the  returning  officer,  or  his  deputy,  shall  receive  the  tickets  in  presence  of  the  inspectors,  and 
put  each  into  the  box,  which  box  shall  be  locked,  or  otherwise  weU  secured,  until  the  election  shall  be 
finished.  The  returning  officer  shall,  at  sunset  of  the  firet  day,  and  in  the  presence  of  the  inspectors,  put 
his  seal  on  the  place  to  be  made  for  the  reception  of  the  tickets,  which  shall  continue  until  the  election 
shall  be  renewed  the  succeeding  day;  and  it  shall  be  the  duty  of  the  said  inspectors  to  take  chai-ge  of  the 
box  untU  the  poll  is  opened  the  next  day,  and  shall  then  be  taken  off  in  the  presence  of  the  inspectors. 

That  the  inspectors  and  clerks  of  every  such  election,  as  aforesaid,  shall,  in  the  court-house,  before 
they  proceed  to  business,  swear  (or  affirm,  as  the  case  may  be)  faithfully  to  perform  their  respective 
duties  at  such  election,  agreeably  to  the  constitution  and  laws  of  this  State. 

It  appeared  from  the  testimony  that  at  Tazewell  the  inspectors,  clerks,  and 
sheriff  were  in  favor  of  the  election  of  Mr.  Lea,  and  that  some  of  them  had  made  bets 
on  the  result ;  that  on  the  evening  of  the  first  da}-  the  sealed  ballot  box  was  put  in 
custody  of  the  sheriff  and  not  kept  by  the  inspectors,  as  required  by  law,  and  under 
direction  of  the  sheriff  was  locked  up  in  a  storehouse  owned,  the  petitioner  charged, 
by  an  enemy  of  himself.  The  friends  of  the  petitioner  complained  at  this  conduct, 
and  on  the  second  day  another  box  was  used,  the  first  remaining  sealed  until  the 
count.  Then  it  was  found  that  the  box  contained  the  exact  number  of  votes  it 
should  contain  according  to  the  poll  lists.  Petitioner  objected  that  this  did  not 
prove  that  some  tickets  cast  for  himself  might  not  have  been  abstracted  and  replaced 
b}'  an  equal  number  for  sitting  Member,  the  situation  of  the  box  rendering  such  a 
fraud  practicable.  But  no  proof  was  adduced  to  show  this,  and  the  committee 
decided,  although  it  was  in  eAridence  that  the  sheriff  had  been  anxious  to  have  the 
custody  of  the  box,  that  there  was  no  evidence  to  prove  fraud,  especially  as  the 
persons  concerned  in  the  conduct  of  the  election  were  men  of  high  character. 

At  Knoxville  there  was  testimony,  which  the  committee  consider  far  from  con- 
clusive, that  one  man  had  been  bribed  to  vote  for  sitting  Member  and  that  another 
who  had  voted  for  the  same  candidate  was  a  minor. 

At  one  precinct  in  Granger  County  it  appeared  neither  the  inspectors  nor  the 
clerks  were  sworn.  One  of  the  three  inspectors  was  a  friend  of  the  petitioner,  and 
the  votes  returned  for  petitioner  outnumbered  those  returned  for  the  sitting  Member. 
Certain  illegal  votes,  not  over  eight  in  number,  were  deducted  at  this  place,  a  greater 
number  being  taken  from  the  vote  of  the  sitting  Member  than  from  the  vote  of 
petitioner. 

At  one  precinct  of  the  county  of  Jefferson,  a  cousin  of  the  sitting  Member  was 
one  of  the  inspectors,  and  with  the  approval  of  the  other  inspectors,  this  cousin,  vnih 
the  sheriff,  took  custody  of  the  ballot  box  after  the  first  day's  voting. 


1006  PRECEDENTS   OF   THE    HOUSE    OF   REPRESENTATIVES.  §  779 

At  a  precinct  of  Blount  County  one  of  the  tlrree  inspectors  was  a  justice  of  the 
peace,  and  swore  himself,  the  two  other  inspectors,  and  the  clerk.  After  the  first 
day's  election  the  inspectors  delivered  the  ballot  box  to  the  custody  of  an  uncle  of 
the  deputy  sheriff.  A  minor,  whose  vote  was  rejected  in  this  county,  loaned  a  horse 
of  the  petitioner  and  went  to  another  polling  place,  where  he  voted.  It  appeared 
to  the  committee  that  the  petitioner  was  privy  to  this  -s-iolation  of  law. 

The  committee  conclude  that  these  irregularities  are  not  fatal.  In  the  pre- 
cinct where  the  inspectors  and  clerk  were  not  sworn  a  deduction  of  the  votes  cast 
would,  if  made,  increase  rather  than  diminish  the  majority  of  the  sitting  Member, 
and  even  if  the  whole  vote  taken  should  be  given  to  the  petitioner  the  sitting 
Member  would  still  have  a  majority. 

The  committee  therefore  recommended  unanimously  the  following: 

Resolved,  That  Pryor  Lea  is  entitled  to  retain  his  seat  in  the  Twenty-first  Congress  of  the  United 
States  as  the  Representative  of  the  Second  Congressional  district  of  the  State  of  Tennessee. 

On  January  12,  1830,  an  amendment  declaring  the  seat  A^acant  was  offered  and 
debated. 

In  the  course  of  the  debate  Mr.  William  W.  Ellsworth,  of  Connecticut,  said : 

The  merits  of  the  case  are  involved  in  two  questions,  and  only  two,  viz,  how  the  electors  of  this 
Congressional  district  complied  with  the  requisitions  of  the  statute  law  of  Tennessee;  and  if  they  have, 
what  is  the  result  of  their  vote?  A  close  adherence  to  these  questions  will  strip  this  matter  of  much  that 
is  collateral  and  immaterial.  As  to  the  first  question  (the  difficulty  being  that  the  ballot  box  has  not 
been  taken  care  of  by  the  supervisors  of  the  election),  I  observ'e  that  the  States  may  prescribe  the  time, 
place,  and  manner  of  the  election,  and  beyond  that  it  is  the  ultimate  province  of  this  House  to  ascertain 
the  result  of  the  election.  We  only  want  to  know  what  the  electors  have  said  by  their  votes.  There 
may  be  some  difficulty  in  ascertaining  this  fact  where  the  supervisors  of  the  balloting  are  irregular  as 
to  their  duty;  but  if  the  electors  have  done  all  the  State  law  requires  of  them,  and  all  they  can  do  legally 
to  express  their  wishes,  this  is  enough  for  us,  if  we  can  but  satisfy  oureelves  of  the  result.  If  we  can  not, 
by  reason  of  the  conduct  of  the  supervisors,  ascertain  what  was  the  true  state  of  the  ballot  box  when  the 
electors  had  deposited  their  votes,  we  must  pronounce  the  election  to  be  void.  *  *  *  We  are  to 
inquire  after  the  voice  of  the  electors,  legally  expressed;  and  if  the  agents  who  take  and  declare  the  votes 
do  wrong,  let  them  be  prosecuted,  but  not  punish  the  electors  by  rejecting  their  Representative.  *  *  * 
The  case  stated  from  Missouri  fully  illustrates  my  views  (Easton  %'.  Scott).  There  the  statute  required 
the  electors  to  vote  by  ballot ;  they  voted,  however,  vive  voce;  but  they  could  not  so  vote.  The  electors 
did  not  do  their  duty;  they  did  not  comply  with  the  law  as  to  the  manner  of  election.  So,  too,  the  case 
of  Allen  V.  Van  Rensselaer,  from  New  York,  illustrates  the  distinction.  The  law  of  New  York  requires 
the  ballot  box  to  be  locked;  it  was  only  tied  with  a  string.  In  this  case  Congress  decided  the  election  to  be 
good;  the  electors  did  all  their  duty,  and  Congress  were  satisfied  as  to  the  contents  of  the  ballot  box. 

This  amendment  declaring  the  seat  vacant  was,  according  to  the  rule  then  pre- 
vailing, set  aside  by  the  previous  question.  The  House  then  agreed  to  the  resolution 
declaring  the  returned  Member  entitled  to  the  seat  by  a  vote  of  yeas  149,  nays  20.* 

779.  The  Maine  election  case  of  Washburn  v.  Ripley  in  the  Twenty- 
first  Congress. 

Where  a  second  and  effective  election  was  had  because  of  apparent 
failure  to  choose  at  the  first  the  House  declined  to  be  estopped  from 
investigating  the  first. 

The  acceptance  after  election  of  a  State   oflB.ce  which   was  resigned 


'Journal,  pp.  159-161. 


§  "^^^  GENERAL   ELECTION   CASES,  1789   TO   1840.  1007 

before  the  meeting  of  Congress  was  held  not  to  destroy  whatever  rights 
a  contestant  might  have.  tucvei  ngnts 

tion"^  th?w ''  .for  different  offices  are  cast  in  different  boxes  the  inten- 

Sc^t  is'd:p:2t:d:^  *°  '^  ^"^^^^^^^^  ^°^^  ^^°-  *^^  ^-  ^-  -^^^^  the 

Con^Jr.'frii°?''''.^''  ^■''.'^^^''^  ^^  """^^'^^^  *°  ^^'^^t  f°r  ^  candidate  for 
Congress  ballots  cast  m  a  box  other  than  the  Congressional  box. 

.^.^ltT°l  °,  ^^""^^  '■"^''''^  ^"  ^°*""  "^^t  in  the  Congressional  box, 

even  though  for  persons  not  qualified.  ' 

On  January  18,  1S30/  the  Committee  on  Elections  reported  in  the  contested 
election  case  of  Washburn  ..  Ripley  from  Maine.     The  facts^peared  as  folWs 

Under  the  laws  of  Mame  the  election  wa^  by  ballot,  a  majority  bein<r  required 
to  elect  and  the  baUots  for  Congressman  were  deposited  in  a  box  bv  theClve  at 
each  pollmg  place.     The  result  of  the  jjoll  was  as  follows:  "       ^"^^'^^^  "•* 

Whole  number  of  votes  given 

Keccssarj-for  an  election. . .  <>'   at 

Kuel  Washburn  had .'.".'' T'^^r 

James  W.  Ripley  had o    q'' 

Eleven  men  known  and  admitted  to  be  candidates  forth'e  logislatiire  at'the  "' 

same  election  had  in  the  Congressional  boxes  a  total  of  94 

Three  men  known  and  admitted  to  be  candidates  for  countv  treasurers  had 

in  the  Congressional  boxes  a  total  of " 

Enoch  Lincoln,  candidate  for  governor,  in  the  same  way  had. 2 

Three  candidates  for  State  senator  had  a  total  of .". .  3 

A  single  ticket  having  on  it  the  names  of  two  candidates  foV State  senate  was 

found  in  the  Congressional  box  and  counted  as  one  vote  for  each  makincr  o 

Scattering  vote..  "' 

"  282 

The  governor  and  cotmcil,  acting  under  the  law,  found  from  this  retm^i  that  a 
majority  of  the  whole  number  of  votes  was  not  given  to  any  one  candidate,  and 
ordered  a  new  election,  which  was  held  December  22,  1828,  and  at  which  James  W 
Kipley  received  a  majority  and  took  his  seat  in  the  House 

The  sitting  Member  made  the  point  that,  as  the  governor  and  council  had  again 
referred  the  matter  to  the  people,  and  as  the  people  had  determined  the  election  on 
the  second  ballot,  it  was  not  competent  for  the  House  to  go  beyond  the  second  elec- 
tion The  majority  of  the  Committee  of  Elections,  however,  decided  that  they 
might  examme  the  first  election,  and  did  so. 

The  sitting  Member  further  contended  that  the  said  Washburn  had  waived 
whatever  right  he  nught  have  had  to  a  seat  in  the  House  by  accepting,  after  the 
date  of  the  second  election  the  State  office  of  councilor,  an  ofiice  incompatible,  as 
the  constitution  of  Mame  disquaUfied  a  Member  of  Congress  from  beincr  councilor 
A  majority  of  the  committee  concluded  that  the  rights  of  Mr.  Washburn  if  he 
acquired  any  by  the  election  of  September,  would  not  in  this  wav  be  destroved 
Mr.  Washburn  had  resigned  the  councilorship  before  the  time  of' meeting  of' the 
Congress  to  which  he  claimed  an  election. 

The  case  therefore  proceeded  to  examination  on  its  merits. 

'  First  session   Twenty-first  Congress,  Contested  Elections  in  Congress  from  1789  to  1834    n   erg- 
House  Report  No.  88.  iOO-l,  p.  D/», 


1008  PBECEDENTS   OF   THE   HOUSE   OF   KEPEESENTATIVES.  §   780 

It  was  proven  that  several  of  the  persons  for  whom  votes  were  found  in  the 
Congressional  box  were  not  residents  of  the  Congressional  district,  as  required  by- 
law; that  at  least  one  vote  intended  for  petitioner  was  put  in  the  State  senatorial 
box  and  counted  as  a  vote  for  State  senator  and  not  for  Congressman.  It  was 
evident  and  not  seriously  contested  that  the  votes  for  State  officers  foimd  in  the 
Congressional  box  were  deposited  there  by  mistake. 

One  such  ballot  cast  in  the  town  of  Canton  contained  two  names,  and  was 
coimted  as  one  vote  for  each  name.  The  committee  found  that  this  should  have 
been  coimted  as  only  one  vote,  and  therefore  deducted  one  from  the  total. 

There  was  also  a  question  whether  or  not  in  the  town  of  Bridgton  a  single  ballot 
containing  three  names  had  not  been  counted  as  tliree  votes,  and  the  committee, 
while  not  considering  it  proven,  also  suggested  that  two  votes  be  deducted  in  Bridg- 
ton. These  deductions,  one  in  Canton  and  two  in  Bridgton,  reduced  the  number 
necessary  to  a  choice  to  2,496,  or  one  more  than  the  votes  received  by  ilr.  Washburn. 

It  appeared  that  the  voter  who  cast  the  double  ballot  in  Canton  discovered  his 
mistake  soon  after  and  asked  leave  to  rectify  the  error,  but  was  refused  by  the  select- 
men. The  minority  of  the  committee  believed  that  two  votes  should  be  deducted 
in  Canton  and  three  in  Bridgton — a  total  of  five — which  would  reduce  the  number 
needed  for  a  choice  to  2,495,  the  exact  number  received  by  Mr.  Washburn. 

The  sitting  Member  professed  abiUty  to  prove  that  illegal  votes  were  given  for 
the  contestant;  but  the  committee  considered  the  evidence  before  them  sufficient  to 
settle  the  case,  in  accordance  with  the  following  rule,  which  they  enumerated  in 
their  report : 

The  committee  are  unanimously  of  opinion  that  when  the  votes  are  taken  by  ballot,  and  separate 
boxes  used,  after  they  are  deposited  in  the  box  it  is  not  competent  or  proper  for  the  voter  or  selectmen  to 
alter  or  change  the  ballot  as  delivered  into  the  boxes,  and  that  the  intention  of  the  voter  is  to  be  ascer- 
tained alone  from  the  box  in  which  his  ticket  is  deposited,  and  that  the  selectmen  conducting  the  elec- 
tions at  the  places  above  specified  acted  correctly  in  making  out  their  return  to  the  governor  and  council 
of  all  the  ballots  they  found  in  the  box  which  was  used  for  the  reception  of  tickets  for  a  Member  of  Con- 
gress, and  in  refusing  to  count  the  votes  they  found  in  other  boxes  with  the  name  of  Washburn  on  it  and 
adding  them  to  his  list  of  votes  given  for  him  as  a  Member  of  Congress.  The  adoption  of  any  other  rule 
would  be  fraught  with  danger  to  the  purity  of  the  elective  franchise. 

The  committee  are  further  of  opinion  that  votes  given  for  persons  not  residing  within  the  district  of 
Oxford  ought  to  have  been  added  to  the  number  of  votes  given  for  a  Member  of  Congress,  as  they  were 
done  by  the  selectmen. 

Therefore  the  committee  recommended  the  adoption  of  the  following  resolution : 

Resolved,  That  James  W.  Ripley  is  entitled  to  a  seat  in  the  Twenty-first  Congress  of  the  United 
States  as  the  Representative  of  the  Oxford  district  in  the  State  of  Maine. 

On  February  2,  after  a  long  debate,  the  House  concurred  in  this  report,  yeas  111, 
nays  79,  Mr.  Ripley  being  thus  confirmed  in  the  seat.' 

780.  The  Virginia  election  case  of  Loyall  v.  Newton  in  the  Twenty- 
first  Congress. 

The  House  in  an  election  case  received  testimony  taken  before  an 
informal  commission,  the  individuals  of  which  were  competent,  and  due 
notice  being  given. 


'Journal,  pp.  195,  209,  215,  224,  225,  230,  247,  249. 


§  780  GENERAL   ELECTION    CASES,   1789   TO   1840.  1009 

Instance  of  the  methods  of  taking  testimony  in  election  cases  before 
the  enactment  of  the  law. 

Voting  being  viva  voce,  the  testimony  of  the  voter  was  admitted  to 
prove  his  qualifications. 

All  votes  recorded  on  the  poll  lists  are  good  unless  impeached  by 
evidence. 

Reference  to  rules  governing  counting  of  votes  where  freehold  quali- 
fications prevailed. 

Instance  wherein  the  Elections  Committee  waived  the  strict  rules  of 
law  in  receiving  testimony. 

Form  of  resolution  seating  a  contestant  without  in  terms  unseating 
the  sitting  Member. 

On  February  19,  1830,'  the  Committee  on  Elections  reported,  in  the  contested 
election  case  of  Loyall  v.  Newton,  from  Virginia,  the  following  resolution: 

Resolved,  That  George  Loyall  is  entitled  to  a  seat  in  the  Twenty-first  Congress  of  the  United  States 
as  the  Representative  from  the  district  in  Virginia  composed  of  the  counties  of  Xorfolk,  Nansemond 
Elizabeth  City,  Princess  Ann,  and  the  borough  of  Norfolk.  ' 

This  case  divides  itself  into  three  general  branches : 

1.  The  admissibility  of  testimony  taken  before  a  commission  alleged  to  have 
been  appointed  without  authority  of  law. 

2.  The  legality  of  the  action  of  the  mayor  of  Norfolk  under  the  law  of  Virginia 
in  adjourning  the  poll  after  the  first  day. 

3.  The  legality  of  certain  votes  under  the  law  of  Virginia,  some  cast  for  the 
contestant  and  some  for  the  sitting  Member. 

In  regard  to  the  first  branch,  there  was  no  law  of  the  United  States  or  of  Vir- 
ginia providing  for  taking  testimony  in  contested  election  cases  of  Members  of 
Congress.  In  contests  for  members  of  the  Virginia  legislature  the  law  of  that  State 
provided  for  the  appointment  by  local  judges  of  commissioners  to  take  testimony. 
Following  this  analogy,  the  petitioner  had  appointed  by  the  judge  of  the  Norfolk 
court  commissioners  to  take  testimony.  The  sitting  Member  objected  to  deposi- 
tions so  taken  for  the  reason  that  there  was  no  law  authorizing  their  appointment 
or  providing  the  pains  of  perjury  for  those  swearing  falsely  before  such  commis- 
sioners. The  committee  found,  however,  that  the  commissioners,  previous  to  their 
appointment  as  such  and  during  the  time  in  which  the  depositions  were  taken,  were 
justices  of  the  peace  or  notaries  public,  authorized  under  the  laws  of  Virginia  to 
admmister  oaths.  So  their  capability  in  this  respect  was  not  dependent  on  the 
appointment  as  commissioners,  and  the  committee  allowed  the  testimony  taken 
before  them,  as  it  did  also  testimony  taken  before  justices  of  the  peace  authorized 
to  administer  oaths  in  behalf  of  the  sitting  Member. 

As  to  the  second  branch  of  the  inquiry,  the  legality  of  the  action  of  the  mayor 
of  Norfolk  in  adjourning  the  poll  depended  on  the  construction  of  the  language  of  the 
Virginia  statute,  and  the  committee  decided  that  the  language  gave  him  such 
authority;  also  that  the  contingency  requiring  such  adjournment  existed. 

'  First  session  Twenty-first  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  520. 
5094 — VOL  1 — 07 04 


J^QIO  PBECEDENTS   OF   THE   HOUSE    OF   EEPKESENTATIVES.  §   781 

The  third  branch  of  the  case  involved  an  examination  of  the  qualifications  of 
electors  under  the  law  of  Virginia,  which  provided  various  qualifications,  especially 
of  property.  Under  the  law  of  Virginia  voting  was  viva  voce,  so  the  committee 
admitted  the  testimony  of  the  voter  himself  to  prove  himself  a  freeholder  in  cases 
where  the  land  books — also  admitted  in  evidence — did  not  show  the  possession 
of  the  freehold.  The  testimony  of  other  persons  was  admitted  to  prove  the  qualifi- 
cation of  the  voters  in  this  respect.  To  the  exammation  of  the  votes  the  committee 
applied  the  following  rules,  used  also  in  the  case  of  Porterfield  and  McCoy: 

That  all  votes  recorded  on  the  poll  lists  should  be  good  unless  impeached  by  evidence. 
That  all  votes  not  given  in  the  county  where  the  freehold  lies  be  rejected. 

That  the  votes  of  freeholders  residing  out  of  the  district,  but  having  competent  freehold  estates 
within  the  district,  be  held  legal. 

Acting  under  these  rules  and  prmciples  the  conmiittee  found  and  reported  a 
majority  of  30  votes  for  George  Loyall. 

The  committee  further  state  that  had  the  parties  been  confined  to  the  strict 
rule  of  the  law  in  requiring  of  them  the  best  evidence  the  nature  of  the  case  admit- 
ted and  by  refusing  to  receive  parol  evidence  as  to  the  freehold  qualifications  of 
the  voters,  the  majority  of  George  Loyall  would  have  been  greatly  increased. 

On  March  8,'  after  lengthy  debate,  a  motion  was  made  that  "the  said  report  be 
recommitted  to  the  Committee  of  Elections,  with  instructions  to  report  to  the  House 
the  names  of  the  voters  which  they  find  illegal,  with  a  summary  of  the  evidence  upon 
which  they  found  their  decision." 

This  motion  was  removed  from  before  the  House  by  a  motion  that  the  main 
question  be  put.  This  motion  for  the  previous  question  was  agreed  to  without 
division. 

Then  the  question  was  taken  on  the  resolution  reported  from  the  committee : 

Resolved,  That  George  Loyall  is  entitled  to  a  seat  in  the  Twenty-first  Congress  of  the  United  States 
as  a  Representative  from  the  district  in  Virginia  composed  of  the  counties  of  Norfolk,  etc. 

And  the  resolution  was  agreed  to — yeas  97,  nays  84. 

On  March  9  Mr.  Loyall  took  the  oath. 

It  will  be  observed  that  no  resolution  specifically  declaring  Thomas  Newton,  the 
returned  Member,  not  entitled  to  the  seat  was  thought  necessary.  Mr.  Newton  had 
occupied  the  seat  since  the  meeting  of  Congress. 

781.  The  Virginia  election  case  of  Draper  v.  Johnsoii  in  the  Twenty- 
second  Congress. 

Where  payment  of  a  tax  is  a  qualification  of  the  voter  the  tax  may  be 
paid  by  another  than  the  voter. 

A  vote  being  given  viva  voce  at  an  election  for  Congressman,  the  voter 
may  not  afterwards  change  it  or  vote  for  additional  officers. 

An  election  is  not  vitiated  by  failure  to  observe  a  directory  law  that 
the  ballots  shall  be  returned  within  a  given  time. 

On  April  13,  1832,^  the  Committee  on  Elections,  through  Mr.  John  A.  Collier, 

'  Journal,  pp.  386-388. 

^  First  session  Twenty-second  Congress,  Contested  Elections  in  Congress,  from  1789  to  1834,  p.  702; 
House  Report  No.  444;  House  Journal,  pp.  586,  807. 


§  782  GENERAL   ELECTION    CASES,   1"89   TO   1840.  1011 

of  New  York,  reported  in  the  case  of  Draper  v.  Jolmson,  from  Virginia.  The  con- 
testant alleged  that  the  election  had  not  been  conducted  according  to  certain  specified 
laws  of  Virginia,  and  that  b_r  reasons  of  these  departures  from  the  law  he  was  deprived 
of  the  election  to  wliich  he  was  entitled  by  receiving  the  greater  number  of  votes 
given  bj'  voters  legally  qualified.  The  committee  m  their  consideration  of  the  case 
adopted  certain  principles  of  action  which  seem  to  have  been  approved  by  the  whole 
committee. 

The  test  principles  laid  down  by  the  committee  related  in  large  part  to  the 
construction  of  the  peculiar  law  of  Virginia  relating  to  the  freehold  qualifications 
of  the  voter.  Some,  however,  of  these  principles  are  of  less  ephemeral  interest,  as 
the  following : 

That  where  a  revenue  tax  is  duly  assessed,  and  the  sheriff  has  paid  the  tax  himself,  and  has  not 
returned  the  party  delinquent,  as  he  has  the  right  to  do  if  he  is  insolvent,  or  the  sheriff  is  not  alile  to 
collect  the  tax,  that  this  is  to  be  deemed  a  payment  by  the  party,  so  as  to  entitle  him  to  a  vote. 

That  where  a  voter  is  first  polled,  and  his  vote  recorded  for  one  candidate  (the  voting  being  viva 
voce),  he  is  not  at  liberty  afterwards  to  change  it  and  liave  his  vote  transferred  to  another  candidate; 
nor,  if  he  first  votes  for  the  State  officers  only,  has  a  right  to  come  forward  afterwards  to  vote  for  a 
Representative  in  Congress. 

That  the  neglect  to  return  the  votes  to  the  clerk's  office  within  the  time  required  after  the  canvass, 
the  provisions  being  merely  directory,  will  not  vitiate  the  election,  it  appearing  that  the  polls  were 
afterwards  returned  and  filed. 

782.   The  case  of  Draper  v.  Johnson,  continued. 

The  neglect  of  the  officer  conducting  the  poll  to  take  the  required  oath 
is  ground  for  rejecting  the  poll. 

An  election  officer  being  presumed  to  do  his  duty,  is  presumed  to  have 
taken  a  required  oath,  and  the  burden  of  proving  otherwise  in  on  the 
objecting  party. 

Failure  to  file  a  required  certificate  that  an  election  officer  took  the 
oath  is  sufficient  to  throw  the  burden  of  proof  on  the  party  claiming  the 
votes  received  by  the  officer. 

The  law  requiring  two  officers  to  officiate  at  a  poll,  votes  taken  by  one 
officer  acting  in  the  capacity  of  the  two  required,  were  rejected. 

An  election  officer  having  acted  colore  officii,  without  objection  from 
any  claimant,  the  Elections  Committee  declined  to  inquire  if  he  had  been 
appointed  properly. 

Early  instance  wherein  the  Elections  Committee  heard  arguments  of 
the  parties  on  the  evidence. 

The  committee  also  laid  down  additional  test  principles,  as  follows: 

That  the  neglect  of  the  sheriff  or  other  officer  conducting  the  election,  to  take  the  oath  required 
by  law,  vitiates  the  poll  for  the  particular  precinct  or  county,  and  the  whole  votes  of  such  precinct  or 
county  are  to  be  rejected. 

That  the  legal  presumption  is,  that  the  oath  required  has  been  taken,  every  officer  being  presumed 
to  have  done  his  duty,  and  that  the  onus  is  thrown  upon  the  party  taking  the  objection  to  show  the 
neglect  or  omission;  but  as  the  law  of  Virginia  requires  that  the  oath  shall  be  returned  and  filed  in  the 
clerk's  office,  a  certificate  from  the  clerk  that  no  such  vote  is  filed  will  be  sufficient  prima  facie  (notice 
of  the  objection  being  pre\-iou8ly  served  upon  the  opposite  party)  to  throw  the  burden  of  proof  on  the 
party  claiming  the  vote. 


J012  PKECEDENTS   OF    THE   HOUSE   OF   EEPRESENTATIVES.  §   783 

That  the  sheriff,  or  other  officer  conducting  the  election,  and  particularly  at  the  court-house, 
where  no  other  superintendents  are  associated  with  him,  must  appoint  one  or  more  "writers"  to  take 
the  polls;  and  that  the  sheriff  can  not  act  solely,  and  in  the  double  capacity  of  superintendent  and 
clerk;  and  that  the  votes  recorded  by  him,  without  the  presence  or  aid  of  such  clerk  or  writer,  are  to 

be  rejected.  .       , ,  t.         ■!_       i 

That  the  superintendent  of  a  separate  election,  having  been  appointed  by  a  court  or  other  tribunal 
having  the  general  appointing  power  for  that  purpose,  which  superintendents  act  as  such,  colore  officii, 
no  other  person  appearing  or  acting  as  conflicting  claimants  for  the  office,  the  committee  will  not  inquire 
whether  they  were  appointed  at  the  particular  term  of  the  court  contemplated  by  the  act,  or  whether 
there  was  a  "vacancy"  within  the  meaning  of  the  law. 

783.   The  case  of  Draper  v.  Johnson,  continued. 

Votes  cast  at  an  election  adjourned  beyond  the  times  permitted  by- 
law were  rejected. 

A  vote  received  by  election  oflBcers  is  prima  facie  good,  and  the  bur- 
den of  proof  should  be  on  the  party  objecting  thereto. 

The  House  does  not  permit  an  agreement  of  parties  that  votes  are 
inadmissible  to  preclude  examination. 

An  investigation  showing  for  sitting  Member  a  majority,  the  House 
declined  to  vacate  the  seat  because  certain  irregularities  (not  frauds) 
suggested  that  further  inquiry  might  change  the  result. 

Instance  in  1832  wherein  a  minority  dissent  was  voiced  in  the 
report  of  the  majority  and  not  in  separate  "  views." 

An  early  instance  wherein  the  House  overruled  the  report  of  the 
majority  of  the  Elections  Committee. 

The  committee  also  decided  that  where  the  law  of  Virginia  permitted  the  poll 
to  be  continued  three  days,  that  a  continuance  during  the  fourth  day  was  not  justi- 
fied by  the  terms  of  the  law  and  rejected  the  votes  cast  on  the  said  fourth  day, 
although  it  does  not  appear  horn  the  report  that  the  votes  given  on  the  fourth  day 
were  otherwise  than  legal. 

The  committee  note  also  in  their  report  that  they  not  only  examined  the  docu- 
mentary testimony  produced,  but  heard  the  parties,  who  personally  appeared  before 
the  committee. 

A  correction  of  the  returns  in  accordance  with  the  principles  laid  down  by  the 
committee  would  give  to  the  sitting  Member,  Mr.  Johnston,  a  majority  of  123  votes. 

But  the  committee  found  a  further  complication,  set  forth  as  follows : 

As  to  the  qualifications  of  the  voters,  the  parties,  in  the  outset,  assumed  a  principle  by  which  they 
have  been  governed  throughout,  different  from  what  would  have  been  adopted  by  the  committee,  and 
which  has  occasioned  great  trouble  and  delay.  It  was  assumed  that  if  a  vote  was  objected  to  upon  the 
ground  that  it  was  not  by  a  person  duly  qualified,  the  party  claiming  the  vote  must  take  the  burden 
of  proving,  affirmatively,  that  the  voter  possessed  the  required  qualifications.  This  erroneous  principle, 
as  the  committee  deem  it  to  be  (for  they  would  have  taken  a  vote  received  by  the  board  of  inspectors 
as  prima  facie  good),  might  and  would  have  been  reversed  and  corrected,  were  it  not  that  the  parties, 
acting  upon  this  basis,  proceeded  to  stipulate,  in  writing,  that  the  votes  thus  objected  to,  and  not,  there- 
fore, proved  to  be  good,  were  to  be  deemed  and  considered  bad,  reserving,  however,  in  the  counties  of 
Wythe  and  Grayson,  the  right  to  the  party  claiming  the  vote  to  prove  it  to  be  given  by  a  person  duly 
qualified;  and  in  the  other  counties  in  the  district  *  *  *  the  written  stipulation  reserved  no  right 
to  prove  the  votes  to  be  good;  but  the  specified  votes  were  admitted,  unconditionally,  to  be  bad.  The 
committee,  however,  were  of  opinion  that,  although  there  was  no  express  reservation  in  the  other  coun- 


§  784  GENERAL,   ELECTION    CASES,  1789   TO   1840.  1013 

ties,  "yet,  if  aflirmative  and  satisfactory  proof  should  be  offered,  showing  that  the  votes  objected  to 
were,  in  point  of  fact,  given  by  persons  duly  qualified  to  vote,  that  the  parties  would  have  no  right  to 
stipulate  that  such  votes  should  be  disregarded;  and  that  the  stipulations  would  only  be  received  as 
prima  facie  evidence  of  the  want  of  the  necessary  qualifications  of  the  voters." 

Therefore  the  committee  gave  additional  time  to  take  testimony;  but  the  new- 
testimony  did  not  cover  all  the  votes,  and  the  report  sa^'s : 

It  will  be  perceived  that  from  the  erroneous  principle  assumed  by  the  parties  in  the  outset,  dis- 
ranchising  by  stipulation  upward  of  600  voters  in  a  closely  contested  election,  many  of  whom  are  now 
proved  to  be  duly  qualified,  and  a  majority  of  whom  may  have  been,  and  by  reason  of  the  technical  objec- 
tions by  which  185  votes  have  been  rejected,  exclusive  of  the  votes  polled  on  the  fourth  day  in  Washing- 
ton County  ."giving  the  seat  to  either  of  the  candidates  might  be  doing  injustice  to  the  electors  of  the 
district,  for  it  is  impossible  to  determine  which  of  the  candidates  did,  in  fact,  receive  a  majority  of  the 
l^al  votes. 

A  majority  of  the  committee  have  therefore  come  to  the  conclusion  that  it  would  be  doing  better 
justice  to  the  parties,  and  to  the  electors  of  the  district,  to  give  them  another  opportunity  of  expressing 
their  opinions  upon  the  subject  by  a  new  election. 

A  minority  of  the  committee,'  while  they  are  free  to  confess  that,  under  the  peculiar  circumstances 
of  this  case,  they  would  not  only  be  reconciled  to,  but  better  satisfied  with,  such  a  result,  if  they  could 
have  felt  themselves  at  liberty  to  unite  in  it,  are  nevertheless  of  opinion  that  the  sitting  Member,  having 
received  a  majority  of  the  legal  votes,  upon  the  principles  assumed,  is  entitled  to  the  seat,  and  are  there- 
fore constrained  to  dissent  from  the  resolution  proposed  by  the  majority. 

The  resolution  submitted  by  the  majority  was  as  follows: 

Resolved,  That  the  seat  of  Charles  C.  Johnson,  the  sitting  Member  from,  etc.  *  *  *  be  vacated, 
for  irr^ularities  in  the  election,  and  that  the  Speaker  of  the  House  transmit  to  the  executive  of  Virginia 
a  copy  of  this  resolution,  to  the  end  that  a  new  election  may  be  ordered. 

On  May  26,  1832,  when  the  resolution  was  considered  in  the  House,  and  by  a 
vote  of  85  to  35,'  all  after  the  word  resolved  was  stricken  out,  and  the  following  was 
inserted:  "That  Charles  C.  Johnson,  the  sitting  Member,  is  entitled  to  his  seat." 
The  amended  resolution  being  agreed  to,  the  majority  of  the  committee  were  over- 
ruled, and  the  title  of  sitting  Member  w^as  confirmed. 

784.  The  North  Carolina  election  case  of  Newland  v.  Graham  in  the 
Twenty-fourth  Congress. 

The  State  law  preventing  voters  from  testifying  as  to  the  ballots  cast 
by  them,  the  Elections  Committee  did  not  admit  declarations  as  next 
best  evidence. 

A  question  as  to  the  correction  of  the  mistake  when  ballots  for  Con- 
gressmen are  deposited  in  the  wrong  ballot  box. 

On  February  24,  1836,^  the  Committee  on  Elections  reported  in  the  case  of 
Xewland  v.  Graham,  from  North  Carolina.     In  this  case  the  sitting  Member  was 
returned  by  a  majority  of  seven  votes,  and  the  contest  was  based  on  the  charge  that 
illegal  and  unqualified  votes  had  been  given  for  the  sitting  Member,  and  that  legal 
and  qualified  votes  offered  for  the  contestant  had  been  rejected. 

'  It  is  to  be  obsers'ed  that  the  minority  dissent  is  voiced  in  the  report,  and  not  presented  separately 
as  "minority  views." 

•^  The  Journal  does  not  show  any  division.  The  figures  of  the  vote  are  given  on  p.  714  of  Contested 
Elections  (Clarke). 

'  First  session  Twenty-fourth  Congress,  Contested  Elections  (1  Bartlett),  p.  5;  Contested  Elections 
(Rowell),  p.  105;  House  Report  No.  378. 


X014  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   785 

In  the  first  place  the  committee  decHned  to  accept  as  evidence  declarations  not 
made  under  oath  of  certain  persons,  alleged  to  be  disqualified  for  voting,  who  declared 
after  the  election  that  they  had  voted  for  the  sitting  Member.  The  election  was  by 
ballot,  and  the  State  law  provided  that  voters  should  not  be  compelled  to  give  evi- 
dence for  whom  they  voted.  Hence  the  contestant  urged  that  the  declarations  were 
the  best  evidence  obtainable  by  him.  The  committee  refused  leave  to  admit  the 
declarations. 

The  committee  then  proceeded  to  consideration  of  bad  or  illegal  votes  proven 
by  other  evidence  than  the  declaration  of  voters.  In  this  rectification  of  the  vote 
the  committee  reversed  the  action  of  the  election  judges  at  Asheville,  who  struck 
from  the  poll  three  votes  allowed  by  the  judges  at  Henderson.  The  law  of  the  State 
gave  the  judges  at  one  place  of  election  no  such  power  to  alter  the  return  of  judges 
at  another  place.  The  committee  also  passed  upon  certain  votes  legally  offered  at 
the  election  and  illegally  refused. 

The  result  of  the  examination  by  the  committee  reversed  the  majority,  and 
showed  the  election  of  the  contestant. 

The  cormnittee  furthermore  found  a  condition  which  they  did  not  attempt  to 
pass  on.  There  were  used  separate  ballot  boxes,  and  in  some  cases  ballots  intended 
for  the  Congressional  box  were  put  into  the  legislative  box,  and  vice  versa.  The 
judges,  who  seem  generally  to  have  received  the  ballots  from  the  voters  and  put 
them  in  the  boxes,  corrected  these  errors.  The  committee  did  not  ascertain  the 
number  of  such  corrections,  and  left  the  question  to  the  House,  saying: 

The  committee  found,  on  reference  to  the  case  of  Washburn  and  Ripley,  that  the  House  had 
refused  to  interfere  with  a  decision  of  the  judges  of  election  in  that  case,  who  declined  correcting  the 
mistakes  made  in  that  election  by  depositing  the  ballots  in  the  wrong  boxes.  The  judges  of  this  elec- 
tion in  Maine,  it  seems  from  this  case,  did  not  consider  it  to  be  in  their  power  to  correct  suoh  a  mistake. 
They  may  have  considered  that  they  had  no  means  of  ascertaining  whether  it  was  a  mistake  or  not. 
It  appears,  from  that  case,  that  the  ballots  were  put  into  the  boxes  by  the  voters  themselves,  and  it 
would  seem,  from  several  of  the  depositions  in  this  case,  that  the  ballots  were  usually  handed  to  one 
of  the  judges  or  inspectors  of  the  election,  and  by  him  deposited  in  the  ballot  box,  as  the  law  ot  North 
Carolina  requires.  In  this  case,  then,  the  mistake  having  been  made  by  one  of  the  judges,  and  not 
by  the  voter,  who  had  done  everything  in  his  power  toward  the  fair  exercise  of  his  privilege,  the  judges 
have  considered  it  their  duty  to  correct  their  own  mistakes  and  give  the  voter  his  vote;  and  as  they 
considered  that  they  had  the  means  of  fairly  correcting  the  mistake,  they  did  so  openly,  and  without 
objection  of  the  friends  of  either  candidate.  Under  such  circumstances  the  committee  leave  it  to 
the  House  to  say  whether  their  proceedings  should  not  be  respected. 

The  minorit}^  views  called  attention  to  the  fact  that  after  the  correction  by 
the  judges  the  number  of  votes  in  the  Congressional  box  exceeded  the  names  on  the 
poll  list  by  five,  and  held  that,  irrespective  of  precedent,  the  five  votes  should  be 
deducted  from  contestant. 

785.   The  case  of  Newland  v.  Graham,  continued. 

Discussion  as  to  the  sufficiency  of  a  notice  of  contest  which  did  not 
give  particular  specifications. 

Discussion  as  to  the  admissibility  of  testimony  taken  when  one  of  the 
parties  considered  himself  unable  to  attend. 

A  question  as  to  whether  the  duties  of  sitting  Member  to  the  House 
excuse  him  for  neglecting  to  attend  on  taking  of  testimony  in  an  elec- 
tion case. 


§  785  GENEKAL   ELECTION    CASES,  1789   TO   1840.  1015 

Without  very  strong  reasons  showing  the  necessity,  the  Elections 
Committee  does  not  extend  the  time  of  taking  testimony. 

Under  the  old  practice  of  the  House  testimony  in  election  cases  was 
taken  according  to  State  law. 

The  proceedings  in  taking  testimony  were  conducted  in  accordance  with  the 
law  of  North  Carolina,  but  the  sitting  Member  having  objected  to  the  reception  of 
the  depositions,  the  committee  decided  that  they  had  been  taken  conformably  to  the 
laws  of  North  Carolina  on  the  subject,  and  the  usage  being  well  established  to 
allow  depositions  to  be  read  which  had  been  taken  and  sworn  to  according  to  the 
laws  of  the  State,  and  it  appearing  reasonable  that  depositions  thus  taken  on  similar 
notices  from  both  parties,  and  in  the  presence  (with  one  exception)  of  both  parties 
or  their  agents,  decided  that  they  were  sufficient  and  should  be  received. 

Tlie  minority  views,  presented  by  Mr.  Nathaniel  H.  Claiborne,  of  Virginia, 
and  signed  by  three  other  members  of  the  committee  (the  report  itself  was  pre- 
sented by  ilr.  Linn  Boyd,  of  Kentuclr\',  and  signed  by  foin-  other  members  of  the 
committee)  went  into  this  subject  rather  more  fully.  It  seems  that  the  sitting 
Member  had  at  the  outset  objected  to  the  reception  of  the  depositions  for  the  reason 
that  the  notices  to  take  them,  served  on  liim,  did  not  state  the  subject-matter 
about  which  the  witnesses  were  to  be  examined,  nor  the  names  or  residence  either 
of  the  witnesses  or  of  the  persons  whose  votes  were  to  be  impeached.  And  for  the 
further  reason  that  a  sufBcient  time  was  not  allowed  him  to  attend  in  person  at  the 
several  places  where  depositions  were  to  be  taken. 

In  repl}^  to  this  Mr.  Boyd,  chairman  of  the  committee,  said  in  debate '  that 
the  majority  of  the  committee  had  decided  in  favor  of  the  sufficiency  of  the  notice. 
It  was  not  so  specific  as  the  law  of  Virginia  required  in  such  cases,  but  was  as  spe- 
cific as  had  been  required  by  the  practice  of  the  committee.  These  were  points 
the  decision  of  wlaich  would  affect  the  competency  of  all  the  testimony  having 
an  injurious  bearing  on  the  interests  of  the  sitting  Member.  If  decided  in  liis 
favor  it  would  obviate  the  necessity  of  any  further  action  on  the  subject. 
The  minority  further  say  that  the  committee,  without  deciding  as  to  this 
objection,  "provisionally  adopted  the  rules  of  evidence  which  obtain  in  coiu"ts  of 
justice.  Subjected  to  these  tests,  much  the  greater  portion  of  the  depositions 
were  rejected  as  illegal,  as  coming  imder  the  denomination  of  hearsay  testimony. " 
*  *  *  As  to  the  testimony  taken  in  one  instance,  "the  sitting  Member  was  not 
present  either  in  person  or  by  counsel,  or,  in  other  words,  that  the  depositions  are 
ex  parte.  The  sitting  Member  acknowledges  that  notice  was  served  on  him,  but  he 
alleges  that  a  moral  obligation,  growing  out  of  the  relations  in  which  he  stood  to  his 
constituents,  called  him  to  Washington  *  *  *  and  that  a  friend  on  whom  he 
rehed  to  act  *  *  *  for  him  was  unavoidably  absent.  *  *  *  "Yhe  conse- 
quence of  the  nonattendance  of  his  agent  was  that  no  cross-examination  was 
had."  The  minority  contend  that  as  it  was  impossible  for  the  sitting  Member  to 
be  both  in  Washington  and  at  the  place  of  taking  evidence,  and  as  the  option  of 
attending  in  person  or  by  attorney  was  virtually  denied  him,  there  was  no  just 
cause  to  impute  laches  to  the  sitting  Member,  and  therefore  the  depositions  in  ques- 
tion should  be  rejected.     In  support  of  this  view  they  cite  the  case  of  William  Allen 

'  Globe,  p.  231. 


1016  PRECEDENTS   OF   THE   HOUSE    OF   BEPRESENTATIVES.  §  786 

in  the  Twenty-third  Congress.     The  minority  recommend  that  if  the  House  do  not 
concur  in  this  view  further  time  should  be  permitted  the  sitting  Member  to  take 

testimony. 

The  House  debated  at  length  the  question  whether  or  not  the  sitting  Member 
could  reasonably  have  been  expected  to  be  in  attendance  in  person  or  by  attorney 
at  this  place  of  taking  testimony.* 

The  sitting  Member  then  asked  for  a  longer  time  to  collect  evidence.  The 
committee  decided  that  without  very  strong  reasons  to  show  the  necessity  of  further 
proof  (which  the  committee  did  not  see  in  this  case)  they  considered  that  the  right 
of  contesting  a  seat  in  Congress  would  be  useless  and  nugatory,  if  such  postpone- 
ments and  protracted  appointments  for  taking  additional  evidence  after  the  meet- 
ino'  of  Congress  should  be  allowed  when  the  parties  had  already  had  the  same  time, 
and  as  it  appeared  a  sufficient  time  to  take  testimony.  The  committee  further 
say  that  "they  could  find  no  precedent  in  which  an  application  of  a  similar  kind, 
even  if  made  at  an  earher  period,  had  been  granted,  but  several  in  which,  not- 
withstanding the  existence  of  more  favorable  circumstances,  such  applications  had 
been  rejected,  both  by  committees  of  election  and  by  the  House." 

786.   The  case  of  Newland  v.  Graham,  continued. 

Evidence  taken  after  the  Committee  on  Elections  had  reported  was  not 
formally  considered  by  the  House  in  deciding  the  contest. 

The  committee  having  reported  a  conclusion  in  an  election  case,  the 
House  declined  to  pass  judgment  on  the  propositions  leading  to  the  con- 
clusion. 

The  sitting  Member,  after  this  decision  of  the  committee,  went  to  North  Caro- 
lina and  took  additional  testimony.  The  petitioner,  as  appears  from  the  debates, 
declined  to  appear  and  cross-examine.  The  depositions  so  taken  were  presented 
to  the  House  after  the  report  of  the  committee  had  been  made. 

The  case  coming  up  for  debate  in  the  House,  a  motion  was  made  by  the  sitting 
Member  on  March  24 "  that  these  depositions  wliich  were  on  the  Speaker's  table 
be  taken  into  consideration  by  the  House  in  considering  the  report.  Much  of  the 
debate  in  the  case  was  on  this  motion.  Mr.  Henry  A.  Wise,  of  Virginia,  contended 
that  the  practice  of  law  and  equity  courts  showed  that  this  testimony  should  be 
considered.  On  the  other  hand,  it  was  pointed  out  that  it  was  unprecedented  to 
consider  testimony  taken  after  the  case  was  made  up.  The  petitioner  stated  that 
he  had  declined  to  cross-examine  during  the  taking  of  this  testimony,  believing  the 
procedure  to  be  imwarranted.  Mr.  Levi  Lincoln,  of  Massachusetts,  arguing  in 
favor  of  the  motion  to  consider  the  testimony,  held  that  an  election  case  was  con- 
stitutionally a  proceeding  before  the  House,  and  that  the  House  and  not  the  com- 
mittee were  the  triers. 

The  motion  to  consider  the  evidence  on  the  table  was  made  as  an  amendment 
to  the  resolutions  reported  by  the  committee,  and  on  March  26  the  sitting  Member 
withdrew  it.'  But  immediately  Mr.  Abraham  Kencher  offered  the  same  proposition 
in  connection  with  other  propositions  relating  to  details  of  evidence.     This  proposi- 

' Globe,  pp.  231,  240,  etc.  ^  Globe,  pp.  258,  259,  262.  =  Journal,  p.  566. 


§  787  GENERAL   ELECTION    CASES,   1789   TO   1840,  1017 

tion  of  Mr.  Rencher  was,  after  further  consideration,  set  aside  by  the  ordering  of 
the  previous  question  on  the  resolutions  of  the  committee.' 
The  committee  reported  two  resohitions: 

Resolved,  That  James  Graham  is  not  entitled  to  a  seat  in  this  House. 
Resolved,  That  David  Newland  is  entitled  to  a  seat  in  this  House. 

The  report  was  the  subject  of  long  debate  on  questions  relating  to  the  appear- 
ance of  sitting  Member  by  counsel  and  a  proposition  to  consider  testimony  pre- 
sented to  the  House  after  the  report  was  made;  and  then,  on  March  26,'  Mr.  Abraham 
Rencher,  of  North  Carolina,  moved  to  substitute  for  the  resolutions  reported  from 
the  committee  a  series  of  resolutions  expressing  the  opinion  of  the  House  as  to  the 
various  questions  involved  in  the  case,  leaving  the  final  result  to  be  determined  by 
the  result  of  the  decisions  on  the  minor  questions. 

It  was  at  once  objected  ^  that  for  the  House  to  attempt  to  pass  on  these  details 
would  be  to  experience  the  perplexities  caused  by  a  similar  procedure  in  the  case 
of  Moore  v.  Letcher. 

On  March  29  *  the  previous  question  was  ordered  on  the  resolutions  reported 
by  the  committee,  Mr.  Rencher's  proposition  being  thereby  set  aside  according  to 
the  practice  at  that  time.  The  previous  question  was  ordered  by  a  vote  of  yeas  111, 
nays  88. 

Then  the  resolution  declaring  Mr.  Graham  not  entitled  to  a  seat  was  agreed  to 

yeas  114,  nays  87. 

The  resolution  declarmg  David  Newland  entitled  to  a  seat  was  disagreed  to 

yeas  99,  nays  100. 

Thereupon  the  following  resolution  was  agreed  to: 

Resolved,  That  the  election  held  in  North  Carolina  in  last  August,  for  a  Representative  of  the 
Twelfth  Congressional  district  of  that  State  in  the  House  of  Representatives  of  the  United  States,  be 
set  aside;  and  the  seat  of  such  Representative  is  hereby  declared  vacant;  and  that  the  Speaker  of  this 
House  inform  the  governor  of  North  Carolina  of  the  fact. 

In  the  course  of  the  debate  on  this  case  the  charge  was  made  that  party  con- 
siderations were  influencing  the  decision,  as  it  was  charged  that  they  had  in  the 
case  of  Moore  and  Letcher.^ 

787.   The  Senate  election  cases  of  Smith,  Winthrop,  Phelps,  and  Cass. 

The  question  as  to  when  the  term  of  service  of  a  Senator  appointed 
by  a  State  executive  to  fill  a  vacancy  ceases. 

Samuel  Smith  was  Senator  from  Maryland  from  March  4,  1803,  and  on  the 
expiration  of  his  first  term,  viz,  March  3,  1809,  the  legislature  of  Maryland  not 
having  elected  his  successor,  and  not  then  being  in  session,  he  was  appointed  by 
the  governor  on  March  4  to  fill  the  vacancy  until  the  next  meeting  of  the  legislature, 
which  would  take  place  on  the  5th  of  June  next.  Thereupon  Mr.  Smith  addressed 
a  letter  to  the  Senate,  setting  forth  these  facts,  and  submitting  to  its  determination 
the  question  whether  the  appointment  would  or  would  not  cease  on  the  first  day  of 
the  meeting  of  the  legislature.     It  was  determined  that  he  was  entitled  to  hold  his 

'  Journal,  p.  595.  *  Journal,  pp.  595-598. 

^Journal,  p.  566.  'Globe,  p.  262. 

3  Globe,  p.  263. 


1018  PKECEDENTS   OF   THE   HOUSE    OF   EEPBESENTATIVES.  §  ''^88 

seat  in  the  Senate  during  the  session  of  the  legislature,  unless  the  legislature  should 
fill  such  vacancy  by  the  appointment  of  a  Senator,  and  the  Senate  be  officially 
informed  thereof.  Under  these  credentials  Mr.  Smith  held  his  seat  during  the 
special  session  of  the  Senate  March  4-7,  1809,  and  during  the  first  session  of  the 
Eleventh  Congress  (May  22  to  June  28,  1809).  On  the  16th  of  November  following 
he  was  elected  by  the  legislature,  and  on  December  4,  in  the  next  session  of  Con- 
gress, he  produced  his  credentials  of  election  and  the  oath  was  administered.' 

788.  Robert  C.  Winthrop  was  appointed  Senator  from  Massachusetts  July 
27,  1850,  to  fill  a  vacancy  happening  in  the  Senate  by  the  resignation  of  Daniel 
Webster.  February  1,  1851,  Robert  Rantoul  was  elected  by  the  legislature  to  fill 
the  unexpired  term.  February  4,  Mr.  Rantoul  not  having  appeared  to  take  the 
seat,  Mr.  Winthrop  offered  a  resolution,  which  was  agreed  to,  "that  the  Committee 
on  the  Judiciary  inquire  and  report  to  the  Senate,  as  early  as  practicable,  at  what 
period  the  term  of  service  of  a  Senator  appointed  by  the  executive  of  a  State  during 
the  recess  of  the  legislature  thereof  rightfully  expires."  The  committee  reported  that 
a  person  so  appointed  had  a  right  to  the  seat  until  the  legislature,  at  its  next  meet- 
ing, should  elect  a  person  to  fill  the  unexpired  term,  and  the  person  elected  should 
accept,  and  his  acceptance  appear  to  the  Senate;  that  presentation  of  credentials 
implied  acceptance;  that  these  views  were  sustained  by  precedents.  The  report 
was  debated,  but  no  action  taken,  the  whole  subject  being  laid  on  the  table.  Mr. 
Winthrop  vacated  the  seat  February  7,  1851,  when  Mr.  Rantoul's  credentials  were 
presented.' 

789.  On  May  29,  1848,'  Mr.  Lewis  Cass  resigned  his  seat  as  a  Senator  from 
Michigan  and  on  Jime  20,  1848,  Mr.  Thomas  Fitzgerald,  appointed  by  the  governor 
of  Michigan  to  fill  the  vacancy,  appeared  with  his  credentials  and  took  his  seat. 
The  Michigan  Manual/  shows  that  Lewis  Cass  was  elected  Senator  from  Michigan 
on  January  20,  1849;  but  Mr.  Fitzgerald  continued  to  serve  until  March  3,  1849, 
the  last  day  of  the  Congress,  as  is  shown  by  the  fact  that  on  that  date  he  presented 
the  credentials  of  Mr.  Cass,  who  thereupon  took  the  oath  and  his  seat.^ 

790.  Samuel  S.  Phelps,"  Senator  from  Vermont,  was  appointed  by  the  gov- 
ernor of  Vermont  January  17,  1853,  during  the  recess  of  the  legislature,  to  fill  a 
vacancy  in  the  Senate  happening  by  the  death  of  William  Upham.  His  credentials 
were  presented  and  he  took  his  seat  January  19.  The  legislature  met  in  October 
and  adjourned  in  December  without  electing  a  Senator  to  fill  the  unexpired  term. 
Mr.  Phelps  had  held  the  seat  during  the  remainder  of  the  second  session  of  the 
Thirty-second  Congress,  ending  March  3,  and  during  the  special  session  of  the  Senate 
March  4  to  April  11.  December  29  he  again  attended.  January  4,  1854,  the  Senate 
resolved  that  the  Committee  on  the  Judiciary  inquire  whether  he  was  entitled  to 
retain  his  seat.  January  16  the  committee  reported  the  resolution,  "that  the  Hon. 
Samuel  S.  Phelps  is  entitled  to  his  seat  in  the  Senate  of  the  United  States."     It  was 

'  First  session  Eleventh  Congress,  Annals,  pp.  15-25. 

2  Second  session  Thirty-first  Congress,  Globe,  pp.  425,  437,  459,  477,  478;  Senate  Report  No.  269. 

'  First  session  Thirtieth  Congress,  Globe,  p.  792. 

n905,  p.  218. 

'  Second  session  Thirtieth  Congress,  Globe,  p.  681. 

^  First  session  Thirty-third  Congress,  Senate  Report  No.  34. 


§  790  GENERAL   ELECTION    CASES,   1789   TO   1840.  1019 

accompanied  by  a  minority  report  adverse  to  the  right  of  ^Ir.  Phelps  to  a  seat. 
March  16  the  resolution  reported  by  the  committee  was  rejected  by  a  vote  of  12 
yeas  to  26  nays,  and  it  was  "Resolved,  That  the  Hon.  Samuel  S.  Phelps  is  not 
entitled  to  retain  liis  seat  in  the  Senate  of  the  United  States."  ' 


'  The  power  of  the  executives  of  States  to  fill  vacancies  in  the  offices  of  United  States  Senators, 
and  the  status  and  terms  of  service  of  Senators  thus  appointed,  has  been  passed  on  many  times  by  the 
Senate.  See  cases  of  Kensey  Johns,  Uriah  Tracy,  Samuel  Smith,  Ambrose  H.  Se^•ier,  Robert  C.  Win- 
throp,  Samuel  S.  Phelps,  Charles  H.  Bell,  Henry  W.  Blair,  Horace  Chilton,  Lee  Mantle,  Ansel  C. 
Beckwith,  John  B.  Allen,  Henry  W.  Corbett,  Andrew  T.  Wood,  John  A.  Henderson,  Matthew  S.  Quay, 
and  Martin  Maginnis.  (Senate  Election  Cases,  special  session  Fifty-eighth  Congress,  Senate  Document 
No.  11,  pp.  1,  3,  4,  7,  10,  16,  26,  36,  48,  52,  85,  89,  103,  105,  107. 


Chapter    XXVI. 

GENERAL  ELECTION  CASES,  1840  to  1850. 


1.  The  "Broad  seal  case"  in  the  Twenty-sixth  Congress.     Sections  791-802. 

2.  Cases  from  the  Twenty-sixth  to  the  Thirty-first  Congresses.     Sections  803-820.' 


791.  The  election  case  of  the  New  Jersey  Members  in  the  Twenty- 
sixth  Congress,  called  the  "  Broad  seal  case." 

An  instance  wherein  the  House,  at  the  time  of  organization,  declined 
to  give  prima  facie  effect  to  credentials  in  due  form,  but  impeached  by 
documents  relating  to  the  fact  of  election. 

The  House  having  historic  knowledge  of  an  election  contest,  referred 
the  subject  to  the  committee  with  instructions,  although  neither  party 
was  petitioning. 

The  House  having,  of  its  own  motion,  decided  to  examine  an  election, 
a  copy  of  the  resolution  was  served  on  the  parties. 

On  December  2,  1839,  when  the  House  met  to  organize  for  the  Twenty-sixth 
Congress,  a  question  arose  as  to  the  right  to  seats  of  five  persons  claiming  seats  from 
New  Jersey  by  virtue  of  the  certificate  which  each  bore  from  the  governor  of  the  State. 
These  credentials  were  in  due  form  and  under  the  seal  of  the  State,  whence  arose  the 
designation  of  the  resulting  proceedings  as  the  "Broad  seal  case."  In  opposition  to 
the  claim  of  the  duly  certified  claimants  there  appeared  five  other  claimants,  with 
documents  tending  to  show  their  actual  election.  After  a  long  struggle,  in  the  course 
of  which  the  five  certified  claimants  were  not  permitted  to  vote  for  Speaker,  the 
House  was  organized '  and  proceeded  to  business,  five  of  the  New  Jersey  seats 
remaining  vacant,  and  there  being  ten  claimants  thereto. 

'  Additional  cases  in  this  period,  classified  in  different  chapters,  are: 

Twenty-eighth  Congress,  cases  of  New  Hampshire,  Georgia,  Mississippi,  and  Missouri  Members. 
Section  309. 

Twenty-ninth  Congress,  Newton,  Arkansas.     Sections  489,  572. 

Twenty-ninth  Congress,  Baker  and  Yell.     Sections  488,  572. 

Thirtieth  Congress,  Sibley,  Wisconsin.     Section  404. 

Thirty-first  Congress,  Gilbert  and  Wright,  California.     Section  520. 
v-Thirty-first  Congress,  Babbitt,  Deseret.     Section  407. 
vgMrty-first  Congress,  Smith  and  Meservey,  New  Mexico.     Section  405. 
\  Thirty-first  Congress,  Perkins  and  Morrison,  New  Hampshire.     Section  311. 

^  See  section  103  of  this  work  for  a  more  detailed  account  of  the  proceedings  in  organization. 
1020 


§  791  GENERAL   ELECTION   CASES,  1840   TO   18S0.  1021 

On  January  1 ,  1840,'  Mr.  John  Campbell,  of  South  Carolina,  who  was  chairman 
of  the  Committee  on  Elections,  offered  under  suspension  of  the  rules  the  foUovv'ing 
resolutions : 

Resolved,  That  all  papers  or  other  testimony  in  possession  of  or  within  the  control  of  this  House  in 
relation  to  the  late  election  in  New  Jersey  for  Representatives  in  the  Twenty-sixth  Congress  of  the 
United  States  be  referred  to  the  Committee  of  Elections,  with  instructions  to  inquire  and  report  who  are 
entitled  to  occupy,  as  members  of  this  House,  the  five  contested  seats  from  that  State. 

Resolved,  That  a  copy  of  this  resolution  be  served  on  [naming  the  ten  claimants],  all  citizens  of  New 
Jersey,  claiming  to  be  Representatives  from  that  State  in  this  Congress;  and  that  the  service  be  made 
upon  each  gentleman  personally  or  by  leaving  a  copy  at  his  usual  residence. 

The  rules  being  suspended  and  the  resolution  admitted  for  consideration,  Mr. 
John  Bell,  of  Tennessee,  proposed  a  substitute  amendment  as  follows: 

That  Philemon  Dickerson,  Peter  D.  Vroom,  William  R.  Cooper,  Daniel  B.  Ryall,  and  Joseph  Kille, 
who  are  in  attendance  claiming  to  be  admitted  to  sit  and  vote  in  this  House  as  Representatives  from  the 
State  of  New  Jersey,  are  not,  and  can  not  be,  legally  and  constitutionally.  Members  of  this  body,  until 
the  regular  returns  or  certificates  of  election  granted  to  five  other  duly  qualified  persons  by  the  governor 
and  council  of  said  State,  in  the  exercise  of  the  authority  vested  in  them  by  the  laws  of  said  State, 
passed  in  conformity  with  the  Constitution  of  the  United  States,  shall  have  been  set  aside,  or  adjudged 
void,  upon  due  investigation  had,  in  the  form  and  manner  prescribed  by  the  usages  of  the  House. 

Resolved,  That  the  House  having  decided  that  John  B.  .\ycrigg,  William  Halsted,  John  P.  B.  Maxwell, 
CharlesC.  Stratton,  and  Thomas  Jones  Yorke,  the  persons  having  the  regular  and  legal  certificatesof  elec- 
tion, shall  not  be  admitted  to  sit  in  this  House  and  vote  as  other  Members  until  it  shall  have  been  estab- 
lished, by  sufficient  proof,  that  there  was  no  fraud,  mistake  of  the  law,  or  other  error,  made  or  committed 
by  the  governor  and  council  of  New  Jersey  in  the  returns  or  certificates  of  election  granted  as  aforesaid; 
and  said  decision  being  contrary  to  the  usual  practice  of  the  House  in  such  cases,  the  Speaker  be  directed 
to  notify  the  governor  and  council  of  New  Jersey  that  the  commissions  issued  by  him,  according  to  the 
laws  of  said  State,  to  John  B.  Aycrigg,  John  P.  B.  Maxwell,  William  Halsted,  Charles  C.  Stratton,  and 
Thomas  Jones  Yorke  have  not  been  deemed  sufficient  by  the  House  to  authorize  those  holding  the  same 
to  be  sworn  in  as  Members  of  this  House;  also  the  proceedings  of  the  House  in  the  premises,  to  the  end 
that  the  people  of  said  State  may  be  duly  informed  of  the  causes  which  have  for  the  present  deprived 
them  of  the  services  of  five  of  the  Representatives  to  which  they  are  entitled  by  the  law  and  Constitution. 

Resolved,  That  the  returns  and  all  other  papers  or  testimony  in  possession  of  the  House  relating  to 
the  five  vacant  seats  in  the  New  Jersey  delegation  be  referred  to  the  Committee  of  Elections;  that  said 
committee  proceed  to  examine  the  returns  and  all  other  testimony  which  may  be  submitted  to  them, 
according  to  the  rules  and  orders  of  the  House,  and  that  said  committee  first  decide  and  report  to  the 
House  who  are  entitled  to  sit  and  vote  as  Members  by  the  returns. 

The  resolution  and  proposed  substitute  were  debated  at  length.^  Mr.  Campbell, 
in  presenting  his  resolution  ^  stated  that  it  was  usual  for  gentlemen  contesting  seats 
to  bring  their  claims  before  the  House  by  petition  or  memorial.  But  as  they  had 
waited  from  day  to  day  without  any  movement  fi-om  either  of  the  parties  he  conceived 
it  his  duty  as  chairman  of  the  Committee  on  Elections  to  bring  the  matter  before 
the  House. 

Some  objection  was  made  to  this  view.  Mr.  Isaac  Fletcher,  of  Vermont, 
thought  no  question  could  arise  until  the  claimants  should  present  themselves  to  be 
sworn,  meaning  evidently  the  five  not  having  certificates,  as  those  having  certificates 
had  demanded  to  be  sworn  and  had  been  refused.     Mr.  John  Quincy  Adams,  of 

'First  session  Twenty-sixth  Congress,  Journal,  pp.  185,  187;  Globe,  pp.  105,  106. 
2  Globe,  pp.  105,  108,  109,  113,  118,  119. 
'  Globe,  p.  105. 


]^022  PRECEDENTS   OF   THE   HOUSE    OF   EEPRESENTATIVES.  §   792 

Massachusetts,  thought  there  was  no  objection  to  the  resolution,  but  conceived  that 
first  the  Speaker  should  be  du-ected  to  inform  the  executive  of  New  Jersey  that  liis 
commissions  had  been  rejected.  Mr.  Millard  Fillmore,  of  New  York,  raised  a 
question  as  to  whether  or  not  there  was  any  evidence  in  possession  of  the  House. 
He  did  not  think  there  could  be  any  unless  it  had  been  referred  to  it.  Furthermore, 
was  the  whole  question  to  be  referred,  or  only  the  question  as  to  who  in  the  first 
instance  were  to  be  regarded  as  sitting  Members. 

Mr.  Campbell  stated  that  the  credentials  were  already  in  possession  of  the 
House,  and  that  the  Committe  on  Elections  would  expect  to  decide  not  only  as  to 
final  right,  but  also  as  to  who  were  entitled  to  the  returns. 

On  January  13'  the  House,  without  division,  ordered  the  previous  question, 
thereby,  according  to  the  practice  of  that  date,  removing  from  before  the  House  the 
amendment  proposed  by  Mr.  Bell.  Thereupon  the  House— by  a  vote  of  yeas  110, 
nays  68 — agreed  to  the  resolutions  proposed  by  Mr.  Campbell. 

792.   The  "  Broad  seal  case,"  continued. 

The  Elections  Committee,  at  the  outset  of  an  investigation,  called  on 
the  claimants  to  state  in  writing  the  grounds  of  their  respective  claims. 

Position  of  the  claimants  relating  to  prima  facie  right  in  the  "  Broad 

seal  case." 

The  Committee  on  Elections  met  on  January  14,  1840.^  It  was  constituted  as 
follows:  Messrs.  John  Campbell,  of  South  Carolina;  Millard  Fillmore,  of  New  York; 
Francis  E.  Rives,  of  Virginia;  William  Medill,  of  Ohio;  George  W.  Crabb,  of  Ala- 
bama; Aaron  V.  Brown,  of  Tennessee;  Charles  Fisher,  of  North  Carolina;  Truman 
Smith,  of  Connecticut,  and  John  M.  Botts,  of  Virginia. 

This  committee  at  the  outset  received  from  the  Clerk  of  the  House  certain 
papers:  (1)  The  credentials  by  the  governor;  (2)  remonstrance  of  J.  B.  Aycrigg  et  al, 
(3)  proceedings  of  the  governor  and  privy  council  of  New  Jersey;  (4)  depositions;  (5) 
retiu-ns,  tabular  statements,  certificate  of  the  secretary  of  state  of  New  Jersey,  etc. 

It  was  ordered  by  the  committee  that  the  various  claimants  be  notified  of  the 
organization  of  the  conunittee,  and  at  a  later  session  it  was. 

Resolved,  That  the  claimants  to  the  vacant  seats  from  New  Jersey  be  requested  to  lay  before  the 
committee,  in  writing,  the  grounds  of  their  respective  claims  to  said  scats,  and  that  they  be  confined  to 
a  statement  of  such  facts  as  they  propose  to  prove  by  testimony  before  the  committee,  together  with  any 
legal  points  they  may  choose  to  submit. 

In  these  statements  of  grounds  the  fundamental  questions  involved  in  the  case 
were  set  forth.'     The  claimants  who  bore  the  regular  credentials  urged— 

The  undersigned,  Representatives  of  the  State  of  New  Jersey  in  the  Twenty-sixth  Congress,  pro- 
testing, in  behalf  of  the  State  and  themselves,  against  all  acts  of  the  other  Members  of  the  House  of 
Representatives,  as  well  since  as  before  the  election  of  a  Speaker,  in  derogation  of  the  rights  of  said 
State  and  of  her  Representatives,  and  disclaiming,  now  and  ever,  all  acquiescence  therein;  and  also 
respectfully  protesting  against  so  much  of  the  resolution  adopted  by  the  Committee  of  Elections  on  the 
15th  instant  as  implies  that  the  seats  of  the  Representatives  of  New  Jersey  are  vacant,  and  designates 
the  undersigned  as  claimants — in  compliance  with  the  request  in  said  resolution,  lay  before  the  com- 
mittee the  following  as  the  grounds  upon  which  they  are  Members  of  the  House  of  Representatives, 
and  claim  to  be  recognized  as  such: 

1  Journal,  pp.  195,  196.  ^  House  Report  No.  506.  '  Report  No.  506,  pp.  3,  6,  8,  9. 


§  792  GENERAL   ELECTION   CASES,  1840   TO  1850.  1023 

That  the  undersigned  have  received,  and  now  produce,  the  commissions  of  the  State  of  New 
Jersey,  under  the  great  seal  and  signed  by  the  governor,  constituting  them  Representatives  of  said 
State  in  the  Twenty-sixth  Congress;  which  commissions,  thus  duly  authenticated  in  the  manner  pre- 
scribed by  the  laws  of  the  State,  are  the  only  return  and  evidence  of  membership  recognized  by  said 
laws. 

That  the  said  commissions  were  given,  in  conformity  with  said  laws,  to  the  persons  whom  the 
governor  and  pri\y  council,  after  casting  up  the  whole  number  of  votes  from  the  several  counties,  deter- 
mined to  have  the  greatest  number  of  votes  from  the  whole  State. 

That  these  commissions,  by  the  Constitution  of  the  United  States,  by  the  laws  of  New  Jersey, 
by  the  uniform  and  unvar>-ing  practice  of  Congress  since  the  origin  of  the  Government,  by  the  usage 
of  all  similar  bodies,  and  by  the  very  principles  upon  which  representative  governments  are  organized, 
are  sufficient  and  conclusive  evidence  of  right,  untU  set  aside  by  the  House  of  Representatives 
in  the  exercise  of  its  constitutional  powers. 

That  they  have  never  been  set  aside  by  any  competent  authority  and  have  never  yet  been  im- 
peached by  any  legal  evidence  whatever. 

The  undersigned  have  received  notice  from  Messrs.  Philemon  Dickerson,  Peter  D.  Vroom,  Daniel 
B.  Ryall,  William  R.  Cooper,  and  Joseph  Kille  that  they  intend  to  contest  the  right  of  the  undersigned 
to  seats  as  Members  of  the  Twenty-sixth  Congress;  and  are  also  informed  (though  without  notice  from 
them)  that  the  ground  of  their  claim  is  that  the  votes  of  the  townships  of  Millville,  in  Cumberland, 
and  of  South  Amboy,  in  Middlesex  County,  which  were  not  legaUy  returned,  should  be  counted;  and 
that  these  votes,  added  to  those  legally  returned,  would  give  them  a  majority.  The  undersigned, 
therefore,  apprise  the  committee  that,  in  any  investigation  respecting  the  election  beyond  the  cre- 
dentials by  which  they  appear  here  as  Members,  they  will  claim  the  right  to  prove  that  they  were  duly 
elected  Members  of  the  House  of  Representatives  by  a  majority  of  all  the  legal  votes  at  said  election, 
as  well  as  by  a  majority  of  the  votes  legally  returned. 

The  claimants  who  had  not  received  credentials  presented  their  claim  in  part 
as  follows: 

We  claim  those  seats,  and  we  now  propose  to  prove  that  at  the  election  holden  in  New  Jersey 
on  the  9th  and  10th  days  of  October,  A.  D.  1838,  we  received  the  greatest  number  of  votes  from  the 
whole  State.  We,  having  the  majority  of  votes,  respectfully  insist  that,  by  the  returns  of  the  several 
election  officers  then  made,  we  were  entitled  to  the  commissions  from  the  governor,  and  we  are  now  entitled 
to  occupy  the  seats  as  Members  of  this  House. 

As  there  appears  to  be  some  difference  of  opinion  as  to  the  meaning  of  the  terms  elections  and 
returns,  as  used  in  the  Constitution  of  the  United  States,  it  is  proper  for  us  at  this  time  to  express  our 
views  upon  the  subject,  in  order  that  we  may  not  be  misunderstood. 

We  consider  that  the  elections  are  made  by  the  people,  and  the  returns  by  their  agents.  The 
election  ceases  when  the  ballot  box  closes;  the  people  have  then  done  their  duty  and  made  their  elec 
tion.  It  then  becomes  the  duty  of  their  agents,  appointed  by  law  for  that  purpose,  to  make  the  returns; 
and  the  whole  object  of  those  returns  is  to  communicate  to  this  House  the  true  result  of  such  election' 
A  contest  of  election  involves  an  inquiry  into  the  legality  and  regularity  of  the  proceedings  up  to  the 
tune  of  the  close  of  the  ballot  box;  and  a  contest  of  the  returns  involves  an  inquiry  into  the  legality 
and  regularity  of  the  proceedings  of  the  different  officers,  in  communicating  the  result  of  such  election 
to  this  House.  By  the  laws  of  New  Jersey  the  election  officers  of  each  township  make  their  returns 
to  the  county  clerks  of  the  several  counties;  and  they  make  their  lists,  or  returns,  to  the  governor- 
and  upon  these  he  issues  his  commission.  ' 

For  the  purpose  of  establishing  the  fact  that  at  the  election  held  for  Members  of  the  Twenty- 
sL-cth  Congress  we  received  the  greatest  number  of  votes  from  the  whole  State,  we  offer  the  certificate 
of  the  secretary  of  state  of  the  State  of  New  Jersey,  under  his  seal  of  office,  showing  that  upon  an  exam- 
ination of  the  returns  in  his  office,  including  the  returns  of  the  townships  of  South  Amboy,  in  Middle- 
sex, and  Millville,  in  Cumberland  County,  we  had  a  majority  of  all  the  votes  in  the  State-  and  as  the 
foundation  of  that  certificate  we  also  offer  a  certified  copy  of  the  statement  of  votes  upon  which  the 
governor  and  his  council  made  their  determination,  embracing  the  votes  of  all  the  State  except  those 
of  South  Amboy  and  Millville;  and  also  copies  of  the  returns  from  those  two  townships,  as  filed  in 


1024 


PRECEDENTS   OF   THE    HOUSE   OF   EEPBESENTATIVES.  §   793 


the  office  of  the  secretary  of  state,  and  referred  to  by  him  in  his  general  certificate;  and  as  further  evi- 
dence of  the  returns  of  those  two  townships  we  offer  copies  of  the  returns  made  by  the  officers  of  the 
elections  of  those  townships  to  the  clerks  of  the  said  counties,  and  by  those  clerks  duly  certified  under 
their  respective  hands  and  seals  of  office. 

These  papers  were  laid  before  the  Clerk  of  this  House  before  the  meeting  of  Congress;  and  are 
now  offered  as  legal  evidence  of  the  fact  that  we  received  the  greatest  number  of  votes  from  the  whole 

State. 

^j  »  «  *  »  *  * 

In  further  support  of  our  claim,  and  for  the  purpose  of  making  its  truth  and  justice  more  mani- 
fest we  offer  to  the  committee,  for  their  consideration,  a  sworn  copy  of  the  minutes  of  the  proceedings 
of  the  governor  and  his  privy  council  upon  this  case,  by  which  it  appears  that  the  returns  from  South 
Amboy  and  Millvillo  were  laid  before  the  council  by  the  governor  himself,  and  were  referred  to  a  com- 
mittee, with  the  other  returns  from  the  State;  that  they  were  rejected  because  they  were  not  trans- 
mitted by  the  clerks  of  the  said  counties  of  Cumberland  and  Middlesex,  and  for  no  other  reason;  and 
that  they  proceeded  to  count  up  the  votes  of  the  State,  excluding  those  from  the  said  townships  of 
South  Amboy  and  Millville,  and  determined  that  Mr.  Aycrigg  and  his  associates  were  duly  elected 
Members  of  the  Twenty-sixth  Congress,  although  it  appeared  from  the  returns  before  them  that  the 
votes  of  said  townships,  if  counted,  would  have  changed  the  result. 

By  the  laws  of  New  Jersey  the  governor  and  his  privy  council  shall  "determine  the  six  persons 
who  have  the  greatest  number  of  votes  from  the  whole  State;"  "which  six  persons  the  governor  shall 
forthwith  commission  under  the  great  seal  of  the  State."  Such  are  the  words  of  the  act.  The  governor 
in  his  opinion  to  his  privy  council  uses  the  following  language:  "  WTiat  does  the  law  direct  the  governor 
to  lay  before  the  privy  council?  The  said  lists,  referring  manifestly  to  the  lists  transmitted  by  the 
county  clerks,  which  have  been  mentioned  immediately  before.  What  are  the  governor  and  privy 
coimcil  to  do  with  the  lists  thus  laid  before  them?  They  are  to  cast  up  the  votes.  When  this  is  done, 
what  are  they  to  determine?  WTio  are  entitled,  under  all  the  circumstances,  to  seats  in  Congress?  No; 
but  they  are  to  determine  the  six  persons  who  have  the  greatest  number  of  votes.  No  language  can  be 
plainer.  Was  it  ever  intended  by  our  laws  to  make  the  governor  and  his  privy  coimcil  the  arbiters  of 
an  election?  There  is  no  power  conferred  on  us  to  examine  a  single  witness,  to  send  for  persons  or 
papers,  or  to  take  one  step  toward  a  judicial  investigation.  If  we  may  go  behind  the  return  of  the  county 
clerks  to  those  of  the  township  officers,  why  should  we  stop  there?  We  may  by  the  same  authority  and 
with  equal  reason  undertake  to  examine  the  proceedings  of  those  township  officers  at  the  polls.  Who 
has  ever  dreamed  of  the  governor  and  privy  council  of  New  Jersey  setting  themselves  up  to  decide  on 
any  of  these  matters?  They  always  have  been  and,  from  the  very  words  of  the  act,  must  be  confined 
to  the  clerk's  returns  and  to  the  duty  of  casting  up  the  votes."  Here  we  have  the  law  and  the  gov- 
emor'sopiniononthatlaw;  from  both  of  which  it  is  most  manifest  that  the  duty  of  the  governor  and 
council  was  to  determine,  in  the  first  place,  the  six  persons  who  had  the  greatest  number  of  votes  from 
the  whole  State.  It  is  upon  that  determination  that  the  governor  is  authorized  to  issue  his  commission; 
and  yet,  upon  looking  into  their  own  record,  it  appears  that  they  did  not  determine  the  six  persons  who 
had  the  greatest  number  of  votes  from  the  whole  State,  but,  in  the  teeth  of  the  governor's  opinion  and  of 
the  law,  they  determined  who,  "under  all  the  circumstances,  were  entitled  to  seats  in  Congress,"  and 
made  their  adjudication  in  the  following  words:  "We  do  determine  that  John  B.  Aycrigg,  John  P.  B. 
Maxwell,  William  Halstcd,  Joseph  F.  Randolph,  Charles  C.  Stratton,  and  Thomas  Jones  Yorke  are 
duly  elected  Members  of  the  Twenty-sixth  Congress  of  the  United  States,"  when  they  knew,  and  their 
own  record  shows,  that  those  gentlemen  had  not  the  greatest  number  of  votes  and  that  they  were  not 
duly  elected  Members  of  the  Twenty-sixth  Congress  of  the  United  States.  We  may  at  this  time  with 
great  propriety  repeat  the  words  of  the  governor:  "Who  ever  dreamed  of  a  governor  and  privy  council 
in  New  Jersey  setting  themselves  up  to  decide  any  of  these  matters?" 

793.   The  ''  Broad  seal  case,"  continued. 

In  the  "  Broad  seal  case  "  the  Elections  Committee,  while  admitting 
the  prima  facie  effect  of  regular  credentials,  at  first  decided  to  investi- 
gate only  final  right. 


§   793  GENEBAL   ELECTION    CASES,   1840   TO   1850.  1025 

In  the  examination  incident  to  the  "  Broad  seal  case  "  the  Elections 
Committee  held  votes  received  by  authorized  officers  acting  legally  as 
prima  facie  good. 

Instance  wherein  testimony  in  an  election  case  was,  in  the  absence 
of  law  or  rule,  taken  by  direction  of  the  committee. 

The  committee,  after  the  statements  of  the  parties  had  been  filed,  proceeded 
to  determine  the  scope  of  the  inquiry.  The  minority  views,  filed  later  and  signed 
by  Messrs.  Fillmore,  Botts,  Crabb,  and  Smith,  give  a  resum6^  of  these  proceedings : 

These  statements  were  not  completed  and  laid  before  the  committee  until  the  23d  day  of  January, 
and  it  was  ob-v'ious  from  an  examination  of  them  and  of  the  resolution  of  the  House  referring  the  matter 
that  the  committee  must  pursue  one  of  two  courses — that  they  must  either  make  a  preliminary  report 
awarding  the  vacant  seats  to  one  set  of  claimants  until  the  whole  subject  could  be  investigated  and  the 
final  right  determined,  or  proceed  to  a  full  and  thorough  investigation  of  the  subject  and  decide  upon 
the  merits  of  the  whole  case  at  once. 

Eight  members  of  the  committee  out  of  nine  were  in  favor  of  submitting  a  preliminary  report  by 
which  the  vacant  seats  would  have  been  filled,  but  they  differed  as  to  the  basis  on  which  the  report 
should  be  founded.  We  entertained  the  opinion  that  it  should  be  based  on  the  legal  returns  of  the  only 
authority  recognized  by  the  laws  of  New  Jersey  as  authorized  to  grant  the  return,  that  being  the  highest 
prima  facie  e\'idence  of  an  election  that  could  be  presented,  and  which  it  has  ever  been  the  practice  of 
Congress  and  of  all  other  legislative  assemblies  to  treat  as  conclusive  in  the  first  instance;  and  accord- 
ingly one  of  our  members  submitted  the  following  proposition: 

"Resolved,  That  this  committee  will  now  proceed  to  ascertain  and  determine  who  have  the  returns 
according  to  the  Constitution  of  the  United  States  and  the  laws  of  New  Jersey,  which  will  authorize 
them  to  occupy  the  contested  seats  from  that  State  imtU  the  question  of  ultimate  right  can  be  deter- 
mined." 

Other  gentlemen  of  the  committee,  differing  with  us  in  opinion,  thought  that  the  executive  com- 
missions should  be  entirely  overlooked,  and  that  it  was  the  duty  of  the  committee  to  proceed  at  once  to 
ascertain  which  party  had  received  a  majority  of  all  votes,  good  and  bad,  given  at  the  polls,  and  were 
therefore  entitled  to  the  returns,  and  submitted  amendments  to  that  effect. 

This  view  of  the  subject  we  deem  utterly  fallacious,  but  time  will  not  permit  us  to  enter  into  the 
argument.  The  consequences  resulting  from  this  novel  doctrine  are  well  illustrated  by  the  scenes  of 
disorder  and  confusion  which  resulted  from  its  application  at  the  present  session^scenes  in  a  high 
degree  discreditable  to  the  House  and  endangering  the  peace  of  the  country  and  which  must  greatly 
impair  the  confidence  of  all  right-thinking  people  in  the  perpetuity  of  our  free  institutions. 

Upon  a  careful  examination  of  the  laws  of  New  Jersey  we  ascertained  that  the  governor  and  privy 
council  were  mere  ministerial  ofiicers,  charged  with  a  certain  specified  duty,  plainly  set  forth,  viz,  to 
ascertain  and  determine  which  six  of  the  persons  voted  for  received  the  greater  number  of  votes  accord- 
ing to  the  returns  made  by  the  clerks  of  the  several  counties  of  the  State.  That  the  indi\-iduals  who 
were  commissioned  by  the  governor  of  New  Jersey  as  the  Representatives  of  that  State  had  received 
the  greatest  number  of  votes  thus  returned  according  to  law  was  a  fact  not  disputed  or  denied. 

Finding  this  difference  of  opinion,  however,  to  exist  in  the  committee  as  to  the  basis  of  a  report, 
the  mover  of  the  original  proposition  modified  the  same  with  the  view  of  reaching  the  sense  of  the  com- 
mittee, and  merely  proposed,  in  general  terms,  that  a  preliminary  report  should  be  made  designating 
the  individuals  who  should  occupy  the  vacant  seats  until  the  question  of  ultimate  right  could  be  deter- 
mined, thus  manifesting  a  disposition  to  have  the  seats  filled  as  the  committee  and  the  House  might 
determine  according  to  their  sense  of  justice  and  propriety.  But,  from  an  apprehension,  as  we  pre- 
siime,  that  they  could  not  succeed  in  the  untenable  ground  they  had  taken,  that  the  report  should  be 
made  favorable  to  those  who  barely  obtained  a  majority  of  all  the  votes,  legal  and  illegal,  given  at  the 
election,  the  modified  resolution  was  likewise  resisted  and  a  substitute  offered  which  proposed  to 
inquire  who  were  entitled  to  be  returned  as  Members-elect,  evidently  on  the  ground  of  good  and  bad 
votes,  for  when  it  was  proposed  to  insert  an  amendment  which  would  make  the  case  turn  on  the  majority 

'  Report  No.  506,  p.  274. 
5994 — VOL  1 — 07 65 


1026  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   793 

of  legal  votes  such  amendment  was  strenuously  resisted  and  carried  only  by  the  casting  vote  of  the 
chairman.     This  resolution,  as  ultimately  adopted,  was  as  follows: 

"Resolved,  That  this  committee  will  now  proceed  to  ascertain  which  five  of  the  ten  individuals 
claiming  the  five  vacant  seats  from  New  Jersey  received  a  majority  of  legal  votes,  and  therefore  are 
duly  elected  Members  of  the  Twenty-sixth  Congress  from  that  State,  according  to  the  Constitution  of  the 
United  States  and  the  laws  of  New  Jersey. 

Thus  it  will  be  perceived  that  the  committee  came  to  an  early  determination  to  investigate  the 
ballot  boxes  and  ascertain  who  were  entitled  to  the  seats  on  the  ground  of  having  received  a  majority 
of  legal  votes,  in  which  decision  we  acquiesced. 

The  minority  then  go  on  to  describe  how  the  committee  made  decisions  that 
the  certificates  of  the  governor  of  New  Jersey  were  prima  facie  evidence  that  the 
holders  were  entitled  to  the  seats;  but,  after  reconsidering  a  former  action,  finally 
agreed  on  the  following: 

Resolved,  That  the  credentials  of  the  governor  of  New  Jersey  are  prima  facie  evidence  that  they 
who  hold  them  are  entitled  to  seats,  but,  being  questioned  on  the  ground  that  all  the  votes  polled  were 
not  counted,  this  committee  will  now  proceed  to  inquire  and  ascertain  who  of  the  ten  claimants  for 
the  five  contested  seats  received  the  greatest  number  of  votes  polled  in  conformity  with  the  laws  of 
New  Jersey,  at  the  late  election  for  Members  of  Congress  in  that  State. 

Resolved,  That  all  votes  received  by  authorized  officers  acting  in  conformity  with  the  laws  are 
prima  facie  legal;  but  it  being  alleged  and  offered  to  be  sustained  by  evidence  that  pluralities  were 
obtained  by  means  of  illegal  votes  and  frauds  perpetrated  on  the  ballot  box,  this  committee  will  admit 
evidence  as  to  the  truth  of  these  allegations,  and  inquire  who  of  the  claimants  received  the  greatest 
number  of  legal  votes,  in  conformity  with  the  Constitution  of  the  United  States  and  the  laws  of  New 
Jersey,  and  therefore  are  entitled  to  occupy,  as  Members  of  the  Twenty-sixth  Congress,  the  five  con- 
tested seats  from  that  State. 

Resolved,  That  the  adoption  of  the  above  resolutions  does  not  preclude  this  committee  from  reporting 
the  facts  and  testimony,  with  its  opinion  thereon,  for  the  consideration  of  the  House,  at  any  stage  of 
its  proceedings  that  it  may  deem  it  expedient  to  do  so. 

Resolved,  That  a  copy  of  the  foregoing  resolutions  be  communicated  to  each  of  the  claimants  to 
the  vacant  seats  from  New  Jersey,  and  that  they  be  informed  that  the  committee  has  reconsidered  and 
indefinitely  postponed  the  resolutions  furnished  them  on  the  28th  instant,  and  that  this  committee  will 
hear  them  at  their  committee  room  on  Saturday,  the  1st  of  February,  proximo,  at  10  o'clock  in  the 
forenoon,  on  the  subject  of  the  measures  which  should  be  adopted  to  obtain  the  evidence  applicable 
to  the  inquiry  before  the  committee. 

The  parties  accordingly  met  again  in  the  committee  room,  and,  after  they  were  severally  heard, 
the  conmiittee  adopted  the  following  resolution: 

Resolved,  That  we  will  now  take  up  the  testimony  which  has  been  referred  to  this  committee  in 
the  New  Jersey  case,  and  if,  during  the  investigation  of  the  subject,  it  shall  be  desired  by  either  party 
to  furnish  additional  testimony,  that  then  the  parties  be  allowed  such  reasonable  time  as  may  be  deter- 
mined by  the  committee,  to  take  such  additional  testimony,  in  the  manner  prescribed  by  the  laws  of 
New  Jersey  relating  to  contested  elections,  unless  the  parties  agree  upon  some  other  mode  which  may 
be  sanctioned  by  the  committee. 

Thus,  it  will  be  perceived,  that  before  a  paper  purporting  to  be  testimony  in  this  case  was  opened 
by  the  committee,  it  was  resolved  to  decide  upon  its  competency  alone;  and  it  was  further  resolved 
that  time  should  be  allowed  either  party  requiring  it,  to  take  additional  testimony,  with  a  view,  as  we 
supposed,  of  ascertaining  the  whole  truth  touching  the  merits  of  the  election. 

The  minority  views  describe  briefly  how  the  committee  took  up  and  decided 
on  the  admissibility  of  evidence,  rejecting  much  as  ex  parte.  Then,  at  the  sugges- 
tion of  the  parties,  the  committee  agreed  to  the  following: 

Whereas  the  people  of  the  State  of  New  Jersey  are  at  present  deprived  of  five-sixths  of  their  repre- 
sentation in  the  House  of  Representatives,  and  it  being  highly  expedient  that  a  decision  of  the  question 
between  the  several  claimants  to  the  five  contested  seats  in  the  House  aforesaid  be  made  as  speedily 


§  794  GENERAL   ELECTION    CASES,   1840   TO   1850.  1027 

as  practicable  consistent  with  due  investigation  and  deliberation,  and  the  contestors  having  alleged 
that,  if  the  committee  go  into  an  investigation  of  the  question  of  who  received  the  phu^lity  of  legal 
votes  they  desire  time  also  to  take  testimony;  and  J.  B.  Aycrigg,  William  Halsted,  and  others,  having 
made  application  to  the  committee  for  time  to  take  further  evidence  to  maintain  their  right  to  seats 
in  said  House:  Therefore 

Resolved,  That  the  chairman  be  requested  to  notify  the  several  claimants  aforesaid  that  this  com- 
mittee will  not  proceed  to  a  final  decision  upon  the  question  of  ultimate  right  depending  before  them 
until  the  second  Monday  in  April  next,  at  which  time  the  committee  will  expect  the  proofs  to  be  closed 
and  will  not  receive  any  testimony  taken  by  either  of  the  parties  after  that  time,  but  nothing  in  this 
resolution  shall  prevent  this  committee  at  any  time  before  that  day  from  taking  up  and  deciding  said 
caae,  if  the  parties  shall  declare  themselves  ready  with  all  their  testimony. 

The  minority  views  then  proceed: 

In  justice  to  the  chairman  of  the  committee  it  should  be  stated  that  he  indicated  to  the  committee 
an  anxious  wish  that  the  time  allowed  for  the  completion  of  the  proofs  should  be  abbreviated,  with  a 
^■iew  to  bring  the  case,  upon  its  merits,  before  the  House  at  as  early  a  day  as  practicable;  and  three  of 
the  undersigned,  in  deference  to  the  opinions  and  feelings  of  the  chairman,  cooperated  with  him  in  an 
effort  to  procure  a  reconsideration  of  the  above  resolution,  which  was  defeated  by  the  votes  of  the  other 
members  of  the  committee. 

Nothing  now  remained  to  be  done  but  to  carry  out  the  original  plan  as  exhibited  in  the  said  reso- 
lutions, and  accordingly  the  following  resolution  was  offered  by  one  of  the  undersigned  and  adopted  by 
the  committee: 

"Resolved.  That  the  parties  to  the  contested  election  from  the  State  of  New  Jersey  be,  and  they 
are  hereby,  authorized  to  take  the  testimony  of  such  witnesses  as  either  of  them  may  desire  to  examine, 
by  depositions  in  conformity  with  the  laws  of  that  State  in  force  at  the  time  of  taking  any  such  testi- 
mony, on  the  subject  of  contested  elections  in  similar  cases:  Provided,  That  the  parties  may,  by  any 
agreement  under  their  hands,  regulate  the  mode  of  gi\'ing  notice  and  other  matters  of  form  at  their 
discretion." 

Soon  after  the  adoption  of  these  resolutions  the  commissioned  Members  left  the  city  for  the  State 
of  New  Jersey  to  finish  taking  their  evidence,  where  they  still  remain.  We  did  not  anticipate,  nor 
had  we  an  intimation  from  any  quarter,  that  further  proceedings  in  the  case  were  contemplated,  either 
in  the  committee  or  the  House,  until  the  expiration  of  the  time  allowed  the  parties  to  complete  their 
evidence. 

794.   The  "  Broad  seal  case,"  continued. 

Instance  wherein  the  House  ordered  its  committee  to  report  on  prima 
facie  right  before  ascertaining  final  right. 

Instance  wherein  the  House,  disregarding  the  certificate  of  the  gov- 
ernor, ascertained  prima  facie  right  on  the  returns  of  the  local  officers. 

The  Elections  Committee,  in  determining  prima  facie  right,  declined 
to  open  evidence  relating  to  final  right. 

The  Elections  Committee  declined  to  consider  ex  parte  evidence  in 
determining  prima  facie  right. 

Overruling  the  Speaker,  the  House,  in  1840,  decided  to  receive  as  a 
matter  of  privilege  a  report  in  an  election  case.     (Footnote.) 

At  this  point  in  the  proceedings  action  by  the  House  intervened.  On  Febru- 
ary 14  *  Mr.  Campbell  reported  from  the  Committee  on  Elections  this  resolution: 

Resolved,  That  the  Committee  of  Elections  be  authorized  to  have  such  papers  printed,  under  its 
direction,  as  may  be  thought  necessary  to  facilitate  its  investigations  into  the  subjects  referred  to  its 
consideration. 

'  Journal  of  House,  p.  409. 


1028  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   794 

Mr.  Cave  Johnson,  of  Tennessee,  proposed  an  amendment  so  that  the  resolu- 
tion should  read  as  follows : 

Resolved,  That  the  Committee  of  Elections  be  authorized  to  report  to  this  House  such  papers  and 
such  other  proceedings  as  they  may  desire  to  have  printed  by  order  of  the  House;  and  that  they  be 
instructed  also  to  report  forthwith  which  five  of  the  ten  individuals  claiming  seats  from  the  State  of 
New  Jersey  receiving  the  greatest  number  of  [lawful]  votes  from  the  whole  State  for  Representatives 
in  Congress  of  the  United  States  at  the  election  of  1838  in  said  State,  with  all  the  evidence  of  that  fact 
in  their  possession:  Provided,  That  nothing  herein  contained  shall  be  so  construed  as  to  prevent  or 
delay  the  action  of  said  committee  in  taking  testimony  and  deciding  the  said  case  upon  the  merits  of 
the  election. 

On  February  28,'  after  long  consideration,  the  word  "[la^\'ful]"  was  inserted 
on  motion  of  Mr.  Fillmore  by  a  vote  of  yeas  97,  nays  96,  and  then  the  resolution 
as  amended  was  agreed  to,  yeas  103,  nays  90. 

These  instructions,  when  received  in  the  Committee  on  Elections,  were  a 
subject  of  disagreement.     The  majority  of  the  committee  in  their  report  say:  ^ 

When  the  proposition  to  instruct  was  originally  introduced  as  an  amendment  to  the  application 
with  which  the  committee  had  come  before  the  House,  its  intent  was  clear  that  a  report  should  be  imme- 
diately made  of  the  names  of  those  who  had  received  the  greatest  number  of  votes  at  the  late  Congres- 
sional election  in  New  Jersey.  If  anything  more  was  wanting  to  explain  the  meaning  of  this  proposition, 
it  is  to  be  found  in  the  proviso  which  was  added,  and  which  clearly  indicated  that  the  action  which 
the  House  was  moved  to  demand  did  not  contemplate  an  interference  with  the  course  adopted  by  the 
committee  for  the  "taking  of  testimony  and  deciding  the  case  upon  the  merits  of  the  election." 

Under  these  circumstances,  if  the  proposition  to  strike  out  the  word  "forthwith"  and  insert  the 
word  "lawful"  had  fully  succeeded  there  would  still  have  remained  that  prominent  clause  of  proviso, 
and  it  might  well  have  been  understood  that,  notwithstanding  the  omission  of  the  word  "forthwith," 
the  House  desired  an  immediate  report,  and  that,  notwithstanding  the  insertion  of  the  word  "lawful," 
the  House  contemplated  that  the  report  should  be  independent  of  testimony  now  in  the  process  of 
being  obtained  for  the  purpose  of  deciding  the  election  upon  its  merits. 

Upon  what  basis,  then,  could  such  a  report  be  constructed?  Manifestly  not  upon  the  partial,  incon- 
clusive, and  incompetent  testimony  as  to  the  legality  of  votes  now  in  the  possession  of  the  committee. 
The  House  can  not  have  contemplated  a  report  involving  an  investigation  of  the  ballot  boxes  without 
allowing  time  or  opportunity  for  that  investigation  to  be  thorough. 

The  majority  finally  conclude  that  the  House  meant  that  a  report  be  made  on 
"the  prima  facie  case  upon  the  returns  of  the  local  officers  of  the  several  polls." 

The  minority  contended  that  the  insertion  of  the  word  "lawful"  had  so  modi- 
fied the  resolution  that  the  committee  would  be  justified  in  reporting  as  to  the  final 
right,  the  word  "forthwith"  meaning  only  that  it  should  be  done  without  unneces- 
sary delay. 

The  minority  also  contended  that  before  reporting  certain  testimony  described 
in  the  following  proposition  should  be  examined : 

That  inasmuch  as  the  depositions  offered  to  this  committee  to  prove  that  the  poll  of  South  Amboy 
was  not  held  in  conformity  to  law  were  rejected  by  this  committee  on  account  of  a  defect  of  notice  in 
taking  said  depositions;  and  Mr.  Smith,  a  member  of  this  committee,  has  this  morning  presented  a  sealed 
package,  directed  to  the  Speaker  of  the  House  of  Representatives  of  the  United  States,  to  the  care  of 
the  Hon.  J.  Campbell,  chairman  of  the  committee,  purporting  to  be  depositions  taken  in  the  case  of 
the  New  Jersey  election,  under  a  resolution  of  this  committee  postponing  the  examination  into  the 
ultimate  right  of  the  claimants  until  the  second  Monday  in  April  next;  and  which  the  said  Mr.  Smith 
asserts,  on  the  authority  of  a  letter  received  from  Mr.  Halsted,  relates  to  the  manner  of  conducting  the 
election  at  South  Amboy,  and  the  validity  of  the  poll  there  holden:  Therefore, 

'  Journal,  pp.  465,  469.  '  Report,  No.  506,  p.  256 


§  '^^^  GENERAL   ELECTION   CASES,   1840   TO   1850.  1029 

Ordered  That  die  said  sealed  package  be  sent  forthwith  to  the  Speaker,  to  the  end  that  it  may  be 

1Th°^11         ITh        '""T''}"'  ^Ilproceed  to  examinesaid  new  deposition,  and  to  determine  whether 
Baid  poll  was  held  in  conformity  with  law. 

But  the  committee  declined  by  a  vote  of  5  to  2  to  agree  to  the  order 
The  majority  of  the  committee  say  that  on  the  inconclusive  testimony  in  their 
possession  it  would  be  unsatisfactory  and  unjust  to  look  beyond  the  face  of  the  poll 
and  continue:  ^     ' 

be  deducted  from  those  who  received  the  greatest  number  at  the  polls  which  appear  to  have  been  held  in 
confomuty  with  law  the  result  would  not  affect  the  right  of  any  candidate  to  a  seat 

With  thiB  expWion,  which  they  have  considered  due  to  the  House  and  to  themselves,  the  com- 

ZZu^  ""''~"1*°'"T'  *':  '"''°""''°'"  ^="^''"'  the  validity  of  certain  township  ekctions,^ 
far  as  such  an  examination  can  be  made  upon  the  testimony  in  their  possession 

Upon  this  branch  of  the  case  the  claimants  holding  the  governor's  commissions  claim- 
nf  xfn"^iV  T^^''^P^rtf""^.tl»eirnot  being  received  in  time  to  be  counted  according  to  law  the  votes 
of  M,lh.Ue  should  beset  aside  for  the  fraudulent  and  illegal  conduct  of  the  officers  of  elections    np  " 
claiming  their  intention  to  receive  the  votes  of  aliens,  and  in  receiving  a  large  number  of  such  knowingly 
and  m  \nolation  of  the  laws  of  the  State.  "         f  »  "  ..uuwuigiy 

Without  inquiring  into  the  effect  of  these  charges,  if  they  were  substantiated  by  competent  and 

stn  iTtrcrrtS.' "  "^  ^-^^'^^  ^  ^^^  *'"  *^^^  -  "--^p-^^  ^^  ->-  ^-^^-^  ind:^ 

An^wfv  T'^IhI^'^^"^"  '^*'  ^'^  ^"^  "^  ^"^^"""^  *°^  irregularities  in  the  return,  the  votes  of  South 
Amboy  should  be  set  aside,  because  one  of  the  officers  of  election,  duly  chosen,  was  unlawfully  prevented 
foom  acting,  and  another  substituted  in  his  place,  who  acted,  and  signed  the  list,  etc. ;  and  because  the 
board  thus  unlawfully  constituted,  receivedalargenumberof  alien  votes,  contrarytokw 

In  support  of  thc^e  allegations  numerous  depositions  have  been  produced,  but  without  expressing 
an  opinion  whether,  if  safsfactonly  proved,  they  would  constitute  sufficient  evidence  of  fn.ud  to  se t 
aside  the  votes  of  this  township,  ,t  is  only  necessary  to  state  that  the  evidence  was  taken  ex  parte  withou 
See  Dot  E)'"'  "^"'"^  '^  '''  '°°^'"'''  "  incompetent  to  be  considered  in  ftis  cte 

«iH..'^Jl'  ^*  ^^^^''.''^'^^'^  tl?»t  the  poU  held  at  Saddle  River,  in  Bergen  County,  should  be  set 
aside.  B^use  at  least  eight  votes  given  for  them  were  fraudulently  abstracted  from  the  baUot  box  and 
ae  many  for  their  opponents  fraudulently  substituted; 

Because,  in  making  out  the  list  of  votes  in  said  township,  at  lea^t  eight  votes  less  than  were  given  for 

Because  the  list  of  votes  in  said  township  bears  upon  its  face  evidence  of  mistake  or  fraud 

In  support  of  these  charges  the  depositions  of  numerous  voters  have  been  submitted;'  but  being 

T::zzr:s::i::^:::T'''' """'''''  ^'^^  '^^'^  '^^°  -^^'^"^  '^  '""^  ^°^*^^  -  ^--^ 

C.,J'  ^^^^A^''^'f  '^'  '^'^  ^°^  ^"^^  ^'  '^'  '"^'^P«  °^  ^''^°'''  Hardenton,  and  Vernon,  in  Sussex 
County,  should  be  set  aside,  for  r^ons  that  will  more  fully  appear  by  reference  to  the  document  maXd 

thte  aU^tLT""         '^^''  '"*  *'"^  ^  """  ^""P^^'^"*  ^^'^"'^'^  ^^^°^^  ^•^^  — >«-  -  -PPort  of 

The  majority  of  the  committee  then  proceeded  to  ascertain  the  result  on  the 
face  of  the  polls,  adding  the  votes  of  Millville  and  South  Ambov  to  the  returns  on 
which  the  governor's  certificates  had  been  issued,  and  found: 

T^"^  it  appears  that,  prima  facie,  upon  the  evidence  in  the  possession  of  the  committee  Philemon 
Dickei^on  Peter  D  Vroom,  Daniel  B.  Ryall,  William  R.  Cooper,  and  Joseph  Kille  are  the  "five  oHhe 
ten  individi^ls  claiming  seats  from  the  State  of  New  Jersey"  [who]  "received  the  greatest  nLber  of 
on  3  tlfdTtli:  "  ""''' '"  ^«P--^^*--  -  *^«  Congre.  of  the  United  Sta'^es,  at  the^ect  on 


1030  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   795 

The  minority  of  the  committee  say: 

The  majority,  without  considering  the  proofs  admitted  to  be  competent,  the  tendency  of  which  was 
to  show  that  unlawful  votes  had  been  polled  for  noncommissioned  claimants,  settled  "forthwith"  the 
principles  upon  which  the  report  should  be  made,  and  peremptorily  instructed  the  chairman  to  add  the 
votes  of  Millville  and  South  Amboy  to  those  counted  by  the  governor  in  privy  council,  thus  resolving  the 
duties  of  the  committee  into  the  solution  of  an  arithmetical  problem  of  the  most  simple  character. 

But  there  is  an  additional  and  most  imposing  fact  which  we  desire  to  present  for  the  consideration  of 
the  House  before  they  decide  this  important  question. 

At  the  moment  the  committee  had  the  report  under  consideration,  and  before  any  vote  was 
taken  thereon,  the  chairman  had  in  possession  a  sealed  package  of  depositions,  addressed  to  the  Speaker 
of  the  House,  to  the  care  of  the  chairman,  and  indorsed  "depositions  in  the  New  Jersey  case,"  forwarded 
by  the  commissioned  claimants,  and  which  the  majority  of  the  committee  refused  to  send  to  the  Speaker, 
to  the  end  that  the  same  might  be  opened  and  taken  into  consideration  in  the  decision  of  the  question 
then  pending  in  committee.  On  examination  we  find  that  the  said  depositions  establish  and  prove  illegal 
votes  cast  for  the  noncommissioned  claimants,  which  added  to  other  unlawful  votes  already  proven  are 
sufficient  to  give  one  of  the  commissioned  claimants  [Mr.  Stratton]  his  seat,  on  the  ground  of  receiving  a 
majority  of  lawful  votes  cast  at  the  polls. 

The  following  table  will  show  how  many  illegal  votes  the  commissioned  Members  must  prove  (if  the 
votes  of  Millville  and  South  Amboy  be  added)  to  establish  their  right  over  their  opponents  to  the  vacant 
seats,  viz: 

Mr.  Stratton  over  Mr.  Kille 31 

Mr.  Maxwell  over  Mr.  Ryall 59 

Mr.  Halsted  over  Mr.  Dickcrson 117 

Mr.  York  over  Mr.  Cooper 135 

Mr.  Aycrigg  over  Mr.  Vroom 199 

The  proofs  laid  in  the  first  instance  before  the  committee  would  have  established  both  Messrs. 
Stratton  and  Maxwell  in  their  seats  had  the  same  been  in  all  respects  competent. 

The  injustice  of  refusing  to  examine  the  new  depositions  is  the  more  apparent  from  the  facts  that 
they  were  taken  as  substitutes  for  other  depositions  on  the  same  subject,  which  had  been  rejected  under 
circumstances  hereinbefore  detailed.  Their  weight  and  effect  are  greatly  enhanced  by  the  fact  that  the 
contesting  party  was  present  and  cross-examined  the  witnesses. 

Therefore  the  minority  recommended  that  the  report  be  recommitted. 

On  March  5 '  Mr.  Campbell  submitted  the  report  of  the  committee.''  On  March 
10'  the  House,  by  a  vote  of  yeas  111,  nays  82,  agreed  to  a  resolution  declaring  that 
the  five  claimants  recommended  by  the  majority  of  the  Committee  on  Elections 

are  entitled  to  take  their  seats  in  the  House  of  Representatives,  as  Members  of  the  Twenty-sixth  Con- 
gress; and  that  the  Speaker  of  the  House,  on  their  presenting  themselves,  qualify  them  as  such:  Pro- 
vided, That  nothing  herein  contained  shall  prevent  the  investigation  into  said  election  from  being  con- 
tinued in  the  manner  heretofore  authorized  by  a  majority  of  the  Committee  on  Elections  on  the  appli- 
cation of  the  five  claimants  of  said  State. 

At  various  times  thereafter  the  gentlemen  thus  seated  appeared  and  took  their 
seats. 

795.  The  "  Broad  seal  case,"  continued. 

An  early  instance  where  partisan  bias  was  charged  against  the  Elec- 
tions Committee. 

Instance  wherein,  in  the  decision  of  an  election  case,  each  vote  was 
treated  as  a  distinct  controversy. 

'House  Journal,  p.  520;  Report,  No.  506-  Journal,  p.  1284. 
=  Journal,  pp.  569-578;  Globe,  p.  256. 
^  House  Report  No.  541,  pp.  693,  733. 


§  795  GENEK.11,   ELECTION    CASES,   1840   TO   1850.  1031 

In  the   "  Broad   seal   case  "   the  Elections  Committee  delegated  the 
arrangement  of  testimony  to  the  parties. 

Where   poll  lists  were   not  preserved   as   a   record   parol   proof  was 
resorted  to  for  showing  that  the  vote  was  actually  cast. 

Hearsay  evidence  rejected  in  an  inquiry  as  to  whether  votes  were 
actually  cast  at  the  polls. 

The  Committee  on  Elections  continued  the  investigation,  and  on  July  16,  1840  ' 
Mr.  Campbell  submitted  the  report  of  the  majority  of  the  committee  on  the  question 
of  final  right,  and  at  the  same  time  Mr.  Smith  presented  the  minority  views,  signed 
by  himself  and  Messrs.  Fillmore,  Botts,  and  Randall.  The  minority  views  espe- 
cially show  much  partisan  feeling,  especially  in  the  portion  where  it  is  declared  that 
"the  conclusions  and  judgment  of  the  majority  of  the  conmiittee  are  wholly 
unworthy  of  the  sanction  of  this  House,  and  of  the  confidence  of  the  country.  "  = 
The  investigation  of  the  committee  related  to  nearly  600  distinct  cases  of  votes 
alleged  either  to  have  been  cast  imlawfully  or  to  have  been  refused  unlawfully. 
The  most  minute  and  tedious  course  was  adopted,  the  case  of  each  individual  vote 
being  treated  as  a  distinct  controversy,  testimony  being  admitted  and  arguments 
made  as  to  it.  The  question  was  then  put  upon  a  formal  resolution,  devised  with 
reference  to  the  prima  facie  legality  of  the  proceeding  at  the  polls  and  the  burden 
of  proof. 

The  report  says,  as  to  the  sifting  of  evidence : 

In  the  hope  that  the  grounds  of  the  controversy  might  be  more  strictly  defined  and  narrowed,  and 
that  the  testimony  scattered  through  so  many  separate  depositions,  bearing  on  the  same  points,  might 
be  so  arranged  and  collected  as  to  facilitate  the  labors  of  the  committee,  while  it  should  insure  the  ends 
of  justice,  the  testimony  in  the  possession  of  the  committee  was,  on  the  16th  day  of  April,  by  the  mutual 
arrangement  of  the  parties,  delivered  into  their  hands,  and  the  committee  continued  the  investigation 
of  other  cases  pending  before  them. 

Although,  from  this  arrangement,  much  greater  delay  ensued  than  the  committee  anticipated,  the 
subsequent  investigation  proved  that,  without  the  assistance  of  the  parties,  the  difficulties  of  the  inves- 
tigation would  have  been  almost  insurmountable;  testimony  in  relation  to  the  same  vote  being  often 
found  to  have  been  taken  not  only  from  many  different  witnesses,  but  at  various  and  distant  times 
and  places,  to  which  no  clew  would  else  have  been  iumished. 

Nevertheless,  impatient  of  delay,  the  committee  passed  resolutions  calling  on  the  parties  on  the 
1.3th  and  20th  of  May,  and,  finally,  on  the  2d  of  June. 

The  committee  having  previously,  under  the  power  granted  by  the  House,  ordered  the  papers  to 
be  printed ,  the  final  investigation  was  commenced  on  the  3d  of  June,  with  a  volume  of  evidence  of  nearly 
700  printed  pages. 

The  majority  further  say  as  to  the  rule  adopted  for  arriving  at  a  decision: 

As  applied  to  alleged  unlawful  votes,  it  presents  two  affirmative  propositions:  First,  that  the  vote 
in  question  was  not  a  lawful  vote;  and,  second,  that  it  be  deducted  from  the  votes  of  one  or  the  other 
of  the  parties.  The  first  proposition  involved  the  inquiry  whether  the  vote  was  actually  cast  at  the 
polls;  and,  for  the  ascertainment  of  this  point,  the  committee  necessarily  resorted  to  parole  proof,  as  the 
best  evidence  which  the  nature  of  the  case  would  admit  of;  the  laws  of  New  Jersey  not  requiring  the 
poll  lists  to  be  preserved  as  a  record  of  the  actual  voters.  Mere  hearsay  declarations  of  the  alleged 
voter,  as  to  the  fact  of  his  having  voted,  have  been  uniformly  rejected. 

'  Mr.  Campbell  claimed  the  right  to  make  this  report  as  a  matter  of  privilege.  Mr.  Speaker  Hunter 
ruled  against  this  contention;  but  on  appeal  the  House  overruled  the  decision,  yeas  124,  nays  39.  So 
the  report  was  made  as  a  matter  of  privilege.     (Journal,  pp.  1281, 1284.) 

'  See  also  Section  785  for  a  similar  charge. 


1032 


PKECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES. 


§796 


796.   The  "  Broad  seal  case,"  continued. 

An  admitted  ballot  is  prima  facie  good,  and  the  burden  of  proof  is  on 
the  party  objecting  that  the  voter  is  an  alien. 

A  vote  being  received  as  sound,  the  mere  fact  that  the  voter  is  alien 
born  does  not  compel  the  party  claiming  it  to  prove  naturalization. 

Distinction  between  a  controversy  at  the  polls  as  to  a  vote  and  a  con- 
troversy before  the  Elections  Committee  where  the  voter  is  not  a  party. 

In  a  controversy  as  to  votes  objected  to  because  the  voter  is  an  alien, 
the  party  attacking  the  qualification  may  be  required  to  prove  a  negative. 

The  inquiry  naturally  divided  itself  into  several  branches : 

1.  The  lawfulness  of  the  votes,  with  respect  to  the  qualifications  of  the  persons 
casting  them  or  claiming  the  right  to  cast  them,  involving  inquiries  as  to — 
(a)  The  nature  of  the  proof  as  to  aliens. 
The  majority  say  on  this  point: 

A  minority  of  the  committee  were  of  opinion  that  it  was  sufficient  for  the  party  objecting  to  the 
vote  to  prove  that  the  voter  was  alien  bom;  and  that  the  burden  of  proof  was  thereby  thrown  upon  the 
party  for  whom  the  vote  had  been  rendered  at  the  poll,  to  prove  that  the  voter  had  been  naturalized. 
And  it  was  urged,  with  great  earnestness,  that,  to  adopt  any  other  rule  of  evidence  would  be  to  depart 
from  the  plainest  principles  of  law  and  reason — to  impose  upon  the  party  objecting  to  a  vote  the  proof 
of  a  negative;  and  a  negative,  too,  which  nothing  short  of  searching  of  every  court  of  record  having 
common-law  jurisdiction,  a  clerk,  and  seal,  in  the  Union,  could  possibly  establish. 

Without  minutely  criticising  the  argument,  it  is  deemed  proper  to  inquire  to  what  practical  conse- 
quences the  rule  would  lead,  if  it  be  fully  admitted;  for  the  proposition  is  to  be  taken,  not  as  a  mere 
abstract  annunciation  of  the  order  of  proof,  but  as  practically  applicable  to  the  decision  of  cases  of 
contested  election  in  the  House  of  Representatives. 

The  committee,  as  the  organ  of  the  House,  have  a  positive  affirmative  proposition  to  adjudge 
and  declare,  before  a  sitting  Member  can  be  displaced,  or  a  single  vote  received  for  him  at  the  polls  can 
be  ejected  from  the  ballot  box.  Before  a  Member  is  admitted  to  a  seat  in  the  House,  something  like  the 
judgment  of  a  court  of  competent  jurisdiction  has  been  pronounced  upon  the  right  of  each  voter  whose 
vote  has  been  received;  and  in  order  to  overturn  this  judgment,  it  must  be  ascertained  affirmatively 
that  the  judgment  was  erroneous.  Prima  facie,  it  is  to  be  taken  that  none  but  the  votes  of  qualified 
voters  have  been  received  by  officers  whose  sworn  duty  it  was  to  reject  all  others.  Thi.s  principle  will 
be  found  to  have  been  solemnly  and  unanimously  declared  by  the  committee  as  a  basis  of  future  action, 
soon  after  entering  upon  the  investigation  of  this  case.     (See  Report  No.  506,  p.  46.) 

It  is  not  sufficient  that  there  should  exist  a  doubt  as  to  whether  the  vote  is  lawful  or  not;  but  con- 
viction of  its  illegality  should  be  reached,  to  the  exclusion  of  all  reasonable  doubt,  before  the  committee 
are  authorized  to  deduct  it  from  the  party  for  whom  it  was  received  at  the  polls. 

Will  the  mere  naked  fact  that  a  voter  was  alien  bom,  in  the  absence  of  all  other  proof,  produce 
8uch  conviction  on  any  candid  mind?  Is  it  not  already  answered,  or,  rather,  is  not  even  a  presumption 
from  that  fact  alone  precluded,  by  the  judgment  at  the  polls?  All  foreigners  from  birth  are  not  disquali- 
fied from  voting,  but  only  a  certain  class.  Are  we  to  presume  that  the  voter,  whose  vote  has  been 
received  by  the  officers  of  the  election,  to  be  of  the  disqualified  or  the  qualified  class?  The  question  is 
answered  by  the  unanimous  resolution  of  the  committee  already  r(>ferred  to,  as  well  as  by  the  reason  and 
analogy  of  the  case. 

The  committee  can  not  believe  that  the  House  of  Representatives  would  eject  a  Member  from  his 
seat  upon  the  mere  proof  that  every  man  of  his  constituents  was  alien  born.  It  is  not  apprehended  that, 
after  an  election  has  been  regularly  held,  the  House  would  even  consider  an  investigation  necessary 
upon  a  petition  whicli  alleged  no  other  fact. 

The  report  continues : 

But  it  may  be  a-sked.  Does  not  the  presumption  originally  arising  from  the  fact  of  foreign  birth 
acquire  additional  strength,  and  may  it  not  overturn  the  decision  at  the  polls,  when  neither  the  voter 


§  796 


GENEKAL   ELECTION    CASES,   ISiO   TO   1850.  1033 


nor  the  party  claiming  the  benefit  of  his  vote  before  the  committee  adduces  here  any  evidence  of  his 
naturalization?  If  the  voter  refuses  to  testify  to  his  own  disqualification  (as  he  legally  may)  how  can 
the  party  impeaching  his  vote  proceed  further  in  the  proof  of  his  allegation?  Shall  he  be  put  to  the 
proof  of  a  negative?  Is  not  the  voter  a  party  to  the  proceeding,  and  is  not  his  neglect  to  rebut  the  proof 
of  his  birth  by  the  evidence  of  his  naturalization  conclusive  against  him? 

Undoubtedly  if  the  voter  be,  to  all  intents  and  purposes,  a  party  to  this  proceeding,  claiming  to 
exercise  a  right  here,  such  would  be  the  conclusion;  and,  unless  he  should  make  out  his  right  affirma- 
tively, he  must  fail  to  establish  it.  So  it  was  at  the  election;  and  so  it  would  be  here,  if  the  committee 
were  holding  a  poU.  But  such  is  not  the  vocation  of  the  committee  or  the  House.  If  it  were,  the  mere 
reference  of  the  petition,  the  mere  creation  of  a  controversy,  wovdd  annul  all  that  has  been  done  at  the 
election.  Then,  indeed,  things  would  be  taken  up  and  treated  de  novo;  voters  who  had  once  main- 
tained their  right  and  exercised  it  at  the  polls  would  be  required  to  come  forward  and  submit  themselves 
to  another  challenge,  and  a  new  affirmation  of  their  franchise. 

Again,  if  the  voter  is,  to  aU  intents  and  purposes,  a  party  to  the  proceeding  before  the  House  or 
its  committee,  how  is  it  that  he  is  admitted  to  testify  as  a  witness?  Why  are  not  all  his  declarations  or 
admissions,  wheresoever  and  howsoever  made,  in  relation  to  the  subject-matter  of  the  controversy,  the 
best  evidence  when  proved  by  a  competent  witness?  The  distinction  between  the  controversy  at  the 
polls  and  that  before  the  committee  is  manifest.  At  the  polls  the  voter  is  a  party.  When  the  polls 
are  closed  and  an  election  is  made  the  right  of  the  party  elected  is  complete.  He  is  entitled  to  the 
returns;  and  when  he  is  admitted  to  his  seat,  there  is  no  known  principle  by  which  he  can  be  ejected, 
except  upon  the  affirmative  proof  of  a  defect  in  his  title.  Whoever  seeks  to  oust  him  must  accomplish 
it  by  proving  a  case.  The  difficulties  in  his  path  can  form  no  possible  reason  why  the  committee  should 
meet  him  haUway.  The  rule  of  reason  requires  that  he  should  fully  make  out  his  case,  even  though  it 
involve  the  proof  of  a  negative;  and  such  is  also  the  rule  of  Parliament  in  analogous  cases.  (See  3d 
Douglas,  219.) 

In  Rogers's  Law  and  Practice  of  Election  Committees,  page  116,  it  is  said:  "  So  in  cases  of  petitions 
against  candidates  on  the  ground  of  want  of  sufficient  qualification — although  a  negative  is  to  be  proved, 
it  is  the  usage  of  Parliament  that  the  party  attacking  the  qualification  is  bound  to  disprove  it." 

It  may  be  added  that  this  rule  has  been  applied  bj'  the  committee,  without  controversy,  to  every 
other  species  of  alleged  disqualification.  In  the  cases  of  aliens  alone  was  a  different  rule  contended  for. 
Adhering  to  the  rule,  the  committee  have  uniformly  required  something  more  than  the  mere  affirmative 
proof  of  foreign  birth;  the  disqualification  not  being  foreign  birth,  but  the  actual  state  of  alienage  at  the 
time  of  voting. 

The  great  number  of  cases  in  which  the  disqualification  has  been  fully  made  out,  and  the  votes 
deducted  from  the  one  party  or  the  other,  sufficiently  answer  the  objection  which  has  been  supposed  to 
arise  from  the  alleged  impossibility  of  proving  the  negative.  In  none  of  these  instances  were  the  parties 
put  to  the  necessity  of  searching  every  "court  of  record  having  common-law  jurisdiction,  and  a  clerk, 
and  seal,  in  the  Union."  In  some  cases  the  voters  themselves  have  declared,  under  oath,  that  they  were 
never  naturalized;  in  others,  while  asserting  their  naturalization,  they  have  stated  circumstances  incon- 
sistent with  it.  In  short,  an  infinite  variety  of  circumstances,  which  will  be  found  in  the  evidence, 
joined  with  the  fact  of  foreign  birth,  have  completely  proven  the  disqualification  in  a  great  number  of 


On  the  other  hand,  the  hardship  of  requiring  the  sitting  Member,  upon  the  mere  proof  of  foreign 
birth,  to  produce  before  the  committee  evidence  of  the  naturalization  of  hundreds  or  thousands  of  persons 
over  whom  he  has  no  control,  and  who,  by  withholding  that  proof,  may  vacate  his  election,  must  readily 
be  admitted.  The  proper  season  to  demand  such  proof  is  at  the  polls.  There  the  voter  is  the  actor;  he 
comes  forward  claiming  to  exercise  a  right,  and  there  he  should  prove  his  qualification.  Where  the  case 
assumes  the  form  of  a  contested  election  between  other  parties,  the  disqualification  must  be  made  out 
by  the  party  seeking  to  overthrow  the  right  of  the  sitting  Member  thus  acquired  at  the  polls. 

The  minority  in  their  views  discuss  this  question  thus : 

To  enable  the  House  to  appreciate  the  action  of  the  committee  on  the  cases  to  which  we  are  about 
to  refer,  we  would  remark  that  it  was  conceded  by  all  the  Members  that  the  reception  of  a  vote  by  the 
election  officers  raised  a  presumption  in  favor  of  the  legality  of  such  vote.  Early  in  our  deliberations 
we  adopted  a  resolution  declaratory  of  this  principle,  the  justice  and  propriety  of  which  must   be 


1034  PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   796 

apparent  to  all,  but  verj'  soon  after  we  commenced  scrutinizing  the  votes  we  perceived  that  there  was 
a  radical  difference  of  opinion  in  the  committee  touching  the  use  which  should   be  made  of  this 

presumption. 

The  undersigned  are  persuaded  that  the  only  effect  which  can  be  given  to  the  reception  of  a  vote 
at  the  polls  is  to  throw  the  burden  of  proof  on  the  party  objecting  to  its  legality.  But  the  majority 
seemed  disposed  to  carry  the  principle  much  further  and  to  convert  the  presumption  into  a  "swift 
witness"  in  favor  of  the  opposite  party.  If  a  credible  witness  was  adduced,  who  proved  the  fact  of 
illegality  by  his  positive  oath,  the  majority  would  confront  such  witness  with  the  presumption  and 
would  give  it  all  the  efficacy  appertaining  to  testimony  under  oath;  and  thus,  balancing  the  oath  of  the 
living  witness  against  the  presumption,  they  would  come  to  the  conclusion  that  nothing  was  proved. 
Nay,  more.  The  majority,  strange  as  it  may  seem,  held  that  the  presumption  was  so  strong  that  it 
imposed  on  the  party  excepting  to  a  vote  the  burden  of  proving  a  negative.  When  Messrs.  Aycrigg 
and  others  objected  to  a  vote  on  the  ground  of  alienage,  they  were  required  to  prove,  not  merely  that 
the  voter  was  an  alien  bom,  but  that  he  had  not  been  naturalized— a  task  which,  in  many  cases,  is 
wholly  impracticable. 

The  undersigned  can  not  omit  noticing  one  curious  circumstance,  and  that  is,  that  this  presumption 
seldom  visited  the  committee  room  except  when  one  of  these  parties  was  endeavoring  to  establish  the 
illegality  of  votes. 

If  it  appeared  at  all  when  the  other  party  was  making  the  same  effort,  the  undersigned  must  say 
they  were  scarcely  conscious  of  its  presence. 


« 


Any  general  rule,  the  effect  of  which,  though  administered  with  impartiality,  should  be  to  increase 
the  embarrassment  would  obviously  operate  in  their  favor;  and  we  ask  what  rule  could  be  better  adapted 
to  the  end  suggested  than  that  of  giving  an  inordinate  effect  to  the  reception  of  a  disputed  vote  at  the 
polls?  This  idea  was  a  prolific  source  of  difficulty  to  the  committee,  and,  what  is  of  more  consequence, 
of  flagrant  injustice  to  one  of  the  parties.  One  of  the  many  progeny  of  this  suggestion  was  the  legal 
absurdity  that  the  party  objecting  on  the  ground  of  alienage  must,  under  all  circumstances,  prove  not 
only  that  the  voter  was  an  alien  born,  but,  in  addition,  that  he  never  had  been  naturalized.  The  com- 
mittee knew  at  the  outset  that  Messrs.  Aycrigg  and  others  expected  to  prove  many  alien  votes  to  establish 
their  right  to  the  seats.  This  was  set  forth  fully  in  the  exposition  of  facts  which  they  submitted  to  the 
committee  at  an  early  stage  of  the  proceedings.  The  House  can  not  fail  to  observe  how  admirably  the 
rule  of  negative  proof  is  fitted  to  embarrass  one  side  of  this  controversy  and  to  fortify  the  position  of  the 
other  side,  but,  nevertheless,  it  is  the  duty  of  the  party  thus  embarrassed  to  submit  to  the  evil  if  the 
rule  itself  be  founded  in  law.  But  we  insist  that  it  is  not  so  founded.  No  precedent  can  be  found  of 
the  application  of  such  a  rule  to  such  a  case.  The  party  having  the  affirmative  of  the  issue  takes  the 
burden  of  proof.  A  foreigner  comes  to  the  polls  and  votes.  You  can  prove  that  he  is  such,  but  how 
can  you  prove  that  he  has  not  been  naturalized?  Perhaps  ho  may  be  willing  to  testify,  and  then  you 
may  prove  the  fact  by  his  own  oath.  But  suppose  he  is  dead,  or  has  removed  away,  or  chooses  to  stand 
mute.  He  can  not  be  put  to  the  question.  He  can  not  be  compelled  to  criminate  himself.  The  rule 
imposes  on  the  party  objecting  the  necessity  of  searching  all  the  records  in  the  Union  and  of  getting  the 
testimony  of  every  record  keeper  to  prove  the  fact.  This  is  manifestly  impossible.  No  man  in  his 
senses  can  believe  that  any  such  rule  exists.  It  is  a  principle  of  the  law  of  evidence  "that  the  affirmative 
of  the  issue  must  be  proved;  and  he  who  makes  an  assertion  is  the  person  who  is  expected  to  support  it 
before  he  calls  on  his  opponent  for  an  answer."  And  again:  "The  burden  of  proof  lies  on  the  person 
who  has  to  support  his  case  by  proving  a  fact  of  which  he  is  believed  to  be  cognizant."  (Vide  Rogers's 
Law  and  Practice  of  Elections,  p.  114-117.) 

To  suppose  any  member  of  the  committee  to  be  ignorant  of  a  rule  of  law  so  old  and  universal  and 
founded  in  so  much  good  sense  would  be  to  justify  his  integrity  and  maintain  his  impartiality  at  the 
expense  of  his  judgment  and  of  every  qualification  required  for  the  proper  discharge  of  the  duties  of  a 
committee  on  elections.  We  disclaim  all  design  of  charging  the  course  adopted  by  the  majority  to 
corrupt  intentions,  but  we  are  very  reluctant  to  embrace  the  other  branch  of  the  alternative;  and 
conclude,  therefore,  that  some  strange  prejudice  must  have  taken  possession  of  the  mind  and  led  the 
judgment  captive  at  will. 

But  not  only  did  the  committee  adopt  a  very  extraordinary  rule,  but  they  applied  it  to  the  caae 
in  a  very  extraordinary  manner,  and  they  essentially  aggravated  the  evil  which  that  rule  was  adapted 


§  797  GENERAL   ELECTION    CASES,   1840   TO   1850.  1035 

to  inflict,  for  they  held  votes  to  be  lawful  on  account  of  the  absence  of  .proof  of  nonnaturalization  in 
cases  where — 

(1)  The  election  officers  decided  that  aliens  had  a  right  to  vote  according  to  law  and  avowedly 
admitted  them  to  vote  on  that  ground. 

(2)  Where  aliens  were  summoned  before  the  magistrates  who  took  the  evidence  and  where  they 
refused  to  attend,  or,  if  they  attended,  stood  mute  as  to  their  right. 

(3)  Where  the  two  circumstances  above  indicated  were  combined,  as  they  were  in  many  of  the 
cases  submitted  to  the  committee. 

(4)  WTiere  aliens  produced  at  the  polls,  as  evidence  of  naturalization,  a  declaration  of  an  intent 
to  become  naturalized  at  a  future  period,  which  we  all  know  is  a  mere  preliminary  step  to,  but  is  not, 
naturalization  itself. 

In  many  cases  the  committee  held  votes  to  bo  lawful  where  all  the  above  circumstances  were 
united  against  the  voter. 

797.  The  "  Broad  seal  case,"  continued. 

Although  the  State  law  did  not  disqualify  a  person  non  compos  men- 
tis as  a  voter,  the  Elections  Committee  examined. 

(h)  As  to  nonresidents. 

The  report  cites  the  law  of  New  Jersey  and  states  that  in  setthng  the  various 
questions  they  endeavored  "to  apply  the  well-settled  principles  of  law." 

(c)  As  to  persons  non  compos  mentis. 

The  report  says: 

Persons  non  compos  mentis  are  not  expressly  disqualified  by  the  terms  of  the  law;  but  the  com- 
mittee entertained  the  allegation  in  a  single  instance  from  the  general  reason  and  nature  of  the  case. 
Questions  of  sanity,  however,  being  of  the  most  delicate  and  difficult  which  arise  in  the  courts,  the 
committee  could  not  consent  to  disqualify  a  voter  on  this  ground  except  upon  the  most  distinct  and 
indubitable  proof,  and  none  such  being  adduced,  his  vote  was  not  disturbed. 

798.  The  "  Broad  seal  case,"  continued. 

Where  a  State  law  made  payment  of  tax  evidence  of  property  qualifi- 
cations, the  House  did  not  count  the  ballot  of  a  voter  whose  tax  another 
paid. 

(.d)  As  to  the  qualifications  of  voters  as  taxpayers. 

The  fundamental  law  of  New  Jersey  required  the  voter  to  be  "worth  £50  proc- 
lamation money,  clear  estate,  within  the  colony."  And  by  statute  it  was  further 
provided  that — 

Sec.  5.  Every  person  who  shall,  in  other  respects,  be  entitled  to  a  vote,  and  who  shall  have  paid  a 
tax  for  the  use  of  the  county  or  the  State,  and  whose  name  shall  be  enrolled  on  any  duplicate  list  of  the 
last  State  or  county  tax,  shall  be  adjudged  by  the  officers  conducting  the  election  to  be  worth  £50,  money 
aforesaid,  clear  estate. 

Sec.  6.  That  no  person  shall  hereafter  be  deemed,  by  the  officers  conducting  the  election,  to  be  a 
qualified  voter,  who  has  not  either  paid  a  tax,  or  whose  name  is  not  enrolled  on  the  duplicate,  as  aforesaid, 
except  in  case  of  persons  removing  from  one  township,  wherein  they  have  paid  a  tax,  to  another  township 
in  the  same  county,  or  of  persons  who  have  been  inadvertently  overlooked  by  the  assessor;  in  either  of 
which  cases,  such  persons  claiming  a  vote,  and  being  in  other  respects  qualified,  shall  be  admitted;  and 
in  the  case  of  persons  who  have  been  inadvertently  overlooked  by  the  assessor,  as  aioresaid,  their  names 
shall  be  immediately  entered  on  the  tax  list. 

The  report  continues: 

Without  attempting,  in  this  place,  to  criticise  minutely  the  respective  provisions  of  these  laws,  it 
may  be  sufficient  to  state,  that  they  seem  at  least  to  confine  the  right  of  suffrage,  in  all  ca-ses,  to  bona  fide 
taxable  citizens,  in  other  respects  duly  qualified.  When,  therefore,  it  has  appeared  that  previous  to, 
and  at  the  time  of  voting,  the  voter  has  received  support  from  the  town  as  a  pauper,  and  has  not  paid  a 


1036  PRECEDENTS    OF    THE    HOUSE    OF    EEPKESENTATIVES.  §   799 

tax  the  committee  have  not  considered  him  a  "qualified  voter  in  respect  of  estate."  So,  also,  where  a 
person  of  that  class  was  brought  to  the  polls,  and  a  tax  there  paid  for  him  by  another,  on  condition  that 
he  should  vote  a  certain  ticket,  the  committee  did  not  consider  the  former  a  bona  fide  taxpayer,  and 
his  vote  was  deducted. 

The  minority  say: 

The  undersigned  have  felt  much  embarrassment  in  giving  a  construction  to  these  sections,  and  they 
can  not  but  feel  much  surprised  that  the  good  people  of  New  Jersey  should  have  suffered  the  invaluable 
right  of  suffrage  to  be  involved  in  all  the  perplexity  and  doubt  of  absurd  and  contradictory  phraseology; 
but,  on  full  consideration,  they  are  disposed  to  give  these  sections  a  construction  conforming  to  what  they 
understand  to  be  the  practice  of  the  State;  and  to  hold  that,  if  a  person  has  either  paid  a  tax,  or  has 
had  his  name  enrolled  on  any  duplicate  list  of  the  last  State  or  county  tax,  he  is  entitled  to  the  elective 
franchise,  as  he  is  also  in  the  excepted  cases  specified  in  the  last  section. 

It  is  usual,  in  New  Jersey,  for  a  person  whose  name  has  not  been  enrolled,  and  who  desires  to  exercise 
the  elective  franchise,  to  appear  at  the  polls  and  to  demand  the  enrollment  of  his  name;  which  is  always 
done,  under  the  idea  that  it  has  been  "  inadvertently  overlooked  "  by  the  assessor;  and  thus  (by  the 
payment  of  a  trifling  tax)  the  elective  franchise  is  put  within  the  reach  of  every  citizen  of  New  Jersey. 
But  it  would  obviously  be  improper  to  enroll  a  pauper;  it  can  not  be  supposed  that  the  name  of 
such  a  person  was  "  inadvertently  overlooked,"  and  it  would  be  absurd  to  call  on  a  man  to  pay  taxes 
who  can  not  do  so;  and,  if  he  could,  to  whom  the  money  would  be  forthwith  returned  for  his  support. 
Hence,  we  deem  it  settled  that  paupers  can  not  vote  in  New  Jersey.  This  brief  exposition  of  the  laws 
of  that  State  will  enable  us  to  contrast  some  of  the  cases  under  this  head ;  and  the  House  can  j  udge  whether 
the  committee  were  any  more  successful  in  administering  "equal  and  exact  justice"  to  the  parties  in 
this  than  they  were  in  the  other  branches  of  this  inquiry. 

799.   The  "  Broad  seal  case,"  continued. 

The  voter  not  being  compelled  to  testify  for  whom  he  voted,  proof  of 
general  reputation  as  to  political  character  and  party  preferences  was 
accepted  to  determine  the  vote. 

Votes  improperly  rejected  were,  in  absence  of  direct  testimony, 
counted  on  proof  of  the  general  political  action  of  the  voter. 

2.  The  deduction  of  unlawful  votes  from  the  poll,  and  the  determination  as  to 
votes  improperly  rejected. 

The  majority  say: 

It  being  satisfactorily  ascertained  that  an  unlawful  vote  was  counted  at  that  election,  the  next 
inquiry  which  arose  was  as  to  the  party  for  whom  it  was  cast  at  the  polls. 

The  elections  in  New  Jersey  are  by  ballot;  and  it  will  readily  be  perceived  that  this  inquiry  was 
not  without  serious  difficulties. 

Although,  in  numerous  instances,  the  voter,  being  examined  as  a  witness,  voluntarily  disclosed  the 
character  of  his  vote,  yet,  in  many  cases,  he  either  did  not  appear,  or,  appearing,  chose  to  avail  himself 
of  his  legal  right  to  refuse  an  answer  on  that  point.  In  such  cases  the  proof  of  general  reputation  as  to 
the  political  character  of  the  voter,  and  as  to  the  party  to  which  he  belonged  at  the  time  of  the  election, 
has  been  considered  sufficiently  demonstrative  of  the  complexion  of  his  vote.  Where  no  such  proof  was 
adduced  on  either  side,  proof  of  the  declarations  of  the  voter  has  been  received;  the  date  and  all  the  cir- 
cumstances of  such  declarations  being  considered  as  connecting  themselves  with  the  questions  of  credi- 
bility and  sufficiency.  In  every  instance  where  the  proof,  under  all  the  circumstances,  was  not  sufficient 
to  produce  conviction,  the  vote  has  been  left  unappropriated. 

The  same  principles  have  governed  the  committee  in  regard  to  the  votes  decided  to  have  been 
improperly  rejected  at  the  polls. 

The  undersigned  would  observe,  that,  early  in  the  investigation,  a  question  arose  as  to  the  character 
of  the  proof  which  should  be  received  and  deemed  sufficient  to  enable  them  to  appropriate  such  of  the 
votes  as  they  might  determine  to  have  been  unlawful.  In  New  Jersey  the  vote  by  ballot  obtains,  as 
in  most  of  the  States  of  the  Union.     If  an  unlawful  vote  be  cast,  how  are  we  to  ascertain  who  had  the 


§  800  GENERAL   ELECTION    CASES,   1840   TO   1850.  1037 

benefit  of  such  vote?  It  is  obvious  that  in  many  cases  it  will  be  impracticable  to  obtain  positive  proof. 
In  some  cases,  the  voter  may  be  willing  to  appear  and  disclose  the  fact  under  oath ;  in  other  cases,  it  may  be 
in  the  power  of  the  party  to  produce  a  witness  who  can  swear  to  the  character  of  the  vote  given;  but  in 
many  more,  no  evidence  of  that  description  can  be  obtained  to  ascertain  the  fact  in  controversy.  It 
seems  to  the  undersigned  to  be  indispensable  to  receive  secondary  evidence  to  this  point,  such  as  the 
declaration  of  the  voter,  either  at  the  election  or  soon  after;  and  also  proof  of  his  political  character, 
•which,  when  well  defined,  will  be  a  sufficient  guide  to  the  truth.  But  we  ought  to  be  very  careful  not 
to  receive  and  act  upon  evidence  of  an  equivocal  character,  which  may  have  been  created  or  manufactured 
for  the  occasions.  In  adopting  these  views,  there  was  a  good  degree  of  unanimity  in  the  conmiittee;  but 
the  majority  have  been  by  no  means  consistent  in  carrj-ing  them  out. 

800.   The  "Broad  seal  case,"  continued. 

The  charge  that  an  election  oflicer  was  not  legally  chosen  not  being 
frzlly  established,  the  committee  declined  to  reject  the  poll. 

Failure  to  transmit  to  a  county  clerk  certificate  of  the  choice  of  an 
election  officer  is  not  a  reason  for  rejecting  the  poll. 

3.  As  to  the  conduct,  qualifications,  and  competency  of  election  ofiicers. 

(a)  The  majority  say: 

It  only  remains  to  notice  the  objections  made  to  the  validity  of  the  election  at  South  Amboy, 
and  the  allegation  of  fraudulent  practices  by  the  officers  of  the  election  at  Saddle  River. 

The  objections  to  the  election  in  those  two  townships  will  be  considered  in  the  order  in  which  they 
are  named. 

For  himself  and  associates,  "Mr.  Halated  objects  to  the  election  held  in  the  township  of  South 
Amboy,  in  the  county  of  Middlesex,  because  the  said  election  was  held  by  judges  who  were  not  chosen 
according  to  law. 

"And  because  John  B.  Appelget,  who  had  been  duly  chosen  inspector  of  said  election,  according 
to  law,  to  supply  the  place  of  Clarkson  Brown,  who  was  disqualified,  was  not  permitted  to  act  as  inspector 
at  said  election  in  said  township. 

"And  because  James  M.  Wame  acted  as  inspector  of  said  election  in  said  township,  without 
having  been  duly  elected  inspector  according  to  law. 

"And  because  there  was  no  certificate  of  the  election  of  the  said  James  M.  Wame,  inspector, 
signed  by  three  reputable  freeholders,  transmitted  to  the  clerk  of  the  common  pleas  of  the  county  of 
Middlesex  within  the  time  prescribed  by  law. 

"And  because  the  judge  of  the  election  in  said  township  of  South  Amboy  knowingly  received 
illegal  votes. 

"And  because  the  said  judges  of  said  election  did  not  conduct  the  said  election  in  said  township 
according  to  law." 

After  having  heard  and  considered  the  testimony  in  support  of  the  above  allegations,  the  com- 
mittee unanimously  resolved  "  that  there  did  not  appear  any  sufficient  reason  for  setting  aside  the 
election  in  South  Amboy." 

In  New  Jersey  the  election  is  conducted  in  each  township  by  a  judge,  and  the  assessor  and  collector 
of  the  township,  who  are  ex  officio  inspectors  of  election;  and  the  law  prescribes  that  "  if  the  judge, 
assessor,  and  collector,  or  either  of  them,  shall  not  be  present  at  the  time  and  place  of  holding  the 
election,  or  shall  be  di-squalified  to  hold  the  same,  then,  at  the  hour  of  10  o'clock,  the  people  present 
entitled  to  vote  shaU  proceed  to  choose  a  person  or  persons  to  serve  in  the  place  of  him  or  them  so  absent 
or  disqualified." 

One  inspector  at  South  Amboy  being  disqualified,  three  persons  were  placed 
in  nomination  for  the  vacancy.  As  to  whether  or  not  James  M.  Wame,  one  of 
these,  was  elected  substantially  in  conformity  with  law,  there  was  a  conflict  of 
testimony.  After  weighing  the  evidence  the  majority  conclude  that  the  contestants 
failed  to  establish  their  allegations  that  the  South  Amboy  election  "was  held  by 
officers  not  chosen  according  to  law." 


1038  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §  801 

The  minority  say  as  to  this  point: 

In  the  township  of  South  Amboy,  a  whig  inspector  was  duly  elected  by  the  majority  of  the  people 
present  at  the  time  prescribed  by  law,  but  was  not  permitted  to  act.  The  moderator  of  the  town  meeting, 
after  such  choice,  took  it  upon  himself  to  proclaim  a  new  election;  and  he  kept  the  same  open  until  a 
sufficient  number  of  his  political  friends  were  assembled  to  secure  the  election  of  the  administration 
candidate.  This  of  itself  would  seem  to  us  to  be  sufficient  to  render  the  election,  so  far  as  this  township 
is  concerned,  iiregular  and  void. 

(b)  The  majority  further  say: 

The  third  allegation,  to  wit:  "That  there  was  no  certificate  of  the  election  of  James  M.  Wame, 
inspector,  signed  by  three  reputable  freeholders,  transmitted  to  the  clerk  of  the  common  pleas  of  the 
county  of  Middlesex  within  the  time  prescribed  by  law,"  although  proved,  is  believed  by  the  committee 
to  be  entirely  inadequate  to  affect  the  validity  of  an  elecion  legally  held.  Surely,  it  can  not  be  that 
one  of  the  dearest  rights  of  Jerseymen— a  right  which,  more  than  any  other,  distinguishes  the  citizen 
of  a  representative  Government  from  the  subject  of  a  despot — is  to  be  trampled  in  the  dust,  because, 
forsooth,  there  was  no  certificate  of  the  election  of  James  M.  Wame,  inspector,  signed  by  three  reputable 
freeholdsrs,  transmitted  to  the  clerk  of  common  pleas  of  the  county  of  Middlesex  within  three  days 
thereafter!  Whatever  pretext  such  an  omission  may  have  afforded  to  the  clerk  of  the  county  of  Middle- 
sex for  the  perpetration  of  a  daring  outrage  upon  the  rights  of  his  fellow-citizens,  in  suppressing  the 
votes  polled  at  South  Amboy,  in  the  return  transmitted  by  him  to  the  governor,  it  can  not  affect  the 
legality  of  the  election.  It  was  not  necessary  that  a  certificate  of  the  election  of  the  inspector  should 
have  been  transmitted  to  the  clerk  of  common  pleas,  either  before  or  during  the  election;  and  the 
omission  to  do  so  afterwards,  can  not  have  a  retrospective  effect  to  defeat  the  will  of  the  people,  expressed 
in  conformity  with  law.  The  disqualification  of  an  officer,  to  affect  the  legality  of  an  election,  must 
evidently  be  coexistent  with  the  election. 

801.   The  "  Broad  seal  case,"  continued. 

An  election  being  honestly  conducted,  the  reception  of  illegal  votes 
does  not  vitiate  the  poll. 

No  fraud  being  shown,  a  poll  is  not  rejected  because  the  ballot  box 
does  not  contain  as  many  votes  as  are  proved  by  oath  of  voters. 

((■)  The  majority  further  say: 

The  fourth  and  fifth  allegations  are,  in  substance,  that  the  judges  of  the  election  knowingly  received 
illegal  votes,  and  did  not  conduct  the  election  according  t<i  law. 

Illegal  votes  were  proved  before  the  committee  to  have  been  received  for  both  parties  at  South 
Amboy,  of  which  the  poll  has  been  purged  by  the  committee;  but,  so  far  as  intention  was  concerned, 
it  appears,  by  the  evidence,  that  the  election  was  fairly,  honestly,  and  legally  conducted;  and  the 
proof  is  insufficient  to  establish  the  fact  that  a  single  illegal  vote  was  knowingly  received. 

id)  The  majority  further  say: 

Mr.  Halsted  and  associates  also  claim  to  set  aside  the  poll  held  at  the  township  of  Saddle  Eiver, 
in  the  county  of  Bergen,  because  eight  votes,  at  least,  given  for  them  by  persons  legally  entitled  to  vote, 
were  fraudulently  abstracted  from  the  ballot  box,  and  at  least  as  many  for  their  opponents  substituted 
in  their  place;  because,  in  making  out  the  list  of  votes  in  said  township,  at  least  eight  votes  less  than 
were  actually  given  for  them  were  counted  in  their  favor,  and  at  least  as  many  were  counted  for  their 
opponents  more  than  they  actually  received ;  and  because  the  list  of  votes  of  said  township  shows  upon 
its  face  evidence  of  mistake  or  fraud. 

In  support  of  these  allegations  the  depositions  of  31  voters  are  produced,  each  one  of  whom  swears 
tliat  he  voted  the  WTiig  ticket;  and,  by  the  deposition  of  the  clerk  of  the  election,  it  appears  that  one 
other,  who  was  not  sworn  in  person,  voted  the  same  ticket — making,  in  all,  32  votes.  (See  testimony 
accompanying  this  report,  from  page  424  to  446,  inclusive.) 

They  also  show  that  the  officers  of  the  election  at  Saddle  River  returned  but  24  votes  for  them, 
leaving  8  votes  to  be  accounted  for;  and  that  127  votes,  in  all,  were  returned,  when  it  appears  that  there 
should  have  been  but  126. 


§  802  GENEEAL   ELECTION    CASES,   1840   TO   1850.  1039 

On  the  part  of  Messrs.  Vroom  and  his  associates  it  was  contended  that  the 
election  was  fairly  and  legally  conducted,  and  that  the  ballot  box  was  so  secured 
that  its  violation  was  impossible.  They  also  offered  explanations  to  cover  nearly 
the  whole  discrepancy.     The  majority  of  the  committee  say  that  they — 

are  so  well  convinced,  from  the  evidence,  that  the  election  was  fairly  and  legally  conducted,  and  that 
no  fraud  was  perpetrated  on  the  ballot  box,  that  they  have  determined  to  take  the  return  of  the  officers 
of  election  .ts  the  best  evidence  produced,  and  to  sustain  the  legality  of  the  Saddle  River  poll. 

The  minority  say  as  to  this  poll : 

It  appears,  from  proof  which  we  deem  quite  satisfactory,  that  .S2  votes  were  deposited  in  the  ballot 
box  at  Saddle  River  for  the  opposition  candidates;  the  voters  themselves  swear  to  it  in  positive  terms; 
and  yet,  from  some  cause,  when  the  votes  came  to  be  counted  off,  the  number  appeared  to  be  only  24. 
We  do  not  intend  to  cast  an  imputation  upon  the  inspectors  of  the  election ;  they  are,  doubtless,  respect- 
able men;  but  the  House  can  hardly  fail  to  be  impressed  with  the  fact,  that  evidence  is  adduced  as  to 
the  good  character  of  the  inspectors,  but  none  at  all  as  to  that  of  the  clerk ;  and  as  he  had  charge  of  the 
ballot  box,  he  can,  doubtless,  explain  the  rule  of  reduction  which  seems  to  have  operated  so  mysteriously 
in  Saddle  River  Township. 

802.    The  "  Broad  seal  case,"  continued. 

Discussion  as  to  duties  of  returning-  officers  with  reference  to  tech- 
nical requirements  of  law. 

4.  As  to  the  conduct  of  certain  returning  officers. 
The  majority  in  their  report  say: 

The  committee  do  not  think  it  necessary  to  comment  upon  the  extraordinary  transactions  which 
occurred  in  New  Jersey  shortly  after  the  closing  of  the  polls,  and  from  which,  it  is  believed,  all  the 
difficulties  of  this  case  originated,  further  than  to  say  that  in  suppressing  the  votes  of  Millville  and 
South  Amboy,  the  clerks  of  Middlesex  and  Cumberland  were  guilty  of  a  gross  violation  of  the  elective 
franchise,  calculated  virtually  to  deprive  the  people  of  one  of  their  dearest  rights,  and  to  keep  from  this 
House  a  knowledge  of  those  facts  by  which  alone  it  can  judge  of  the  election  of  its  Members.  The  duties 
of  those  clerks,  as  returning  officers,  were  strictly  ministerial;  and  when,  instead  of  making  a  faithful 
record  of  the  people's  will,  as  expressed  at  the  polls,  and  transmitting  those  records  to  the  governor,  or 
person  administering  the  laws  of  the  State,  they  undertook  to  decide  upon  the  legality  of  the  polls,  and 
to  act  in  accordance  with  those  decisions,  they  exercised  an  unauthorized  power,  which,  for  more  than 
three  months,  silenced  the  voices  of  five  out  of  the  six  Members  to  which  New  Jersey  was  entitled  in  the 
House  of  Representatives;  and  for  which  their  conduct,  whether  proceeding  from  ignorance  or  design, 
must  meet  with  the  unqualified  disapprobation  of  the  honest  and  intelligent  of  every  party. 

The  minority  say : 

Much  censure  has  been  cast  upon  the  clerks  of  Cumberland  and  Middlesex,  because  the  return  of 
votes  from  the  townships  of  Millville  and  South  Amboy  were  not  included  in  their  general  lists  forwarded 
to  the  governor.  With  how  little  justice,  the  following  facts  will  show.  The  Millville  return  was  made 
to  the  clerk  on  the  13th  of  October,  "between  the  hours  of  10  and  11  in  the  afternoon;"  and  as  the  law 
of  New  Jersey  is  positive  that  the  return  shall  be  made  to  the  clerk  "before  5  o'clock  of  that  day,"  and 
he  is  then,  at  5  o'clock,  to  make  his  "general  list,"  to  be  transmitted  to  the  governor,  of  course  he  could 
include  in  that  general  list  no  returns  except  such  as  were  received  "before  5  o'clock."  The  clerk  had 
no  discretion;  he  proceeded  according  to  law,  and  is  in  no  way  censurable;  the  blame,  if  any,  belongs  to 
the  election  officers. 

The  return  from  South  Amboy  was  made  by  a  judge  and  inspector,  and  by  James  M.  Warn,  repre- 
senting himself  as  an  inspector;  his  name,  however,  as  such,  does  not  appear  in  the  list  of  town  officers, 
nor  was  there  any  certificate  or  other  evidence  of  his  election  as  inspector  filed  with  the  clerk,  as  the  law 
requires.  If  he  had  been  duly  elected  to  supply  a  vacancy  (which  we  insist  he  was  not),  the  law  requires 
the  certificate  of  such  election  to  be  filed  with  the  clerk  within  three  days.  None  such  was  ever  filed. 
The  certificate  was  presented  to  the  clerk  ten  days  after  the  election,  and  after  the  general  list  had  been 


1040  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   803 

made  out  and  Bent  to  the  governor.  Of  course,  as  the  return  was  not  made  according  to  law,  the  clerk 
could  not  receive  it;  especially  in  a  case  like  South  Amboy,  where  the  election  of  this  very  inspector 
was  disputed  as  illegal  and  fraudulent,  and  where  he  and  those  who  acted  with  him  decided  to  receive 
alien  votes,  and  actually  did  receive  a  number  of  such.  The  evidence  adduced  to  sustain  the  charge  of 
fraud  against  the  clerk  of  Middlesex  very  clearly  disproves  the  whole  charge;  and  his  conduct,  like  that 
of  the  clerk  of  Cumberland,  was  strictly  in  accordance  with  the  law,  and  in  nowise  censurable,  unless 
the  refusal  to  violate  the  law,  in  order  to  receive  an  illegal  return,  including  a  number  of  alien  and  illegal 
votes,  be  censurable. 

The  majority  of  the  committee,  as  a  result  of  their  application  of  the  enunciated 
principles,  recommended  the  following  resolution : 

Resolved,  That  Peter  D.  Vroom,  Philemon  Dickerson,  William  R.  Cooper,  Daniel  B.  Ryall,  and 
Joseph  Kille  are  entitled  to  occupy,  as  Members  of  the  House  of  Representatives,  the  five  contested 
seats  from  the  State  of  New  Jersey. 

The  minority  admitted  the  election  of  Messrs.  Vroom  and  Cooper,  but  contended 
that  the  contestants  were  elected  to  the  remaining  three  seats. 

On  July  16,'  under  the  operation  of  the  previous  question,  the  resolution  pro- 
posed by  the  majority  was  agreed  to,  yeas  102,  nays  22.  Many  members  declined 
to  vote,  apparently  with  the  intention  of  breaking  a  quorum. 

803.  The  Pennsylvania  election  case  of  IngersoU  v.  Naylor,  in  the 
Twenty-sixth  Congress. 

Two  claimants  appearing  with  conflicting  credentials  at  the  time  of 
organization,  the  Members-elect  examined  and  determined  which  should 
vote. 

Instance  wherein  citizens  of  a  district,  by  memorial,  participated  in 
an  election  contest. 

Before  the  enactment  of  a  law,  the  Elections  Committee,  having  power 
to  compel  testimony,  delegated  the  duty  of  taking  depositions. 

Before  the  enactment  of  the  law,  the  Elections  Committee  directed 
testimony  to  be  sealed  and  transmitted  to  its  chairman. 

When  the  House  met  for  organization  on  December  2,  1839,  and  the  clerk  of 
the  last  House  began  the  call  of  the  roll  of  Members-elect,  which  at  that  time  was 
made  up  in  pursuance  of  usage  and  not  in  accordance  with  law,  a  question  arose 
when  the  State  of  New  Jersey  was  reached.  This  question  caused  a  prolonged 
controversy,  during  which  the  assembled  Members-elect  chose  Mr.  John  Quincy 
Adams,  a  Member-elect  from  Massachusetts,  chairman.  As  the  proceedings  went 
on  it  appeared  that  there  were  participating  in  the  proceedings  Messrs.  Charles 
Naylor  and  Charles  J.  IngersoU,  claimants  from  the  same  district  in  Pennsylvania. 
Each  had  what  purported  to  be  credentials,  and  on  December  10  and  IV,  a  question 
came  as  to  which  of  the  two  should  be  allowed  to  participate.  After  examination 
of  the  credentials  and  law  of  Pennsjdvania  the  assemblage  decided  that  Mr.  Naylor 
should  be  permitted  to  vote  and  that  Mr.  IngersoU  should  not  vote. 

On  December  17',  when  the  House  had  finally  elected  a  Speaker,  the  oath  was 
administered  to  Mr.  Naylor  with  the  other  Pennsylvania  Members. 

'  Journal,  p.  1297. 

^  First  session  Twenty-sixth  Congress,  Journal,  pp.  11-14,  20;  Globe,  pp.  38-40. 

^  Journal,  p.  84. 


§  8U4  GENER.U.   ELECTION   CASES,  1840   TO   18.50.  1041 

On  January  24,  1840,'  Mr.  George  M.  Keim,  of  Pennsylvania,  presented  the 
petition  of  Mr.  Ingersoll  setting  forth  that  he  was  elected  to  Congress  from  the 
Third  district  of  Pennsylvania;  that  Mr.  Xaylor  was  not  elected,  and  praying  an 
investigation.  Mr.  William  S.  Ramsay,  of  Pennsylvania,  also  presented  a  petition 
of  citizens  and  electors  of  the  said  district  complaining  of  fraud  and  illegahty  in  the 
election  of  Charles  Naylor,  and  praying  for  an  investigation. 

These  petitions  were  referred  to  the  Committee  on  Elections. 

On  February  24-  the  House,  by  resolution,  authorized  the  Committee  on 
Elections  in  this  case  "to  send  for  persons  and  papers." 

On  February  26^  the  Elections  Committee,  in  accordance  with  the  usage  at 
that  time,  and  in  the  absence  of  any  law  prescribing  the  manner  of  conducting 
election  contests,  adopted  a  resolution  authorizing  the  parties  to  take  testimony 
"before  Boys  Xewcomb  and  William  Grennell,  esqs.,  commissioners,"  or  such 
persons  as  they  might  appoint,  providing  for  notice  between  the  parties,  etc.,  and 
also  containing  the  following  further  provisions : 

And  that,  if  any  witness  or  witnesses  shall  refuse  to  attend,  upon  a  subpoena  for  that  purpose  being 
eerved  upon  him  or  them,  by  order  of  the  commissioners  or  commissioner,  or,  attending,  shall  refuse  to 
testify,  the  name  or  names  of  such  witness  or  witnesses  shall  be  reported  forthwith  to  this  committee,  by 
the  comLmissioners  or  commissioner,  for  such  further  proceeding  as  this  committee  shall  direct. 

And  that  all  testimony  taken  by  virtue  of  this  resolution  shall  be  certified,  sealed  up,  and  trans- 
mitted by  the  commissioners  or  commissioner  to  the  chairman  of  this  committee  on  or  before  the  3d 
day  of  April  next. 

804.    The  case  of  Ingersoll  v.  Naylor,  continued. 

Hearsay  evidence  is  rejected  in  considering  an  election  contest. 

No  illegal  vote  being  shown,  the  poll  was  not  rejected  because  of  pre- 
sumptions created  by  a  census  and  arithmetical  calculations. 

An  election  may  not  be  impeached  by  comparison  with  the  result  at 
another  election  in  the  same  constituency. 

In  the  absence  of  fraud  or  injustice  irregular  action  by  election  offi- 
cers does  not  vitiate  the  poll. 

On  July  17*  Mr.  Millard  Fillmore,  of  New  York,  submitted  the  report  of  a 
majority  of  the  committee,  five  of  the  nine  Members  concurring  in  it.  Three  mem- 
bers of  the  committee  signed  minority  views,  and  one  member  of  the  committee  did 
not  act  in  the  case  and  concurred  neither  in  the  report  nor  the  views. 

The  majority  reported  a  resolution  confirming  the  title  of  Mr.  Naylor  to  the 
seat,  while  the  minority  proposed  that  the  seat  be  declared  vacant. 

Two  questions  were  involved  in  the  case. 

1.  Mr.  Ingersoll  alleged  that  in  Spring  Garden  and  in  five  wards  of  an  incor- 
porated district  called  the  Northern  Liberties  there  were  frauds  and  irregularities, 
and  that — 

by  a  conspiracy  among  the  election  officers  to  carry  the  election  by  fraud  many  hundred  names  were 
illegally  and  fraudulently  added  to  the  registries  of  voters,  being  the  names  of  persons  having  either  no 
existence  or  no  right  to  vote,  whose  votes  or  pretended  votes  were  nevertheless  counted  and  allowed  to 
Mr.  Naylor. 


'  Journal,  p.  228.  =  Report  No.  588,  p.  1. 

2  Journal,  p.  429.  '  Journal,  p.  1300;  Globe,  p.  537;  Report  No.  588,  pp.  545,  551. 

59&4 — VOL  1—07 CO 


1042  PRECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   804 

The  majority  say  that  a  large  amount  of  hearsay  evidence  was  brought  in  to 
sustain  this  allegation,  but  the  committee  rejected  it,  saying  that — 

The  nile  upon  which  the  committee  reject  all  this  hearsay  evidence  they  conceive  too  well 
settled  and  too  clear  and  just  to  require  any  argument. 

Mr.  Naylor's  majority  was  775.     The  majority  say: 

No  attempt  was  made  by  direct  evidence  to  purge  the  polls;  nor  has  the  petitioner  shown,  or 
attempted  to  show,  that  a  single  illegal  vote  was  received  by  the  officers  of  election,  or  a  single 
fictitious  one  allowed  to  the  sitting  Member.  Though  the  addition  of  a  large  number  of  names  to  the 
register  in  one  of  the  wards  in  Spring  Garden,  by  the  officers  whose  duty  it  was  to  prepare  it,  was  a 
suspicous  circumstance,  requiring  careful  scrutiny,  yet,  as  the  error,  if  any,  was  corrected  before  the 
election  commenced,  and  as  there  is  no  proof  of  any  illegal  vote  having  been  given  in  that  ward  at 
that  election,  the  committee  do  not  see  how  this  fact  can  possibly  be  invoked  to  affect  the  result. 

The  attempted  political  census,  had  it  been  otherwise  competent,  was  clearly  too  vague  and  uncer- 
tain to  lay  the  foundation  for  any  judicial  decision;  all  the  material  facts  in  it  came  under  the  general 
denomination  of  heresay  evidence,  of  the  most  loose  and  unsatisfactory  kind;  and  besides  when 
contrasted  with  the  other  authentic  evidence  it  becomes  utterly  worthless. 

The  report  also  condenms  " aritlmietical  calculations"  founded  on  "uncertain 
and  unsatisfactory  bases"  as  unworthy  of  credit. 
The  report  continues : 

The  petitioner  also  charges  a  number  of  small  irregularities  in  conducting  the  election  and  count- 
ing the  votes,  consisting  mainly  in  slight  deviations  from  the  strict  requirements  of  the  law.  There  is 
no  proof  that  any  injustice  was  done  or  fraud  intended;  and  as  there  was  manifestly  a  substantial  com- 
pliance with  the  law  the  committee  do  not  conceive  that  it  could  be  for  the  advancement  of  substan- 
tial justice  to  entertain  objections  of  this  kind.  Our  election  laws  must  necessarily  be  administered 
by  men  who  are  not  familiar  with  the  construction  of  statutes,  and  all  that  we  have  a  right  to  expect 
are  good  faith  in  their  acts  and  a  substantial  compliance  with  the  requirements  of  the  law. 

The  minority,  taking  the  ground  that  the  seat  should  be  declared  vacant 
because  of  the  "imputed  frauds  and  irregularities  of  the  election  of  1838,"  which 
had  caused  much  excitement  in  the  State  of  Pennsylvania,  say: 

At  that  election  the  majority  returned  for  Mr.  Naylor  was  775  votes;  yet  at  the  succeeding  elec- 
tion of  1839  the  majority  against  his  party  in  the  same  district  was  about  three  times  that  number  of 
votes,  which  extraordinary  change  is  believed  by  the  undersigned  to  be  ascribable  solely  to  an  altera- 
tion of  the  law  so  as  to  prevent,  in  1839,  the  frauds  and  irregularities  which  are  supposed  to  have  taken 
place  in  1838. 

The  minority  further  contend  that  the  irregularities  on  the  part  of  the  election 
officers  were  very  great ;  that  they  permitted  the  count  to  be  made  and  the  returns 
to  be  drawn  up  by  unauthorized  persons,  and  that  these  irregularities  were  in 
pursuance  of  a  conspiracy. 

2.  It  was  alleged  that  at  Spring  Garden  the  election  officers  were  not  sworn 
in  order  that  they  might  carry  the  election  of  Mr.  Naylor.  It  was  alleged  that  a 
mock  oath  was  taken,  "either  on  a  Philadelphia  directory  or  "The  Narrative 
of  the  Sufferings  of  Some  Shipwrecked  Marines,"  to  "do  justice  to  their  party  this 
day."  The  majority  of  the  committee,  after  an  examination  of  the  testimony, 
decided  to  give  no  credit  to  the  charge. 

The  report  was,  when  presented  to  the  House,  laid  on  the  table.* 

'  Journal  p.  1300. 


§  805  GENEBAL   ELECTIO>'   CASES,   1840   TO   1850.  1043 

On  January  15,  1841,'  after  arguments  by  the  contestant  and  sitting  Mem- 
ber, the  report  of  the  majority  of  the  committee  was  agreed  to  by  the  House,  yeas 
117,  nays  85. 

A  proposition  to  secure  cert  am  evidence  was  proposed,  but  not  admitted. 

805.  The  Virginia  election  case  of  Smith  v.  Banks,  in  the  Twenty- 
seventh  Congress. 

Instance  wherein,  pending  decision  on  an  election  case,  the  sitting 
Member  resigned  for  a  new  appeal  to  the  people. 

Instance  wherein  an  election  contest  abated  by  resignation  of  sitting 
Member  for  a  new  appeal  to  the  people. 

Early  instance  wherein  compensation  was  voted  to  a  contestant. 

On  June  8,  1841,'  Mr.  Thomas  W.  Gilmer,  of  Virginia,  presented  the  memorial 
of  William  Smith,  claiming  to  be  duly  elected  a  Member  of  the  House  from  the 
Thirteenth  district  of  Virginia,  instead  of  Linn  Banks,  who  had  been  returned 
and  was  the  sitting  Member.  This  memorial  was  referred  to  the  Committee  on 
Elections.  Thereafter  at  various  times'  during  the  session  testimony  relating  to 
this  contest  was  presented  and  referred  to  the  committee. 

It  appears  indirectly  from  the  Journal  that  about  Septemoer  4*  at  the  instance 
of  the  sitting  Member,  the  decision  of  this  case  was  postponed  until  the  next  session 
of  Congress. 

On  December  8,  1841,^  at  the  next  session,  Mr.  Smith  appeared  with  credentials 
showing  that  he  had  been  "elected  to  supply  the  vacancy  occasioned  by  the  resig- 
nation of  Linn  Banks.'"     Mr.  Smith  was  seated  without  objection. 

On  August  31 '  Mr.  Smith,  in  explaining  a  resolution  to  give  to  himself  pay  for 
the  time  he  was  a  contestant,  made  a  statement  of  the  case,  which  was  corroborated 
on  the  floor  by  the  chairman  of  the  Committee  on  Elections.  Mr.  Smith  stated  that 
at  the  first  session  he  conducted  his  case  before  the  Elections  Committee  imtil  he 
overcame  the  sitting  Member's  majority.  It  was  then,  he  said,  upon  the  application 
of  his  competitor,  and  against  his  own  earnest  remonstrance,  that  the  case  was  post- 
poned. Then  he  and  ^Ir.  Banks  agreed  to  refer  the  matter  to  the  people.  The 
people  decided  the  case  in  Mr.  Smith's  favor.  He  believed  that  in  the  first  instance 
he  had  been  fairly  elected,  and  therefore  considered  himself  entitled  to  the  compen- 
sation.    The  House  voted  the  compensation. 

806.  The  Maine  election  case  of  Joshua  A.  Lowell,  in  the  Twenty- 
seventh  Congress. 

Instance  of  an  election  contest  instituted  by  the  remonstrance  of  citi- 
zens and  electors  of  the  district. 

The  House  did  not  make  critical  examination  in  an  election  case 
wherein  the  petitioners  were  indifferent. 

'Second  session  Twenty-sixth  Congress,  Journal,  pp.  17.3,  189;  Globe,  pp.  98,  104. 
=  First  session  Twenty-seventh  Congress,  Journal,  p.  52. 
'Journal,  pp.  76.  282,  33.5,  350. 

*  Journal,  p.  465. 

*  Second  session  Twenty-seventh  Congress,  Journal,  p.  27. 
"Globe,  p.  979. 


1044  PEECEDEXTS   OF    THE   HOUSE    OF   REPEESENTATIVES.  §   807 

On  January  13, 1842,'  the  Speaker  laid  before  the  House  testimony  in  the  election 
case  relating  to  the  seat  occupied  by  Mr.  Joshua  A.  Lowell,  of  Maine.  It  does  not 
appear  that  any  other  papers  were  presented  to  the  House  or  referred  in  this  case, 
except  a  protest  presented  to  the  House  on  June  11,  1841.^  The  sitting  Member,  in 
his  statement  to  the  Committee  on  Elections,  states  that  as  to  this  protest  or  remon- 
strance, which  was  signed  by  George  Hobbs  and  17  other  citizens  and  legal  voters  of 
the  district,  that  it  was  not  "addressed  to  the  House,"  was  not  "presented  by  the 
Speaker  or  by  a  Member  in  his  place,"  and  "a  brief  statement  of  the  contents 
thereof"  was  not  made  verbally  by  the  introducer,  and  therefore  should  not  have 
been  received.     It  appears,  however,  that  the  Speaker  did  present  it  on  June  11. 

The  committee  considered  the  case,  and  on  March  9^  reported  on  the  "remon- 
strance and  evidence,"  but  gave  no  discussion  of  the  case,  presenting  simply  a  reso- 
lution confirming  the  title  of  Mr.  Lowell  to  the  seat. 

On  March  16,^  after  a  brief  debate,  the  resolution  was  agreed  to.  From  this 
debate,  taken  in  connection  with  the  remonstrance  and  sitting  Member's  answer,  it 
is  possible  to  arrive  at  an  understanding  of  the  leading  issues  of  the  case. 

The  remonstrants  had  specified  three  objections  which,  if  sustained,  would  have 
shown  that  Mr.  Lowell  was  not  elected.  A  majority  of  the  votes  was  required  at 
this  time  for  an  election  of  Representative  to  Congress  from  Maine,  and  the  remon- 
strants merely  asked  that  the  seat  be  declared  vacant,  it  not  being  claimed  that  any 
other  candidate  was  elected. 

Mr.  Lowell  in  his  statement  to  the  committee  answered  the  objections  made, 
and  adduced  charges  as  to  other  irregularities,  which,  if  investigated,  would  lead  to 
corrections  which  would  increase  his  majority. 

The  committee  do  not  state  the  grounds  of  their  decision. 

It  is  worth  noticing,  however,  that  the  sitting  Member  made  this  point: 

The  laws  of  the  United  States  do  not  provide  for  taking  testimony  to  be  used  in  cases  of  contested 
Congressional  elections;  and  tlie  laws  of  Maine,  while  they  provide  for  taking  testimony  to  be  used  in 
cases  of  contested  elections  in  the  State  legislature,  are  silent  on  the  subject  of  contested  elections  in 
Congress.  Testimony  to  be  used  in  contested  elections  to  Congress  can  therefore  be  taken  in  Maine 
only  by  the  consent  of  parties,  or  by  virtue  of  some  power  to  be  given  to  commissioners  by  the  House 
itself.  And  I  here  repeat  the  notice  which  I  gave  to  the  committee,  at  their  session  on  the  first  instant, 
that  I  shall  object  to  all  evidence  heretofore  taken  which  has  been  or  may  be  offered  against  my  right 
to  a  seat  in  the  House,  as  taken  ex  parte,  witliout  law  and  against  law. 

The  committee,  however,  appear  to  have  examined  the  evidence  and  also  to 
have  examined  evidence  on  the  other  side.  It  was  stated  that  the  remonstrants 
did  not  take  great  interest  in  the  case,  since  the  unseating  of  Mr.  Lowell  would 
require  a  new  election,  and  the  people  of  the  district  were  content  to  have  Mr. 
Lowell  represent  them  for  the  remainder  of  the  term. 

807.  The  Virginia  election  case  of  Goggin  v.  Gilmer,  in  the  Twenty- 
eighth  Congress. 

The  acts  of  proper  officers,  acting  within  the  sphere  of  their  duties, 
are  presumed  correct  unless  shown  to  be  otherwise. 


'  Second  session  Twenty-seventh  Congress,  Journal,  p.  173;  Globe,  p.  130. 

■  First  session  Twenty-seventh  Congress,  Journal,  p.  83. 

^Journal,  p.  .514;  Globe,  p.  301. 

*  Journal,  pp.  545,  546;  Globe,  p.  323;  1  Bartlett,  p.  37. 


§  807  GENERAL  ELECTION   CASES,   1S40  TO   1850.  1045 

In  the  absence  of  fraud  the  failure  of  election  officers  to  be  sworn 
shoiild  not  vitiate  a  poll. 

Discussion  of  directory  and  mandatory  laws  as  related  to  irregulari- 
ties in  conduct  of  elections. 

A  minority  argument  that  a  poll  shoiild  be  rejected  for  failure  of  an 
election  officer  to  be  sworn. 

The  House  did  not  indorse  a  proposition  to  declare  a  seat  vacant 
because  of  irregularities  on  the  part  of  election  officers  not  show^n  to  be 
corrupt. 

A  Member  being  appointed  to  an  incompatible  office,  a  contestant  not 
found  to  be  elected  was  not  admitted  to  fill  the  vacancy. 

On  December  7,  1843,'  Mr.  WilloughVjy  Xewton,  of  Virginia,  presented  a 
memorial  of  William  L.  Goggin,  contesting  the  seat  of  Thomas  W.  Gihner,  of  Vir- 
ginia.    This  memorial  was  referred  to  the  Committee  on  Elections. 

On  Januan,'  2.5,  1844,^  Mr.  Lucius  Q.  C.  Elmer,  of  New  Jersey,  presented  the 
report  of  the  committee.  At  a  later  time  Mr.  Robert  0.  Schenck,  of  Ohio,  on  the 
part  of  himself,  and  Messrs.  Garrett  Davis,  of  Kentucky',  and  Willoughby  Newton, 
of  Virginia,  filed  minority  views. 

Mr.  Gilmer  was  returned  by  a  majority  of  20  votes  over  Mr.  Goggin.  The 
validity  of  this  majority  was  attacked  on  several  grounds,  which  are  discussed 
as  follows: 

1.  The  law  of  Virginia  had  at  that  time  the  following  provision: 

If  the  electors,  who  appear  to  be  so  numerous  that  they  can  not  all  be  polled  before  sun  setting, 
or  if  by  rain  or  rise  of  water  courses  many  of  the  electors  may  have  been  hindered  from  attending, 
the  sheriff,  under  sheriff,  or  other  officer  conducting  the  election  at  the  court-house,  and  the  superin- 
tendents of  any  separate  poll,  if  such  cause  shall  exist  at  any  separate  poll  for  the  adjournment 
thereof,  may,  and  shall,  by  the  request  of  any  one  or  more  of  the  candidates,  or  their  agents,  adjourn 
the  proceedings  on  the  poll  until  the  next  day,  and  from  day  to  day  for  three  days  (Stindays 
excluded),  giving  notice  thereof  at  the  door  of  the  court-house. 

In  two  counties  polls  were  continued  by  reason  of  rains,  and  it  was  from  the 
votes  cast  at  these  postponed  elections  that  all  of  the  sitting  ilember's  majority 
was  obtained.  On  the  poll  of  the  regular  first  day  Mr.  Goggin  had  a  majority  of 
74  votes. 

The  majority  and  minority  differed  in  their  interpretation  of  this  law  and  as 
to  whether  or  not  the  acts  of  the  elections  officers  were  in  accordance  with  its  pro- 
visions.    The  majority  saj^: 

It  being  a  clear  principle  that  the  acts  of  the  proper  officers,  acting  within  the  sphere  of  their 
duties,  must  be  presumed  to  be  correct  unless  shown  to  be  otherwise,  it  is  incumbent  on  Mr.  Goggin 
to  prove,  by  competent  evidence,  that  the  adjotuTiments  were,  in  point  of  fact,  made  without  the 
request  of  any  candidate  or  his  agent.     This  he  has  failed  to  do. 

The  minority  say: 

While  the  undersigned  believe,  therefore,  and  admit  that  much  should  be  allowed  to  the  discre- 
tion of  the  officers,  and  that  the  first  presumption  should  always  be  in  favor  of  a  sound  and  rightful 
exercise  of  that  discretion,  yet  there  is  no  reason  why,  in  a  proper  case,  there  should  not  be  an  inquiry 

'  First  session  Twenty-eighth  Congress,  Journal,  p.  30. 

'  Journal,  pp.  291,  312;  Globe,  pp.  192,  193.  20.5;  House  Report  No.  76,  pp.  1  and  129. 


1046  PKECEDENTS   OF   THE   HOUSE   OF   KEPEESENTATIVES.  §  807 

into  the  sufficiency  of  the  cause  assumed  by  them  for  their  action.  The  undersigned  are  of  opinion, 
also  that  such  judgment  of  the  officers  conducting  the  election,  so  far  as  they  may  have  acted  in 
reference  to  that  which  the  law  in  any  way  leaves  to  their  discretion,  ought  not  to  be  disturbed  or  set 
aside,  except  in  a  case  of  clear  and  flagrant  error  or  wrong. 

2.  The  petitioner  alleged  that  certain  election  officers  were  not  swom. 

The  majority  report  says: 

Without  stopping  to  inquire  whether  the  votes  taken  in  a  county  or  district  ought  to  be  rejectetl, 
and  the  voters  be  thus  disfranchised,  or  the  people  put  to  the  expense  and  trouble  of  a  new  election, 
on  account  of  the  officers  neglecting  a  part  of  their  duty,  even  so  important  a  matter  as  that  of  being 
sworn,  in  a  case  where  there  is  no  allegation  that  the  omission  produced  any  practical  evil,  the  com- 
mittee are  of  opinion  that  the  evidence  produced  does  not  amount  to  even  prima  facie  proof  that  the 
superintendents  conducting  the  elections    *    *    *    were  not  swom. 

The  majority  examine  this  evidence.     The  minority,  while  not  agreeing  entirely, 

say: 

Great  looseness  and  negligence  appear  to  have  prevailed  at  almost  every  precinct  in  the  dis- 
trict. *  *  *  The  undersigned,  however,  have  been  always  satisfied  with  anything  approaching  tea 
substantial  compliance  with  what  the  law  prescribes.  They  believe  that  whenever  a  failure  of  obe- 
dience to  these  directory  provisions  does  not  necessarily  involve  the  probability  of  a  wrong  or  tend  to 
make  a  dangerous  precedent  by  taking  away  some  of  the  substantial  safeguards  which  are  to  secure  the 
purity  of  elections,  such  failure  ought  not  to  be  treated  as  sufficient  to  make  void  the  apparent  returns. 
Every  regulation  in  relation  to  elections — of  time,  place,  manner,  form  of  vote,  ofiicers  who  are  to  conduct 
them,  poll  books,  returns,  and  whatever  else  pertains  to  the  exercise  of  that  invaluable  franchise  of  the 
citizen — is,  in  fact,  directory;  but  there  are  some  of  these  regulations  more  substantive  and  important 
in  their  use  and  character  than  others;  and  somewhere  it  is  necessary  to  draw  the  line,  distinguishing 
between  that  which  is  proper,  but  not  essential,  and  that  which  so  enters  into  the  essential  character  of 
a  good  election  that  a  failure  in  it  sliould  be  held  a  fatal  defect.  Of  this  latter  class  the  undersigned 
believe  to  be  the  requirement  of  an  oath  from  the  election  officers. 

The  minority  refer  to  the  cases  of  McFarland  v.  Purviance,  McFarland  v.  Cul- 
pepper, Porterfield  v.  McCoy,  Easton  v.  Scott,  and  Draper  t'.  Johnston. 

As  a  result  of  their  examination  the  majority  of  the  committee  found  the  sit- 
ting Member  elected  by  at  least  a  majoritj*  of  4  votes,  even  allowing  contentions 
which  they  did  not  admit.  Therefore  thej'  reported  a  resolution  confirming  the 
title  of  Mr.  Gilmer  to  the  seat. 

The  minority  found  as  the  result  of  their  examination  that  Mr.  Goggin  had  a 
majority  of  30  votes.     They  say: 

They  arc  clearly  satisfied  that  Mr.  Gilmer,  the  sitting  Member,  has  not  obtained  a  majority  of  the 
votes  legally  taken  in  the  district  entitling  him  to  retain  his  place  as  a  Representative  in  this  body. 
But  such  result  being  produced  (in  part  at  least)  by  the  failure  or  duty  or  misconduct  of  officers,  whose 
action  should  not  be  permitted  to  interfere  with  an  opportunity  afforded  to  the  electors  of  the  district 
to  express  clearly  and  with  certainty  their  will,  by  a  properly  ascertained  majority,  the  undersigned 
do  not  agree  that  the  seat,  if  thus  vacated,  ought  to  be  given  to  Mr.  Goggin.  They  recommend,  there- 
fore, the  passage  of  the  following  resolution: 

Resolved,  That  the  seat  now  held  by  Thomas  W.  Gilmer,  as  Representative  from  the  Fifth  district 
of  Virginia  in  this  House,  is  hereby  declared  vacant,  and  that  a  communication  be  sent  to  the  gov- 
ernor of  that  State  to  inform  him  of  that  fact  that  an  election  may  be  made  by  the  people  of  that  district 
to  fill  the  vacancy. 

On  February  15,'  before  the  report  was  acted  on,  a  message  of  President  Tyler 

'  Senate  Executive  Journal,  1841-1845,  pp.  235,  236. 


I 


§  808  GENERAL   ELECTION    CASES,   1840   TO   1850.  1047 

was  received  in  the  Senate,  nominating  Mr.  Gilmer  as  Secretarj-  of  the  Na-sry-,  and 
on  the  same  day  the  nomination  was  confirmed. 

On  February  16'  Mr.  Willoughby  Newton,  of  Virginia,  proposed  the  following: 

Ordered  Th^t  William  L.  Goggin  have  leave  to  withdraw  his  memorial  contesting  the  right  of 
Ihomas  W  .  Gilmer  to  a  seat  as  a  Member  of  the  House  of  Representatives. 

Ml.  Newton  stated  that  Mr.  Goggin  did  not  concede  that  Mr.  Gilmer  had  been 
elected,  but  as  the  latter  had  sent  his  resignation  to  the  governor  of  Virginia  the 
object  of  the  contestant,  which  was  to  procure  another  trial  before  the  people  had 
been  attained.  ' 

The  House  agreed  to  the  order  without  division. 

On  February  17'  :Mr.  Gilmer's  resignation  was  announced  in  the  House 

On  May  10 '  Mr.  Goggin,  with  credentials  showing  his  election  to  fill  the  vacancy 
caused  by  Mr.  GUmer's  resignation,  appeared  and  took  his  seat. 

808.  The  Massachusetts  election  case  of  Osmyn  Baker,  in  the  Twenty- 
eighth  Congress. 

Instance  of  an  election  contest  instituted  by  a  memorial  from  citi- 
zens of  the  district. 

The  parties  complaining  of  an  undue  election  faUing  to  present  evi- 
dence, the  House  did  not  pursue  the  inqmry. 

On  February  5,  1840,'  Mr.  William  Parmenter,  of  Massachusetts,  presented  a 
memonal  of  citizens  and  leg^l  voters  of  the  SLxth  Congressional  district  of  Massa- 
chusetts, remonstratmg  against  the  return  of  Osmyn  Baker,  by  the  governor  and 
council  of  that  State  as  a  Member  of  the  House,  and  praying  that  his  seat  may  be 
vacated  for  the  reason  that  he  did  not  receive  a  majority  of  the  votes  given  bv  the 
legal  voters.  -^ 

This  memorial  was  referred  to  the  Committee  on  Elections. 
On  March  19  =  a  further  representation  and  memorial  in  this  case  was  presented 
and  referred. 

On  February  24  » the  Committee  on  Elections  was  authorized  to  send  for  persons 
and  papers  in  reference  to  this  case. 

On  July  17'  Mr.  John  Campbell,  of  South  Carolina,  from  the  Committee  on 
i!>lections,  reported  this  resolution,  which  was  agreed  to: 

Resolved,  Th^t  the  Committee  on  Elections  be  discharged  from  the  further  consideration  of  the 
petitions  of  ceruin  electors  o.  the  Sixth  Congressional  district  of  the  State  of  Ma^chusetts,  alleging 
that  Osmyn  Baker,  the  e.tt.ng  Member  from  that  district,  wa^  not  duly  elected  a  Member  of  the  nfuse 
of  Repr^entatives,  there  being  no  e^ddence  produced  to  the  committee  in  support  of  the  allegations 
of  the  petitioners,  and  the  time  limited  by  agreement  of  parties  and  the  authority  of  the  comm^ee  f" 
completing  the  taking  of  the  same  having  expired  on  the  fourth  Monday  of  May  last. 

'  House  Journal,  p.  414;  Globe,  p.  289. 

'  Journal,  p.  416;  Globe,  p.  291. 

'  Journal,  p.  890. 

*  First  session  Twenty-sixth  Congress.  Journal,  p.  278;  Globe  p   164 

'Journal,  p.  638;  Globe,  pp.  278,  279. 

"Journal,  pp.  429-433. 

'Journal,  p.  1300. 


1048  PKECEDENTS   OF   THE    HOUSE   OF   REPRESENTATIVES.  §   809 

809.  The  Virginia  election  case  of  Botts  v.  Jones,  the  Speaker,  in  the 
Twenty-eighth  Congress. 

The  seat  of  the  Speaker  being  contested,  he  vacated  the  chair  on  every 
question  relating  to  the  contest. 

The  Speaker's  seat  being  contested,  the  House  directed  that  the  Elec- 
tions Committee  be  appointed  by  the  Speaker  pro  tempore. 

On  December  4,  1843/  the  House  elected  John  W.  Jones,  of  Virginia,  Speaker 
On  December  7,'  Mr.  John  Quincy  Adams,  of  Massachusetts,  indicated  his  purpose 
to  present  the  memorial  of  John  M.  Botts  contesting  the  seat  of  John  W.  Jones,  of 
Virginia.  The  Speaker  thereupon  called  Mr.  Samuel  Beardsley,^  of  New  York,  to 
the  chair.  Then  Mr.  Adams  presented  the  memorial,  which  was  ordered  to  be 
referred  to  the  Committee  on  Elections  when  appointed.  Later  in  the  same  day  * 
the  Speaker,  by  general  consent,  stated  that  it  seemed  proper  for  him  to  ask  the 
House  that  he  be  relieved  of  the  appointment  of  the  standing  Committee  on  Elections 
in  view  of  the  fact  that  his  own  seat  was  contested.  The  Speaker  again  called  Mr 
Beardsley  to  the  chair,  and  after  debate,  by  a  vote  of  98  to  48,  the  House  decided 
that  Mr.  Beardsley  should  appoint  the  committee. 

Mr.  Beardsley  thereupon  appointed  the  committee,  Mr.  William  W.  Payne,  of 
Alabama,  being  chairman. 

On  December  13^  the  Speaker  again  left  the  chair,  calling  Mr.  Linn  Boyd,  of 
Kentucky,  as  Speaker  pro  tempore. 

Then  it  was  ordered,  on  motion  of  Mr.  L.  Q.  C.  Elmer,  of  New  Jersey,  a  member 
of  the  Committee  on  Elections,  that  all  documents  in  possession  of  the  clerk  in  the 
case  of  Botts  v.  Jones  be  referred  to  the  Committee  on  Elections. 

On  May  21,  1844,"  the  Speaker  called  Mr.  John  B.  Weller,  of  Ohio,  to  the  chair, 
and  thereupon  Mr.  Elmer  submitted  the  report  of  the  majority  of  the  Conunittee  on 
Elections.  Again,  on  May  31,'  the  Speaker  called  Mr.  Weller  to  the  chair,  and  Mr. 
Willoughby  Newton,  of  Virginia,  submitted  the  views  of  the  minority. 

810.  The  case  of  Botts  v.  Jones,  continued. 

A  person  whose  vote  has  been  received  by  the  officers  of  election  is 
presumed  to  be  qualified. 

Instance  wherein  by  agreement  of  parties  evidence  in  an  election  case 
was  taken  under  a  State  law. 

A  poll  fairly  conducted  should  not  be  set  aside  because  an  election 
officer  had  not  been  sworn. 

The  issues  in  the  case  were  as  follows : 

The  testimony  in  the  contest  had  been  taken  by  agreement  of  the  parties 
according  to  the  Virginia  law  regulating  contests  before  the  State  legislature,  and 
acting  in  accordance  with  that  practice  each  party  considered  himself  bound  to 
establish  the  right  of  the  voter  challenged  by  the  other  party.     The  committee 

'  First  session  Twenty-eighth  Congress,  Journal,  p.  8. 

=  Journal,  p.  30;  Globe,  p.  18. 

^  Mr.  Beardsley  belonged  to  the  majority  party  in  the  House. 

*  Journal,  p.  40;  Globe,  p.  21. 

*  Journal,  p.  50. 

'Journal,  p.  948;  Report  H.  of  R.,  No.  492. 
'Journal,  p.  989;  Report  H.  of  R.,  No.  520. 


§   811  GENERAL   ELECTION    CASES,   1840   TO   1850.  1049 

expressed  the  opinion  that  every  voter  admitted  by  the  regular  officers  authorized 
to  decide  the  question  at  the  polls  ought  to  be  considered  legally  qualified,  unless 
the  contrary  be  shown.  But  as  the  parties  had  proceeded  on  the  contrai^  prin- 
ciple, the  committee  conformed  its  examination  to  the  Virginia  practice. 

At  one  precinct  there  was  evidence  showing  that  the  sheriff  and  one  of  the 
superintendents  were  not  sworn,  as  required  by  law.  The  majority  of  the  com- 
mittee considered  this  evidence  taken  ^\•ithout  the  notice  required  by  the  Virginia 
law,  and  were  therefore  not  disposed  to  give  it  full  effect.  The  minority  held  that, 
there  being  no  law  of  any  kind  expressly  governing  the  taking  of  testimony,  the 
rules  of  convenience  and  propriety  prescribed  by  the  courts  should  hold,  and  that 
the  evidence  had  been  property  taken.  The  majority  considered  that  at  this  time 
the  functions  formerly  exercised  by  a  sheriff  at  Virginia  elections  had  so  far  ceased 
as  to  render  the  objection  as  to  the  oath  immaterial.  The  minority,  while  conced- 
ing that  he  could  no  longer  admit  or  reject  a  vote,  found  that  he  was  still  custodian 
of  the  polls  and  had  important  duties  to  perform.  Also  one  of  the  two  superin- 
tendents was  not  sworn,  and  the  majority  admit  that  this  was  "irregular  and 
illegal,"  but  do  not  think  the  poll  should  be  set  aside  as  wholly  null  and  void  where 
it  appears  to  have  been  fairly  conducted.  The  minority  insisted  that  the  votes  of 
this  precinct  should  be  thrown  out,  "not  being  disposed  to  regard  these  oaths, 
solemnly  prescribed  by  the  wisdom  of  the  law-making  power,  as  mere  idle  forms."' 
Had  these  votes  been  thrown  out  it  would  have  made  no  difference  in  the  result. 

811.    The  case  of  Botts  v.  Jones,  continued. 

The  House  rejected  votes  cast  by  persons  not  naturalized  citizens  of 
the  TJnited  States,  although  entitled  to  vote  under  the  statutes  of  a  State. 

No  fraud  or  injury  being  shown,  the  proper  acts  of  an  unqualified  or 
unauthorized  election  officer  do  not  vitiate  the  poll. 

A  contestant  admitted  to  be  heard  in  an  election  case  is  governed  by 
the  hour  rule  of  debate. 

The  minority,  in  their  views,  also  state  the  folloAving: 

A  number  of  votes  were  stricken  from  the  poll  of  Mr.  Botts  upon  the  ground  that,  although  the 
voters,  who  were  by  birth  foreigners,  had  taken  the  oath  of  fidelity  to  the  Commonwealth  under  the 
statutes  of  Virginia  they  were  not  strictly  citizens  of  the  United  States.  A  large  majority  of  the  com- 
mittee being  of  opinion  that,  as  the  power  of  the  Federal  Government  "to  enact  uniform  laws  upon 
the  subject  of  naturalization  "  is.  when  exercised,  exclusive,  the  statutes  of  Virginia  prescribing  an 
oath  of  fidelity  to  the  Commonwealth  and  declaring  the  mode  in  which  persons  shall  become  citizens 
of  Vu-ginia,  are  merely  void;  and  that  such  persons,  although  treated  by  the  laws  of  Virginia  as  citi- 
zens, can  not  exercise  the  right  of  suffrage  for  Members  of  the  House  of  Representatives,  which  right 
IS  guaranteed  by  the  Constitution  to  all  "free  white  male  citizens  of  the  Commonwealth"  possessing 
other  prescribed  qualifications.  From  this  opinion  one  of  the  undersigned  dissents;  and,  whether  such 
persons  are  technically  citizens  or  not,  thinks  they  ought  to  come  within  the  description  of  persons 
upon  whom  the  right  of  suffrage  is  conferred  by  the  constitution  of  the  State;  and  being  permitted 
undents  provisions,  "  to  vote  for  members  of  the  most  numerous  branch  of  the  State  legislature  " 
ought  not  to  be  denied  the  privilege  of  voting  for  Members  of  the  House  of  Representatives.' 

In  the  House  Mr.  Robert  C.  Schenck,  of  Ohio,  called  attention  to  the  impor- 
tance of  this  question.^ 

'  This  minority  report  is  signed  by  Messrs.  WiUoughby  Newton,  of  Virginia,  Robert  C.  Schenck,  of 
Ohio,  and  Garrett  Davis,  of  Kentucky. 
^  See  discussion  below. 


1^050  PKECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §    811 

A  question  as  to  the  appointment  of  writers  at  the  polls  involved  a  construc- 
tion of  the  Virginia  laws  as  to  the  number  of  these  officials  required.  There  was 
disagreement  as  to  the  meaning  of  this  law,  but  the  majority  say: 

Should  the  true  construction  of  the  laws  be  considered  to  require  the  superintendents  to  appoint 
more  than  one  writer  to  keep  the  poll  of  each  officer  voted  for,  still  the  committee  do  not  think  that  the 
omission  to  do  so  is  such  an  irregularity  as  to  render  the  election  null  and  void,  and  thus  deprive  the 
people  of  their  votes  or  put  them  to  the  trouble  and  expense  of  a  new  election.  No  fraud  or  unfairness 
is  complained  of,  nor  is  it  shown  that  any  mistakes  were  made  by  the  writer  employed.  The  memo- 
rialist was  himself  present  during  a  considerable  part  of  the  day,  saw  how  the  election  was  conducted, 
and  made  no  objection  to  it.  No  decision  of  this  House,  so  far  as  the  committee  are  informed,  has  ever 
sanctioned  such  a  result.  The  case  of  Easton  v.  Scott,  referred  to  by  Mr.  Botts  in  his  memorial,  is 
entirely  different  from  this. 

The  minority  views  also  expressed  the  opinion  that  Mr.  Botts's  contention  on 
this  point  was  untenable. 

As  a  result  of  their  conclusions  the  majority  recommended  this  resolution: 

Resolved,  That  John  W.  Jones  is  entitled  to  his  seat  in  this  House  as  a  Representative  from  the 
Sixth  Congressional  district  of  the  State  of  Virginia. 

The  minority  did  not  dissent  from  the  conclusions  embodied  in  this  report. 

On  May  31/  in  the  House,  Mr.  Robert  C.  Schenck,  of  Ohio,  called  attention  to 
the  fact  that  the  decision  of  the  committee  had  turned  on  the  qualifications  of  voters, 
and  that  if  voters  admitted  to  citizenship  in  the  State  without  being  citizens  in 
every  respect  had  not  been  held  to  be  disqualified,  Mr.  Botts  would  have  had  a 
majority  of  several  votes.  Mr.  Schenck  said  that  he  had  concurred  in  excluding 
the  class  of  voters  excluded  by  the  majority  because  the  admission  of  such  votes 
(imder  the  qualifications  prescribed  by  the  States)  would  be  rendering  nugatory 
the  power  granted  to  the  Congress  of  the  United  States,  the  States  being  permitted 
to  admit  to  citizenship  those  who  were  not  recognized  as  citizens  in  every  respect, 
and  particularly  under  the  laws  of  the  United  States.  It  was  true  it  would  cut  off 
thousands  of  voters  in  Michigan  and  other  States,  and  he  would  say  to  his  New 
England  friends  that  it  would  "cut  off  the  votes  of  all  colored  persons."  To  this 
Mr.  Stephen  A.  Douglas,  of  Illinois,  a  member  of  the  Committee  on  Elections, 
replied  that  he  did  not  understand  the  decision  of  the  committee  as  involving  the 
question  as  to  whether  that  class  of  voters  in  other  States  should  be  admitted  or 
excluded.  He  held  that  any  State  of  the  Union  had  a  right  to  prescribe  the  quali- 
fications of  voters  within  the  State,  and  that  this  House  had  not  the  power  to  reject 
a  Member  elected  by  such  voters. 

On  May  31  ^  leave  was  granted  to  Mr.  Botts  to  be  heard  in  person  at  the  bar  of 
the  House. 

On  June  6  ^  the  case  came  up  in  the  House,  the  Speaker  calling  Mr.  John  B. 
Weller,  of  Ohio,  to  the  chair. 

On  motion  of  Mr.  George  W.  Hopkins,  of  Virginia,  it  was — 

Ordered,  That  the  Speaker  of  this  House,  whose  right  to  a  seat  as  a  Member  of  the  House  is  contested , 
have  leave  to  speak  upon  this  resolution,  notwithstanding  that  clause  of  the  Manual  which  restrains  the 
Speaker  from  addressing  the  House  except  upon  questions  of  order. 

'  Globe,  p.  634. 

^Journal,  p.  990. 

=  Journal,  pp.  1011-1014;  Globe,  pp.  648,  649. 


§  812  GENERAL   ELECTION    CASES,   1840   TO   1850.  1051 

Mr.  Garrett  Davis,  of  Kentucky,  having  raised  a  question  as  to  whether  the 
petitioner  would  be  hmited  by  the  hour  rule,  the  Speaker  pro  tempore  held  that  he 
would  be,  and  on  appeal  the  decision  was  sustained,  yeas  102,  nays  76. 

Thereupon  Mr.  Botts  addressed  the  House,  and  was  followed  by  Mr.  Jones,  the 
Speaker. 

Then,  on  the  question  of  agreeing  to  the  resolution  reported  by  the  Committee 
on  Elections,  there  appeared,  3-eas  150,  nays  0. 

812.  The  Florida  election  case  of  Brockenbrough  v.  Cabell,  in  the 
Twenty-ninth  Congress. 

A  State  law  requiring  returns  to  be  made  to  the  secretary  of  state 
within  a  given  time  was  held  to  be  directory  merely  and  not  to  prevent 
the  House  from  counting  the  votes. 

A  certificate  of  a  State  oflacer  with  belated  returns  from  election 
inspectors  (whose  authority  to  make  such  returns  was  doubtful)  was 
admitted  although  procured  ex  parte. 

The  House  declined  to  recommit  an  election  case  in  order  to  coxint 
votes  in  precincts  whence  no  votes  had  been  returned  or  proven. 

The  petition  of  a  contestant  was  admitted  although  defective  in  its 
specification  of  particulars. 

There  being  no  law  of  Congress  to  regulate  election  contests,  pro- 
ceedings taken  according  to  State  law  were  approved. 

Instance  wherein  questionable  prima  facie  right  was  not  disturbed 
pending  decision  as  to  final  right. 

In  1846'  the  Committee  of  Elections  reported  in  the  case  of  Brockenbrough  v. 
Cabell,  from  Florida. 

The  contestant  objected  that,  from  the  lawful  returns,  he  was  entitled  to  the 
credentials  that  had  been  given  to  the  sitting  Member  by  the  governor,  and  that 
the  greatest  number  of  votes  of  the  legally  qualified  voters  were  cast  in  his  favor 
and  not  in  favor  of  the  sitting  Member. 

Objection  was  made  by  the  sitting  Member  that  the  petition  of  the  contestant 
should  specify  the  particulars  of  the  illegalities  complained  of  as  to  the  return;  but 
the  committee  deemed  the  petition — which  was  somewhat  more  definite  than  given 
above,  but  did  not  go  into  particulars — sufficient  and  determined  to  proceed  with 
the  inquiry. 

The  point  on  which  the  case  turned  was  the  construction  of  the  laws  of  Florida 
in  regard  to  the  returns.  The  contestant  contended  that  under  the  law  the  judges 
of  probate  were  the  returning  officers,  and  the  majority  of  the  committee  concurred 
in  this  view.  The  sitting  Member  contended  that  the  inspectors  of  precincts  were 
the  returning  officers,  and  the  minority  of  the  committee  concurred  in  this  view. 
The  conamittee  was  as  nearly  evenly  divided  in  the  case  as  possible.  It  is  also  to 
be  noted  that  a  large  portion  of  the  total  vote  was  returned  by  election  inspectors, 
the  remainder  being  by  judges  of  probate  or  legal  substitute — the  county  clerk. 

'  First  Bession  Twenty-ninth  Congress,  House  Report  No.  35;  1  Bartlett,  p.  79;  Rowell's  Digest, 
p.  123.  The  report  was  submitted  by  Mr.  Hannibal  Hamlin,  of  Maine;  the  minority  views  by  Mr. 
Erastus  D.  Culver,  of  New  York. 


PRECEDENTS   OF   THE   HOUSE   OF   EEPRESENTATIVES. 


§812 


1052 

This  indicates  a  division  of  opinion  in  the  State  as  to  who  were  the  proper  returning 

officers. 

The  law  of  the  State  further  provided  indisputably  that  the  secretary  of  state 
should  count  the  returns  at  the  expiration  of  thirty  days  after  the  election  and 
certify  the  result  to  the  governor,  who  should  issue  the  commission. 

At  the  expiration  of  thirty  days  the  secretary  of  state  had  received  returns 
from  judges  of  probate  in  fourteen  counties,  from  a  county  clerk  in  one  county 
where  there  was  no  judge  of  probate,  and  from  precinct  inspectors  in  eight  counties. 
The  fifteen  counties  returned  by  judges  of  probate  and  the  county  clerk  showed  a 
majority  for  Mr.  Brockenb rough,  but  with  the  eight  counties  returned  by  inspectors 
added,  the  majority  was  for  Mr.  Cabell.  The  secretary  of  state  certified  this  result 
to  the  governor,  who  issued  his  certificate  to  Mr.  Cabell,  who  had  the  majority  of 
inspectors'  returns  and  also  of  all  the  returns. .  The  contestant  objected  that  only 
the  returns  from  the  judges  of  probate  (and  the  county  clerk  where  there  was  no 
judge)  were  lawful  returns,  and  therefore  that  the  certificate  should  have  been 
issued  to  him  instead  of  to  Mr.  Cabell. 

After  the  expiration  of  the  thirty  days  returns  were  received  from  judges  of 
probate  in  three  counties,  from  two  of  which  inspectors'  returns  had  been  counted 
by  the  secretary  of  state. 

Also  after  the  expiration  of  thirty  days  inspectors'  returns  were  received  from 
Monroe  County,  the  same  being  the  only  returns  of  any  kind  from  that  county. 

If  only  the  belated  returns  by  judges  of  probate  were  added  to  the  tabulation 
of  the  secretary  of  state,  Mr.  Cabell  would  still  be  elected. 

But  if  the  Mom-oe  County  returns  also  should  be  added,  Mr.  Brockenbrough 
would  be  elected. 

Thus  it  appeared  that  if  only  returns  of  judges  of  probate  were  to  be  admitted 
as  lawful — the  question  as  to  time  of  return  being  waived — Mr.  Brockenbrough  was 
elected. 

And  if — the  time  limit  being  waived — all  the  votes  returned  from  all  the 
counties  should  be  counted,  still  Mr.  Brockenbrough  was  elected. 

The  committee  did  not  question  the  prima  facie  right  of  Mr.  Cabell  to  the  seat. 
As  to  the  final  right,  the  decision  was  complicated  by  a  curious  condition  of 
rule  as  to  evidence. 

The  contestant  offered  the  certificate  of  the  secretary  of  state  as  to  the  belated 
judge  of  probate  returns  from  the  three  counties.  The  sitting  Member  objected, 
that  he  had  not  been  notified  of  an  intention  to  procure  this  evidence;  that  the 
returns  were  received  after  the  expiration  of  thirty  days,  and  that,  as  judges  of 
probate  were  not  proper  returning  officers,  their  certificates  and  that  of  the  secre- 
tary were  extra-official.  These  objections  were  overruled,  and  the  principle  seemed 
to  be  thereby  established  that  the  judges  of  probate  and  not  the  inspectors  were  the 
returning  officers. 

Next  the  contestant  offered  the  certificate  of  the  secretary  of  state  with  extract 
of  returns  of  inspectors  of  Monroe  County.  This  was  objected  to  on  the  ground  that 
sitting  Member  had  not  been  notified  of  the  procuring  or  production  of  it;  that  it 
was  not  a  legal  return,  and  that  it  was  inadmissible  under  the  decision  just  made 


§   812  GENERAL   ELECTION    CASES,   1840   TO   1850.  1053 

that  the  judges  of  probate  were  the  returning  officers.     The  majority  of  the  commit- 
tee decided  the  last  objection  well  taken  and  rejected  the  evidence. 

This  decision  left  the  majority  for  tlie  sitting  Member,  and  it  was  originally 
the  intention  of  the  larger  portion  of  the  committee  to  so  report.  The  argument 
was  very  strong  that  such  ex  parte  depositions  as  those  relating  to  Monroe  County 
should  not  be  admitted.  Spaulding  v.  Mead  was  quoted  in  support  of  this  principle. 
The  minority  contended  that  these  returns  might  not  be  admitted  on  the  plea 
that  the  other  inspectors'  returns  had  been  admitted,  because  evidence  as  to  the 
other  inspectors'  returns  was  offered  by  the  contestant  as  part  of  a  document 
tending  to  prove  his  right  to  a  seat,  and  therefore  that  he  could  not  ask  that  the 
part  of  the  paper  which  favored  his  adversary  should  be  disregarded  after  the  com- 
mittee had  received  it.  It  was  like  the  case  of  an  admission  proved  by  a  party;  he 
must  take  the  whole  of  it,  that  against  him  as  well  as  that  for  him.  After  provin"- 
a  state  of  facts  by  his  own  evidence,  the  contestant  might  not  disavow  part  of  the 
evidence  and  seek  to  avail  himself  of  the  remainder.  Nor  could  it  be  used  subse- 
quently as  a  pretext  for  the  introduction  of  confessedly  illegal  ex  parte  evidence. 

The  majority  of  the  committee  concluded  that  the  law  requiring  the  returns  to 
be  made  to  the  secretary  of  state  to  be  directory  merely,  and  that  to  throw  out  votes 
returned  after  that  time  would  lead  to  bad  results  and  tend  to  defeat  the  will  of  the 
people. 

For  the  same  reason,  as  expressed  by  Mr.  Hannibal  HamUn,  of  Maine,  chairman  of 
the  committee,  in  the  debate,  the  committee  decided  not  to  confine  itself  to  its  narrow 
construction  that  the  legal  returns  were  those  returned  by  the  judges  of  probate. 

And  following  tins  principle  further,  the  majority  decided  that,  as  the  inspectors' 
returns  of  the  eight  counties  counted  by  the  secretary  of  state  were  admitted,  so 
also  the  inspectors'  returns  of  Monroe  County  should  be  admitted. 

This  conclusion  as  to  Monroe  showed  the  election  of  Mr.  Brockenbrough,  and 
the  committee  reported  that  Mr.  Cabell  was  not  entitled  to  the  seat  and  that  Mr. 
Brockenbrough  was  entitled  to  it. 

In  course  of  consideration  of  this  case  the  committee  overruled  the  objection  of 
the  sitting  Member  that  contestant's  notice  of  contest  had  not  been  seasonably 
given.  The  committee  found  that  the  proceedings  had  been  taken  in  accordance 
with  the  requirements  of  a  State  law  relating  to  contests  before  the  State  legislature 
only;  but  held  by  the  committee  to  be  proper  as  a  rule  in  this  case. 

As  a  result  of  their  conclusions  the  majority  of  the  committee  reported  the 
following  resolutions: 

Resolved,  That  E.  Carrington  Cabell,  returned  to  this  House  as  a  Member  thereof  from  the  State  of 
Florida,  is  not  entitled  to  his  seat. 

Resolved,  That  William  H.  Brockenbrough  is  entitled  to  a  seat  in  this  House  as  a  Representative 
from  the  State  of  Florida. 

The  minority  recommended  the  following: 

Resolved,  That  WUliam  H.  Brockenbrough  has  not  supported  his  petition,  and  that  Edward  C. 
CabeU  is  entitled  to  his  seat  in  this  House. 

The  report  was  debated  on  January  20,  21,  22,  23,  and  24.'  It  appeared  from 
the  debate  that  from  a  few  precincts  in  the  district  no  returns  had  been  made. 

'  Globe,  pp.  222,  230,  236,  238. 


1054  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   813 

Indeed  in  one  of  them  there  was  doubt  as  to  whether  or  not  an  election  had  been 
held.  There  was  no  evidence  to  show  what  had  been  done  at  these  precincts,  and 
therefore  during  the  debate  Mr.  Alexander  D.  Sims,  of  South  Carolina,  proposed  * 
a  motion  reciting  this  lack  of  certain  returns,  and  providing  that  the  report  in  this 
case  be  recommitted  to  enable  further  testimony  to  be  taken.  Mr.  Hamlin  admitted 
that  there  were  precincts  from  which  no  returns  had  been  received ;  but  by  informal 
statements  made  before  the  committee  by  the  contestant,  and  apparently  not  dis- 
puted by  the  sitting  Member,  the  committee  had  vmderstood  that  the  votes  of  such 
precincts  were  in  favor  of  contestant.  In  one  county  there  was  nothing  to  show 
whether  an  election  had  been  held  or  not. 

The  motion  of  Mr.  Sims,  under  the  practice  prevailing  at  that  time,  was  thrust 
aside  by  the  ordering  of  the  previous  question.  Then  the  first  resolution,  unseating 
Mr.  Cabell,  was  agreed  to,  ^  yeas,  105;  nays,  80.  The  resolution  seating  Mr.  Brock- 
enbrough  was  agreed  to,  yeas  100,  nays  85. 

Mr.  Jacob  Thompson,  of  Mississippi,  then  moved  ^  to  reconsider  this  vote  in 
order  that  the  case  might  be  delayed  until  testimony  might  be  produced  as  to  the 
votes  of  the  missing  precincts.  He  based  this  proposition  on  the  statement  of  the 
sitting  Member  to  the  House  that  there  were  precincts  from  which  no  returns  had 
been  made,  and  also  the  further  statement  of  sitting  Member  that  the  coimting  of 
the  votes  of  those  precincts  would  give  him  a  majority  of  the  votes  in  the  district. 

Mr.  Thompson's  motion  to  reconsider  was  disagreed  to,  yeas  87,  nays  91. 

Mr.  Brockenbrough  then  appeared  and  took  the  oath. 

813.  The  New  Jersey  election  case  of  Farlee  v.  E.unk  in  the  Twenty- 
ninth  Congress. 

Discussion  of  the  meaning  of  the  word  "  residence  "  as  related  to 
the  qualifications  of  a  voter. 

The  House,  by  a  close  vote,  sustained  the  contention  that  certain 
students  were  residents  in  the  place  wherein  they  attended  college. 

In  1846,^  in  the  contested  election  case  of  Farlee  v.  Runk,  from  New  Jersey, 
the  returns  showed  that — 

Votes. 

Mr.  Runk  received 8,  942 

Mr.  Farlee  received 8, 926 

Majority  for  Mr.  Rimk 16 

Mr.  Farlee  represented  to  the  House  by  liis  memorial  that  this  majority  was 
obtained  by  the  illegal  votes  of  36  students  in  the  college  and  seminary  at  Princeton. 

The  committee  divided  on  the  question  of  the  right  of  the  students  to  vote, 
the  majority  finding  that  19  of  them  were  entitled,  and  the  minority  finding  that 
none  were  entitled  under  the  law  and  constitution  of  New  Jersey. 

'Journal,  p.  281;  Globe,  p.  230. 

^Journal,  pp.  293,  294,  295. 

^Journal,  p.  296;  Globe,  p.  238. 

< First  session  Twenty-ninth  Congress,  House  Report  No.  310;  1  Bartlett,  p.  87;  Rowell's  Digest, 
p.  124.  The  majority  report  was  by  Mr.  James  C.  Dobbin,  of  North  Carolina;  the  minority  views  by 
Mr.  Lucien  B.  Chase,  of  Tennessee. 


§  813  GENERAL   ELECTIOX    CASES,   1840   TO   1850.  1055 

As  the  voting  in  New  Jersey  was  by  ballot,  both  minority  and  majority  expe- 
rienced difficulty  in  determining  what  the  actual  effect  of  the  students'  votes  had 
been.  The  19  whom  the  majority  considered  entitled  to  vote  had  made  depositions 
in  which  4  acknowledged  that  they  voted  for  Mr.  Runk  and  1  that  he  voted  for 
Mr.  Farlee.  The  other  14  availed  themselves  of  their  privilege  not  to  answer  and 
dechned  to  declare  how  they  voted.  The  majority  of  the  committee  did  not  attempt 
to  ascertain  for  whom  the  14  voted,  since  it  was  not  necessary  under  their  contention 
that  the  votes  of  the  students  were  legal,  and  recommended  a  resolution  that  Mr. 
Farlee  was  not  entitled  to  the  seat. 

The  minority,  following  the  example  in  the  New  Jersey  case  of  1840,  contended 
that  secondary  evidence  should  be  admitted,  and  from  the  deposition  of  a  person 
who  testified  that  16  of  the  students  whose  votes  were  not  known  were  Whigs, 
concluded  that  those  16  voted  for  Mr.  Runk,  the  Whig  candidate.  With  the  5 
who  acknowledged  their  votes,  the  minority  arrived  at  a  deduction  of  20  votes 
from  Mr.  Runk  and  1  from  Mr.  Farlee.  This  left  a  majority  of  3  for  Mr.  Farlee, 
and  the  minority  reported  the  conclusion  that  he  was  entitled  to  the  seat. 

The  argimient  on  the  question  as  to  whether  or  not  the  students  were  qualified 
to  vote  involved  the  question  of  residence.  The  then  recently  adopted  constitution 
of  New  Jersey  defined  voters  as  "every  white  male  citizen  of  the  United  States,  of 
the  age  of  twenty-one  years,  who  shall  have  been  a  resident  of  tliis  State  one  year 
and  of  the  county  in  which  he  claims  his  vote  five  months  next  before  the  election." 
There  was,  moreover,  a  law  passed  in  1844  expressly  declaring  that  students  so 
circimfistanced  as  those  in  question  should  not  vote  in  New  Jersey.  The  majority, 
however,  held  that  this  law,  whiiih  had  been  passed  under  the  old  constitution, 
was  of  no  effect  iinder  the  new  constitution.  The  minority,  while  not  relying  on 
this  law  to  support  their  contention,  yet  denied  that  it  had  become  inoperative. 

The  main  issue,  therefore,  was  joined  on  the  meaning  of  the  word  "resident" 
in  the  constitution.  The  majority  admitted  that  most  of  the  students  at  Princeton 
would  be  incapable  of  voting,  since  they  had  left  their  homes  for  a  temporary 
purpose,  meaning  to  return.  But  they  conceived  that  the  few  who  had  voted 
were  entitled  to  do  so,  on  the  showing  made  in  their  depositions,  "for  they  swear 
that  they  left  their  last  residence  animo  non  revertendi,  and  adopt  Princeton  as 
their  residence  for  a  space  of  time — not  very  brief,  not  certain  as  to  its  diiration — 
undertermined  in  their  minds  as  to  the  adoption  of  any  particular  residence  should 
they  choose  to  abandon  Princeton."  The  supreme  court  of  New  Jersey,  in  the  case 
of  CadwaUader  v.  Howell  and  Moore,  decided  in  November,  1840,  had  declared: 

The  residence  required  in  the  laws  of  this  State  to  entitle  a  person  to  vote  at  an  election  means 
his  fixed  domicUe  or  permanent  home,  and  is  not  changed  or  altered  by  his  occasional  absence,  with 
or  without  his  family,  if  it  be  animo  revertendi.  A  residence  in  law,  once  obtained,  continues  without 
intermission  until  a  new  one  is  gained. 

But  the  opinion  further  went  on — 

The  place  where  a  man  is  cormorant  may,  perhaps,  he  properly  considered  as  prima  facie  the  place 
of  his  legal  residence;  this  presumption,  however,  may  be  easily  overcome  by  proof  of  facts  to  the 
contrary.  If  a  person  leave  his  original  residence  animo  non  revertendi,  and  adopt  another  (for  a  space 
of  time,  however  brief),  if  it  be  done  animo  manendi,  his  first  residence  is  lost.  But  if,  in  leaving  his 
original  residence,  he  does  so  animo  revertendi,  such  original  residence  continues  in  law,  notwithstand- 
ing the  temporarj-  absence  of  himself  and  family. 


J^056  PRECEDENTS    OF    THE    HOUSE    OF    KEPEESENTATIVES.  §   813 

The  minority  contended  that  residence  was  defined  by  Judge  Story,  who  said 
in  his  Conflict  of  Laws  that  "domicile,  in  a  legal  sense,  is  where  the  person  has  his 
true,  fixed,  and  permanent  home  and  principal  establislunent,  and  to  wliich, 
whenever  he  is  absent,  he  has  the  intention  of  returning."  All  of  the  students 
testified  that  they  went  to  Princeton  for  purposes  of  study.  Some  of  them  stated 
that  after  they  had  accomplished  their  objects  they  intended  to  leave  Princeton; 
others  that  they  should  go  "wherever  the  providence  of  God  may  call  them."  There 
was  no  proof  whatever  that  they  intended  to  make  Princeton  their  "true,  fixed, 
and  permanent  home;"  no  evidence  that  they  intended  to  remain  at  Princeton  an 
"unlimited  time."  The  minority  call  attention  to  the  fact  that  several  of  the 
students  who  voted  had  already  left  Princeton  and  the  committee  had  been  unable 
to  procure  their  testimony.  These  students  were  entered  on  the  college  catalogue 
as  residing  in  other  places;  several  in  other  States.  This  had  undoubtedly  been 
done  on  the  authority  of  the  students  themselves.  Although  the  students  may 
have  left  their  homes  animo  non  revertendi,  yet  there  was  neither  positive  nor  pre- 
sumptive proof  that  they  came  to  Princeton  animo  manendi.  The  evidence  showed 
the  contrary.     The  court  in  the  case  above  quoted  had  held — 

It  is  for  the  reason  that  the  students  of  our  colleges,  the  inmates  of  our  law  schools  and  medical 
universities,  and  hundreds  of  others  who  are  scattered  on  land  and  sea,  engaged  for  the  time  being  in 
the  prosecution  of  some  transient  object,  are  considered  in  law  as  residing  in  their  original  homes,  although 
in  point  of  fact  they  may  be  living  for  the  time  being  elsewhere. 

The  majority  had  reported  a  resolution  as  follows: 

Resolved,  That  Isaac  G.  Farlee  is  not  entitled  to  a  seat  in  this  House  as  a  Representative  from  the 
State  of  New  Jersey.. 

The  minority  recommended  the  following: 

Resolved,  That  John  Runk  is  not  entitled  to  a  seat  upon  this  floor. 

Resolved,  That  Isaac  G.  Farlee,  having  received  a  majority  of  the  legal  votes  of  the  legally  qualified 
voters  of  the  Third  Congressional  district  of  New  Jersey,  is  entitled  to  his  seat  upon  this  floor. 

Mr.  Hannibal  Hamlin,  of  Maine,  on  March  3,*  when  the  report  was  considered, 
moved  to  strike  out  all  after  the  word  "resolved"  in  the  resolution  of  the  majority, 
and  insert  the  text  of  the  two  minority  resolutions. 

This  motion  was  decided  in  the  negative,  yeas  76,  nays  112. 

Thereupon  the  House,  by  a  vote  of  yeas  119,  nays  66,  agreed  to  the  resolution 
of  the  majority  of  the  committee,  declaring  petitioner  not  entitled  to  the  seat. 

Thereupon  Mr.  Hamlin,  as  a  question  of  privilege,  offered  the  following: 

Resolved,  That  John  Runk  is  not  entitled  to  a  seat  in  this  House. 

A  motion  that  the  resolution  lie  on  the  table  was  disagreed  to,  yeas  93,  nays  99. 

Then,  on  agreeing  to  the  resolution,  there  appeared  yeas  96,  nays  96. 

"The  House  being  equally  divided,"  says  the  Journal,  "the  Speaker  voted  with 
the  nays,  and  so  the  House  refused  to  agree  to  the  said  resolution;  and  Mr.  Runk, 
the  sitting  Member,  retains  his  seat." 

'Journal,  pp.  431,  477-483;  Globe,  pp.  448,  454,  456. 


§  ^14  GENEKAL   ELECTION    CASES,   1840   TO   1850.  1057 

814.   The  New  York  election  case  of  Monroe  v.  Jackson,  in  the  Thir- 
tieth Congress. 

Discussion  of  the  qualifications  of  voters  in  respect  to  residence  of 
paupers  in  an  almshouse. 

Discussion  of  the  evidence  required  to  establish  for  whom  a  voter 
has  cast  his  ballot. 

Form  of  resolution  by  which  the  House,  in  1848,  provided  for  taking 
testimony  in  an  election  case. 

The  earlier  regulations  for  taking  testimony  in  an  election  case  pro- 
vided that  the  depositions  should  be  forwarded  to  the  Speaker. 

On  March  25,  1848/  the  Committee  on  Elections  reported  in  the  case  of  Monroe 
v^  Jackson,  from  New  York.  This  was  a  case  wherein  the  contestant  charged 
fraud  sufficient  to  account  for  the  majority  of  143  votes  returned  for  the  sitting 
Member.  The  majority  of  the  conmiittee  satisfied  itself  of  the  truth  of  the  char^res 
and  reported  m  favor  of  the  contestant.  The  minority  contended  that  there  was 
not  positive  proof  suflicient  to  set  aside  the  result  certified  to  by  the  governor  of 
the  State,  and  recommended  resolutions  confirming  the  sitting  Member  "in  his  seat 

The  House,  on  April  19,^  by  a  vote  of  160  to  13,  declined  to  agree  to  a  propo- 
sition that,  as  It  did  not  satisfactorily  appear  that  either  was  elected,  the  seat 
should  be  declared  vacant.  Then  the  propositions  of  the  minority,  that  Mr.  Jackson 
was  entitled  to  the  seat  and  Mr.  Monroe  was  not  entitled  to  it,  were  disa<Teed  to— 
yeas  102,  nays  93.  '^ 

The  question  recurring  on  the  first  proposition  of  the  majoritv,  that  Mr  Jack- 
son was  not  entitled  to  the  seat,  it  was  decided  in  the  affirmative— yeas  103  nays  93 

On  the  second  proposition  of  the  majority,  that  Mr.  Monroe  was  entitled  to 
the  seat,  there  appeared  91  je&s  and  104  nays. 

So  the  seat  was  left  vacant. 

Wlule  a  large  number  of  frauds  and  irregularities  were  alleged,  and  attempt 
was  made  to  sustam  them  by  evidence  of  varying  degrees  of  strength,  the  principal 
and  most  tangible  issue  m  the  case  arose  over  the  charge  that  163  paupers  from  an 
almshouse  had  cast  their  ballots  for  the  sitting  Member,  and  that  to  these  his 
apparent  majority  was  due.  The  law  of  New  York  provided  that  no  person  should 
be  deemed  to  have  lost  or  acquired  a  residence  by  living  in  any  poorhouse  alms- 
house, hospital,  or  asylum,  in  which  he  shall  be  maintained  at  public  expense  " 
The  right  of  the  paupers  to  vote  in  the  election  district  where  their  legal  residence 
was  could  not  be  questioned,  but  neither  majority  nor  minority  contended  that 
they  might  vote  on  their  almshouse  residence. 

The  issue  was  as  to  the  sufficiency  of  proof.  The  majority  satisfied  themselves 
that  the  paupers  were  not  qualified  voters  m  respect  to  residence  by  the  testimony 
of  officers  of  the  almshouse  as  to  names  on  its  books.  The  minority  contended 
that  the  voters  themselves  should  have  been  called  to  testify  as  to  residence,  and 

■  First  session  Thirtieth  Congress,  1  Bartlett,  p.  98;  Rowell's  Digest,  p.  126:  House  Report  No  403 
The  majonty  report  was  made  by  Mr.  Joseph  Mullin,  of  New  York;  the  minority  views  by  Mr' 
Timothy  Jenkins,  of  New  York.  ' 

-Globe,  p.  643;  Journal,  pp.  705-709. 

59M — VOL  1—07 67 


1058  PBECEDENTS    OP    THE    HOUSE    OF    REPRESENTATIVES.  §   815 

that  the  secondary  evidence  adduced  was  not  conclusive.  Not  even  the  almshouse 
books  were  put  in  evidence. 

Elections  in  New  York  being  by  ballot,  it  also  became  necessary  to  show  for 
whom  the  alleged  illegal  votes  were  thrown.  Again,  the  voters  were  not  interro- 
gated, but  the  majority  of  the  committee  satisfied  themselves  that  the  illegal  votes 
were  for  the  sitting  Member  because  tickets  of  his  party  were  distributed  at  the 
almshouse,  because  officers  of  that  institution  and  those  who  conveyed  the  paupers 
to  the  polls  were  of  his  party,  and  because  witnesses  noticed  the  ballots  when  cast 
and  professed  to  distinguish  and  recognize  them  by  texture  of  the  paper.  The 
minority  combated  this  evidence  as  too  indefinite  and  inconclusive. 

The  majority,  on  the  strength  of  the  evidence  which  they  allowed,  found  for 
the  contestaiit  a  majority  of  14  votes.     The  minority  denied  this  conclusion. 

The  testimony  in  this  case  was  taken  in  accordance  with  this  resolution:  '■ 

Resolved,  That  the  parties  *  *  *  be,  and  they  hereby  are,  authorized  to  take  the  testimony 
of  such  witnesses  as  either  of  them  may  require,  by  depositions,  in  conformity  to  the  laws  of  the  State 
of  New  York,  in  force  at  the  time  of  taking  such  testimony,  on  the  subject  of  contested  elections  in  that 
State:  Provided,  That  the  parties  may,  by  agreement  under  their  hands,  regulate  the  mode  of  giving 
notice  and  other  matters  of  form,  at  their  discretion;  but  if  no  such  agreement  shall  be  made,  then  each 
party  shall  give  to  the  other  such  notice  of  the  time  and  place  of  taking  such  depositions  a.s  are  prescribed 
in  the  aforesaid  laws  of  New  York:  Provided,  also,  That  when  such  depositions  are  taken  they  shall, 
together  with  the  agreements  or  notices  aforesaid,  be  sealed  up  by  the  officer  taking  the  same  and  dircted 
to  the  Speaker  of  the  House. 

815.  The  Iowa  election  case  of  Miller  v.  Thompson,  in  the  Thirty- 
first  Congress. 

In  earlier  times  the  taking  of  testimony  is  an  election  case  was  gov- 
erned by  a  resolution  of  the  House. 

Testimony  in  an  election  case,  under  the  earlier  practice,  was  sent  to 
the  Speaker  and  referred  by  the  House. 

In  1849  election  contests  were  instituted  by  memorial. 

On  December  31,  1849,^  Mr.  Edward  D.  Baker,  of  Ilhnois,  presented  the  memo- 
rial of  Daniel  F.  Miller,  claiming  election  from  the  First  Congressional  district  of 
Iowa,  and  praying  to  be  admitted  to  the  seat  occupied  by  William  Thompson. 
This  memorial  was  referred  to  the  Committee  on  Elections. 

On  January  23,  1850,'  the  House  agreed  to  a  resolution  providing  for  the  taking 
of  testimony  in  accordance  with  the  provisions  of  the  laws  of  Iowa,  and  also  making 
certain  stipulations  not  provided  for  by  those  laws.  It  was  provided  that  this 
testimony  should  be  forwarded  to  the  Speaker,  and  on  March  19^  the  Speaker  laid 
before  the  House  certain  depositions  forwarded  to  him  under  the  resolution. 

On  June  18,  Mr.*  WilHam  Strong,  of  Pennsylvania,  presented  the  report  of  the 
majority  of  the  committee  and  Mr.  John  Van  Dyke,  of  New  Jersey,  presented  the 
views  of  the  minority. 

'Journal,  p.  174. 

^  First  session  Thirty-first  Congress,  Journal,  p.  190. 

^Joiunal,  p.  394. 

^Journal,  p.  684. 

=  Journal,  p.  1029;  House  Report  No.  400. 


§   ^l*'  GENERAL   ELECTION   CASES,   1840   TO   1S50.  1059 

The  sitting  Member,  William  Thompson,  had  been  returned  by  an  official 
majority  of  386  votes. 

The  contestant  alleged  two  main  objections  which,  if  sustained,  would  have 
destroyed  this  majonty.  The  board  of  canvassers  rejected  the  vote  of  Kanesville 
which  had  given  Miller,  the  contestant,  493  votes,  and  Thompson,  the  sittin-  Mem- 
ber, 30.  Contestant  claimed  that  this  rejection  was  illegal.  The  contestant 
further  objected  that  the  canvassers  had  counted  illegally  the  votes  of  Boone  Town- 
ship, m  Polk  County,  which  were  42  for  Thompson  and  6  for  contestant. 

Therefore  the  questions  relating  to  Kanesville  and  Boone  in  Polk  County  were 
of  prune  importance  in  the  consideration  of  the  case.  But  other  questions  were 
mvolved,  and  the  subject  naturally  divides  itself  as  follows: 

816.    The  election  case  of  Miller  v.  Thompson,  continued. 

Being  satisfied  as  to  the  intention  of  the  voter,  the  Elections  Com- 
mittee counted  ballots  from  which  the  middle  initial  of  candidate's  name 
was  lacking. 

Votes  apparently  intended  for  Congressional  candidates,  but  returned 
as  for  a  State  office,  were  counted  without  further  inquiry. 

1.  As  to  ballots  lacking  the  middle  initial  of  contestant's  name. 

The  contestant  claimed  that  he  should  be  allowed  7  additional  votes  of  Marion 
County  which  were  given  for  -'Daniel  .Miller"  and  were  rejected  by  the  canvassers 
on  account  of  the  omission  of  the  initial  of  the  middle  name,  though  the  Christian 
and  surnames  were  correctly  described.  The  committee  were  unanimously  of  the 
opinion  that  the  7  votes  should  be  counted  for  contestant.     The  minority  views 


state 


The  committee,  therefore,  are  satisfied  that  the  said  7  votes  were  honestly  intended  for  the 
contestant  and  allow  them  accordingly. 

2.  As  to  certain  irregularities  in  the  conduct  of  an  election. 

The  majority  and  minority  of  the  committee  united  in  crediting  to  sitting 
Member  11  votes  and  to  contestant  3  votes  in  the  town  of  Wells,  in  Appanoose 
County.     The  mmonty  views  state  the  case  as  to  this  precinct: 

It  does  not  appear  by  the  election  proceedings  that  the  officers  of  election  were  sworn,  nor  is  it  at  aU 
proved  in  any  other  way.  And  although  it  appears  that  "W.  Thompson^'  and  "D.  F  Miller^"  were 
voted  for  for  Congress,  yet  it  does  not  appear  how  many  votes  either  of  them  received;  and  the  only 
mode  of  inferring  that  either  of  them  received  any  votes  at  all  is  that  the  poll  book  states  that  for  "super- 
mtendent  of  public  instruction,"  William  Thompson  received  11  votes,  and  that  for  the  same  office  D  F 
Miller  received  3  votes.  No  proof  is  brought  to  bear  on  this  case  to  prove  anything  whatever  about  it' 
and  If  ever  irregularity  or  illegality  should  set  aside  an  entire  poll,  it  should  be  such  as  this  But  the 
committee,  from  a  ver>-  strong  indisposition  to  deprive  the  citizen  of  his  right  to  vote  in  consequence  of 
the  errors  and  blunders  of  others,  nevertheless  allow  this  vote  to  be  counted. 
The  vote  of  the  committee  on  counting  these  votes  was  ayes  8,  noes  1. 

817.   The  election  case  of  Miller  v.  Thompson,  continued 
In  determining  the  residence  of  a  voter,  the  intention  to' remain  is 
held  consistent  with  an  intention  to  change  the  abode  at  a  future  indefi- 
nite day. 

Instance  wherein  a  committee  reported  its  proceedings,  which  therebv 
became  a  proper  subject  of  debate.     (Footnote.) 


1060  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   817 

Residence  in  a  county  being  a  qualification  of  voters,  the  votes  of 
nonresidents  were  rejected. 

3.  As  to  the  qualifications  of  certain  voters  whose  residence  was  questioned. 

This  question  concerned  certain  voters  at  Kanesville,  but  is  not  to  be  con- 
founded with  the  different  and  more  important  question  to  be  considered  later  in 
relation  to  that  place. 

ilr.  Joseph  E.  McDonald,  of  Indiana,  in  the  course  of  the  debate  '  stated  that 
the  people  of  Kanesville  were  certain  Mormons,  who  had  from  necessity  settled 
there  temporarily  on  their  way  to  the  valley  of  Salt  Lake.  They  had  gathered 
from  all  parts  of  the  United  States  and  from  foreign  countries.  Kanesville  was 
only  a  stopping  place  for  them;  they  did  not  regard  it  as  their  permanent  home. 
This  was  shown  by  the  testimony.  He  thought  the  law  of  Iowa  conferred  the 
right  of  suffrage  not  for  domicile  merely,  but  for  a  residence  and  interest  in  the 
place.  "If  a  citizen  of  the  United  States  goes  abroad,"  said  Mr.  McDonald,  "and 
chooses  to  wander  through  foreign  countries,  when  he  returns  home  he  is  not 
treated  as  an  alien,  but  resumes  the  rights  he  had  temporarily  laid  down.  But  if 
an  alien  comes  here  to  settle  and  does  not  become  a  citizen  of  the  United  States  in 
due  form  of  law,  he  is  not  entitled  to  participate  in  the  franchise  which  belongs  to 
a  citizen." 

The  report  of  the  majority  says: 

The  committee  dismiss  the  *  *  *  objections  urged  by  the  sitting  Member  *  *  *  with 
the  single  remark  that  they  are  not  sustained  by  the  evidence  which  has  been  presented.  The  quali- 
fications of  voters  in  the  State  of  Iowa,  as  defined  in  her  constitution,  are  six  months'  residence  in  the 
State  of  any  white  male  citizen  of  the  United  States  and  twenty  days'  residence  in  the  county  in  which 
the  vote  is  claimed  next  preceding  the  election.  It  is  doubtless  true  that  to  constitute  residence  within 
the  constitutional  meaning  of  the  term  there  must  be  the  "intention  to  remain;"  but  this  intention  is 
entirely  consistent  with  a  purpose  to  change  the  place  of  abode  at  some  future  and  indefinite  day. 
Actual  abode  is  prima  facie  residence,  and  we  are  unable  to  perceive  anything  in  the  evidence  submit- 
ted which  removes  the  presumptiou  of  qualification  arising  from  the  actual  abode  of  the  Kanesville 
voters  within  the  State. 

The  vote  in  the  committee  on  receiving  the  Kanesville  vote  was  ayes  5,  noes  4,^ 
but  it  seems  evident  that  the  principal  issue  on  the  vote  was  not  the  question  herein 
set  forth,  but  another  question,  which  is  considered  later. 

4.  The  sitting  Member  objected  to  56  votes  cast  for  contestant  in  Dallas 
County  at  Boone  Township  on  the  ground  that  the  voters  were  nonresidents  of  the 
county.  The  issue  involved  on  this  point  was  largely  one  of  fact.  The  majority 
of  the  committee,  by  a  vote  of  6  to  3,  decided  to  reject  from  the  poll  for  contestant 
38  of  these  votes.     The  minority  say : 

These  votes  were  all  received  as  legal  votes  by  the  judges  of  election,  who  are  presumed  to  have 
made  all  due  inquiry  and  to  have  decided  correctly. 

Therefore  the  minority,  in  the  absence  of  what  they  considered  conclusive 
proof  from  the  sitting  Member,  held  that  the  votes  should  stand. 

'  Globe,  p.  1295. 

^  The  report  of  the  committee  presents  the  record  of  the  yea  and  nay  votes  on  the  various  ques- 
tions arising  in  the  committee,  and  therefore  the  action  of  the  committee  became  a  legitimate  subject 
of  discussion  on  the  floor.     (Report  No.  400,  p.  12;  Globe,  pp.  1295,  1299.) 


§    818  GENERAL,   ELECTION    CASES,   1840   TO   1850.  1061 

818.   The  election  case  of  Miller  v.  Thompson,  continued. 
Votes  cast  by  voters  having  all  qualifications   except  the  required 
residence  within  the  county  ■were  rejected  by  a  divided  committee. 
5.  The  principal  question  as  to  the  Kanesville  votes. 

This  precinct  cast  493  votes  for  contestant  and  30  for  the  sitting  Member. 
The  minority  views  say : 

It  is  fully  established,  as  well  as  admitted,  that  the  persons  voting  at  this  precinct  had  a  perfect 
right  to  vote  in  the  First  Congressional  district,  and  to  vote  for  either  the  contestant  or  the  sitting 
Member.  It  is  not  pretended  that  any  fraud,  injustice,  or  unfairness  was  practiced  by  either  the 
voters  or  the  election  officers  toward  anyone,  but  everything  seems  to  have  been  done  honestly,  fairly, 
and  in  good  faith,  and  that  the  persons  voting  were  legal  voters  in  the  district. 

The  voting  precinct  of  Kanesville,  for  the  election  in  question,  was  organized 
by  the  authorities  of  Monroe  County  under  peculiar  provisions  of  the  Iowa  laws, 
which  provided  that  sparsely  settled  communities  not  within  organized  coimtics 
should  be  attached  for  certain  purposes  to  adjacent  counties.  The  minority  views 
claim  that  at  the  time  of  the  election  in  question  no  one  doubted  that  Kanesville 
precinct  should  vote  with  Monroe  Coimty;  but  that  by  a  survey  made  after  the 
election  it  was  shown  that  Kanesville  was  in  fact  so  situated  that  it  belonged  imder 
the  technical  terms  of  law  with  Marion  or  Mahaska  County.  The  majority  report 
also  claimed  that  even  supposing  the  territory  of  Kanesville  to  be  properly  witliin 
the  limits  assigned  to  the  jurisdiction,  yet  the  laws  of  Iowa,  properly  construed,  did 
not  give  the  commissioners  of  Monroe  County  the  authority  to  appoint  the  election 
officers  as  they  had  done;  but  that  the  law  appointed  a  different  way  for  the 
appointment  of  such  officers.     The  majority  say  in  their  report: 

By  the  Constitution  of  the  United  States,  the  times,  places,  and  manner  of  holding  elections, 
and  the  qualifications  of  voters,  are  left  to  the  control  of  the  States.  The  elective  franchise  is  a  political, 
not  a  natural,  right,  and  can  only  be  exercised  in  the  way,  at  the  time,  and  at  the  place  which  may  be 
designated  by  law.  If,  by  the  constitution  and  laws  of  luwa,  therefore,  it  is  required  that  electors 
should  vote  only  in  the  counties  in  which  they  resided,  and  at  designated  places  within  those  counties, 
it  can  not  be  doubted  that  votes  given  in  other  counties,  or  at  other  than  the  designated  places,  must 
be  treated  as  nullities.  To  deny  this  is  to  deny  to  the  State  the  power  expressly  reserved  in  the  Con- 
stitution to  prescribe  the  place  and  manner  of  holding  the  elections — a  power  essential  to  the  preser- 
vation of  the  purity  of  elections.  Assuming,  then,  that  those  who  voted  at  Kanesville  were  qualified 
voters,  it  remains  to  be  considered  whether  they  voted  at  the  place  prescribed  by  law. 

The  majority  conclude  that  they  did  not,  and  continue: 

In  many  of  the  States  the  right  to  vote  is  confined  by  law  to  voting  in  the  ward  or  township  in 
which  the  elector  resides;  and,  even  under  this  more  stringent  provision,  votes  in  other  wards  or  town- 
ships have,  it  is  believed,  been  uniformly  adjudged  illegal. 

The  majority  further  answer  another  objection: 

Nor  is  their  the  voters']  belief  that  they  were  rightly  voting  at  Kanesville  at  all  material,  though 
it  may  have  been  their  misfortune.  Their  right  to  vote  was  a  political  right,  restricted  by  their  actual 
residence,  and  not  by  what  they  may  have  supposed  it  to  be.  The  opposite  doctrine  would  convert 
the  constitutional  provision  into  a  declaration  that  the  voter  should  vote  in  the  county  in  which  he 
supposes  he  resides,  and  make  his  franchise  dependent  upon  his  own  conjecture. 

The  minority  call  attention  to  the  fact  that  the  entire  board  of  commissioners 
of  Monroe  County  and  a  majority  of  the  election  officers  at  Kanesville  were  the 
political  friends  of  the  sitting  Member.     No  question  was  raised  against  the  cor- 


1062 


PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  819 


rectness  of  the  procedure  until  after  the  election.  After  commenting  on  the 
purely  technical  objections  to  the  votes,  the  minority  conclude  that  they  should 
not  be  sustained,  "in  view  of  the  great  principle  in  our  institutions  which  seeks  to 
afford  to  all  the  citizens  of  the  Union  the  right  of  suffrage." 

In  the  committee,  5  members  voted  to  receive  the  votes  of  Kanesville  and  4 
voted  against  the  reception. 

Tills  question  was  debated  at  considerable  length  on  June  26,  27,  and  28,' 
when  the  report  was  before  the  House. 

819.   The  election  case  of  Miller  v.  Thompson,  continued. 

A  question  as  to  counting  the  votes  of  persons  whose  position  in  rela- 
tion to  the  boundaries  of  the  district  was  in  doubt. 

Instance  wherein  the  majority  of  a  committee  agreed  on  a  report,  but 
disagreed  on  the  facts  necessary  to  sustain  the  report. 

An  Elections  Committee  being  curiously  confused  as  to  its  majority 
and  minority  conclusions,  the  House  disregarded  both. 

The  report  of  the  Elections  Committtee  not  leading  to  a  certain  con- 
clusion, the  House  declared  the  seat  vacant. 

The  House  having  negatived  a  declaration  that  sitting  Member  was 
entitled  to  the  seat,  it  was  then  declared  by  resolution  that  the  seat  was 
vacant. 

Instance  wherein  the  minority  of  an  Elections  Committee  recom- 
mended declarations  as  to  the  question  in  issue. 

6.  The  contestant  claimed  that  the  votes  of  Boone  TowTiship,  in  Boone  County, 
which  were  cast,  42  for  Thompson  and  6  for  Miller,  should  be  rejected  because 
Boone  Township  was  not  in  the  First  Congressional  district,  but  in  the  adjoining 
district,  the  Second.  The  minority  views  claim  that  all  the  persons  who  voted  in 
Boone  Township  actually  resided  at  that  time  in  the  Second  Congressional  district, 
saymg: 

About  this  there  is  no  dispute,  as  the  districting  line  of  Iowa  places  the  whole  of  Polk  County  in 
the  First  district,  and  the  whole  of  Boone  County  in  the  Second  district;  and  the  only  ground  on  which 
it  is  claimed  that  these  votes  given  in  Boone  were  correctly  counted  in  Polk  County  is,  tliat  by  an  act 
of  the  legislature  of  Iowa,  approved  January  17,  1S4G,  Boone  County  was  attached  to  Polk  County,  for 
election,  revenue,  and  judicial  purposes,  and  that  the  constitution  of  that  State  prohibits  the  division 
of  counties  in  making  Congressional  districts.  But,  by  an  act  of  Congress  approved  June  25,  1842, 
every  State  that  is  entitled  to  more  than  one  Representative  is  required  to  vote  by  district  *  *  *  and 
in  pursuance  of  this  act  of  Congress,  the  State  of  Iowa,  on  the  22d  of  February,  1847,  divided  herself 
into  two  Congressional  districts.  *  *  *  Now  it  seems  impossible  that  Congress  *  *  *  could  have 
intended  that,  for  Congressional  purposes,  the  inhabitants  and  residents  of  one  district  could  lawfully 
vote  in  another.  And  can  it  be  supposed  that  the  State  of  Iowa,  when,  subsequently  to  all  these  other 
laws,  she  ran  a  line  across  her  territory  dividing  it  into  two  districts,  meant  to  say  that  after  all  that 
line  meant  nothing,  and  that  the  inhabitants  living  in  one  district,  when  voting  for  Representatives  in 
Congress,  might  still  vote  in  the  other  district? 

Therefore  the  minority  favored  the  exclusion  of  the  votes  of  Boone. 
The  majority  of  the  committee,  after  showing  how  Boone  Township  was  for 
judicial  and  election  purposes  added  to  Polk  County,  says : 

The  constitution  of  Iowa  declares  that  any  country  attached  to  any  county  for  judicial  purposes 
shall,  unless  otherwise  provided  for,  be  considered  as  forming  a  part  of  said  county  for  election  purposes. 

'Globe,  pp.  1293,  1301,  1310. 


§  819  GENER.U.   ELECTION    CASES,   1840   TO   1850.  1063 

But,  unless  the  vote  of  Boone  Township  be  received  and  counted  as  part  of  Polk  County,  this  constitu, 
tional  provision  becomes  a  nullity,  and  the  voters  of  Boone  are  entirely  disfranchised.  Their  vote 
could  be  received  and  counted  at  no  other  place.  No  provision  was  ever  made  for  their  voting  in  any 
other  county  than  Polk.  The  electors  at  Kanesville  could  have  voted,  had  they  chosen  to  do  so,  in  the 
county  lying  east  of  them,  to  which  they  had  been  attached;  but  these  voters  could  have  had  no  voice 
in  the  choice  of  a  Representative,  unless  their  votes  had  been  received  as  a  portion  of  the  vote  of  the 
First  district,  of  which  Polk  County  was  declared  to  be  a  part.  It  is,  however,  objected  that  the 
constitution  also  contains  the  following  provision:  "No  county  shall  be  divided  in  forming  a  Con<Tes- 
sional,  senatorial,  or  representative  district."  It  is  urged  that,  if  Boone  is  to  be  considered  as  forming 
a  part  of  Polk  County,  then  a  county  has  been  divided  in  forming  a  Congressional  district,  and  therefore 
the  districting  act  must  be  considered  as  repealing  the  antecedent  act  attaching  Boone  to  Polk.  To 
this  it  may  be  answered,  that  if,  within  the  meaning  of  the  constitution,  the  districting  act  did  divide 
Polk  County  by  separating  Boone  Township  from  it,  the  act  itself  is  unconstitutional  and  inoperative, 
so  far  as  it  aims  to  sever  Boone  from  the  county  of  which,  under  the  constitution  and  law,  it  forms  -1 
part.  Nor  does  there  appear  to  be  the  least  reason  for  asserting  that  it  repealed  the  act  attaching 
Boone  to  Polk.  ^ 

Therefore  the  majority  report  concludes  that  the  Boone  returns  siiould  be 
counted. 

It  appears  that  in  the  committee,  on  the  question  of  rejecting  the  Boone 
returns,  there  were  sLx  ayes  and  three  noes,  Mr.  Strong,  who  drew  the  majority 
report,  being  among  the  noes.  So  it  is  evident  that  while  the  majority  report  favors 
counting  the  Boone  votes,  the  majority  of  the  committee  voted  that  they  should 
not  be  counted. 

The  majority  report  concliKlcd  that  the  sitting  Member  had  a  majority  of  15 
votes,  and  recommended  this  resolution: 

Resolved,  That  William  Thompson  is  entitled  to  the  seat  in  this  House  which  he  now  holds  as 
the  Representative  from  the  First  Congressional  district  of  Iowa. 

The  minority  found  that,  as  a  result  of  their  conclusions,  the  concestant  had  a 
majority  and  was  entitled  to  the  seat;  but  instead  of  reporting  a  resolution  declar- 
atory of  his  rights,  reported  a  series  of  resolutions  in  form  as  follows: 

Resolved,  That  the  7  votes  cast  at  Pleasant  Grove  with  the  middle  letter  of  the  contestant's  name 
omitted  be  counted. 

Resolved.  That  the  vote  cast  at  Kanesville  be  allowed  and  counted  as  a  legal  vote. 

And  in  five  other  resolutions  the  remaining  points  in  thr;  case  were  included. 

In  the  debate  in  the  House  on  June  27  '  Mr.  E.  W.  McGaughey,  of  Indiana,  a  mem- 
ber of  the  Conimittee  on  Elections,  commented  on  the  curious  state  of  the  report.  A 
majority  of  the  committee  had  concluded  that  the  sittmg  Member  was  elected, 
but  the  Members  who  composed  that  majority  did  not  all  agree  on  the  reception  of 
certain  votes  needed  to  elect  the  sitting  Member.     Mr.  McGaughey  said : 

Mr.  Ashe  votes  with  the  majority  in  favor  of  the  admission  of  the  votes  at  Kanesville,  and  with 
the  minority  against  the  rejection  of  Boone  Township,  in  the  Second  district,  and  as  it  requires  the  admis- 
sion of  the  first  and  the  rejection  of  the  other  to  decide  the  case  in  favor  of  Mr.  Miller,  it  follows  that 
Mr.  Ashe  comes  to  the  final  result  by  his  individual  computation  that  Mr.  Thomas  is  elected,  while, 
on  the  other  hand,  Mr.  Harris,  of  Alabama,  and  Mr.  Harris,  of  Tennessee,  voted  in  committee  with  the 
minority  against  the  admission  of  Kanesville,  and  with  the  majority  in  favor  of  the  rejection  of  Boone 
Township,  in  the  Second  district;  but  as  they  are  in  the  minority  against  the  Kanesville  vote,  although 
in  the  majority  in  regard  to  the  other  question,  they  can  by  their  computation  arrive  at  the  final  con- 
clusion that  Mr.  Thompson  is  elected.     This  presents  the  singular  anomaly  of  men  agreeing  in  a  result, 

'  Globe,  p.  1299. 


1064 


PRECEDENTS   OF   THE   HOUSE   OF   REPRESENTATIVES.  §   820 


and  disagreeing  about  the  very  facts  necessary  to  produce  that  result.  Now,  sir,  I  maintain,  that  inas- 
much as  a  majority  of  the  committee  agree  upon  a  state  of  facts  which  shows  conclusively  that  the 
contestant  has  received  a  majority  of  the  legal  votes,  that  it  follows  as  a  necessary  consequence  that 
the  honorable  chairman  had  no  right  to  make  a  report  which  denies  the  right  to  a  seat  of  the  person 
thus  decided  to  have  received  a  majority  of  the  votes,  and  that  his  report.,  submitted  under  such  cir- 
cumstances, should  not  and  can  not  be  regarded  as  the  majority  report. 

The  report  was  debated  on  June  26  to  28/  and  on  the  latter  date  the  resolutions 
of  the  minority,  with  an  added  resolution  declaring  Daniel  F.  IVIiller,  the  contestant, 
entitled  to  the  seat,  was  offered  as  a  substitute  for  the  resolution  reported  by  the 
majority,  confirming  the  title  of  the  sitting  Member. 

On  the  substitute  there  appeared,  yeas  95,  nays  94.  Thereupon,  the  Speaker 
voted  with  the  nays,  making  a  tie  vote,  and  so  the  amendment  failed. 

The  question  recurring  on  the  resolution  of  the  majority  declaring  William 
Thompson,  the  sitting  Member,  entitled  to  the  seat,  there  appeared,  yeas  94,  nays 
102.     So  the  House  declined  to  affirm  that  the  sitting  Member  was  "entitled  to  the 

seat." 

Some  question  arose  as  to  the  effect  of  this  vote,  and  whether  or  not  it  produced 
a  vacancy  such  as  would  authorize  the  Speaker  to  notify  the  executive  of  Iowa. 
Mter  debate '  Mr.  McGaughey,  offered  this  resolution,  which  was  ruled  by  the 
Speaker^  to  present  a  question  of  privilege: 

Resolved,  That  there  is  now  a  vacancy  in  this  House  in  the  representation  from  the  First  Congres- 
sional district  of  the  State  of  Iowa,  and  that  the  fact  of  vacancy  be  notified  to  the  executive  of  the  State  of 
Iowa  by  the  Speaker  of  this  House. 

This  resolution  was  agreed  to,  yeas  108,  nays  84. 

820.  The  Pennsylvania  election  case  of  Littell  v.  Robbins,  Jr.,  in 
the  Thirty-first  Congress. 

In  1850  election  contests  were  yet  instituted  by  memorial  and  con- 
ducted by  rule  laid  down  by  the  House. 

The  records  and  returns  of  election  oflicers  are  presumed  to  be  cor- 
rect and  are  to  be  set  aside  only  on  conclusive  proof. 

Discussion  of  degree  and  kind  of  evidence  required  to  rebut  the  pre- 
sumption in  favor  of  the  acts  of  election  oflBicers. 

On  February  4,  1850,''  Mr.  Joseph  R.  Chandler,  of  Pennsylvania,  presented  the 
memorial  of  John  S.  Littell  representing  that  he  was  duly  elected  a  Representative 
from  the  Fourth  Congressional  district  of  Pennsylvania,  and  praying  an  opportunity 
to  establish  his  right  to  the  seat  occupied  by  John  Robbons,  jr.  This  memorial  was 
referred  to  the  Committee  on  Elections. 

On  January  29,^  there  being  no  law  at  that  time  regulating  the  conduct  of  con- 
tested elections,  the  House  agreed  to  a  resolution  governing  the  taking  of  testimony 
and  the  forwarding  of  the  depositions. 

On  August  19,"  Mr.  William  Strong,  of  Pennsylvania,  presented  the  report  of 

'Globe,  pp.  1292,  1299,  1305,  1315;  Journal,  pp.  1057-1066. 

^^  Globe,  pp.  1316,  1317;  Journal,  p.  1005. 

^Howell  Cobb,  of  Georgia,  Speaker. 

*  First  session  Thirty-first  Congress,  Journal,  p.  223. 

'Journal,  p.  42C. 

"Journal,  p.  1275;  House  Report,  No.  488. 


I 


§  820  GENERAI.   ELECTION    CASES,   1840   TO   1850.  1065 

the  majority  of  the  committee  in  favor  of  sitting  Member;  and  Mr.  John  Van  Dyke 
of  New  Jersey,  mmonty  views  in  favor  of  declaring  the  seat  vacant  ' 

Phil  ?1  t®"ol  'r^f^  ^°'  ^^-  ^°^^^'  ^'^'  ■''''■     ^^  '^''  P^^^^  ^l^^tion  district  of 
Philadelphia  924  votes  were  returned  for  Mr.  Robbins  and  169  for  Mr.  Littell      The 
latter  alleged  frauds  which  diminished  his  actual  vote  in  the  district  from  26.3  to  169 
and  mcreased  the  actual  vote  of  the  sitting  Member  from  445  to  9'>4 

The  sittmg  Member  presented  no  testimony.     The  testimony  relied  upon  by  the 
contestant  prmcipally  was  that  given  by  a  committee  of  citizens  who  stood  by  the 

Tf  "tt"p  f  ;  T  !.  V'°''r'r  P'"''^  ^°  '^'  ^'^«^^°^  °^^'''-  1°  one  precinct 
of  the  Penn  district  the  list  of  the  committee  showed  269  less  voters  than  were 

returned  by  the  officers  within-all  of  whom  were  of  the  same  party  as  the  sitting 
Member  At  the  other  precinct-where  the  election  board  was  also  partisan-the 
comniittee  counted  167  voters  less  than  were  recorded  by  the  official  returns  It 
further  appeared  that  the  return  of  the  election  showed  the  names  of  more  persons 
than  were  on  the  registration  lists  provided  by  law;  and  it  also  appeared  that  an 
effort  to  find  voters  recorded  by  the  election  officers,  but  not  recorded  by  the  com- 
mittees who  watched  the  votmg,  failed,  although  the  contestant  caused  officers  with 
subpoenas  to  search  for  them. 

It  ^^  ^ei-ted  by  the  majority  of  the  committee,  and  admitted  by  the  minority 
that  the  contestant  had  not  proven  conclusively  that  any  votes  given  for  him  had 
been  counted  for  the  sittmg  Member.  It  was  also  evident  that  the  evidence  of  the 
conmiittees  of  citizens  who  stood  by  the  polling  places,  even  if  admitted  to  be  con- 
clusive   did  not  show  a  sufficient  number  of  fraudulent  returns  to  overcome  the 

3"';  f   ^t'T^^  fr^"'''  ^"'  '^"  ^"^°"'-^  "'"^^^  '^'^'  tl^«  f^^^d  proven  was 
sufficient  to  jus  ify  the  throwing  out  of  the  whole  vote  of  the  Penn  division      The 

elimination  of  that  vote  would  give  the  seat  to  the  contestant;  but  the  minority 
merely  recommended  that  the  seat  be  declared  vacant. 

The  majority  of  the  committee,  however,  did  not  give  to  the  evidence  of  the 
committees  of  citizens  the  importance  that  the  minority  attributed  to  them  The 
majority  considered  that—  •     -me 

£n^bv  tr"'ffi°^  '°';*!'^°^  I"  '■'^"'  '*'  '^'  P^««'^Pti°'^  ^^t  be  in  favor  of  the  correctness  of  the  record 
nnfvnn      rf 'r  ''''*'°°^'^^*^"'"'^'"^"-     "F^"disnot  to  be  presumed "  is  a  maxim  not 

of  iLttenTiorfndT"'"'^ 

of  inattention,  and  the  responsibilities  connected  with  the  failure  to  discharge  their  duty  all  unite  to 

secure  a  credence  to  the  acts  of  the  officers,  which  can  not  be  justly  accorded  to  the  acte  i  othel 
especially  if  those  others  be  mere  partisans.  ^^' 

The  committee  further  go  on  to  state  that  the  laws  of  Pennsylvania  tended  to 
g^ard  agamst  the  perpetration  of  the  frauds  alleged.  Therefore  the  committee  held 
that  the  prima  facie  presumption  had  not  been  overturned,  and  reported  a  resolution 
declaring  the  sitting  Member  entitled  to  his  seat. 

On  September  1 1 '  the  minority  moved  to  substitute  for  the  majority  resolution  a 
declaration  that  the  seat  should  be  declared  vacant.  This  was  decided  in  the 
negative,  yea.s  56  nays  110.  Then  the  resolution  of  the  majority,  declaring  Mr. 
Kobbins  entitled  to  the  seat,  was  agreed  to  without  division. 

'Journal,  pp.  1444-1446. 


Chapter  XXVIL 

GENERAL   ELECTION   CASES,  1850  to    i860. 


1.  House  cases  from  the  Thirty-second  to  the  Thirty-sixth  Congresses.     Sections  821-843.' 

2.  The  Senate  case  of  James  Harlan.     Section  844. 


821.  The  Pennsylvania  election  case  of  Wright  v.  Fuller,  in  the 
Thirty-second  Congress. 

Construction  of  the  provision  of  the  law  of  1851  requiring  the  notice 
of  contest  to  "  specify  particularly." 

The  notice  of  contest  need  not  specify  the  names  of  voters  objected 
to  as  not  qualified. 

On  April  22,  1852,^  the  Committee  on  Elections  reported  in  the  case  of  Wright  v. 
Fuller,  of  Pennsylvania.  This  case  involved  three  main  features:  The  sufficiency 
of  the  notice  of  contest  under  the  law  of  1851,  the  conduct  of  election  officers,  and 
alleged  fraudulent  votes. 

The  sitting  Member  alleged  that  the  notice  was  not  in  accordance  with  the 
requirement  that  the  contestant  should  "specify  particularly"  the  grounds  of  the 
contest.  The  minority  and  majority  of  the  committee  differed  in  their  interpreta- 
tion of  the  law.     After  printing  in  full  the  notice,  the  majority  report  contends: 

A  majority  of  the  committee  deeming  this  notice  sufficiently  certain  and  definite  to  apprise  the 
sitting  Member  of  the  reasons  "of  the  grounds"  on  which  his  election  was  contested,  overruled  this 
objection.  The  first  section  of  the  law  which  directs  the  contestant  to  give  notice  to  the  sitting  Member 
reads  in  conclusion  thus:  "And  in  such  notice  shall  .specify  particularly  the  grounds  upon  which  he 
relies  in  the  contest."  A\'hat  are  the  "grounds,"  the  reasons  on  which  the  seat  is  to  be  contested?  The 
notice  furnishes  us  with  the  answer:  The  gross  and  flagrant  misconduct  and  irregularities  of  the  officers 
constituting  the  election  board,  and  also  the  reception  of  such  a  number  of  illegal  votes  as  changed  the 

'Additional  cases  in  this  period,  classified  in  different  chapters,  are: 

Thirty-fourth  Congress,  Turney  v.  Marshall  and  Fouke  v.  Trumbull,  Illinois.     (Sec.  415.) 

Thirty-fifth  Congress,  Fuller  v.  Kingsbury,  Dakota.     (Sec.  408.) 

Thirty-fifth  Congress,  WTiyte  v.  Harris,  Maryland.     (Sec.  324.) 

Thirty-fifth  Congress,  Phelps,  Cavanaugh,  and  Becker,  Minnesota.     (Sec.  519.) 

Thirty-fifth  Congress,  Vallandigham  v.  Campbell,  Ohio.     (Sec.  726.) 

Thirty-sixth  Congress,  Williamson  v.  Sickles,  New  York.     (Sec.  597.) 

Thirty-sixth  Congress,  Harrison  v.  Davis,  Maryland.     (Sec.  325.) 

^  First  session  Thirty-second  Congress,  House  Report  No.  136;  1  Bartlett,  p.  152;  Rowell's  Digest, 
p.  137. 

1066 


§   ^^2-  GENERAL   ELECTION   CASES,   18.50   TO    1860.  1067 

result  of  the  election.     The  intention  of  the  law  requiring  this  notice  to  be  given  was  to  prevent  any 

all^ed-no  want  of  due  information  protested-the  committee  could  but  conclude  that  the  notice 
^v.t  un  the  purview  of  the  law,  was  all  sufficient.  If,  as  the  fitting  Member  contend...  the  act  requ  red 
that  the  names  of  the  illegal  voters  should  have  been  particularly  specified  in  the  notice,  we  would 
certainly  have  the  fact  set  forth  and  declared  in  the  sixth  section,  which  provides  that  the  "names  of 
he  witnesses  to  be  examined,  and  their  places  of  residence,  should  be  given,  by  leaving  a  copy  with 
he  pe^on  to  be  notified,  at  his  usual  place  of  abode,  at  least  ten  days  before  the  examination ''  The 
furnishing  of  a  list  of  names  of  the  illegal  voters  might  possibly  have  put  the  sitting  Member  in  a  stronger 
position  to  rebut  the  contestanfs  proof ;  but  that  the  contestant  was  required  to  furnish  such  a  list  is  not 
within  the  letter  nor  demanded  by  the  spirit  of  the  statute. 

The  minority,  who  from  their  views  evidently  considered  that  on  this  point  the 
case  turned  principally,  contended : 

Now  what  do  the  words  "specify  particularly,"  in  this  connection,  mean?    In   our  opinion  thev 
mean  a  clear   precise,  definite,  and  full  statement  of  the  fact«  on  which  an  election  is  proposed  to  be 
contested^     The  charges  must  be  positive,  tangible,  direct,  and  particular.     If  a  party  complain  of  illegal 
voting,  therefore,  inasmuch  a.  illegal  voting  is  susceptible  of  particuhir  specification,  he  must  state 
where  it  was  done,  when  it  was  done,  the  number  of  illegal  votes,  and  by  whom  given,  and  the  disquali- 
fication.    Clearly  nothing  less  would  be  "a  particular  specification,"  and  the  absence  of  any  of  these 
requisites  must  render  such  specification  vague,  indefinite,  and  therefore  insufficient.     The  notice  of  the 
contestant  in  this  case  does  not  state  the  number  or  the  names  of  any  who  voted  illegally  and  is  there 
fore,  in  our  judgment,  insufiicient.     It  should  state  the  number,  because  any  number' less  than  the 
returned  Member's  majority  would  not,  of  course,  defeat  his  election;   and  an  investigation  of  any  less 
number  would,  therefore,  be  unnecessary.     A  general  allegation  of  illegal  votes  may  mean  five   or  ten 
or  twenty  or  five  hundred ;  it  is  uncertain,  and  not  particular.     Nor  would  a  subsequent  averment  that 
the  Illegal  votes  received,  and  the  illegalities  complained  of,  had  changed  the  result,  be  sufficient      This 
point  was  expressly  ruled  in  case  of  Lelar,  sheriff  of  Pliiladelphia,  in  1846.     The  courts  say  they  will 
require  of  the  party  complaining  of  illegal  votes  to  state  the  number,  for  instance,  thus:   Twenty  voted 
under  age;    fifteen  voted  who  were  unnaturalized  foreigners;    ten  who  were  nomesidents    etc      This 
particularity  the  courts  of  Pennsylvania  say  they  will  require,  because  otherwise  they  would  be  con- 
verted into  a  mere  election  board,  for  the  purpose  of  counting  disputed  ballots.     It  is  tme  that  in  this 
case  they  did  not  require  the  names,  but  Congress,  in  the  case  of  Joseph  B.  Vamum,  of  Massachusetts 
(see  Contested  Elections,  p.  112),  expressly  ruled  that  the  allegation  that  persons  vote  who  were  not 
qualified  to  vote  is  not  sufficiently  certain,  and  that  the  names  of  the  persons  ol,jected  to  for  want  of 
sufficient  qualification  must  be  set  forth  prior  to  the  taking  of  the  testimony. 

Again  in  the  case  of  Easton  v.  Scott,  from  Missouri  (see  Contested  Elections,  p.  272)  it  waa  decided 
that  the  party  complaining  of  Ulegal  votes  must  state  the  names  and  the  particular  disqualifications 
Thw  was  also  required  in  the  case  of  Littell  against  Robbins,  at  the  last  Congress.  It  has  always  been 
required  in  the  English  House  of  Commons.  Such,  we  believe,  is  the  usual  and  correct  practice  in  all 
cases  of  contested  elections;  and  surely  if  Congress,  in  the  absence  of  any  law  prescribing  the  mode  of 
taking  testimony  in  such  cases,  has  required  parties  to  be  thus  particular,  how  can  we  be  less  so  when 
Congress  by  positive  law  declares  they  shall  "specify  particularly?" 

822.   The  case  of  Wright  v.  Fiiller,  continued. 

The  House,  in  judging  on  election,  returns,  and  qualifications, 
should,  by  reason  of  the  functions  delegated  to  the  States,  be  governed 
by  certain  State  laws. 

Discussion  as  to  what  constitutes  a  fatal  irregularity  in  the  conduct 
of  election  officers. 

The  Elections  Committee,  in  an  unsustained  report,  held  that  a  seat 
should  be  declared  vacant  for  a  fraud  which  might  have  reversed  the 
result. 


1068  PEECEDENTS   OP   THE   HOUSE    OF   REPRESENTATIVES.  §  822 

Not  knowing  who  profited  by  certain  decisive  votes  cast  by  disqual- 
ified voters,  the  House  hesitated  to  declare  the  seat  vacant. 

As  to  the  conduct  of  the  election  officers  and  the  fraudulent  voting,  the  majority 
lay  down  tlus  rule  of  conduct : 

Havin"  disposed  of  this  preliminary  point,  the  committee  proceeded  to  the  examination  of  the  law 
and  testimony  involved  in  this  case.  In  discharging  the  last  duty,  the  committee  considered  that, 
although  the  House  of  Representatives,  by  virtue  of  the  fifth  section  of  the  first  article  of  the  Federal 
Constitution,  are  made  the  judges  of  the  election,  returns,  and  qualifications  of  its  Members,  yet  this 
power  is  not  plenary,  but  is  subordinate  to  the  second  and  fourth  sections  of  the  same  article — the  first  of 
these  sections  providing  that  the  electors  of  the  Members  shall  have  the  qualifications  requisite  for  the 
most  numerous  branch  of  the  State  legislature;  the  fourth  section  empowering  and  authorizing  the 
legislature  in  each  State  to  prescribe  the  places,  times,  and  manner  of  holding  elections  for  Senators  and 
Representatives — such  regulations  being  subject  to  alterations  made  by  the  Congress. 

By  force  of  these  provisions,  the  House  is  compelled,  when  adjudicating  in  any  matter  affecting 
the  elections,  returns,  or  qualifications  of  any  of  its  Members,  to  make  the  law  of  the  respective  States 
from  which  such  Members  may  be  returned  its  rule  of  action. 

In  relation  to  the  conduct  of  election  officers  the  majority  found  that  at  the 
Danville  precinct,  where  the  vote  was  suspicious — 

The  evidence  furnished  the  committee  proves  that  the  judge,  Mr.  Kitchen,  elected  by  the  people 
to  officiate  in  the  particular  capacity  of  judge,  did,  for  a  great  portion  of  the  time  while  the  election  wa.-* 
going  on,  neglect  his  peculiar  business  and  was  engaged  in  discharging  the  duty  of  inspector.  Not  only 
the  oath  but  the  duties  of  these  officers  are  entirely  different.  The  two  inspectors  are  required  to  stand 
at  the  window  to  receive  votes,  and  whenever  they  may  disagree  respecting  the  qualifications  of  a  voter 
the  judge  is  to  decide  between  them.  His  duty  is  strictly  that  of  an  umpire.  His  oath  carries  no  further 
obligation  with  it.  Usurping  the  duties  of  an  inspector,  he  was,  pro  hac  vice,  an  unsworn  officer.  If  this 
irregularity  of  conduct  of  the  judge  could  be  considered  as  resulting  from  ignorance  or  casual  carelessness, 
it  might  not  demand  the  serious  attention  of  the  House,  but  tliis  was  not  the  case. 

Each  inspector  is  required  to  select  one  clerk,  whose  duties,  as  prescribed  by  law,  are  to  keep  the 
list  of  voters  as  voting,  and  to  record  the  reasons  of  persons  voting  on  age,  or  such  as  are  not  found  on 
the  alphabetical  list,  and  as  admitted  by  the  inspectors,  and  who  are  bound  by  the  obligations  of  an  oath. 
E.  W.  Concklin  and  B.  Brown  were  selected  to  act  in  this  capacity.  Do  we  find  them  more  regardful 
of  duty,  more  faithfully  observant  of  the  requirements  of  the  law?  The  evidence  is  strong  that  one  of 
them,  Concklin,  while  he  delegated  to  another  individual,  an  unsworn  officer,  a  right  to  discharge  his 
duties,  assumed  for  a  portion  of  the  time  the  office  of  inspector.  It  is  proven  that  Concklin  was  engaged 
in  taking  and  counting  out  votes  from  the  boxes — a  duty  which  is  imposed  by  the  law  exclusively  upon 
the  judge  and  inspectors. 

The  assessor  was  also  required  by  law  to  be  present  to  give  information  as  to 
the  right  of  persons  to  vote ;  but  at  the  Danville  precinct  the  assessor  laid  aside  his 
register  and  acted  for  a  time  as  distributer  of  tickets. 

The  majority  therefore  concluded  that  the  action  of  the  election  officers  was 
fatally  at  variance  with  the  requirements  of  law. 

The  minority  contended  that  the  acts  of  the  election  officers  were  not  fatallj^ 
illegal.  The  judge  was  sworn  to  "faithfully  assist  the  inspectors,"  among  his  other 
duties,  and  the  minority  concluded  that  this  justified  the  acts  of  Judge  Kitchen. 

The  minority  contended  that  the  proof  of  illegal  voting  was  insufficient.  The 
majority  showed  that  the  total  result  at  the  Danville  precinct,  where  contestant 
received  32  votes  and  sitting  Member  659,  was  suspicious  when  compared  with 
votes  of  previous  elections.  Furthermore,  certain  voters  whose  qualifications  were 
impeached  refused  to  answer  subpoenas  and  so  defied  investigation.  On  the  whole, 
the  testimony  satisfied  the  majority  that  frauds  had  been  conm:iitted;    but  they 


§    823  GENEB-VL    ELECTION    CASES,   1850   TO   1860.  1069 

could  not  satisfy  themselves  as  to  how  many  illegal  votes  the  sitting  Member  received. 
The  sitting  Member  had  been  returned  by  a  majority  of  59  votes,  and  the  committee 
found  enough  unqualified  voters  to  reverse  the  result  if  it  could  have  been  definitely 
ascertained  that  all  or  a  large  portion  of  them  had  been  cast  for  sitting  Member. 
Not  being  able  to  establish  this  positively,  the  conmiittee  reported  a  resolution 
declaring  the  seat  vacant  because  the  election  at  the  Danville  precinct  had  been 
"irregularly  and  illegally  conducted." 

The  case  was  considered  in  the  House  June  24, 26,  and  28  and  July  2.^  On  the 
latter  day  the  whole  subject  was  laid  on  the  table,  by  a  vote  of  yeas  87,  nays  64. 

So  the  sitting  Member  retained  the  seat. 

823.  The  election  case  of  Lane  v.  Gallegos,  from  the  Territory  of  New 
Mexico,  in  the  Thirty-third  Congress. 

In  the  absence  of  fraud  on  the  part  of  the  voters,  whose  choice  was  in 
doubt,  the  House  overlooked  irregularities  on  the  part  of  the  election 
officers. 

On  February  24,  1854,^  the  Committee  on  Elections  reported  in  the  case  of 
Lane  r.  Gallegos,  of  New  Mexico,  that  there  were  undoubtedly  great  irregularities 
in  the  returns,  but  no  greater  than  might  be  expected  in  the  recently  organized 
Territory,  where  the  people  generally  did  not  understand  the  institutions  or  language 
of  the  country.  It  did  not  appear  that  in  any  single  instance  was  fraud  committed 
or  attempted,  or  that  any  return  from  any  of  the  precincts  was  corruptl)^  made. 

The  contestant  alleged  gross  frauds  in  the  voting  and  that  returns  had  been 
changed  in  the  office  of  the  secretary. 

The  committee  found  that  the  votes  of  certain  Indians  had  been  properly 
excluded,  since  they  were  not  qualified  voters  according  to  the  laws  of  the  Territory. 
There  was  no  proof  showing  material  fraud  in  the  voting. 

The  probate  judge  of  San  Miguel  County,  in  returning  the  abstract  of  votes  of 
certain  precincts  to  the  office  of  the  secretary  of  the  Territory,  had  failed  to  accom- 
pany his  return  with  the  poll  book.  But  subsequently,  and  within  the  limit  of  time 
prescribed  by  law,  the  lists  of  voters  were  furnished. 

The  committee  concluded: 

Neither  in  these  precincts  of  San  Miguel  nor  in  those  of  any  other  county  from  which  the  returns 
are  alleged  by  the  contestant  to  be  informal  and  contrary  to  law  have  the  committee  been  able  to  per- 
ceive so  substantial  a  defect  as  to  justify  their  total  exclusion.  In  the  absence  of  all  attempt  at  fraud  on 
the  part  of  the  voters  it  would  be  manifestly  unjust  to  deprive  them  of  the  effect  of  their  suffrages  for 
a  slight  failure  upon  the  part  of  the  officers  conducting  the  election  fully  to  comply  with  all  the  forms  of 
law  when  enough  is  clearly  shown  to  determine  the  wishes  of  the  people. 

Therefore  the  committee  arrived  at  the  unanimous  opinion  that  Mr.  Gallegos 
was  entitled  to  the  seat  as  Delegate  from  New  Mexico. 
The  House  concurred  in  the  report  of  the  committee. 

824.  The  Illinois  election  case  of  Archer  v.  Allen  in  the  Thirty-fourth 
Congress. 

Opinion  from  a  divided  committee  as  to  the  degree  of  definiteness  of 
specifications  required  in  a  notice  of  contest. 


'Journal,  pp.  840,  845,  849,  852,  857-859;  Globe,  pp.  1613,  1627,  1655. 

^  First  session  Thirty-third  Congress,  1  Bartlett,  p.  104;  Rowell's  Digest,  p.  140. 


1070  PKECEDENTS   OF   THE   HOUSE   OF   KEPRESENTATIVES.  §   824 

A  notice  as  to  taking  testimony  having  been  delayed  in  delivery  so 
that  one  of  the  parties  could  not  attend,  the  committee  ordered  the  testi- 
mony taken  anew. 

When  a  Member  was  returned  by  a  majority  of  1,  which  was  rendered 
uncertain  by  a  recount,  the  House  declared  the  seat  vacant. 

As  to  the  effect  of  an  unoflS.cial  recount  of  votes  on  the  return  as 
originally  made. 

A  seat  being  declared  vacant,  the  House  directed  the  Speaker  to  notify 
the  executive  of  the  State. 

The  case  of  Archer  v.  Allen,  from  Illinois,  in  1856,'  involved  four  questions: 
The  sufficiency  of  the  notice  of  contest  under  the  law,  the  sufficiency  of  a  notice 
of  the  taking  of  certain  testimony,  the  legality  of  a  recount  of  votes  in  a  certain 
precinct,  and  the  legality  of  three  votes. 

The  contestant  had  notified  the  sitting  Member  of  his  intention  to  contest  on 
the  following  grounds : 

That  the  returns  made  by  the  returning  officers,  as  officially  announced,  are  incorrect,  and  that  the 
poll  books  of  the  several  counties  in  this  district  show  that  I  received  a  majority  of  the  legal  votes  polled 
in  the  said  district  for  the  said  office  and  am  entitled  to  the  certificate  of  election  therefrom. 

The  majority  of  the  committee  concluded  this  notice  was  sufficient: 

Your  committee  are  clearly  of  opinion  that  the  first  specification  is  sufficiently  certain  and  definite 
to  authorize  an  investigation  of  the  correctness  of  the  returns  made  by  the  returning  officers  of  any  pre- 
cinct in  the  district.  The  notice  embraced  all  the  precincts  in  general  terms,  and  was  as  good  a  com- 
pliance with  the  law  of  1851  -  and  as  serviceable  to  the  sitting  Member  as  if  every  precinct  in  the  district 
had  been  specifically  named.  The  law  was  substantially  complied  with.  Besides,  it  does  not  appear, 
and  it  has  not  been  suggested,  that  injury  or  inconvenience  has  resulted  to  the  sitting  Member  from  any 
want  of  certainty  in  the  notice. 

The  minority  contended  that  the  notice  fell  far  short  of  the  requirement  of 
law,  that  the  contestant  should  "specify  particularly  the  ground  upon  which  he 
relies  in  the  contest,"  and  declared  that  it  could  hardly  have  been  more  vague  and 
indefinite. 

The  second  consideration  related  to  the  taking  of  testimony  as  to  the  return 
of  Livingston  precinct,  on  which  depended  the  seat.  The  sitting  Member  objected 
that  the  notice  given  him  was  not  due  or  legal.  The  law  required  ten  days'  notice; 
but  it  was  not  until  February  28  that  the  notice  was  served  on  him  in  Washington, 
and  the  time  for  taking  the  testimony  was  designated  as  March  9,  and  the  place 
the  State  of  Illinois.  The  minority  of  the  committee  contended  that  the  time  was 
but  nine  days,  and  the  distance  too  great  to  allow  of  attendance.  Therefore  the 
testimony  was  ex  parte  and  should  not  be  allowed  to  impeach  the  Livingston  vote 
as  returned  originally.  The  majority  of  the  committee  contended  that  the  notice 
which  was  dated  February  20,  and  delayed  by  no  fault  of  contestant,  was  sufficient 
imder  the  rule  of  law  that  the  day  upon  which  the  notice  was  given  might  be  counted 
under  certain  circumstances,  and  on  the  further  ground  that  the  law  relating  to 

'  First  session  Thirty-fourth  Congress,  1  Bartlett,  p.  169;  Rowell's  Digest,  p.  142;  House  Reports 
Nos.  8  and  167. 

^  9  Stat.  L.,  p.  568.  The  prior  laws  on  this  subject  were  Stat.  1798,  chap.  8,  and  Stat.  1800,  chap. 
28,  which  extended  the  former  act  for  four  years. 


§   825  GENERAL   ELECTION    CASES,   1850   TO   1860.  107 1 

contests  was  directorj^  and  cumulative,  having  for  an  object  the  protection  and 
not  the  defeat  of  contesting  parties  and  the  people.  But  the  committee  decided 
to  have  the  depositions  retaken  at  a  time  and  place  where  the  sitting  Member 
could  be  present  and  cross-examine.  The  sitting  Member  availed  himself  of  this 
privilege,  although  he  had  expressly  denied  that  the  depositions,  as  originally  taken, 
contained  anything  that  could  warrant  the  committee  in  setting  aside  the  official 
returns. 

At  the  election  held  November  7,  1854,  the  returns  showed  for  the  sitting 
Member  a  majority  of  one  vote.  The  return  of  Li^-ingston  precinct  was  100  votes 
for  William  B.  Archer  and  47  votes  for  James  C.  Allen. 

But  on  March  2,  1S55,  the  election  officers  of  Livingston  made  affidavit  that  a 
recount  of  the  votes — which  had  been  put  in  a  locked  box  and  kept  by  one  of  the 
judges — showed  102  votes  for  Mr.  Archer  and  46  votes  for  Mr.  Allen. 

The  majority  <if  the  committee  were  satisfied  with  the  correctness  of  the  recount, 
the  three  original  ballots  which  occasioned  the  discrepancy  having  been  exhibited 
to  the  committee,  although  they  were  lost  before  the  subject  came  up  in  the  House. 
The  minority  held  that  the  correctness  of  the  recount  was  not  proven.  There  was 
no  law  requiring  the  ballots  to  be  kept  after  the  first  count  and  return.  The  testi- 
mony was  not  conclusive  that  other  persons  than  the  judge  keeping  the  box  had 
not  had  access  to  it. 

There  was  also  a  question  as  to  three  votes,  two  alleged  to  have  been  cast  by 
minors  and  one  by  a  nonresident.  The  testimony  as  to  the  two  alleged  minors  was 
not  sufficient  to  determine  for  whom  they  cast  their  ballots.  The  alleged  nonresi- 
dent testified  that  he  voted  for  contestant,  but  the  majority  of  the  committee 
declined  to  rule  that  he  was  ineligible  as  a  voter,  as  it  was  "to  be  presumed  that 
the  judges  of  election  did  their  duty  and  received  no  illegal  votes." 

Therefore  the  majority  reported  the  following  resolution: 

Resolved.  That  Jamt's  C.  Allen  was  not  elected  and  is  not  entitled  U>  a  seat  in  this  House. 
Resolved,  That  William  B.  Archer  was  elected  and  is  entitled  to  a  seat  in  this  House. 

On  July  16,  17,  and  18  '  the  report  was  considered  in  the  House,  and  after  long 
debate  the  first  resolution  was  agreed  to,  yeas  94,  nays  90. 

By  the  second  resolution,  declaring  Mr.  Archer  elected,  the  yeas  were  89  and 
the  nays  91.  So  the  contestant  was  not  seated,  although  a  persistent  effort  was 
made  to  reconsider  the  vote. 

Then  the  House  agreed  to  the  following: 

Whereas  this  House  having  declared  that  neither  James  C.  .\llen  nor  William  B.  Archer  is  entitled 
to  a  seat  on  this  floor  from  the  Seventh  Congressional  district  of  Illinois; 

Be  it  resolved,  That  in  the  judgment  of  this  House,  a  vacancy  exists  in  said  district,  and  that  the 
election  which  was  contested  in  this  House  therefrom  be  referred  back  to  the  people  of  the  district, 
and  that  the  Speaker  of  this  House  notify  the  governor  of  that  State  of  this  resolution  of  the  House. 

825.  The  first  election  case  of  Reader  v.  Whitfield,  from  the  Territory 
of  Kansas,  in  the  Thirty-fourth  Congress. 

Instance  wherein  an  election  contest  was  instituted  by  memorial 
after  the  enactment  of  the  law  of  1851. 

»  Journal,  pp.  1221,  1223,  1226-1234;  Globe,  pp.  1646,  1G56;  Appendix,  pp.923-936. 


j^Q72  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §    8'25 

In  1856  the  idea  was  advanced  that  the  House  was  not  bound  to  pro- 
ceed in  an  election  case  according  to  the  law  of  1851. 

On  February  2,  1856,  the  House  elected  a  Speaker  after  a  contest  which  had 
begun  December  3,  1855. 

On  February  4,  1856,'  after  the  oath  had  been  administered  to  the  Members, 
the  Delegates  were  called.  When  the  name  of  John  W.  Whitfield,  of  Kansas,  was 
called,  Mr.  Lewis  D.  Campbell,  of  Ohio,  expressed  the  belief  that  the  circumstances 
surrounding  the  election  of  Mr.  Whitfield  were  sufficient  to  cause  the  House  to  de- 
part from  its  usual  custom  in  admitting  Delegates  on  prima  facie  evidence;  but  as 
the  House  had  been  long  delayed  in  organizing,  and  as  a  Delegate  had  no  vote,  he 
would  not  object  to  the  swearing  in  of  Mr.  Whitfield.     The  latter  then  took  the  oath. 

On  February  14'  the  memorial  of  A.  H.  Reeder,  contesting  Mr.  Whitfield's 
seat  was  presented  to  the  House.     The  grounds  of  contest  were  as  follows : 

That  the  election  of  October  1,  1855,  at  which  Mr.  \Miitfield  was  returned  as  elected,  was  void, 
inasmuch  as  the  law  under  which  it  was  held  had  been  passed  by  a  legislature  elected  through  the 
participation  of  superior  numbers  of  nonresidents  of  the  Territory. 

That  the  law  had  been  passed  by  the  legislature  sitting  at  an  unauthorized  place,  where  no  valid 
legislation  could  be  had. 

That  the  election  for  Delegate  had  not  been  conducted  according  to  the  forms  of  that  pretended 
law,  even;  and  that  many  illegal  votes  were  polled  by  nonresidents  and  others.  The  memorialist 
excused  himself  from  further  specifications  on  this  objection  because  he  could  not  obtain  the  necessary 
information  from  the  executive  offices  of  the  Territory. 

The  memorialist  fiuther  claimed  that  he  was  elected  Delegate  by  a  large  majority  of  the  legal 
voters  at  an  election  held  October  9,  1855. 

This  memorial  was  referred,  and  on  March  5,  1856,^  the  Committee  on  Elections 
reported.  The  committee  in  this  report  did  not  go  into  the  merits  of  the  case  but 
asked  the  adoption  of  the  following  resolution : 

Resolved,  That  the  Committee  on  Elections,  in  the  contested  election  case  from  the  Territory  of 
Kansas,  be,  and  are  hereby,  empowered  to  send  for  persons  and  papers,  and  to  examine  witnesses  upon 
oath  or  affirmation. 

It  appeared  from  the  memorial  that  Mr.  Reeder  did  not  claim  the  seat;  but 
this  was  not  seriously  urged  as  an  objection  to  proceedings  by  the  House,  which  was 
conceded  to  have  undoubted  authority  to  examine  its  owti  constituent  parts.  The 
majority  of  the  House  also  considered  that  common  rumor,  as  well  as  the  declara- 
tions of  the  memorialist,  furnished  abundant  reasons  for  the  investigation. 

A  preliminary  question  of  importance  was  involved  in  the  fact  that  the  pro- 
ceedings by  the  contestant  were  not  in  accordance  with  the  law  of  1851  governing 
procedm-e  in  cases  of  contested  elections.  That  law,  while  in  terms  applying  to 
States  only,  was  said  to  apply  by  implication  also  to  contested  elections  from  the 
Territories.  But  it  was  argued,^  apparently  with  prevailing  effect,  that  even  if  it 
did  apply  to  Territorial  contests,  the  law  of  1851  could  not  prevent  the  House, 
imder  the  Constitution,  from  passing  such  orders  and  resolutions  to  procure  testi- 
mony whether  by  witnesses  or  deposition,  as  it  might  think  proper. 

'  First  session  Thirty-fourth  Congress,  Globe,  p.  353;  Journal,  p.  448. 

^Journal,  p.  533;  House  Report  No.  3,  p.  26. 

'  House  Report  No.  3. 

■•By  Mr.  Israel  Washburn,  of  Maine,  Globe,  p.  454. 


§    826  GEXERAL   ELECTION   CASES,  1850   TO   1860.  1073 

The  right  of  the  House  to  send  for  persons  and  papers  in  such  a  case  was  not 
seriously  questioned,  the  precedents  in  the  New  Jersey  contest,  and  earUer  cases  in 
the  First  and  Second  Congresses  being  cited. 

826.   The  first  case  of  Beeder  v.  Whitfield,  continued. 

The  House  decided  that  it  might  investigate  all  matters  pertaining  to 
the  election  of  a  Delegate,  including  the  constitution  of  the  legislature 
which  provided  for  the  election. 

Form  of  resolution  providing  for  the  Kansas  investigation  of  1856. 

Discussion  of  the  nature  of  the  office  of  Delegate. 

A  Territorial  legislature  being  chosen  under  duress  of  armed  invaders 
the  House  unseated  the  Delegate  chosen  under  a  law  passed  by  that  legis- 
lature. ° 

The  main  point  not  being  a  question  as  to  which  of  the  two  parties  to  the  contest 
received  the  most  votes,  but  a  question  as  to  the  validity  of  the  legislative  act  pro- 
viding for  the  election,  it  was  contended  that  Mr.  Reeder  was  estopped  from  raising 
this  question  because  he  was  governor  of  tlie  Territorv  at  the  time  the  legislature 
was  elected  and  assembled,  and  issued  to  the  Members  their  certificates  of  election 
and  treated  the  legislature,  when  assembled,  as  a  la\vful  body.  The  majority  of  the 
committee  contended  that  the  doctrine  of  estoppel  was  applicable  only  to  mat- 
ters of  pnvate  right,  and  an  official  acting  in  a  public  capacity  could  not  by  the  per- 
formance of  his  duty,  thereby  estop  himself  from  any  other  duty  which  he  mi-ht 
afterwards  owe  to  the  pubhc  as  a  private  citizen,  or  in  another  and  different  official 
capacit}'. 

These  questions  were  incidental  to  the  main  controversy,  as  to  the  right  of  the 
House  to  examine  into  the  legaUty  of  the  existence  of  the  Territorial  legislature 
wluch  had  passed  the  law.  in  accordance  with  which  Mr.  'UTiitfield  had  received  the 
election  and  return. 

It  was  urged  with  great  vigor »  that  the  House  might  not  make  this  inquiry 
since  the  House  in  this  case  was  in  the  position  of  a  court,  and  while  a  court  might 
mquu-e  mto  the  vahdity  of  a  statute,  it  might  not  mquire  into  the  legality  of  the 
election  of  the  members  of  the  legislatiu-e  that  passed  the  statute.  That  question 
belonged  to  the  two  houses  of  the  legislature  itself,  and  their  decision  when  made 
was  considered  the  judgment  of  a  court  of  competent  jurisdiction,  which  no  other 
court  would  inquire  into.  It  was  the  inherent  right  of  the  Kansas  legislature  to 
inquire  into  the  election,  returns,  and  qualifications  of  its  own  members,  andhavinc- 
done  so  the  National  House  of  Representatives  might  not  examine  that  subject" 
Ihis  position  was  fortified  by  numerous  citations  from  the  law  ^vriters  of  England 

In  support  of  the  committee's  proposition  it  was  argued '  that  it  did  not  follow 
that  this  House  was  bound  by  the  limitations  of  a  court.     A  judicial  tribunal  mi-ht 
not  examine  into  the  elections,  quaUfications,  and  returns  of  Members  of  this  House 
but  this  House  did  decide  on  those  questions.     It  did  not  follow,  therefore,  that  this 

TV.!  ^J  \  Alexander  H.  Stephens,  of  Georgia,  and  others.     See  Appendix  of    Globe,  first  session 
1  hirty-fourth  Congress,  pp.  120,  121,  179. 

;  By  Mr.  Henry  Winter  Davis,  of  Maryland.     (Appendix  of  Globe,  p.  227. )     Mr.  Davis  occupied 
a  middle  ground,  not  going  to  the  whole  extent  of  the  committee's  contention. 
5904 — vol,  i_07 68 


X074  PRECEDENTS   OF   THE   HOUSE    OF   REPRESENTATIVES.  §  826 

House  might  not  decide  a  question  because  the  courts  could  not.  The  question  before 
the  House  was  not  a  judicial  question,  but  a  political  question.  This  distinction 
cleared  away  the  difficulties  over  this  branch  of  the  question.  This  House  having 
the  right  to  examine  into  the  election  of  its  Members,'  had  the  power  to  look  into 
every  fact  upon  which  the  election  depended.  There  was  no  object  in  citing  authori- 
ties as  to  the  right  of  a  legislature  to  judge  of  the  election,  returns,  and  qualifications 
of  its  members,  because  there  was  a  prior  question  first  to  be  decided,  viz,  whether 
or  not  there  was  a  legislature  to  j  udge .  Even  in  the  case  of  a  State  one  of  the  branches 
of  Congress  had  passed  upon  a  status  of  the  legislature  in  the  contested  election 
case  in  the  Senate  of  Robbins  and  Potter.^  But  the  Territorial  legislature  of  Kansas 
did  not  stand  on  any  such  basis.  Its  authority  was  limited  by  the  terms  of  the 
oro-anic  law  passed  by  Congress — the  Kansas  and  Nebraska  act.  That  legislature 
was  not  only  a  usurping  body,  elected  by  violence,  but  its  legislation  in  regard  to 
the  election  of  a  Delegate  to  Congress  violated  the  organic  act,  notably  in  that  it 
presumed  to  delegate  powers  which  it  might  not  delegate. 

The  question  of  the  legaUty  of  the  removal  of  the  legislatm'e  to  another  place, 
as  well  as  the  validity  of  the  election  of  October  9,  when  Mr.  Reeder  was  chosen, 
did  not  figure  essentially  in  the  report  or  debate. 

The  preliminary  report  of  the  committee  was  debated  on  February  19,  20, 
March  6,  7,  14,  17,  18,  and  19.^  On  February  20  the  House  agreed  to  the  resolution 
by  a  vote  of  71  yeas  to  69  nays,  but  at  once  reconsidered  it  by  a  vote  of  75  yeas  to  67 
nays.  The  resolution  was  then  recommitted,  with  instruction  to  report  the  reason 
and  grounds  for  which  the  authority  to  send  for  persons  and  papers  was  asked.  On 
March  6  the  House  took  up  the  subject  again,  the  committee  having  reported  the 
reasons  and  the  same  resolution. 

Several  propositions  were  then  made  as  substitutes  for  the  resolution  of  the 
committee,  and  finaUy,  on  March  19,*  the  House,  by  a  vote  of  102  yeas  to  93  nays, 
adopted  the  following  resolution: 

Resolved,  That  a  committee  of  three  of  the  Members  of  this  House,  to  be  appointed  by  the  Speaker, 
shall  proceed  to  inquire  into  and  collect  evidence  in  regard  to  the  troubles  in  Kansas  generally,  and  par- 
ticularly in  regard  to  any  fraud  or  force  attempted  or  practiced  in  reference  to  any  of  the  elections  which 
have  taken  place  in  said  Territory,  either  under  the  law  organizing  said  Territory  or  under  any  pretended 
law  which  may  be  alleged  to  have  taken  effect  therein  since;  that  they  shall  fully  investigate  and  take 
proof  of  all  violent  and  tumultuous  proceedings  in  said  Territorj'  at  any  time  since  the  passage  of  the 
Kansas-Nebraska  act,  whether  engaged  in  by  residents  of  said  Territory  or  by  any  person  or  persons  from 
elsewhere  going  into  said  Territory  and  doing,  or  encouraging  others  to  do,  any  act  of  violence  or  public 
disturbance  against  the  laws  of  the  United  States  or  the  rights,  peace,  and  safety  of  the  residents  of  said 
Territory;  and  for  that  purpose  said  committee  shall  have  full  power  to  send  for  and  examine,  and  take 
copies  of  all  such  papers,  public  records,  and  proceedings,  as  in  their  judgment  wiU  be  useful  in  the 
premises;  and  also  to  send  for  persons  and  examine  them  on  oath  or  affirmation  as  to  matters  within  their 
knowledge  touching  the  matters  of  said  investigation ;  and  said  committee,  by  their  chairman,  shall  have 
power  to  administer  all  necessary  oaths  or  affirmations  connected  with  their  aforesaid  duties. 

'  Argument  of  Mr.  Israel  Washburn,  of  Maine.     Appendix  of  Globe,  p.  191. 

2  Arguments  of  Messrs.  J.  A.  Bingham,  of  Ohio,  and  Washburn,  of  Maine.  Appendix  of  Globe, 
pp.  126,  192. 

'  Journal,  pp.  561,  568,  64G,  650,  678,  685,  691,  693;  Globe,  pp.  451,  475,  Oil,  612,  659,  674,  677,  690; 
Appendix,  pp.  118,  122,  166,  179,  189,  227. 

Mournal,  p.  698. 


§  826  GENERAL   ELECTION    CASES,  1850   TO   1860.  1075 

Resolved,  further.  That  said  committee  may  hold  their  investigations  at  such  places  and  times  as  to 
them  may  seem  advisable,  and  that  they  have  leave  of  absence  from  the  duties  of  this  House  until  they 
shall  have  completed  such  investigation;  that  they  be  authorized  to  employ  one  or  more  clerks,  and  one 
or  more  assistant  sera;eants-at-arms,  to  aid  them  in  their  investigations;  and  may  administer  to  them  an 
oath  or  affirmation  faithfully  to  perform  the  duties  assigned  to  them,  respectively,  and  to  keep  secret  all 
matters  which  may  come  to  their  knowledge  touching  such  investigation  as  said  committee  shall  direct, 
imtil  the  report  of  the  same  shall  be  submitted  to  this  House;  and  said  committee  may  discharge  any 
such  clerk  or  assistant  sergeant-at-arnis  for  neglect  of  duty  or  disregard  of  instructions  in  the  premises, 
and  employ  others  under  like  regulations. 

Resolved,  further.  That  if  any  person  shall  in  any  manner  obstruct  or  hinder  said  committee,  or 
attempt  so  to  do,  in  their  said  investigation,  or  shall  refuse  to  attend  on  said  committee,  and  to  give  evi- 
dence when  summoned  for  that  purpose,  or  shall  refuse  to  produce  any  paper,  book,  public  record,  or 
proceeding  in  their  possession  or  control  to  said  committee  when  so  required,  or  shall  make  any  dis- 
turbance where  said  committee  is  holding  their  sittings,  said  committee  may,  if  they  see  fit,  cause  any 
and  every  such  person  to  be  arrested  by  said  assistant  sergeant-at-arms  and  brought  before  this  House  to 
be  dealt  with  as  for  a  contempt. 

Resolved,  further.  That  for  the  purpose  of  defraying  the  expenses  of  said  commission  there  be,  and 
hereby  is,  appropriated  the  sum  of  $10,000,  to  be  paid  out  of  the  contingent  fund  of  this  House. 

Resolved,  further,  That  the  President  of  the  United  States  be,  and  is  hereby,  requested  to  furnish  to 
said  committee,  should  they  be  met  with  any  serious  opposition  by  bodies  of  lawless  men,  in  the  discharge 
of  their  duties  aforesaid,  such  aid  from  any  military  force  as  may  at  the  time  be  convenient  to  them,  as 
may  be  necessary  to  remove  such  opposition  and  enable  said  committee  without  molestation  to  proceed 
with  their  labors. 

Resolved,  further.  That  when  said  committee  shall  have  completed  said  investigation  they  report 
all  the  evidence  so  collected  to  this  House. 

Messrs.  John  Sherman,  of  Ohio;  WilUam  A.  Howard,  of  Michigan;  and  Mordecai 
OHver,  of  Missouri,  were  appointed  on  this  committee,  and  conducted  the  investiga- 
tions as  ordered.  On  July  2,  1856,'  the  report  was  referred  by  the  House  to  the 
Committee  on  Elections. 

On  July  24  -  the  Committee  on  Elections  reported.^  The  majority  found  that 
each  election  in  Kansas  held  imder  the  organic  or  alleged  Territorial  law  had  been 
carried  on  by  organized  invasion  from  Missouri,  which  had  prevented  the  people  of 
Kansas  from  exercising  their  rights;  that  the  alleged  Territorial  legislature  was 
illegally  constituted,  and  its  enactments  null  and  void;  that  the  election  of  Mr. 
Whitfield  was  not  in  pursuance  of  valid  law,  and  should  be  regarded  only  as  the 
expression  of  the  choice  of  those  resident  citizens  who  voted  for  him;  that  the 
election  of  ilr.  Reeder  was  not  held  in  pursuance  of  law,  and  was  the  expression  only 
of  resident  citizens  who  voted  for  him;  and  that  Mr.  Reeder  received  a  greater 
number  of  the  votes  of  resident  citizens  than  did  Mr.  Whitfield. 

Therefore  the  majority  reported  resolutions  to  unseat  Mr.  Whitfield  and  seat 
Mr.  Reeder. 

As  to  the  propriety  of  seating  Mr.  Whitfield  the  majority  say: 

The  office  of  a  Delegate  from  a  Territory  is  not  created  by  the  Constitution.  Such  Delegates  are 
not  Members  of  the  House,  and  have  no  votes  in  its  deliberations.  They  are  received  as  a  matter  of 
favor — as  organs  through  whom  may  be  communicated  the  opinions  and  wishes  of  the  people  of  the  Ter- 
ritories. It  is  competent  for  the  House — and  this  power  has  been  often  exercised — to  admit  private 
parties  to  be  heard  before  it  by  counsel.  It  must  be  equally  competent  for  the  House,  at  its  discretion, 
to  admit  any  person  to  speak  in  behalf  of  the  people  of  the  Territories.  It  may,  if  it  sees  fit,  admit  more 
than  one  such  person  from  each  Territory.     Under  ordinary  circumstances,  no  case  calling  for  the  exer- 

'  Journal,  p.  1148.  -Journal,  p.  127.5.  =  House  Report  No.  275. 


1076  PRECEDENTS   OF   THE    HOUSE    OF   KEPKESENTATIVES.  §   827 

cise  of  this  discretionary  power  will  arise.  In  all  the  laws  creating  Territories  provision  is  made  for  the 
election  of  Delegates  to  Congress;  and  the  people  of  the  Territories,  having  the  opportunity  to  be  heard 
through  such  Delegates,  and  by  memorial  and  petition  under  the  general  provisions  of  the  Constitution, 
coiUd  not  ask  to  be  heard  through  any  other  agency.  In  the  present  case,  however,  the  people  of  the 
Territory  of  Kansas  have  been  deprived  of  the  power  to  make  a  strictly  legal  election  of  a  Delegate  by  an 
invasion  from  Missouri,  which  subverted  their  Territorial  governmeni  and  annihilated  its  legislative 
power.  To  deny  to  Kansas  the  right  to  be  heard  through  the  choice  of  its  resident  citizens,  merely 
because  that  choice  was  manifested  outside  of  legal  forms,  and  necessarily  so,  because  the  lawmaking 
power  was  destroyed  by  foreign  violence,  is  to  deny  to  Kansas  the  right  to  be  heard  at  all  on  the  floor  of 
the  House. 

The  minority  contended,  in  a  report  apparently  drawn  by  Mr.  Alexander  H. 
Stephens,  of  Georgia,  that  the  question  was  the  same  as  before  the  report  of  the 
investigating  committee,  that  all  question  as  to  the  validity  of  the  law  passed  by 
the  Kansas  legislature  was  res  adjudicata  according  to  the  well-settled  principles 
of  all  our  representative  institutions.  The  minority  also  called  attention  to  a  letter 
alleged  to  have  been  written  by  the  contestant  and  laid  before  the  House  in  the 
report  of  the  investigating  committee,  wherein  he  admitted  the  legality  of  the  legis- 
lature. The  minority  denied  the  charges  of  outrages  in  Kansas,  while  at  the  same 
time  denying  the  power  of  the  House  to  give  them  weight  in  this  case  had  there  been 
such. 

On  July  31  and  August  1'  the  report  of  the  committee  was  debated.  In  the 
covu-se  of  this  debate,  by  unanimous  consent,  a  statement  of  the  contestant  was 
read  by  the  Clerk  at  the  desk.^  On  August  1,  by  a  vote  of  yeas  110,  nays  92,  the 
House  agreed  to  the  resolution  declaring  Mr.  Whitfield  not  entitled  to  the  seat. 

On  the  resolution  to  admit  Mr.  Reeder  to  a  seat  there  were  yeas  88,  nays  113. 
So  the  seat  became  vacant. 

827.  The  second  election  case  of  Reeder  v.  Whitfield,  from  the  Terri- 
tory of  Kansas,  in  the  Thirty-fourth  Congress. 

The  House  declined  to  reverse  its  conclusion  that  a  Delegate,  elected  in 
pursuance  of  a  law  enacted  by  an  illegally  constituted  legislature,  should 
not  retain  his  seat. 

When  the  organic  law  requires  an  act  of  the  legislature  to  fijx  the 
times,  etc.,  of  a  Territorial  election,  an  election  called  by  the  governor  is 
not  valid. 

A  Territorial  legislature  of  impeached  status  having  by  a  law  vir- 
tually disfranchised  qualified  voters,  the  Elections  Committee  considered 
the  status  of  the  returned  Delegate  adversely  affected. 

The  integrity  of  the  laws  governing  the  election  being  impeached,  the 
committee  recommended  that  the  seat  be  declared  vacant. 

On  February  12,  1857,^  the  Committee  on  Elections  reported  in  the  contested 
election  case  of  Reeder  v.  Whitfield,  from  Kansas.  This  was  a  second  contest.  At 
the  first  session  of  this  Congress  Mr.  Whitfield  had  been  unseated.*  At  the  third 
session  Mr.  Whitfield  again  appeared  with  the  certificate   of  the  governor  of  the 

'Journal,  pp.  1333,  1337-1340;  Globe,  pp.  1758,  1842,  1859,  1863,  1873;  Appendix,  p.  1114. 
=  Journal,  p.  1333. 

^ Third  session  Thirty-fourth  Congress,  1  Bartlett,  p.  216;  Rowell's  Digest,  p.  149;  House  Report 
No.  186. 

*  See  Section  826  of  this  volume. 


f 


§  827  GEXERAL   ELECTION    CASES,   1850   TO   1S60.  1077 

Territory,  and,  after  opposition,  was  sworn  in  on  the  prima  facie  evidence  of   the 
certificate.' 

In  the  report  on  this  second  contest  the  committee  say: 

The  sitting  Delegate  *  *  »  bases  his  claim  to  his  seat  upon  an  election  held  in  October,  1856. 
in  purstiance  of  a  proclamation  fixing  the  day  of  the  election,  issued  by  the  governor  »  »  *  and 
which  said  election  was  conducted  according  to  ''An  act  to  regulate  elections,"  enacted  in  1855,  by  a 
body  of  men  claiming  to  be  the  legislature  of  Kansas,  and  which  derived  its  existence  from  an  election 
held  in  that  Territorj'  on  March  30,  1855.  It  appears  from  the  report  of  the  special  committee,  appointed 
by  this  House  during  its  first  session,  to  investigate  the  affairs  of  Kansas,  that  the  Territorial  legislature, 
claiming  to  have  been  chosen  at  the  election  of  March  30,  1855,  '"was  an  illegally  constituted  body,  and 
had  no  power  to  pass  valid  laws,  and  their  enactments  are,  therefore,  null  and  void."  In  this  con- 
clusion of  the  special  committee  this  House  has  manifested  its  own  concurrence  by  many  decisions  and 
on  many  occasions.  *  *  *  It  is  a  fatal  objection,  therefore,  to  the  claim  of  the  sitting  Delegate  to 
have  been  elected  in  pursuance  of  law,  that  he  bases  it  upon  an  election  held  under  the  direction  of 
officers  deriving  their  authority  from  an  usurping  legislative  body,  and  regulated  by  laws  emanating 
from  the  same  vicious  sources. 

The  minority  of  the  committee  denied  that  these  assertions  of  the  majority 
had  been  proven,  and  maintained  that  the  legislature  in  question  was  legal,  elected 
by  a  majority  of  the  actual  bona  fide  settlers  or  residents  of  the  Territory. 

The  majority  of  the  committee  further  contended  that  there  was  another  fatal 
objection  to  the  claim  of  the  sitting  Delegate  to  the  seat.  The  organic  act  of  the 
TerritorA- — the  Kansas-Nebraska  act  of  1854 — provided  that  the  first  election  for 
a  Delegate  to  Congress  should  be  held  in  accordance  with  the  precept  of  the  gov- 
ernor, but  that  "at  all  subsequent  elections  the  times,  places,  and  manner  of 
holding  the  elections  shall  be  prescribed  by  law."  Therefore  the  governor  of  Kan- 
sas was  not  authorized  by  the  organic  law  to  issue  the  proclamation  for  the  election 
of  October,  at  which  the  sitting  Delegate  claimed  to  have  been  elected.  Neither 
was  there  to  be  found  such  authority  in  the  law  enacted  by  the  so-called  legislature. 
The  minority  did  not  assent  to  this  proposition,  contending  that  the  organic  act 
secured  to  the  people  of  the  Territory  the  right  to  representation,  and  they  "should 
not  be  held  to  have  lost  this  high  privilege  merely  because  the  Territorial  legislature 
omitted  to  pass  an  act  prescribing  the  'times,  places,  and  manner  of  holding  the 
elections.'  "  The  unseating  of  the  Delegate  at  the  preceding  session  had  left  a 
vacancy,  and  to  carr\'  out  the  spirit  of  the  organic  law  and  keep  a  Delegate  in  Con- 
gress it  resulted,  horn  the  very  necessity  of  the  case,  that  it  was  the  duty  of  the 
governor  to  issue  the  proclamation  for  the  election.  Such  a  construction  of  the 
organic  act  as  the  majority  contended  for  would  have  left  the  Territory  without 
representation  had  the  legislature  failed  to  pass  a  law  prescribing  "the  times, 
places,  and  manner  of  holding  the  elections."  The  minority  also  claimed  sanction 
for  the  act  of  the  governor  in  the  law  of  1817,  which  provided  that  every  Territor}^ 
in  which  a  temporan.'  government  had  been  established  should  have  the  right  to 
send  a  Delegate  to  Congress,  such  Delegate  to  "  be  elected  every  second  year,  for  the 
same  term  of  two  years  for  which  Members  of  the  House  of  Representatives  of  the 
United  States  are  elected." 

The  majority  of  the  committee  say  that,  while  the  sitting  Delegate  had  no 
legal  claim  to  the  seat,  he  might  as  a  matter  of  "indulgence  and  discretion"  be 

'  See  Section  529  of  this  volume. 


1078  PRECEDENTS   OF   THE   HOUSE   OF   KEPBESENTATIVES.  §  828 

allowed  to  retain  the  seat  if  it  sufficiently  appeared  that  his  election  was  in  fact 
concurred  in  by  a  majority  of  those  who  were  or  ought  to  be  the  leo;al  voters  of 
Kansas.  But  the  committee  found  that  the  act  of  the  "pretended  legislature" 
under  which  the  election  was  held  had  certain  provisions  in  regard  to  the  choice 
of  election  officers  and  the  qualifications  of  voters  that  virtually  disfranchised  large 
numbers  of  the  citizens  of  Kansas  and  permitted  reckless  nonresidents  to  exercise 
the  suffrage.  The  majority  were  of  the  opinion  that  several  hundred  persons  were 
restrained  from  voting  by  what  was  in  effect  a  "test  oath." 

The  majority  stated  they  were  not  prepared  to  recommend  that  the  contestant, 
Mr.  Reeder,  be  admitted  to  the  seat,  it  not  being  contended  that  he  had  received 
the  greater  number  of  votes  cast  at  the  election  in  question. 

The  majority  of  the  committee  recommended  the  following  resolution: 

Resolved,  That  John  W.  Whitfield  is  not  entitled  to  a  seat  in  this  House  as  a  delegate  from  the 
Territory  of  Kansas. 

On  February  21  *  the  resolution  was  taken  up  and  a  motion  to  lay  it  on  the 
table  was  agreed  to,  yeas  96,  nays  87.  An  attempt  was  at  once  made  to  reconsider 
this  vote,  but  the  motion  to  reconsider  was  laid  on  the  table,  yeas  99,  nays  94. 
From  the  slight  debate  it  appears  that  there  was  a  disposition  to  table  the  subject 
in  order  to  attend  to  other  business  in  the  closing  hours  of  the  session;  and  that  the 
vote  did  not  strictly  involve  the  merits  of  the  question. 

828.  The  Maine  election  case  of  Milliken  v.  Fuller  in  the  Thirty- 
fourth  Congress. 

The  returns  of  election  officers  de  facto,  acting  in  good  faith,  were 
counted  by  the  House. 

Instance  wherein  returns  were  held  valid  although  there  were  serious 
irregularities  on  the  part  of  the  returning  officers. 

On  April  10,  1856,^  the  Committee  on  Elections  reported  in  the  case  of  Milliken 
V.  Fuller,  of  Maine,  recommending  the  following  resolution,  which  was  agreed  to 
by  the  House  without  debate  or  division: 

Resolved,  That  Thomas  J.  D.  Fuller  is  elected  to,  and  rightfully  entitled  to,  his  seat  in  the  Thirty- 
fourth  Congress. 

The  report  of  the  committee  saj^s  that  they  did  not  investigate  alleged  defects 
in  ballots — 

for  the  reason  that,  whether  so  allowed  or  not,  the  result  would  not  thereby  be  changed,  unless — 

First.  That  votes  from  "plantations  organized  for  election  purposes  only,"  from  which  lists  of  the 

voters  were  not  returned  to  the  office  of  the  secretary  of  state,  as  is  contended  the  law  required  as  a 

condition  to  being  allowed,  be  rejected;  or, 

Second.  That  the  votes  of  Hancock  plantation  be  rejected,  because  the  officers  who  held  the  election 

were  chosen  at  a  meeting  held  in  the  month  of  April,  when,  as  the  contestant  contends,  the  law  of  the 

State  required  that  it  should  have  been  held  in  the  month  of  March. 

There  is  no  controversy  about  the  facts  in  cither  case,  and  although  there  was  difference  of  opinion 

in  the  committee,  whether  the  election  of  municipal  officers  in  the  Hancock  plantation  was  held  at  a 

time  permitted  by  the  law  of  the  State,  yet  the  committee  is  unanimously  of  the  opinion  that  the  persons 

'  Journal,  p.  509;  Globe,  p.  798. 

^  First  session  Thirty-fourth  Congress,  1  Bartlett,  p.  176;  Rowell's  Digest,  p.  143;  House  Report 
No  44;  Journal,  p.  903. 


§   829  GENERAL   ELECTION    CASES,   1850   TO   1860.  1079 

officiating  were  officers  de  facto,  acting  in  good  faith;  and,  as  no  fraud  is  alleged,  the  votes  from  the 
district  were  rightfully  counted  for  the  sitting  member. 

In  regard  to  the  reliu-ns  from  •plantations  organizc<i  for  election  purposes  only,"  the  members 
of  the  committee  were,  as  were  the  governor  and  council  of  the  State  of  Maine  before  them,  divided  in 
opinion,  and  are  not  prepared  to  say  what  conclusion  they  would  have  come  to  in  the  case,  had  this 
been  an  original  question;  but,  inasmuch  as  contemporaneous  constructions  by  the  State  canvassers 
have  recognized  the  returns  from  these  plantations,  and  that  they  have  received  and  counted  them  as 
valid,  notwithstanding  the  list  of  voters  was  not  returned  with  the  number  of  votes  cast;  therefore, 
under  the  circumstances,  the  committee  do  not  feel  authorized,  whatever  the  opinion  of  some  of  its 
members  may  be  of  the  effect  of  a  noncompliance  on  the  part  of  the  plantation  officers  with  the  plain 
requirements  of  the  law,  to  exclude  the  votes  of  these  plantations. 

829.  The  election  case  of  Bennet  v.  Chapman,  from  the  Territory  of 
Nebraska,  in  the  Thirty-fourth  Congress. 

Discussion  of  the  extent  of  irregularities  in  returns  required  to  justify 
their  rejection. 

Discussion  as  to  residence  within  the  limits  of  the  constituency  as  a 
qualification  for  voters. 

Instance  wherein  the  report  of  the  Elections  Committee  was  overruled 
by  the  House. 

On  April  18,  1856,'  the  Committee  on  Elections  reported  in  the  case  of  Bennet 
V.  Chapman,  from  the  Territory  of  Nebraska.  This  case  involved  two  varieties 
of  question:  One  as  to  the  returns,  and  the  other  as  to  the  qualifications  of  certain 
voters. 

A  count  of  all  the  votes  cast  at  the  election  gave  the  contestant  a  plurality  of 
13  votes.  But  the  Territorial  canvassers  and  governor  rejected  the  returns  from 
half  the  counties  of  the  Territory,  affecting  nearly  half  of  the  total  vote.  As  a 
result  of  this  action,  a  plurality  resulted  for  the  sitting  Member. 

The  returns  were  rejected  because  they  were  not  made  in  accordance  vdth  the 
Territorial  law.  The  majority  of  the  committee  considered  that  these  variations 
were  not  sufficient  to  cause  the  rejection  of  the  returns,  in  the  absence  of  anything 
impeacliing  the  integrity  of  the  vote.  The  minority  contended  that  the  deviations 
from  the  requirements  of  the  statutes  were  sufficient  to  make  the  returns  fatally 
defective. 

The  deviations  may  be  described  as  follows: 

In  Otoe  County  the  poll  books  were  forwarded  to  the  office  of  the  secretary  of 
the  Territory  instead  of  being  kept  in  the  office  of  the  county  register,  as  the  law 
required,  there  to  be  canvassed  by  the  probate  judge  and  three  assistants.  An 
abstract  of  this  can%'ass  should  have  been  certified  and  sent  by  the  county  register 
to  the  secretary  of  the  Territory.  The  majority  considered  these  provisions  merely 
directory,  and  that  the  failure  to  comply  with  them  should  not  affect  the  Otoe 
return.  The  minority  on  the  other  hand  deemed  the  canvass  by  the  probate  judge 
and  the  certification  of  the  abstract  of  essential  importance.  The  actual  returns 
sent  to  the  office  of  the  Territorial  secretary  were  signed  by  persons  purporting  to 
have  acted  as  judges  of  election  and  clerks  of  election  in  Otoe  County;  but  there 
was  nothing  accompanying  the  return  to  show  that  they  had  authority  so  to  act. 

'  First  session  Thirty-fourth  Congress,  1  Bartlett,  p.  204;  Rowell's  Digest,  p.  147;  House  Report 
No.  65. 


1080  PRECEDENTS   OF   THE   HOUSE   OF    KEPKESENTATIVES.  §   829 

In  Wasliington  County  the  abstract  of  the  canvass  was  certified  by  the  register; 
and  the  register  in  making  out  the  certificate  certified  that  no  poll  books  were  returned 
from  two  of  the  three  precincts,  the  law  requiring  the  poll  book  to  be  sent  to  the 
county  clerk.  The  majority  contended  that  the  certified  abstract  was  all  the  register 
was  required  to  send,  and  that  the  certification  as  to  the  poll  books,  being  outside  of 
his  duties,  should  be  rejected.  The  probate  judge  might  have  refused  to  make  the 
abstract  without  the  poll  books;  but  that  abstract  being  made,  it  was  the  duty  of 
the  register  to  certify  it.  Proof  of  the  failure  to  return  the  poll  books  should  have 
been  made  in  some  other  way  than  by  the  certificate  of  the  county-  register.  The 
majority  did  not  consider  this  failure  to  send  the  poll  books  with  the  precinct  return 
sufiicient  reason  for  disfranchising  a  whole  countj^  The  minority  contended  that 
the  Washington  County  returns  had  not  been  duly  authenticated  according  to  law, 
and  that  they  were  properly  rejected  by  the  Territorial  canvassers.  The  minority 
claimed  that  the  abstract  also  was  made  out  and  certified  by  the  register  and  not  by 
the  judge  of  probate,  as  required  by  law.  Also  it  was  held  that  the  omission  to 
return  the  poll  books  was  fatal  to  the  authenticity  of  the  canvass. 

As  to  Richardson  County,  the  majority  and  minority  of  the  committee  do  not 
seem  to  lay  stress  on  the  same  facts.  The  minority  find  from  the  evidence  that  at 
two  of  the  three  voting  places  the  election  was  conducted  without  legally  appointed 
officers.  The  minority,  referring  to  the  precedent  of  Jackson  v.  Wayne,  contended 
that  the  elections  at  those  precincts  were  illegal  and  void.  The  majority  of  the 
committee  do  not  meet  this  point  in  their  report,  but  contend  that  the  entire  vote  of 
the  county  should  have  been  counted  by  the  Territorial  canvassers,  instead  of  being 
rejected.  ■ 

In  this  county,  moreover,  there  was  the  further  objection  that  about  twenty 
illegal  votes  were  cast  by  certain  persons  residing  on  an  Indian  reservation  known  as 
the  "Half-breed  tract."  It  was  agreed  that  these  votes  were  cast  for  the  contestant. 
The  majority  considered  that  the  testimony  left  it  to  be  inferred  that  these  votes 
were  not  counted  for  the  contestant;  but  held  that  if  they  were  so  counted  it  was 
done  properly.  The  governor  had  excluded  them  from  the  census,  but  this  could 
not  affect  their  right  of  suffrage,  which  was  held  by  the  law  of  the  land.  It  was  also 
alleged  that  they  were  trespassers  on  Indian  lands,  but  this  also  could  not  interfere 
with  their  right  of  suffrage.  Doubts  as  to  whether  they  were  in  any  election  precinct 
and  as  to  whether  they  were  within  the  limits  of  Nebraska  did  not  appeal  so  strongly 
to  the  majority  as  to  the  minority  of  the  committee.  The  minority  also  laid  stress 
on  the  fact  that  the  people  themselves  did  not  claim  to  be  within  the  civil  jurisdiction 
of  the  Territory,  and  refused  to  pay  taxes.  The  minority  felt  sure  the  votes  were 
counted  for  contestant. 

It  appeared  that  if  all  the  votes  returned  to  the  ofiice  of  the  secretary  of  the 
Territory  were  counted  the  contestant  would  be  returned,  but  if  from  this  total  the 
votes  from  "Half-breed  strip,"  about  20  in  number,  should  be  deducted  the  plurality 
would  be  left  with  the  sitting  Member. 

The  rejection  of  all  the  returns  from  the  counties  impeached  also  left  the  plurality 
for  the  sitting  Member. 

The  majority  reported  resolutions  declaring  Mr.  Chapman  not  entitled  to  the 
seat,  and  seating  the  contestant. 


§  830  GENERAL   ELECTION    CASES,  1850   TO   1860.  1081 

The  report  was  considered  on  July  21  and  22,'  and  after  debate  the  resolution 
declaring  Mr.  Chapman  not  entitled  to  the  seat  was  disagreed  to — yeas  63,  nays  69. 

On  July  23  the  second  resolution  for  seating  the  contestant  was  laid  on  the  table 
without  division. 

So  the  House  sustained  the  contention  of  the  minority  of  the  conunittee. 

830.  The  election  case  of  Otero  v.  Gallegos,  from  the  Territory  of  New 
Mexico,  in  the  Thirty-fourth  Congress. 

The  notice  of  contest  need  not  give  the  names  of  voters  objected  to  for 
qualifications. 

The  presence  of  names  on  a  list  of  foreign  citizens  enrolled  under 
authority  of  a  treaty  was  held  prima  facie  evidence  of  disqualification  for 
voting. 

The  disqualification  of  certain  voters  being  shown  prima  facie,  the 
burden  of  proof  was  thrown  on  the  party  claiming  the  votes. 

On  May  10,  1856,-  the  Committee  on  Elections  reported  on  the  case  of  Otero  v. 
Gallegos,  from  New  Mexico.  This  case  involved  the  following  points:  That  the 
notice  of  contest  was  defective;  that  certain  persons  who  voted  for  the  sitting 
Delegate  were  not  qualified;  that  certain  votes  should  be  counted  in  spite  of  the 
misconduct  of  election  officers,  and  that  certain  ballots  should  be  impeached  on 
tesitmony  of  the  voters. 

As  to  the  first  point,  the  objection  to  the  sufficiency  of  the  notice,  the  sitting 
Delegate  contended  that  notice  of  impeachment  of  votes  should  be  accompanied  by 
the  names  of  the  particular  voters  intended  to  be  impeached.  The  conunittee  over- 
ruled the  objection,  holding  that  the  notice  was  sufficient  to  permit  the  taking  of 
the  testimony,  and  that  the  sitting  Delegate  should  have  entered  his  objection  at 
the  time  of  taking  the  depositions. 

The  objection  as  to  the  qualification  of  voters  related  to  certain  inhabitants  of 
the  Territory  who,  under  the  terms  of  the  treaty  with  Mexico,  had  elected  to  remain 
citizens  of  Mexico,  and  were  expressly  disqualified  from  voting  under  the  law  of 
New  Mexico.  The  number  of  these  disqualified  persons  alleged  to  have  partici- 
pated in  the  election  for  the  sitting  Delegate  was  more  than  enough  to  account  for 
the  majority  of  99  votes  by  which  he  was  returned.  The  law  of  New  Mexico,  while 
providing  for  voting  by  ballot,  also  provided  that  each  ballot  should  be  numbered 
when  received,  the  niunber  being  entered  wnth  the  name  of  the  voter  on  the  poll  book, 
but  the  identity  of  the  vote  not  to  be  disclosed  except  in  case  of  contested  election. 
So  it  was  practicable  to  decide  for  whom  the  disqualified  voters  cast  their  ballots. 
The  evidence  as  to  disqualification  consisted  in  the  books  whereon,  in  obedience  to 
the  precept  of  the  militan,'  governor,  the  Mexican  citizens  who  desired  to  retain 
their  Mexican  citizenship  had  been  enrolled.  The  comparison  of  this  enrollment 
with  the  poll  books  showed  the  names  of  the  Mexicans  who  had  voted,  and  this  was 
taken  as  prima  facie  evidence  of  the  disqualification  of  the  voters.  The  committee 
admit  that,  in  the  absence  of  testimonj"  to  connect  the  names  with  the  persons,  the 
evidence  was  not  conclusive,  but  it  was  considered  sufficient  to  throw  the  onus  pro- 

'  Journal,  pp.  1245,  1259,  1264;  Globe,  pp.  1688,  1711,  1729. 

'First  8P68ion  Thirty-fourth  Congress,  House  Report  No.  90;  1  Bartlett,  p.  ]77;  Eowell's  Digest, 
p.  ]44. 


1082  PRECEDENTS   OF   THE    HOLTSE   OF   REPEESENTATIVES.  §  831 

bandi  oa  the  sitting  Delegate.  The  committee  found  that  the  sitting  Delegate  failed 
to  overthrow  the  prima  facie  evidence  in  enough  cases  to  result  in  the  wiping  out  of 
his  majority. 

The  sitting  Delegate  objected  that  the  enrollment  of  these  Mexican  citizens  was 
invalid  because  not  made  in  accordance  with  a  law  of  Congress.  The  committee 
held  that  the  action  of  the  military  governor  under  the  treaty  was  sufficient. 

831.   The  case  of  Otero  v.  Gallegos,  continued. 

Failure  of  the  judges  of  an  election  to  take  the  required  oath  was  held 
to  vitiate  the  return. 

Instance  wherein  absence  of  certificate  that  election  officers  were 
sworn  was  deemed  conclusive  in  absence  of  testimony  to  the  contrary. 

The  destruction  of  the  secrecy  of  the  ballots  by  crying  out  the  votes 
as  given  was  deemed  a  reason  for  rejection  of  the  poll. 

Testimony  taken  before  an  officer  other  than  the  one  named  in  the 
notice  was  rejected  by  the  committee. 

After  the  election  the  testimonyof  the  voter  as  to  how  he  voted  may 
not  be  received  to  impeach  the  ballot  recorded  as  cast  by  him. 

Another  objection  urged  by  the  contestant  was  that  the  secretary  of  the  ter- 
ritory had  counted  for  the  sitting  Delegate  certain  votes  of  the  precinct  of  Mecilla, 
which  the  probate  judge,  assuming  to  act  under  the  law,  had  rejected  in  making  up 
his  return  for  irregularities.  The  committee  did  not  inquire  as  to  the  legality  of  the 
act  of  the  probate  judge,  since  the  House  had  the  right  to  determine  whether  or  not 
the  election  in  this  precinct  had  been  conducted  in  accordance  with  the  laws  of  New 
Mexico. 

The  committee  found  that  the  poll-book  certificate,  that  the  judges  were  sworn, 
was  wanting,  although  required  by  law;  and  considered  this  evidence,  given  by  the 
judge  of  probate,  as  sufficiently  conclusive  in  the  absence  of  testimony  to  the  con- 
trary, the  onus  probandi  being  thrown  onto  the  other  side  in  accordance  with  the 
principle  established  in  the  case  of  Draper  v.  Johnston.  The  failure  of  the  judges  to 
take  the  oath  vitiated  the  election,  in  the  opinion  of  the  comniittee,  who  cited  the 
cases  of  McFarland  v.  Culpepper,  Draper  v.  Johnston,  and  Easton  v.  Scott. 

It  was  furthermore  found  in  regard  to  this  precinct  that  the  officer  receiving 
the  ballot  cried  it  out,  thus  destroying  its  secrecy  and  causing  the  proceeding  to 
amount  practically  to  viva  voce  voting. 

Then,  also,  a  bystander,  who  was  neither  judge  nor  clerk,  assisted  in  receiving 
the  votes;  the  poll  books  furnished  by  law  were  not  used,  and  others  substituted, 
and  192  ballots,  neither  nmnbered  nor  registered  as  required  by  law,  were  found  in 
the  box. 

For  all  these  reasons  the  committee  reconamended  the  rejection  of  the  vote  of 
the  precinct. 

The  sitting  Delegate  alleged  and  attempted  to  prove  frauds  in  the  precinct  of 
Chamisal,  the  charge  being  that  160  legal  votes  for  him  were  abstracted  and  an 
equal  number  for  the  contestant  put  in. 

The  sitting  Delegate  in  his  notice  had  declared  that  he  should  examine  the  wit- 
nesses to  prove  the  above  before  the  chief  justice  of  the  supreme  court  of  the  ter- 


§  832  GENERAL   ELECTION    CASES,   1850   TO   1860.  1083 

ritory,  but  in  fact  the  testimony  was  taken  before  a  probate  judge.     For  this  reason 
a  majority  of  the  committee  held  that  this  testimony  should  be  rejected. 

The  sitting  Delegate  had  taken  the  testimony  of  the  voters  to  prove  that  the 
ballots  counted  were  not  the  ballots  cast.     The  committee  say: 

It  would  be  productive  of  unending  frauds  and  perjuries  to  permit  parties  to  come  forward,  after 
an  election  by  ballot,  and  swear  that  thoy  voted  differently  from  what  the  ballots  themselves  exhibit. 
Especially  must  this  principle  apply  under  the  system  adopted  in  New  Mexico,  where  every  ticket  is 
numbered,  and  the  number  also  recorded  in  the  poll  books  opposite  to  the  name  of  the  voter.  The  only 
proof  which  ought  to  be  admitted  to  establish  a  fraud  such  as  that  charged  in  this  case  would  be  to  show, 
by  affirmative  testimony,  that  the  judges,  clerks,  or  some  other  persons  actually  withdrew  the  tickets 
given  by  the  voters  and  substituted  others  for  them.  Until  this  shall  be  shown,  the  oath  of  the  voters 
should  not  be  received  to  contradict  the  record  and  the  ballots  themselves.  The  very  nature  of  the 
ballot  renders  this  principle  a  necessity;  otherwise,  every  election  might  be  tried  over  a  second  time 
by  the  oath  of  the  voters  instead  of  the  ballots  deposited  in  the  boxes  in  the  presence  of  the  officers  and 
of  the  public. 

In  support  of  this  doctrine  the  committee  cite  the  case  of  Van  Kensselaer  v. 
Van  Allen. 

The  conclusions  of  the  committee  showed  a  majority  for  the  contestant,  and 
resolutions  declaring  Mr.  Gallegos  not  elected,  and  that  Mr.  Otero  was  entitled  to 
the  seat  were  reported. 

On  July  23,'  the  two  resolutions  were  agreed  to  after  debate  without  roll  call; 
but  on  the  motion  to  lay  on  the  table  the  motion  to  reconsider  the  yeas  and  nays 
were  ordered,  and  the  motion  was  agreed  to,  yeas  128,  nays  22.  This  vote  seems 
to  have  been  on  the  merits  of  the  case,  the  Member  demanding  the  yeas  and  nays 
saying  that  he  did  so  because  he  believed  the  sitting  Member  entitled  to  the  seat. 

832.  The  Iowa  election  case  of  Clark  v.  Hall  in  the  Thirty-fourth 
Congress. 

The  House  declined  to  reject  for  mere  informality  a  return  which 
truly  represented  the  aggregate  vote  cast. 

The  House  declined  to  reject  returns,  although  it  was  shown  that 
some  votes  (not  enough  to  change  the  result)  actually  cast  were  not 
included. 

On  February  4,  18.57,'  the  Committee  on  Elections  reported  in  the  case  of  Clark 
V.  Hall,  of  Iowa.  They  came  to  the  conclusion  that  the  sitting  Member  was  duly 
elected,  and  entitled  to  the  seat.  This  conclusion  was  concurred  in  by  the  House 
without  division. 

The  grounds  of  the  contest  and  conclusions  of  the  committee  are  set  forth  in 
the  following  extract  from  the  report: 

It  appears  from  the  canvass  of  the  State  canvassers  of  Iowa  that  the  sitting  Member  received  one 
hundred  and  seventy-seven  more  votes  than  the  contestant,  of  the  votes  which  they  received  and 
allowed. 

The  State  canvassers,  by  the  laws  of  Iowa,  canvass  abstracts  furnished  by  certain  county  officers  of 
the  votes  thrown  in  the  several  counties. 

Objections  are  made  in  this  case,  both  to  alleged  informalities  in  these  county  abstracts  and  to 
their  alleged  want  of  correspondence  with  the  state  of  the  votes  as  actually  ca.st  in  the  voting  precincts. 

'Journal,  pp.  1265,  1266;  Globe,  p.  1736. 

'Third  session  Thirty-fourth  Congress,  Journal,  p.  3.56;  Globe,  p.  569;  1  Bartlett,  p.  215;  Howell's 
Digest,  p.  148;  House  Report  No.  178. 


1084  PRECEDENTS   OF   THE   HOUSE   OF   KEPRESENTATIVES.  §  833 

In  conformity  with  the  principles  acted  upon  by  your  committee  in  the  case  of  the  contested  seat 
of  the  Delegate  from  the  Territory  of  Nebraska,  your  committee  would  not  reject  for  mere  informality  a 
county  abstract  which  truly  presents  the  aggregates  of  the  votes  actually  cast  in  the  voting  precincts. 

In  this  case  there  is  evidence  that  legal  votes  actually  cast  both  for  the  contestant  and  the  sitting 
Member  are  not  embraced  in  the  county  abstracts.  It  does  not,  however,  sufficiently  appear  that  the 
corrections  authorized  by  the  evidence  would  so  far  change  the  result  as  to  give  the  contestant  as 
many  votes  as  the  sitting  Member  received. 

833.  The  Maryland  election  case  of  Brooks  v.  Davis  in  the  Thirty- 
fifth  Congress. 

It  was  conceded  in  1858  that  the  House  was  not  necessarily  bound 
by  the  law  of  1851  in  judging  of  the  elections,  returns,  and  qualifications 
of  its  Members. 

In  1858  the  House  deemed  insufficient  reasons  urged  by  a  contestant 
for  proceeding  in  a  manner  different  from  that  prescribed  by  the  law  of 

1851. 

In  1858  a  proposition  that  witnesses  in  an  election  case  be  examined 
at  the  bar  of  the  House  found  no  favor. 

On  February  12,  1858/  the  Committee  on  Elections  reported  in  the  case  of 
Brooks  V.  Davis,  of  Maryland,  on  the  petition  of  contestant  that  he  be  not  required 
to  continue  to  proceed  under  the  law  of  1851,  but  that  a  committee  with  adequate 
powers  be  appointed  to  investigate  the  election.  The  contestant  assigned  the  fol- 
lowing reasons  for  granting  the  request:  (1)  That  the  authorities  of  Baltimore  were 
unwilhng  or  unable  to  so  preserve  the  public  peace  as  to  prevent  the  intimidation 
of  witnesses;  (2)  that  the  extensive  nature  of  the  conspiracy  charged  necessitated 
a  longer  time  than  the  sixty  days  allowed  by  law  for  taking  testimony;  (3)  that  the 
required  ten  days'  notice  to  sitting  Member  of  names  and  residence  of  witnesses 
would  enable  the  intimidation  of  those  witnesses;  and  (4)  that  the  bearing  and 
evident  disposition  disclosed  by  witnesses  would  be  lost  in  its  effect  if  the  evidence 
should  be  in  the  nature  of  depositions. 

This  memorial  was  accompanied  by  the  indorsement  of  reputable  citizens  of 
Baltimore. 

The  majority  of  the  committee  foimd  no  reason  for  extraordinary  action  b}^ 
the  House.  It  was  not  established  that  evidence  could  not  be  safely  taken  in 
Baltimore  imder  the  act  of  1851.  Another  contestant  in  another  case  was  actually 
taking  such  testimony  at  this  time.  As  to  the  argument  that  sixt}"  days  was  too 
short  a  time  the  majority  considered  that  the  contestant  should  have  gone  on 
taking  testimony,  and  asked  for  an  extension  if  the  time  should  be  found  too  short. 
The  tliird  reason  was  subject  to  the  same  answer  as  the  fourth.  As  to  the  fourth 
reason,  the  committee  considered  that  under  no  circumstances  could  the  House 
examine  the  witnesses  at  the  bar. 

The  minority  of  the  committee  -  considered  that  the  act  of  1851  was  intended 
to  apply  to  such  cases  as  involved  personal  contests  of  election,  while  the  pending 

'First  session  Thirty-fifth  Congress,  House  Report  No.  105;  1  Bartlett,  p.  245;  Rowell's  Digest, 
p.  154. 

^Messrs.  Henry  M.  Phillips,  of  Pennsylvania;  Thomas  L.  Harris,  of  Illinois;  John  W.  Stevenson, 
of  Kentucky,  and  Lucius  Q.  C.  Lamar,  of  Mississippi. 


§   833  GENERAL   ELECTION   CASES,  1850   TO   1860.  1085 

case  was  rather  one  of  popular  remonstrance  against  the  vahdity  of  an  election. 
There  seemed  to  be  reason  for  such  an  investigation  as  was  asked.  The  governor 
of  Maryland,  in  his  message  to  the  legislature,  had  recorded  liis  opinion  that  the 
election  was  fraudulently  conducted;  that  thousands  of  people  had  been  excluded 
from  the  polls,  and  that  there  was  no  expression  of  the  popular  will.  Here  was  a 
case  where  there  was  justifiable  ground  for  not  complying  strictly  with  the  terms 
of  that  law.  "If  it  is  claimed,"  say  the  minority,  "that  the  act  of  1851  prevents 
the  House  of  Representatives  from  piu^uing  an  investigation  in  any  other  manner 
than  prescribed  by  that  act,  it  would  then  be  wholly  inoperative,  coming  into  con- 
flict with  the  fifth  section  of  the  first  article  of  the  Constitution  of  the  United  States, 
which  provides  'each  House  shall  Tbe  the  judge  of  the  elections,  returns,  and  quali- 
fications of  its  own  Members.'  Xo  prior  House  of  Representatives  can  prescribe 
rules  on  this  subject  of  binding  force  upon  its  successor,  nor  can  the  Senate  interfere 
to  direct  the  mode  of  proceeding.  The  House  of  Representatives  is  not  a  continuing 
body,  each  body  of  Representatives  having  an  independent  and  limited  existence, 
and  having  the  clear  right  to  determine,  in  its  own  way,  upon  '  the  elections,  returns, 
and  quahfications  of  its  own  Members.'  A  like  authority  is  given,  and  in  similar 
terms,  to  each  House  to  '  determine  the  rules  of  its  proceedings,  pimish  its  Members 
for  disorderly  behavior,'  etc. ;  and  no  Member  will  pretend  that  a  general  law,  passed 
in  such  terms  as  the  act  of  1851,  would  restrain  any  House  from  acting  on  these 
subjects  independently  of  the  law." 

On  February  16  and  17 '  the  report  of  the  committee  was  considered  and  acted 
on.  In  this  debate  Mr.  W.  W.  Boyce,  of  South  Carolina,  who  submitted  the  report 
of  the  majority  of  the  committee,  did  not  deny  the  power  of  the  House  to  proceed 
independently  of  the  act  of  1851.  The  power  of  the  House  to  "judge  of  the  elec- 
tions, returns,  and  qualifications  of  its  own  Members,"  being  granted  by  the  Con- 
stitution, could  not  be  taken  away  by  law. 

But  Mr.  Boyce  argued  very  strongly  that  it  was  not  expedient  in  this  case  to 
go  outside  the  law.  The  fact  that  Mr.  Brooks  was  not  himself  contesting  the  seat 
did  not  the  less  make  the  law  applicable. 

Mr.  Horace  Maynard,  of  Tennessee,  argued^  that  the  law  of  1851  did  not  trench 
on  the  constitutional  prerogative  of  the  House,  simply  determined  the  mode  by 
which  the  question  should  be  presented  to  the  House,  and  said  that  under  his  inter- 
pretation of  the  law  and  Constitution  he  could  not  conceive  of  any  other  mode  than 
the  act  of  1851  by  which  a  seat  could  legally  be  contested. 

The  proposition  of  the  minority  that  the  Committee  of  Elections  have  power 
to  send  for  persons  and  papers,  etc.,  in  order  to  investigate  the  election,  was  disagreed 
to,  yeas  86,  nays  110. 

Then  the  resolution  of  the  majority,  "that  it  is  inexpedient  to  grant  the  prayer 
of  the  memorialist  for  the  appointment  of  a  committee  to  take  testimony,"  was 
agreed  to,  yeas  115,  nays  89. 

On  May  19,  1858,^  the  committee  was  discharged  from  the  further  consideration 
of  the  case,  and  it  was  laid  on  the  table. 

'Journal,  pp.  394,  397-^00;  Globe,  pp.  725,  745.  ^Qio^g^  p  727.  3 journal,  p.  848. 


1086  PRECEDENTS   OF    THE    HOUSE    OF    EEPRESENTATIVES.  §   834 

834.  The  election  case  of  Chapman  v.  Ferguson,  from  the  Territory  of 
Nebraska,  in  the  Thirty-fifth  Congress. 

Instance  wherein  the  House  permitted  the  time  for  taking  testimony 
in  an  election  case  to  be  lengthened,  although  one  or  both  parties  had  been 
negligent. 

The  House  decided  to  count  as  cast  for  "  Fenner  Ferguson  "  certain 
ballots  cast  for  "  Judge  Ferguson." 

The  House  decided  to  count  certain  returns  rejected  by  local  can- 
vassers because  not  transmitted  within  the  time  required  by  law. 

The  House,  by  reason  of  the  ex  parte  nature  of  the  evidence,  declined 
to  follow  its  committee  in  rejecting  the  poll  where  the  conduct  of  election 
oflScers  was  irregular  and  apparently  fraudulent. 

On  April  21,  1858,'  the  Committee  on  Elections  reported  a  resolution  allowing 
a  further  time  of  sixty  days  for  the  taking  of  testimony  by  the  parties  in  the  con- 
tested election  case  of  Chapman  v.  Ferguson,  of  Nebraska  Territory. 

The  committee  reported  that  the  election  had  been  held  in  the  preceding  August ; 
that  the  result  was  not  annoimced  officially  until  the  3d  of  the  following  September; 
that  the  contestant  gave  notice  to  the  sitting  Member  on  September  16  of  his  inten- 
tion to  contest,  and  the  response  of  the  sitting  Member,  dated  October  2,  1857,  was 
served  on  contestant  on  the  10th  day  of  that  month.     The  committee  further  say: 

No  notice  of  intention  to  take  testimony  was  given  Ijy  the  contestant  until  the  13th  and  14th  days 
of  November,  when  more  than  one-half  of  the  time  allowed  by  law  to  take  the  same  had  expired,  nor 
until  after  the  sitting  Member  had  left  the  Territory  for  this  city  to  enter  upon  the  discharge  of  his 
duties.  The  sitting  Member  has  made  oath  that  he  knew  nothing  of  the  testimony  taken  in  this  case 
untU  he  saw  it  printed  in  Miscellaneous  Document  No.  5,  of  this  House,  and  that  he  has  had  no  oppor- 
tunity to  rebut  and  disprove  the  same. 

Your  committee  are  of  opinion  that  the  sitting  Member  erred  in  not  leaving  an  acknowledged 
attorney  in  the  Territory  to  look  after  the  contest,  of  which  he  had  been  notified ;  and  were  the  contestant 
and  the  sitting  Member  alone  those  who  have  an  interest  in  its  decision,  your  committee  might  hesitate 
before  coming  to  the  conclusion  to  which  they  have  arrived.  The  question  to  solve  is,  not  simply  what 
these  parties  have  done  or  omitted  to  do,  but  what  was  the  expressed  wish  of  the  people  of  Nebraska, 
as  between  these  candidates,  at  their  late  election?  And  what  is  a  reasonable  time  and  indulgence, 
under  the  circimistances,  to  obtain  proof  of  that  wish? 

As  the  contestant  permitted  more  than  one-half  of  the  time  allowed  by  law  to  elapse  before  com- 
mencing his  proof,  he  can  have  but  little  cause  for  complaint  should  the  period  for  taking  proofs  be 
extended.  And  as  the  election  has  been  so  recently  held,  and  the  contestee  averring  that  he  never  had 
any  notice  of  taking  testimony,  your  committee  are  of  opinion  that  justice  to  the  contestee,  as  well  as  to 
the  people  of  Nebraska,  requires  that  time  be  given  to  take  further  evidence. 

Considerable  doubt  arose  as  to  this  proposition,  it  being  objected  that  the 
extension  of  sixty  days  would  deprive  the  Territory  of  its  Delegate's  services  during 
the  greater  part  of  the  session.  So  an  amendment  was  agreed  to  extending  the 
time  to  the  first  of  October  next.  As  amended  the  resolution  was  agreed  to,  yeas 
98,  nays  86.'  The  opposition  based  their  course  on  the  fact  that  the  notice  had 
been  left  at  the  sitting  Member's  house,  occupied  by  a  man  alleged,  but  not  admitted, 
to  be  the  agent  of  the  sitting  Member. 


1  First  session  Thirty-fifth  Congress,  House  Report  No.  51;  Globe,  pp.  1717-1720;  1  Bartlett,  p.  267; 
Rowell's  Digest,  p.  159. 

2  Journal,  p.  662. 


§  835  GENERAL   ELECTION    CASES,  1850   TO   1860.  1087 

On  February  4,  1859,  the  majority  and  minority  reports  were  submitted.  Both 
majority  and  minority  agreed  on  the  following  conclusions: 

That  certain  votes  cast  for  "Judge  Ferguson"  instead  of  "Fenner  Ferguson" 
and  rejected  by  the  board  of  canvassers  should  be  counted  for  the  sitting  Delegate. 

That  contestant  was  entitled  to  certain  votes  cast  at  the  precinct  of  Cuming 
City  and  not  counted  by  the  Territorial  canvassers  because  the  judges  of  election 
did  not  return  the  poll  books  to  the  county  clerk  within  the  time  required  by  law, 
by  reason  of  which  the  county  clerk  failed  to  certify  an  abstract  to  the  governor. 
The  cases  of  Richards,  Bard,  Spaulding  v.  Mead,  and  ilallary  v.  Merrill  were  cited  in 
support  of  the  doctrine  that  these  votes  should  be  counted  for  the  contestant. 

The  corrections  of  the  vote  in  accordance  with  the  above  principles  did  not 
fatally  affect  the  title  of  the  sitting  Member  to  the  seat. 

But  the  contestant  charged  extensive  frauds  in  three  precincts,  which  would, 
if  proven,  be  sufficient  to  take  away  the  majority  of  the  sitting  Delegate  and  show 
the  election  of  the  contestant. 

The  evidence  in  relation  to  these  precincts  was  conflicting.  In  general,  residents 
of  the  precincts  in  question  testified  or  made  affidavit  that  the  election  was  pure. 
The  testimony  that  there  was  fraud  was  quite  largely  from  persons  who  had  gone  to 
the  precincts  and  testified  as  to  what  had  been  told  them.  This  evidence  was 
attacked  as  hearsay.  There  were  suspicious  circumstances  admitted,  such  as  the 
names  of  ''Samuel  Weller"  and  "OUver  Twist"  among  the  voters,  the  keeping  of 
the  polls  open  in  one  precinct  after  the  legal  time  of  closing.  While  admitting  that 
votes  received  after  the  hour  for  closing  the  polls  should  be  deducted,  the  minority 
did  not  consider  the  testimony  sufficient  to  justify  further  deductions,  and  there- 
fore found  that  the  sitting  Delegate  was  entitled  to  the  seat. 

The  majority  of  the  committee,  on  the  other  hand,  recommended  the  deduc- 
tion of  votes  which  they  considered  proven  to  be  fraudulent  in  two  of  the  precincts. 
In  the  third  precinct  where  the  polls  were  kept  open  after  the  legal  hour,  where  401 
votes  were  returned  for  the  sitting  Member  and  4  for  the  contestant,  where  it  was 
alleged  that  the  election  oflicers  were  not  properly  sworn,  and  in  relation  to  which 
the  county  canvassers  had  unanimously  recommended  the  rejection  of  the  entire 
precinct  vote,  the  majority  recommended  that  the  entire  vote  be  thrown  out.  This 
recommendation,  if  carried  out,  would  entitle  the  contestant  to  the  seat. 

The  report  was  debated  at  length  on  February  9  and  10,  1859.'  The  discussion 
was  on  the  weight  of  the  evidence  (much  of  which  was  taken  ex  parte  by  contest- 
ant) in  regard  to  the  frauds  alleged  in  the  three  precincts;  and  there  appeared  a 
diversity  of  opinion,  which  was  finally  settled  by  laying  the  whole  subject  on  the 
table,  by  a  vote  of  yeas  99,  nays  93. 

So  the  sitting  Delegate  retained  his  seat. 

835.  The  Ohio  election  case  of  Vallandigham  v.  Campbell  in  the 
Thirty-fifth  Congress. 

It  is  not  necessary  that  the  notice  of  contest  specify  the  names  of 
individual  voters  whose  qualifications  are  challenged. 

A  certificate  of  the  rettxms,  under  seal  of  the  State,  was  admitted  as 

'  Second  session  Thirty-fifth  Congress,  Journal,  pp.  375,  377;  Globe,  pp.  914,  941. 


1088  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   835 

evidence  in  an  election  case  without  regard  to  the  requirements  of  the  law 
of  1851  as  to  testimony. 

On  May  13,  1858/  the  Committee  on  Elections  reported  its  inability  to  agree 
upon  a  recommendation  in  the  contested  election  case  of  Vallandigham  v.  Campbell, 
of  Ohio.  Four  of  the  committee  found  the  contestant  entitled  to  the  seat ;  four  found 
the  sittinf  Member  entitled  to  it;  and  the  remaining  Member  reached  the  conclu- 
sion that  the  seat  should  be  declared  vacant  on  account  of  the  difficulty  of  ascer- 
taining who  was  elected. 

The  following  were  the  principal  questions  involved  in  the  examination:  The 
sufficiency  of  the  contestant's  notice  of  contest;  the  admissibihty  of  a  certificate  of 
the  secretary  of  state  as  to  the  votes  cast,  and  the  natiu-e  of  this  and  the  poll  books 
as  evidence;  the  admissibility  and  sufficiency  of  evidence  as  to  how  certain  voters 
cast  their  ballots;  the  qualifications  of  certain  voters,  especially  some  mulattoes. 

The  minority  favoring  the  sitting  Member,  whose  views  were  submitted  by  Mr. 
John  A.  Gilmer,  of  North  Carolina,  contended  that  contestant's  notice  had  not  been 
sufficient,  for  the  reason  that  it  did  not  specify  "particularly"  the  grounds  of  con- 
test by  naming  the  voters  whose  qualifications  were  questioned  and  the  legal 
objections  to  the  admission  or  exclusion  of  each.  Mr.  Gilmer  cited  the  cases  of 
Varnum  and  Easton  and  Scott  in  support  of  this  contention.  The  further  objec- 
tion was  made  that  the  contestant  had  made  no  particular  specification  as  to  the 
number  of  votes  questioned  and  their  relation  to  the  votes  cast  and  the  result. 
The  specifications  as  to  "sundry  ballots,"  "sundry  persons,"  etc.,  were  not  specifi- 
cations at  all. 

In  opposition  to  these  objections,  it  was  argued  by  Mr.  Lucius  Q.  C.  Lamar,  of 
Mississippi,  who  presented  the  views  of  another  portion  of  the  committee,  that  the 
law  did  not  require  any  more  to  be  set  forth  than  the  class  to  which  the  voters 
belonged,  especially  as  by  express  provision  it  required  each  party  to  furnish  ten 
days  in  advance  the  names  of  the  witnesses  proposed  for  examination.  This  view 
had  been  taken  in  1852  in  the  case  of  Wright  v.  Fuller,  and  in  the  more  recent  case  of 
Otero  V.  Gallegos. 

Mr.  Gilmer's  minority  objected  that  there  was  no  proof  whatever  which  professed 
to  give  either  the  aggregate  vote  for  each  party  or  the  majority  for  the  sitting  Member. 
After  the  time  allowed  by  law  for  taking  testimony  had  expired,  a  paper  had  been 
presented  under  the  seal  of  Ohio  and  the  official  certification  of  the  secretary  of 
state,  giving  an  abstract  of  the  votes  given  at  the  election  in  question.  This  paper 
was  not  admissiable  as  testimony,  for  the  time  for  taking  testimony  had  expired 
when  it  was  presented.  Furthermore  it  was  only  a  mere  copy  of  a  certificate  which 
itself  was  merely  a  result  ascertained  by  calculation  from  the  original  and  only 
source  of  information,  the  poll  books.  The  law  of  Ohio  required  each  voter  to  be 
registered  in  the  poll  book  at  the  time  of  voting,  and  this  book  to  be  returned  to  the 
clerk  of  the  county.  From  it  the  county  clerk  certified  to  the  governor  the  summary 
of  votes.  Thus  the  original  record  was  not  the  clerk's  certificate  to  the  governor, 
but  the  poll  books.  The  certificate  might  be  adequate  foundation  for  the  mere 
ministerial  acts  of  the  governor  in  giving  the  certificate  of  election;    but  it  was  not 

'  First  session  Thirty-fifth  Congress,  House  Reportt  No.  380;  1  Bartlett,  p.  228;  Rowell's  Digest, 
p.  151. 


§   836  GENERAL,   ELECTION    CASES,   18.30   TO   1860.  1089 

evidence  in  a  legal  contest  when  the  question  was  not  how  many  votes  were  certified 
to  the  governor,  but  how  many  were  actualty  cast  at  the  polls.  If  the  certificate 
were  to  be  admitted  as  evidence  that  the  voters  actually  cast  the  votes  as  enumer- 
ated in  the  certificate,  it  would  be  on  the  supposition  that  the  certificate  in  the 
secretary's  ofiice  was  written  official  evidence  of  the  votes  cast.  If  so  this  would 
exclude  all  parol  evidence  of  the  contestant  to  show  how  particular  persons  voted. 
For  it  would  follow  that  the  poll  books  were  the  original  records  of  those  who  voted 
at  the  election;  and  being  the  written  legal  evidence  preserved  by  law,  all  secondary 
evidence,  even  of  the  voter  himself  that  he  voted  for  either  party,  would  be  excluded. 

Mr.  Lamar  argued  against  the  above  contentions.  He  held  that  the  testimony 
required  by  the  act  of  1851  was  the  testimony  of  "  witnesses,"  or  at  most  such  writing 
as  could  be  proved  only  by  the  examination  of  witnesses.  But  documentary  evidence, 
at  least  such  as  proved  itself,  might  be  obtained  at  any  time  after  sixty  days,  and  be 
produced  before  the  committee.  The  document  in  question,  bearing  the  great  seal 
of  the  State,  was  of  the  highest  authenticity.  It  was  further  urged  that  in  most 
of  the  cases  since  1851  the  abstract  of  the  returns  had  been  obtained  subsequent  to 
the  sixty  days  hmited  in  the  act.  As  to  the  poll  books,  no  provision  was  made  any- 
where for  furnishing  copies  for  any  person,  and  that  they  were  not  within  the  acts 
of  Congress  touching  the  authentication  of  records,  and  were  not  anywhere  declared 
to  be  records.  Not  only  were  they  not  the  sole  and  best  evidence  to  prove  that  a 
particular  person  voted,  but  they  were  not  themselves  sufficient.  Parol  evidence  of 
identity  was  alwaj'S  necessarj'^;  and  the  name  on  the  list  was  only  corroborative 
evidence.  In  Newland  v.  Graham  the  committee  had  received  evidence  that  persons 
voted  whose  names  were  not  on  the  poll  books  at  all.  In  the  New  Jersey  case  of 
1840  the  committee  "resorted  to  parol  proof  as  the  best  evidence  the  case  would 
adnait,  the  laws  of  New  Jersey  not  reqmring  the  poll  lists  to  be  preserved  as  a  record 
of  the  actual  voters."  A  comparison  of  those  laws  with  the  laws  of  Ohio  on  the 
subject  of  poll  books  would  show  that  this  precedent  was  precisely  in  point. 

836.    The  case  of  Vallandigham  v.  Campbell,  continued. 

The  vote  thrown  by  an  alleged  disqualified  voter  may  be  proven  by  his 
own  testimony  or  that  of  friends  who  heard  his  declarations. 

A  theory  that  a  voter,  whose  qualifications  are  challenged,  is  a  party 
whose  confession  is  proper  evidence. 

Argument  that  an  election  case  is  a  public  inquiry  which  should  pro- 
ceed on  more  liberal  principles  than  a  private  litigation. 

As  to  the  quahfications  of  voters,  there  were  charges  that  disqualified  persons 
voted  at  various  places.  The  minority,  led  by  Mr.  Lamar,  held  that  enough  was 
proved  as  to  these  alleged  disqualified  voters  to  show  the  election  of  the  contestant. 
Mr.  Thomas  L.  Harris,  of  Illinois,  who  signed  the  third  minority  views,  considered 
the  evidence  sufficient  to  destroy  confidence  in  the  election,  but  thought  the  diffi- 
culty of  determining  how  people  voted  by  secret  ballot  too  great  to  enable  a  satis- 
factory decision  as  to  who  was  elected.  After  a  vote  was  proved  to  be  illegal,  the 
great  difficult}^  was  to  show  for  whom  it  was  cast.  Hearsay  evidence  must  be 
resorted  to,  and  that  was  always  dangerous,  and  should  be  received  with  the  greatest 
caution. 

.5994 — VOL  1—07 09 


;[Q90  PRECEDENTS    OF    THE    HOUSE    OF    KEPKESENTATIVES.  §    836 

Mr.  Lamar,  on  the  other  hand,  argued  that  the  committee  and  the  House  should 
proceed  upon  liberal  principles  in  a  contested  election,  which  was  not  a  mere  pri- 
vate litigation,  but  a  great  public  inquiry.  The  distinction  between  the  House 
and  the  ordinarj^  forensic  court  was  recognized  both  by  Congress  and  the  usages 
of  Parliament.  The  admissibility  of  evidence  consisting  of  the  declarations  of 
voters  as  to  any  matter  concerning  their  own  voting  has  been  settled  in  the  British 
ParHament  repeatedly  and  uniformly  for  one  hundred  and  fifty  years,  and  was  no 
longer  to  be  questioned.  As  to  the  hearsay  declarations  of  third  powers,  the  recep- 
tion of  such  was  put  upon  the  ground  that  each  voter  challenged  was  a  party  to 
the  proceeding,  and  therefore  what  he  said  about  his  own  voting  was  an  admission 
or  confession.  Mr.  Lamar  illustrates  the  kind  of  evidence  accepted  by  his  portion 
of  the  conamittee  by  the  following  description: 

Anderson  testifies  to  his  own  vote  and  as  to  the  declaration  of  two  others,  his  friends,  one  of 
whom  worked  with  him;  that  there  was  an  understanding  between  him  and  them  that  they  were  to 
vote  and  they  did  vote,  for  the  sitting  Member.  As  to  those  who  voted  in  Oxford,  Lawrence,  one  of 
the  twelve,  declared  to  the  witness  that  he  voted  for  the  returned  Member  and  advocated  his  election; 
and  the  proof  as  to  the  others,  including  Lawrence,  though  circumstantial,  is  just  such  as  has  been  repeat- 
edly received  and  acted  upon  by  committees  and  the  House.  That  it  is  not  positive  and  direct  is 
because  the  nature  of  the  case,  the  vote  being  by  secret  ballot,  does  not  usually  admit  of  such  proof. 

By  the  admission  of  such  testimony  as  to  voters,  Mr.  Lamar's  minority  found 
a  majority  of  23  votes  for  the  contestant.  A  portion  of  the  challenged  voters  were 
persons  of  color- — mulattoes — and  there  was  a  legal  question  as  to  whether  under 
the  constitution  of  Ohio  and  the  judicial  decisions  some  of  these  should  be  con- 
sidered white  or  black.  Mr.  Lamar's  minority  arrived  at  the  conclusion  that  they 
were  black  and  were  not  qualified.  The  point  was  not  dwelt  upon  in  Mr.  Gilmer's 
report,  which  based  its  defense  of  the  sitting  Member  on  the  other  questions  in 
the  case. 

The  report  was  debated  May  22,'  especial  attention  being  given  to  the  nature 
of  the  evidence  by  which  it  was  attempted  to  show  that  the  mulatto  voters  sup- 
ported the  sitting  Member. 

Mr.  Lamar,  in  the  debate,'  also  dwelt  upon  the  allegation  of  the  contestant 
which  had  not  been  noticed  in  the  reports — that  the  election  in  the  second  ward 
of  Dayton  was  void  because  the  person  who  presided  as  judge  was  elected  in  viola- 
tion of  law.  The  House  had  waived  informalities  in  the  returns  frequently,  pro- 
vided the  election  itself  was  fairly  and  legally  conducted.  The  case  of  Jackson  v. 
Wayne  was  quoted  in  support  of  this  view. 

On  May  25  ^  the  House  began  voting  on  the  case,  a  motion  to  recommit  for 
the  purpose  of  allowing  further  testimony  to  be  taken  being  decided  in  the  nega- 
tive, yeas  92,  nays  116. 

The  question  being  next  put  on  a  proposition  declaring  the  sitting  Member 
entitled  to  the  seat,  it  was  decided  in  the  negative,  yeas  92,  nays  116. 

The  question  was  next  taken  on  two  resolutions:  First,  that  the  sitting  Mem- 
ber was  not  entitled  to  the  seat;  second,  that  the  contestant  was  entitled  to  it. 

On  the  two  resolutions  the  question  was  decided  in  the  affirmative,  yeas  107, 
nays  100. 

'  Globe,  p.  2316.  =>  Globe,  p.  2331.  '  journal,  pp.  902-910. 


§  837  GENERAL   ELECTION    CASES,   1850   TO   1860.  1091 

837.  The  Michigan  election  case  of  Howard  v.  Cooper  in  the  Thirty- 
sixth  Congress. 

The  sitting  Jttember  having  clearly  neglected  his  opportunities,  the 
Elections  Committee  decided  against  his  request  for  additional  time  to 
take  evidence. 

A  State  law  requiring  a  residence  of  ten  days  in  a  ward  as  qualifica- 
tion of  a  voter,  yet  it  was  held  that  he  must  be  there  with  the  intention  of 
remaining. 

On  March  15,  I860,'  the  Committee  on  Elections  reported  a  resolution  declaring 
It  mexpedient  to  grant  the  application  of  the  sitting  Member  for  additional  time  to 
take  testmionj'  m  the  contested  election  case  of  Howard  v.  Cooper,  of  Michicran 
The  sittmg  Member  accompanied  his  memorial  by  29  ex  parte  affidavits   which  he 
asked  to  have  made  a  part  of  the  case.     If  this  request  should  be  refused  he  asked 
for   the  extension  of  time.     The  majority  of  the  committee  did  not  favor  either 
request,  but  concluded  that  the  sittmg  Member,  bv  delaying  more  than  eleven 
months  after  the  legal  Umit  for  taking  testimony,  and  until  one-half  of  the  time  of 
service  of  the  Congress  had  expired,  had  presented  a  clear  case  of  laches      In  the 
case  of  Vallandigham  v.  Campbell  it  had  been  determined  that  the  two  parties  micrht 
proceed  to  take  testunony  simultaneously  during  the  sLxty  days  allowed  by  kw 
and  further,  that  if  either  should  ^^-ish  more  time  he  should  proceed  (Con-ress  not 
being  in  session)  to  give  notice  to  the  other  party  and  take  it  after  the  expiration 
of  the  sixty-days'  hnut,  relying  on  its  being  accepted  by  the  House. 
_      The  minority  of  the  committee  favored  granting  the  request,  findin.^  a  dis- 
tinction between  this  case  and  others  in  that  the  sitting  Member  desired  to  impeach 
the^  veracity  of  fatnesses  examined  at  the  last  moment  allowed  for  taking  testiniony 
under  the  act  of  1851,  and  wliich  might  not  be  hnpeached  if  the  permission  was  not 
granted. 

The  question  was  debated  at  length  on  March  22,^  when  the  resolution  proposed 
by  the  majonty  of  the  committee,  denying  the  request,  was  agreed  to,  yeas  89 
nays  79.  •'  ' 

On  April  19,^  the  majority  of  the  conmiittee  reported  that  the  sitting  Member 
^titl^e°d''to\''''''  """^  '"*'''''^  '"^  ^^'  ''^^'  ^"'^  ^^""^  ^-  ^*''™'^'  *^'  ««°t««taJit-  ^^as 

The  contestant  sought  to  overcome  sitting  Member's  plurality  of  75  votes  bv 
alleging  several  instances  of  fraud  and  irregularity,  either  of  which,  if  substantiated 
would  be  sufficient  to  overcome  the  plurality.     The  points  were  four- 

(1)  Illegal  votes:  The  committee  found  over  100  illegal  votes  cast  for  sitting 
Member.  In  certain  wards  of  the  city  of  Detroit  men  were  brought  in  from  oth^ 
wards  o  the  city,  from  other  States,  and  even  from  Canada,  the  legal  limit  of  ten  days 
before  election,  and  were  allowed  to  vote,  the  testimony  indicating  that  they  voted 
for  SI  ting  Member.  The  committee  came  to  the  conclusion  that  under  the  law  of 
t^e  State  of  Michigan  a  man  must  have  gone  to  the  ward  where  he  voted  with  the 

p.  lei.^''"'  '"''''"'  Thirty-sixth  Congress,  Ho^ Report  No.  87;  1  B^irotZV~T^^^^R^elVs  Digest, 

^Journal,  p.  568;  Globe,  pp.  1307-1318. 
"  House  Report  Xo.  415. 


]^092  PRECEDENTS    OF    THE    HOUSE    OF    REPRESENTATIVES.  §   838 

intention  of  making  it  his  permanent  residence,  as  the  law  of  Michigan  required  a 
residence  of  three  months  within  the  State  and  of  ten  days  before  election  within 
the  township  or  ward  where  the  vote  is  cast.  Therefore  the  majority  concluded  that 
the  votes  brought  in  witliin  the  ten  days'  limit  were  illegally  cast.  The  minority  of 
the  committee  contended  that  there  was  no  evidence  to  show  that  the  men  whose 
votes  were  impeached  resided  out  of  the  State  of  Michigan,  and  that  as  they  had 
resided  in  the  ward  ten  days  before  election,  and  as  their  votes  had  been  challenged 
on  election  day  and  admitted,  the  votes  should  generally  be  counted.  Such  votes 
as  the  minority  admitted  to  be  impeached  were  not  sufficient  to  affect  the  plurality 
of  the  sitting  Member. 

838.    The  case  of  Howard  v.  Cooper,  continued. 

A  voting  place  fixed  by  competent  authority  being  changed  without 
competent  authority,  the  votes  cast  there  were  rejected. 

There  being  only  two  inspectors  of  election  where  the  law  required 
three,  the  returns  were  rejected. 

Irregularities  being  so  great  as  to  prevent  a  determination  of  how 
many  bona  fide  votes  were  cast,  the  poll  was  rejected. 

Charges  of  riot  and  intimidation  being  to  some  extent  substantiated, 
yet  the  committee  believed  that  in  case  of  doubt  the  returns  should  stand. 

(2)  At  Grosse  Pointe  parish  the  place  of  voting  was  changed  from  the  accus- 
tomed place,  in  disregard  of  the  law  of  Michigan,  which  provided  that  the  "  annual 
and  special  township  meetings"  should  be  held  at  the  last  place  of  meeting  or  such 
other  place  as  the  previous  meeting  had  directed.  The  committee  considered  that 
the  voting  place  had  been  fixed  by  competent  authority  and  changed  without  com- 
petent authority,  and  therefore  that  the  vote  could  not  be  counted.  The  minority 
contended  that  the  law  quoted  by  the  committee  applied  only  to  the  township 
meetings  and  not  to  general  elections,  and  claimed  that  the  place  of  meeting  had 
been  properly  changed  under  provisions  of  another  law  which  required  the  town 
clerk  as  inspector  of  election  to  give  due  notice  of  the  time  and  place  of  election. 
The  majority  denied,  however,  that  this  function  of  giving  notice  involved  the  other 
function  of  "fixing"  the  place.  The  minority  further  contended  that  no  evidence 
was  given  to  show  that  any  persons  were  prevented  from  voting  by  the  change  of 
place  of  the  meeting.  The  rejection  of  the  poll  at  this  voting  place  would  be  suffi- 
cient of  itself  to  determine  the  contest  in  favor  of  the  contestant. 

(3)  The  majority  of  the  committee  decided  in  favor  of  rejecting  the  vote  of 
the  township  of  Van  Buren  because  the  proof  was  clear  that  there  were  but  two 
inspectors  present  at  the  polls,  while  the  law  required  that  the  board  of  inspectors 
should  be  composed  of  three  persons. 

(4)  The  majority  of  the  committee  decided  in  favor  of  throwing  out  the  entire 
vote  of  the  Fourth  Ward  of  Detroit  because  of  "irregularities  and  informalities, 
such  clear  violations  of  the  statutes  of  Michigan,  and  such  errors  of  substance  as  to 
destroy  all  certainty  as  to  the  accuracy  of  the  result."  Two  tickets,  one  for  State 
officers  and  one  for  Member  of  Congress,  were  cast  in  one  box.  No  poll  lists  were 
kept  so  as  to  show  whether  of  the  two  tickets  cast  by  a  voter  one  was  for  State 
officers  and  the  other  for  Congressman,  or  both  were  for  Congressman  or  both  for 


§  ^^^  GENEEAL   ELECTION    CASES,   1850   TO   1860.  1093 

State    officers.     The    committee    considered    that    this    was   sufficient    to   prevent 
determimng  how  many  bona  fide  votes  were  cast  for  Congressman 

It  was  also  found  in  this  ward  that  one  of  the  ex  officio  inspectors  of  election 

who  was,  as  appears  from  the  debate,  a  candidate  voted  for  at  the  election  dechnei 

o  serve-hen  the  polls  were  opened,  and  another  was  chosen,  conformab  Iv  to    aw 

to  fiJl  his  place      But  when  the  polls  closed  the  elected  substitute  retired  and  tlTe 

hetunV^T^  '  '.  '1,  ''^^l^r'  ^"  *^^  "^°™^-^'  ^^"-  f™d  and  assisted  a 
the  count.  The  majonty  alleged  that  the  evidence  showed  that  he  was  not  sworn 
but  the  mmority  did  not  admit  this.  ^vvuiu, 

r.nJ^'  charge  was  made  that  the  polls  in  the  Second  Ward  of  Detroit  were  in  the 
possession  of  noters  and  pnze  fighters  during  the  day  and  that  the  entire  vote  shouM 
be  thro^Ti  out.  There  was  testimony  tending  to  substantiate  this  charge,  but  the 
committee  recommended  that  the  poll  stand,  saying: 

^\'^;  ^'^^te  of  facts  proved  leave  it  doubtful  whether,  on  the  whole,  the  poll  should  be  retained 

1  H  ^A  ^^?^    u^°*^  ^u'  **'"  '"P"'*  "^^^  ^^'^"^^^^  ^^  the  House  at  length,  and  on  the 

latter  day  the  House,  by  a  vote  of  yeas  97,  nays  77,  agreed  to  a  resoruti;n  deciar  ng 

he  sitting  Member  not  entitled  to  the  seat.     Then,  by  a  vote  of  veas  92,  navs  71 

the  resolution  seating  the  contestant  was  agreed  to.  '  '      y     '  ^> 

839.    The  election  case  of  Daily  v?  Estabrook,  from  the  Territory  of 
Nebraska,  in  the  Thirty-sixth  Congress.  ^ 

A  contestant  may  serve  more  than  one  notice  of  contest,  provided  that 
each  notice  be  served  within  the  required  time 

A  certified  copy  of  the  official  abstract  of  the  vote  is  competent  proof 
in  an  election  case. 

f  n  J?^  ^"^^  °^  ^^^  ^^^  °^  *^^'^^  testimony  in  an  election  case  applies 
to  witnesses  and  not  to  a  certified  copy  of  the  returns 

v.,  k"  i^''\  20,  1860,^  tlie  Committee  on  Elections  reported  in  the  case  of  Daily  ., 
Estabrook,  of  Nebraska  Territory-.  Besides  tlie  merits  of  the  case  there  were  raised 
also  certain  prehminarj-  questions  of  importance: 

(a)  Sitting  Delegate  asserted  that  under  the  act  of  1851  but  one  notice  of  con- 
W  thT^nt      ""Ti^  contestant  on  contestee  and  that  the  contestant  must  abide 
by  this  notice  whether  sufficient  or  not.     The  committee  did  not  sustain  this  view 
but  concluded  that  more  than  one  notice  might  be  served,  provided  they  be  served 
within  the  tune  required  by  the  act. 

.n.  ^^\  fi!"'1  ^f  f  *'  ^'^°  challenged  the  competency  as  proof  of  the  certified 
copy  of  the  official  abstract  sho^ving  the  result  of  the  vote  in  the  Territorv  The 
committee  overruled  this  objection,  saying: 

rhp  .  T^^  ''T  "^  organization  of  Nebraska  pro^ades  that  the  secretary  of  the  Territory  shall  preserve  all 
the  act«  and  proceedmgs  of  the  governor  which  pertain  to  his  executive  duties.  He  is,  thereforeTade 
the  custodian  of  this  abstract,  and,  a.s  the  original  must  remain  where  it  is,  it  is  comp;tent  to  prorS 
r  ToSd^b:  r  e'f  ™'^-     "'"  '  "''''  '-  '''-  ^^-'  ^^'  ^^^  -mmitteethink  it  is'theX"  fvTd^: 

'  Globe,  pp.  2092,  2101,  2110;  Journal,  pp.  841,  843 
^^^First  session  Thirty-sixth  Congress,  House  Report  No.  446;  1  Bartlett,  p.  299;  RoweU's  Digest, 


1094  PRECEDENTS   OF   THE    HOUSE    OF   KEPRESENTATIVES.  §   840 

(c)  Sitting  Delegate  further  objected  that  the  above  abstract  could  not  properly 
be  received  as  evidence,  because  procured  after  the  contestant  had  given  notice  that 
he  would  procure  no  further  testimony  and  would  give  notice  in  case  of  a  change 
in  tliis  determination.  The  committee  construe  this  as  referring  only  to  the  "exam- 
ination of  witnesses,"  and  consider  the  certificate  from  the  secretary  of  the  Territory 
proper  evidence,  properly  obtained,  especially  as  sitting  Delegate  did  not  allege  it 
to  be  false. 

(d)  Sitting  Delegate  alleged  that  the  evidence  was  not  taken  before  a  proper 
officer,  claiming  that  a  judge  of  probate  in  Nebraska  was  not  a  judge  of  a  court  of 
record,  as  required  by  the  act  of  1851.  The  committee  considered  such  a  court  a 
court  of  record  from  the  nature  of  the  case,  and  furthermore  showed  it  to  be  such 
by  express  provision  of  Nebraska  law. 

On  the  merits  of  the  case  the  committee  found  sufficient  irregularities  and 
frauds  to  overcome  the  majority  of  300  returned  for  the  sitting  Delegate  and  show 
a  majority  of  119  votes  for  the  sitting  Delegate. 

840.   The  case  of  Daily  v.  Estabrook,  continued. 

Votes  from  a  county  illegally  organized,  whose  election  officers  were 
improperly  commissioned  and  where  there  was  some  fraud,  were  rejected. 

Returns  in  themselves  suspicious,  transmitted  irregularly  and  opened 
by  an  unauthorized  person,  were  rejected. 

A  tainted  vote  from  an  illegally  organized  county  was  rejected. 

Returns  from  a  precinct  not  by  a  law  a  part  of  the  district  were 
rejected. 

Fraud,  shown  by  oral  testimony  as  to  a  stolen  poll  book  and  inferred 
from  acts  of  violence,  was  held  to  justify  the  rejection  of  a  greater  part  of 
the  returned  votes. 

The  irregiUarities  and  frauds  occurred  under  the  following  conditions : 

(1)  The  county  of  Buffalo  returned  292  votes  for  the  sitting  Member.  The 
committee  foimd  that  this  county  was  not  legally  organized,  that  the  officers  who 
must  have  conducted  the  election  were  improperly  commissioned  by  the  governor 
of  the  Territory,  and  that  the  votes  returned  from  the  county  had  been  therefore 
illegally  counted  by  the  canvassers  and  should  be  deducted  from  the  poll.  The 
committee  also  were  convinced  from  the  evidence  that  there  was  fraud,  the  votes 
of  one  place  not  within  the  county  bemg  included  in  the  vote  of  the  county. 

(2)  The  county  of  Calhoun,  not  being  organized,  should  imder  the  law  have 
retmned  its  poll  books  to  the  clerk  of  the  next  adjoining  county,  Platte  County, 
whose  duty  it  was  under  the  law  to  send  an  abstract  of  them  to  the  governor.  But 
the  Calhoim  County  returns  were  sent  directly  to  the  governor,  whose  private 
secretary  took  them  from  the  post-office,  opened  them,  examined  them,  and  then 
sent  them  to  the  clerk  of  Platte  County,  with  direction  to  return  them  with  the 
Platte  County  returns.     The  committee  say: 

This  was  manifestly  a  violation  of  law.  The  law  of  the  Territory,  as  also  of  all  the  States,  has  pointed 
out  a  particular  mode  of  making  election  returns  and  has  designated  particular  officers  who  shall  open 
and  inspect  them.  If  they  are  opened  and  inspected  by  any  others,  they  are  thereby  vitiated,  for  if 
such  a  practice  were  tolerated  innumerable  frauds  might  be  perpetrated  and  the  popular  will  defeated. 
By  the  law  of  Nebraska  Territory  the  votes  polled  in  Calhoun  County  could  not  be  properly  opened  by 


§  841  GENERAL   ELECTION   CASES,  1850   TO   1860.  1095 

any  other  persons  than  the  probate  judge  and  three  disinterested  householders  of  Platte  County.  Yet 
it  is  in  proof  that  they  were  opened  by  the  private  secretary  of  the  governor,  and  it  ia  not  proven  or  pre- 
tended that  the  probate  judge  or  any  three  householdei-s  of  Platte  County  ever  saw  them.  On  the 
contrary,  it  is  proven  that  they  were  sent  by  the  private  secretary  of  the  governor  to  the  clerk  of  Platte 
County  and  by  him  sent  back  to  the  governor.  The  clerk  must  have  opened  them  himself;  this  is  the 
necessary  inference. 

In  the  opinion  of  the  committee,  therefore,  this  violation  of  law  vitiates  the  whole  of  the  returns 
from  Calhoun  County. 

The  committee  further  found  evidence  to  justify  the  belief  that  the  returns 
from  this  county  were  origmally  fraudulent,  being  evidently  forged  by  some  one. 

(3)  The  committee  found  that  the  vote  of  Izard  County  was  fraudulent,  there 
bemg  no  population  sufficient  to  account  for  the  vote  returned,  and  not  being  an 
organized  coimty  where  an  election  could  be  legally  held. 

(4)  The  precinct  of  Genoa,  m  Monroe  County,  was  within  an  Indian  reservation, 
which  could  not,  under  the  organic  law  of  the  Territory,  be  considered  a  part  of 
Nebraska  Territor\'  until  the  Indian  titles  should  be  extinguished— a  condition 
which  had  not  been  complied  \vith.  Therefore  the  returns  from  the  precmct  were 
illegal  and  fraudulent  and  should  be  rejected. 

(5)  The  committee  were  entirely  satisfied  that  all  but  60  of  the  128  votes 
counted  for  sitting  Delegate  m  L'Eau  Qui  Court  County  were  fraudulent.  Not  only 
did  the  testimony  show  that  there  could  not  be  more  than  that  number  of  votes  in 
the  coimty,  but  two  ^\-itnesses  who  attempted  to  brmg  away  a  copy  of  the  poll  book 
were  prevented  by  a  mob,  who  declared  they  were  parties  to  the  fraud,  and  were 
resolved  not  to  be  exposed.     The  committee  furthermore  say: 

The  original  poll  books  were  afterwards  stolen  from  the  clerk's  office,  and  doubtless  were  also 
destroyed  by  the  same  men;  but  the  witnesses  saw  enough  of  them  to  swear  that  they  contained  the 
names  of  Howell  Cobb,  Aaron  V.  Brown,  "  ten  names  of  McRea  in  consecutive  order,"  and  several  others 
whom  they  knew  to  be  nonresidents  of  the  county. 

This  proof  of  the  contents  of  this  poll  book  is  entirely  competent,  since  the  loss  of  the  original  is 
shown,  and  shows  such  fraud  as  ought  not  to  go  unpunished  by  the  proper  Territorial  authorities.  The 
committee,  in  view  of  them,  are  satisfied  that  they  have  made  a  liberal  allowance  for  the  vote  of  the 
county. 

On  May  18,'  after  debate,  but  without  division,  the  House  conciured  in  the 
report  unseating  the  sitting  Delegate  and  seating  the  contestant. 

841.  The  Missouri  election  case  of  Blair  v.  Barrett  in  the  Thirty-sixth 
Congress. 

A  suspicious  increase  of  votes  as  compared  with  the  previous  election 
was  considered  in  an  election  case  where  fraud  was  alleged. 

It  not  being  shown  that  election  officers  were  sworn  and  fraud  appear- 
ing, the  House  declined  to  admit  the  usual  presumption  in  favor  of  de 
facto  officers. 

The  required  return  of  the  oaths  of  election  officers  not  being  made, 
the  burden  of  proving  the  oath  is  thrown  on  the  party  claiming  benefit 
from  the  votes. 

On  May  22,  1860,^  IVIr.  Henry  L.  Dawes,  of  Massachusetts,  from  the  Committee 
on  Elections,  submitted  the  report  in  the  case  of  Blair  v.  Barrett,  of  Missouri.     In 

'Journal,  p.  861;  Globe,  pp.  2180-2185. 

^  First  session  Thirty-sixth  Congress,  House  Report  No.  563;  1  Bartlett,  p.  308;  1  Powell,  p.  165. 


1096  PBECEDENTS   OF   THE   HOUSE   OF   EEPKESENTATIVES.  §  841 

this  case  the  corrected  returns  showed  for  sitting  Member  a  plurahty  of  607  votes. 
The  majority  of  the  committee  found  irregularities,  frauds,  and  violence,  and  after 
purging  the  poll  there  resulted  a  plurality  of  168  votes  for  the  contestant.  The 
miaority  admitted  some  fraud  and  irregularities,  but  not  enough  to  overcome 
sitting  Member's  plurality. 

At  the  outset  the  majority  laid  stress  upon  a  suspicious  increase  of  the  vote 
as  compared  with  the  vote  at  the  Congressional  election  two  years  before.  In  the 
two  years  the  total  vote  of  the  district  showed  an  increase  of  5,491  votes.  Nearly 
the  whole  of  this  increase  went  to  the  sitting  Member  if  the  comparison  with  the 
vote  of  his  party  two  years  ago  was  to  be  taken  as  an  indication.  Furthermore, 
practically  all  of  this  increase  was  in  7  or  8  out  of  the  35  precincts  of  the  district. 
And  these  precincts  were  those  where  irregularities  and  frauds  were  showTi.  The 
minority  of  the  committee  did  not  admit  that  the  increase  of  votes  was  unnatural. 

Various  questions  were  involved  in  the  investigation  of  this  case. 

(a)  The  law  of  Missouri  required  that  the  judges  of  elections  should  take  an 
oath,  and  that  their  qualifications  should  be  returned  with  the  return  of  the  votes. 
It  was  alleged  as  a  ground  of  contest  that  the  judges  in  certain  precincts  had  not 
taken  the  oath.  The  committee  came  to  the  conclusion  that  the  burden  was  on 
the  sitting  Member,  who  claimed  the  advantage  of  the  votes  returned  from  these 
precincts,  to  show  that  the  officers  had  actually  taken  the  required  oath.  The 
committee  say: 

The  precedents  of  Congress  justify  the  rejection  of  polls  where  the  judges  of  election  or  clerks 
neglect  or  refuse  to  take  the  prescribed  oath  of  office.  (See  McFarland  v.  Purviance,  contested-election 
cases,  p.  131;  Same  r.  Culpepper,  ibid.,  221;  Eastoni).  Scott,  ibid.,  281.)  Of  the  precincts  above  named 
there  was  no  e\'idence  returned  with  the  return  of  votes  nor  before  the  committee  in  any  shape  at 
the  hearing  that  the  judges  of  election  were  sworn  in  either  the  Harlem  House  precinct  or  the  Gravois 
coal  mine  precinct,  nor  was  there  any  in  respect  to  the  G.  Sappington  precinct.  Had  it  appeared  from 
the  evidence  that  the  election  had  been  fairly  conducted  at  these  precincts  and  there  were  no  traces  of 
fraud,  no  taint  of  the  ballot  box,  the  committee  would  not  have  been  willing  to  have  recommended  a 
rejection  of  these  polls.  The  honest  electors  should  not  be  disfranchised  and  their  voice  stifled  from 
a  mere  omission  of  the  officers  of  election  to  take  the  oath  of  office;  but  where,  as  in  the  case  of  the  election 
districts  now  vmder  consideration,  gross  frauds  are  made  to  appear,  some  of  them  of  such  a  character  as 
necessarily  to  complicate  the  officers  of  the  election  themselves;  whore  the  whole  ballot  box  becomes  so 
tainted  as  to  be  wholly  unreliable,  and  it  is  next  to  impossible  to  ascertain  what  portion  of  the  poll 
returned  is  an  honest  vote;  when  one  judge  has  been  convicted  by  a  jury  of  a  conspiracy  to  cheat, 
another  can  neither  road  nor  write,  a  third  is  so  deaf  as  to  be  incompetent  from  physical  infirmatory  to 
act;  where  one  mingles  in  the  fights  of  the  crowd,  encourages  illegal  voting,  forgets  the  obligations  of  his 
position  in  the  zeal  and  passion  of  the  partisan,  it  is  believed  by  the  committee  that  they  could  not  do 
less  than  require  of  the  sitting  Member  to  prove  that  these  officers  had  conformed  to  the  law  before  the 
votes  they  had  (under  these  circumstances)  returned  should  be  counted.  In  this  connection  they  cite 
a  late  case  of  contested  election  in  a  court  of  law,  the  case  of  Mann  v.  Cassidy,  for  the  office  of  district 
attorney  in  the  city  of  Philadelphia  at  an  election  held  October  14,  1856,  contested  in  the  court  of  quarter 
sessions  in  that  city. 

The  committee  further  say  that  had  the  election  appeared  in  other  respects 
regular  they  would  have  been  constrained  to  give  the  sitting  Member  the  benefit 
of  the  principle  that  the  acts  of  officers  de  facto  are  valid  as  regards  the  public 
and  third  persons  who  have  an  interest  in  their  acts,  as  appHed  ia  the  recent  New 
York  case  of  The  People  v.  Cook  (14  Barb.  Reports,  245).  The  case  of  Draper  v. 
Johnston  (Twenty-second  Congress)  was  also  cited. 


§  842  GENERAL   ELECTION   CASES,   1850   TO   1860.  1097 

The  minority  of  the  committee  did  not  admit  that  these  election  officers  were 
not  sworn,  and  contended  that  even  if  they  were  not,  the  principle  as  to  the  validity 
of  acts  of  such  de  facto  officers  was  well  established.  "To  disfranchise  and  defeat 
the  declared  will  of  a  whole  community,"  say  the  minority,  "for  no  fault  of  then- 
own,  or  of  the  candidate  on  whom  their  suffrages  were  bestowed,  through  the  mere 
omission  of  a  judge  or  clerk  to  subscribe  lus  name  to  the  oath,  would  be  an  intoler- 
able hardship  and  ^\Ton^." 

842.    The  case  of  Blair  v.  Barrett,  continued. 

Discussion  of  the  nature  of  evidence  required  to  prove  the  qualifica- 
tions of  voters. 

As  to  the  admission  of  the  declaration  of  voters  challenged  as  to  their 
qualifications. 

As  to  the  testimony  of  third  persons,  objected  to  as  hearsay,  in  cases 
of  voters  challenged  for  disqualifications. 

(6)  The  law  of  Missouri  provided  for  a  ballot  which  should  be  numbered  oppo- 
site the  name  of  the  voter  casting  it.  So,  in  questions  as  to  the  qualifications  of 
voters,  it  was  not  a  matter  of  difficulty  to  ascertain  for  whom  the  disqualified  voter 
cast  his  ballot.  As  to  the  nature  of  evidence  admitted  by  the  majority  to  prove 
the  disqualification  of  voters,  the  committee  generally  admitted  evidence  of  the 
following  description : 

Of  the  voters  whose  qualifications  have  been  challenged  on  both  sides,  and  which  the  committee 
decided  to  reject  as  disqualified,  the  evidence  touching  some  of  them  was  from  their  own  lips  directly 
either  testified  by  themselves  or  by  others  as  their  admissions.  This  latter  testimony  was  admitted  in 
the  case  of  Vallandigham  v.  Campbell  in  the  last  Congress,  and  has  been  admitted  in  many  other  cases 
m  this  countrj'  and  m  England,  and  was  not  strenuously  opposed  in  this  case.  Many  voters  were  charged 
to  be  nonresidents— some  of  the  Stale,  and  more  of  the  particular  precinct  in  which  they  voted  The 
very  nature  of  the  charge  shows  the  difficulty  of  the  proof.  It  involves  to  a  great  extent  proof  of  a  nega- 
tive respectmg  persons  whose  names  are  not  even  known;  and,  except  in  the  few  instances  where  there 
may  be  a  personal  acquaintance  with  the  man  in  another  State  or  in  a  distant  part  of  the  same  State,  the 
proof  can  hardly  be,  from  the  nature  of  the  case,  of  a  positive  and  direct  character.  In  these  cases  the 
committee  based  their  conclusion  upon  evidence  that  these  men  had  never  voted  in  that  precinct  before- 
were  strangers  to  the  old  residents  of  the  precinct,  to  individuals  who  had  acted  as  judges  and  clerks  of 
election  for  a  great  numlier  of  years;  had  no  home  or  business  in  the  precinct  known  to  those  best 
acquainted  with  its  homes  and  business,  and  that  they  had  disappeared  from  the  day  of  election,  their 
whereabouts  not  having  been  discovered  since  even  by  census  takers.  Some  of  these  precincts  are 
small,  casting  ordinarily  but  two  or  three  hundred  votes;  and  men  living  within  their  limits  for  ten, 
fifteen,  and  twenty  years  see  the  vote  doubled  and  sometimes  tripled  by  the  presence  of  men  seen  for 
the  first  and  last  time  on  the  day  of  election.  With  this  evidence  on  the  one  side,  so  easy  of  rebuttal 
by  the  production  of  the  voter,  if  a  resident,  or  of  some  one  who  knew  him  to  be  a  resident,  yet  left 
uncontradicted,  the  committee  could  come  to  no  other  conclusion  than  to  reject  all  such  votes  as  illegal. 

Another  class  of  voters  challenged  was  unnaturalized  persons,  those  of  not  sufficient  residence  in 
the  State  or  precinct,  or  minors,  or  having  some  other  disqualification,  though  not  unknown  to  the  wit- 
nesses, as  in  the  case  of  nonresidents.  As  to  the  qualification  of  this  class  of  voters,  the  admission  of  the 
voter,  the  testunony  of  his  acquaintances  and  family,  of  those  who  had  heretofore  acted  as  officera  of 
election,  and  circumstantial  testimony  of  various  kinds,  was  admitted  for  what  it  was  worth. 

The  minority  of  the  committee  criticised  this  testimony  as  hearsay,  indefinite, 
and  inadmissible.  The  contestant  had  not  been  at  pains  to  produce  the  best  evi- 
dence within  his  reach,  but  had  generally  not  called  the  person  cognizant  of  the 
fact  which  he  proposed  to  prove,  but  some  one  who  heard,  perhaps  at  second  hand, 


2Q9g  PRECEDENTS   OF    THE    HOUSE    OF    REPKESENTATIVES.  §    843 

the  declarations  of  such  person.  The  minority  opposed  the  admission  of  the  declara- 
tions of  third  persons,  except  in  the  case  of  the  declarations  of  voters.  In  that 
case  they  were  willing  to  receive  them  "whenever  they  constituted  a  part  of  the  act 
of  votino-,  or  were  offered  in  corroboration  of  declarations  made  in  reference  thereto." 
843.   The  case  of  Blair  v.  Barrett,  continued. 

The  reports  of  the  census  taken  for  a  city  directory,  produced  from  the 
archives  of  the  city  and  proven  by  the  takers,  were  admitted  as  prima 
facie  evidence  as  to  qualifications  of  voters. 

Riots  at  the  polls,  even  involving  election  officers,  were  not  given 
weight  except  where  contributing  to  impeach  the  integrity  of  unsworn 
election  officers. 

An  ex  parte  deposition,  tending  to  show  that  certain  election  officers 
had  been  sworn,  was  not  admitted. 

There  being  no  doubt  as  to  the  intention  of  voters,  the  House  declined 
to  reject  ballots  on  which  the  designations  of  the  offices  were  confused. 

(c)  On  one  kind  of  evidence  admitted  by  the  majority  of  the  committee  a  sharp 
issue  was  joined.  The  city  census  of  St.  Louis  had  not  only  enumerated  the  inhab- 
itants, but  included  various  statistical  matter,  such  as  nationality,  length  of  resi- 
dence, etc. 

It  was  to  the  evidence  which  the  reports  of  these  census  takers  disclosed  that  the  sitting  Member 
strenuously  objected.  First,  because  under  no  circumstances  could  they  be  evidence  of  facts  which 
they  purport  to  contain;  and,  secondly,  because  of  the  manner  of  bringing  that  evidence  before  the 

committee. 

The  committee  answer,  that,  so  far  as  the  census  takers  themselves  were  witnesses,  testifying  to 
the  facts  contained  in  their  report  obtained  by  themselves,  which  was  the  case  in  very  many  instances 
in  which  this  kind  of  testimony  was  offered,  it  is  the  ordinary  case  of  men  making  memoranda,  or  writing 
down  what  they  know,  and  then  coming  into  court  and  testifying  to  the  facts  thus  acquired,  refreshing 
their  memory  from  the  paper  thus  made  out  by  them.  Nor  is  there  any  objection  to  others  comparing 
the  poll  books  with  those  memoranda  thus  verified,  and  testifying  to  the  result  of  the  comparison.  But 
these  reports  of  the  census  takers,  now  in  the  archives  of  the  city,  are  official  documents,  and  are  prima 
facie  evidence  of  the  facts  they  contain.  They  are  like  the  land  lists  of  Virginia,  which  are  prima  facie 
evidence  that  the  men  whose  names  are  in  them,  pvu^jorting  to  be  landowners,  were  voters  (see  Robert 
Porterfield  v.  William  McCoy,  Contested  Election  Cases,  p.  267;  George  Loyall  v.  Thomas  Newton,  ibid., 
p.  520);  or  the  list  of  taxables  in  Pennsylvania,  which  were  used  as  evidence  for  the  same  purpose  in 
the  case  of  Mann  v.  Cassidy,  before  referred  to,  and  votes  of  men  not  found  on  these  lists  rejected.  And 
the  poll  books  are  always  prima  facie  evidence,  both  of  the  fact  that  a  man  has  voted  and  of  the 
qualification  of  the  voter,  without  evidence  to  rebut  it  stand  as  the  fact.  (See  Porterfield  v.  McCoy, 
Contested  Election  Cases,  p.  267,  and  First  PeckweU  on  Contested  Elections,  English,  p.  208,  and 
Second  Peckwell,  p.  270.) 

Nor  is  there  any  well-grounded  objection  to  the  manner  of  producing  this  testimony  before  the 
committee;  so  far  as  it  was  brought  before  the  committee  by  the  census  taker  himself,  when  testifying 
to  the  facts  contained  in  his  report,  the  objection  has  been  already  sufficiently  answered.  And  all 
the  evidence  so  introduced  has  been  from  men  swearing  that  the  paper  exhibited  by  them  is  an  exact 
copy  pro  tanto  of  the  census  return.  In  some  instances  the  commissioner  taking  the  deposition  has 
annexed  the  identical  paper  thus  sworn  to  to  the  deposition,  and  in  others  he  has  himself  instead  writ- 
ten out  their  contents  in  the  answer  of  the  witness.  These  extracts  from  the  reports  of  the  census 
takers,  used  by  the  committee,  thus  become  pro  tanto  examined  copies.  And  this  is  one  method  of 
producing  copies  laid  down  in  the  elementary  books.  (See  Greenleaf  on  Evidence,  1st  vol.,  sees.  483, 
484;  1  Phillips  on  Evidence,  p.  432.)  In  the  case  of  Vallandigham  v.  Campbell,  decided  in  the  last 
Congress,  the  secretary  of  state  examined  the  contents  of  the  returns  from  the  several  counties  com- 
posing the  Third  Congressional  district  of  Ohio,  computed  an  abstract  of  them  all.  and  then  certified. 


§    844  GENEKAL   ELECTION    CASES,   1850   TO   1860.  1099 

under  his  official  seal,  not  a  copy  of  any  record  return  on  file  in  his  office,  but  the  abstract,  which  had 
been  the  result  of  his  own  examination  of  the  contents  of  another  paper  or  papers,  and  that  certified 
abstract  was  used  as  evidence.  This  was  carrj'ing  this  point  much  further  than  the  admission  of  the 
evidence  here  offered.  The  sitting  Member  has  also  resorted  for  evidence,  both  in  challenging  votes 
and  in  rebutting  testimony  offered  by  contestant  on  other  points,  to  this  very  census,  to  the  introduc- 
tion of  which  he  objected.  The  committee,  for  the  foregoing  reasons,  admitted  the  testimony,  giving 
to  it  such  weight  as  its  own  intrinsic  merit  and  other  corroborative  testimony  in  the  case,  in  their  opinion 
entitled  it. 

The  minority  of  the  committee  assailed  this  testimony  at  length.  The  census 
takers  had  no  right  to  inquire  as  to  nativity  and  residence  and  all  the  information 
which  they  received  must  be  voluntary.  Because  the  name  of  a  voter  was  not 
found  on  the  census  lists  was  not  sufficient  reason  for  his  disqualification.  What 
evidence  was  there  to  identify  the  voter  as  the  bearer  of  the  name  on  the  list? 

(d)  As  to  riot  as  a  reason  for  rejecting  the  votes  of  a  precinct,  the  minority 
contended  that  a  mere  fight  or  series  of  fights,  even  if  the  election  officers  should 
be  involved  therein,  was  no  ground  for  throwing  out  the  vote  of  the  precinct. 
There  must  be  an  organized,  concerted  design  to  intimidate  and  overawe,  in  order 
to  justify  the  disfranchisement  of  the  whole  precinct.  The  minority  cite  in  view 
of  this  contention  the  cases  of  Trigg  v.  Preston  and  Biddle  v.  Wing. 

The  majority  of  the  committee  had  not  laid  stress  on  the  riotous  disturbances, 
except  as  they  had  occurred  in  precincts  where  the  election  officers  were  not  sworn, 
and  where  they  contributed  to  impeach  the  integrity  of  de  facto  officers. 

(e)  The  majority  of  the  committee  declined  to  admit  an  ex  parte  affidavit, 
presented  by  the  sitting  Member  forty  days  after  the  parties  had  been  fully  heard, 
and  tending  to  show  that  certain  judges  were  actually  sworn.  The  disqualification 
of  these  judges  had  been  among  the  grounds  of  the  contest  and  there  had  been 
opportunity  to  examine  witnesses  on  the  point. 

(/)  The  committee  counted  certain  ballots  thrown  out  by  the  judges  of  election 
which  were  headed  "For  Congress,  Francis  P.  Blair;"  then  followed  "For  the  State 

Senate  ;"  then  right  over  the  list  of  candidates  for  representatives  to  the 

State  legislature  was,  in  large  letters,  "For  Eepresentatives  for  Congress,"  followed 
by  13  names.  The  committee  having  no  doubts  that  the  votes  were  intended  for 
Mr.  Blair,  counted  them,  following  the  rule  of  Turner  v.  Baylies. 

On  June  5,  6,  and  8,'  the  report  was  considered  at  length  by  the  House,  and 
on  the  latter  day  the  House,  by  a  vote  of  94  yeas  to  92  nays  agreed  to  the  resolu- 
tion declaring  Mr.  Barrett,  the  sitting  Member,  not  entitled  to  the  seat. 

Then,  by  a  vote  of  yeas  93,  nays  91,  the  House  agreed  to  the  resolution  declaring 
Mr.  Blair,  the  contestant,  elected  and  entitled  to  the  seat. 

844.  The  Senate  election  case  of  James  Harlan  in  the  Thirty-fourth. 
Congress. 

In  1857  the  Senate  declined  to  seat  a  claimant  elected  by  a  majority 
of  all  the  members  of  the  State  legislature  but  not  by  a  joint  session  of  the 
two  Houses. 

A  legislature  having  proceeded  without  objection  to  elect  a  Senator, 
failure  to  comply  with  requirements  of  a  directory  State  law  did  not 
vitiate  the  election. 


'  Journal,  pp.  1010,  1014,  1034-1038;  Globe,  pp.  2645,  2678,  276^. 


1100  PKECEDENTS   OF   THE   HOUSE   OF    REPRESENTATIVES.  §   843 

On  January  12,  1857,'  after  a  long  debate,  the  Senate  by  a  vote  of  yeas  28, 
nays  18,  declared  James  Harlan  not  entitled  to  his  seat  as  a  Senator  from  Iowa. 
This  action  was  taken  on  the  recommendation  of  the  Committee  on  the  Judiciary. 
This  was  a  case  of  involving  a  construction  of  the  meaning  of  the  word  "legislature" 
in  that  clause  of  the  Constitution  providing  for  the  election  of  United  States  Senators. 
The  joint  session  of  the  two  houses  of  the  Iowa  legislature  had  failed  to  elect;  but 
finally  an  election  was  effected  by  the  House  of  Representatives  in  conjunction 
■with  certain  Members  of  the  Senate.  A  quorum  of  the  Senate  was  not  present, 
but  enough  members  of  the  legislature  voted  for  Mr.  Harlan  to  give  him  a  majority 
of  the  whole  number  of  the  members  of  the  general  assembly.  The  question 
therefore  arose  as  to  whether  the  term  "legislature"  meant  the  individual  members 
or  tho  bodies  composing  it.  After  long  debate  the  Senate  decided  as  above 
recorded.^ 


1  Third  session  Thirty-fourth  Congress,  Globe,  pp.  112,  221,  248,  260,  287,  299;  1  Bartlett,  p.  621; 
Senate  Election  Cases,  Sen.  Doc.  No.  11,  special  session  Fifty-eighth  Congress,  p.  235. 

2 On  March  11,  1857,  third  session  Thirty-fourth  Congress,  Appendix  of  Globe,  pp.  387,  391;  1 
Bartlett,  p.  627)  the  Senate  Committee  on  the  Judiciary  reported  on  certain  charges  of  irregularities 
in  the  election  of  Mr.  Simon  Cameron,  of  Pennsylvania.  One  of  these  irregularities  is  thus  disposed 
of  by  the  report:  "It  appears  from  the  journal  of  the  Senate  that  the  appointment  of  a  teller  and  the 
nomination  of  candidates,  and  the  communication  to  the  other  house  of  the  appointment  and  nomi- 
nation so  made,  all  took  place  on  the  day  of  the  election,  instead  of  one  day  previous  to  the  election, 
as  required  by  the  law  of  the  State;  but  your  committee  regard  this  provision  of  law  as  purely  directory 
in  its  nature,  and  are  of  opinion  that  a  failure  to  comply  with  this  formality  would  under  no  circum- 
stances suffice  to  vitiate  an  election  otherwise  legal  and  valid;  but  where,  as  in  the  present  case,  both 
houses  proceeded  without  objection  from  any  source  to  perform  their  constitutional  duty  of  electing  a 
Senator,  the  necessity  of  complying  with  any  particular  forms  required  by  law  may  fairly  be  considered 
as  waived  by  common  consent,  and  it  is  entirely  too  late,  after  the  result  of  the  voting  has  been  ascer- 
tained, to  raise  a  question  as  to  the  mode  of  proceeding."  On  March  13  the  report,  which  contained 
other  features,  was  debated  and  agreed  to  without  division.     The  debate  was  on  other  features. 

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